Letters Patent Appeal No.304 of 2009 ----- Appeal against the order dated 12.1.2009 passed by a learned Single Judge in C.W.J.C.No.12197 of 2003. ----- The Patna Municipal Corporation, through its Chief Executive Officer-cum-Commissioner, Maurya Lok Complex, P.S. Kotwali, District-Patna. Appellant. Versus Rajendra Prasad, Son of Late Jichhu Ram, resident of Dariyapur Chaintola, P.O. & P.S.-Kadamkuan, District-Patna Respondent….Writ petitioner ------ For the appellant : Mr. P.K. Shahi, Sr. Advocate. Mr. Shekhar Singh, Advocate For the respondent : Mr. Amit Prakash Mrs. Soni Srivastava, Advocate With Letters Patent Appeal No.486 Of 2009 ---- Appeal against the order dated 3.3..2009 passed by a learned Single Judge in C.W.J.C.No.7271 of 2004. ------ The Patna Municipal Corporation, through its Commissioner, Maurya Lok Complex, P.S.-Kotwali, District-Patna. Appellant Versus 1. Shyam Kishore Singh, Son of Late Kali Singh, resident of House No. L-1/140, Sri Krishnapuri, P.S.-Sri Krishnapuri, District-Patna Respondent- Writ petitioner- Ist Set 2. The State of Bihar through the Commissioner-Cum-Secretary, Urban Development Department, Government of Bihar, Patna 3. The Commissioner-cum-Secretary, Urban Development Department, Government of Bihar, Patna 4. The Bureau of Public Enterprises, through its Chairman, Government of Bihar, Patna. Respondents-Respondents--2nd Set 2 5. The Chief Accounts Officer, Patna Regional Development Authority (Dissolved), Maurya Lok Complex, Block „C‟, Dakbunglow Road, P.S.-Kotwali, District-Patna. 6. The Municipal Commissioner, Patna Municipal Corporation, Patna Respondents-Respondents- 3rd Set ------ For the appellant : Mr. P.K. Shahi. Mr. Shekhar Singh For the respondent : Mr. Shravan Kumar, Sr. Advocate. Mr. Rajiv Nayan Singh, Advocate. With Letters Patent Appeal No.692 Of 2009 ------ Appeal against the order dated 3.3.2009 passed by a learned Single Judge in C.W.J.C.No.3041 of 2004. ---- The Patna Municipal Corporation, through its Commissioner, Maurya Lok Complex, P.S.-Kotwali, District-Patna Appellant. Versus 1. Tikendra Narayan Singh, Son of Late Nuneshwar Singh, resident of Village-Lakraha, P.S.-Sono, District-Jamui at present residing in the house of Mahendra Singh, Mohalla-Yarpur, P.S.-Gardanibagh, Twon and District-Patna 2. Iqbal Ahmad, son of Late Md. Shamshuddin, resident of Mohalla Narialghat, Digha, P.S.-Danapur, District-Patna Respondents- Ist Set 3. The Municipal Commissioner, Patna Municipal Corporation, Patna Respondent-2nd Set For the appellant : Mr. P.K. Shahi. Mr. Shekhar Singh For the respondents : Mr. Shravan Kumar, Sr. Advocate. Mr. Rajiv Nayan Singh, Advocate. 3 P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran,J. This appeal under Clause 10 of the Letters Patent Appeal of the High Court of Judicature at Patna arises from the judgment and order of learned Single Judge of this Court. L.P.A. No. 304 of 2009 arises from the judgment and order dated 12.01.2009, passed in C.W.J.C. No. 12197 of 2003 (Rajendra Prasad Versus Patna Regional Development Authority and others). L.P.A. No. 486 of 2009 arises from the judgment and order dated 3.3.2009, passed in C.W.J.C. No. 7271 of 2004 (Shyam Kishore Singh Versus Patna Municipal Corporation and others). L.P.A. No. 692 of 2009 arises from the judgment and order dated 3.3.2009, passed in C.W.J.C. No. 3041 of 2004 (Tikendra Narain Singh Versus Patna Municipal Corporation and others). As the issues involved in all the three appeals are common, they have been taken up together with a view to its final disposal. We shall go by the description of the parties and the Annexures as present in the writ proceedings. The petitioner of C.W.J.C. No. 12197 of 2003 had filed the writ petition, inter alia, seeking direction from this Court for payment 4 of his post-retiral dues together with interest specifically detailed in paragraph-3 of the writ petition upon having superannuated on 31.01.2002 as Selection Grade Assistant, serving as In-Charge Head Assistant in the erstwhile Patna Regional Development Authority (hereinafter referred to as the Authority), having its office at Maurya Lok, in the town and district of Patna, constituted under the Bihar Regional Development Authority Act, 1981 (since repealed). The writ petitioner had contended that even in the absence of any departmental or criminal proceeding, his retiral benefits had been withheld by the respondent authorities including difference of salary which had accrued by reason of implementation of the 6th Pay-Revision together with salary for the month of December, 2001 and January, 2002. The petitioner contended that he had superannuated while serving as Senior Selection Grade Assistant in the pay-scale of Rs. 1800-3330, which was the pay- scale in operation in terms of the decision of the Board of the Patna Regional Development Authority. The scale was sought to be downgraded under the order dated 25.2.2004 (Annexure-16). Shyam Kishore Singh, the petitioner of C.W.J.C. No. 7271 of 2004 had filed the writ petition assailing the validity of the order dated 25.02.2004, whereby the pay-scale which the petitioner was drawing as Senior Selection Grade Assistant-cum-In-Charge Accounts Officer of Rs. 1800-3330, was sought to be down-graded by the respondent authorities. The writ petitioner contended that the petitioner having superannuated while serving as Senior Selection Grade Assistant-cum-In-Charge Accounts Officer in the 5 pay-scale of Rs. 1800-3330, with effect from 28.02.2002, the respondent authorities had no jurisdiction or competence to lower down the pay-scale over-riding the earlier resolutions of the Board of the authority. Similarly the two petitioners of C.W.J.C. No. 3041 of 2004, namely, Tikendra Narayan Singh and Iqbal Ahmad, had filed the writ petition being aggrieved by the order dated 29.01.2004, passed by the Vice Chairman of the Authority (Annexure-1), whereby their pay-scale had been arbitrarily lowered down by the Vice Chairman of the authority, over-riding the earlier decisions of the Board of the Authority. The petitioners have superannuated in the Senior Selection Grade Assistant Scale of Rs. 1800-3330/- on 31.1.2004 & 31.12.2005 respectively. During the pendency of the writ proceedings, the Bihar Regional Development Authority Act, 1981, was repealed and replaced by the Bihar Municipal Act, 2007, and the Corporation stepped into the shoes of the erstwhile Patna Regional Development Authority. Consequently, necessary substitutions were carried out in the memo of parties and it is for this reason that the Corporation is the appellant before us in the three appeals. All the three writ petitions raises a common issue i.e. whether or not the action of the authorities in down-grading the pay- scale from which the petitioners had superannuated followed by recovery of the excess amount so paid to them under the orders impugned in the respective writ petitions is sustainable in law, or unreasonable and arbitrary. As the issues are common hence we 6 shall go by the representative facts emerging from C.W.J.C. No. 12197 of 2003, unless clarified by specific reference. The petitioners had contended that the recommendation of the 5th Pay-Revision Committee was accepted by the State Government as expressed in its resolution dated 18.12.1999, copy whereof is placed at Annexure-1 to the writ petition. Paragraph-11 of the said resolution is relevant for the issue involved in these appeals and is being reproduced hereinbelow for the facility of ready reference: “Where the revised scale of pay for any existing junior selection grade has not been indicated in Schedule II the revised scale for that existing junior selection grade shall be the revised scale one level immediately above the basic grade revised scale. The revised pay scale for the senior selection grade unless otherwise indicated in Schedule II shall be the revised scale one level immediately above the junior selection grade revised scale. The pay scale for super time selection grade shall be the revised scale one level immediately above the senior selection grade revised scale. It is clarified that only the normal replacement scales shall be taken into consideration for any selection grade in this manner. No sub-scale at any level shall be admissible as a selection grade scale”. As per Schedule-1 of the resolution dated 18.12.1989, the normal replacement scale of the Assistants was Rs. 1500-2750/- in terms of the stipulations evinced in paragraph-11 of the resolution, the Assistant upon grant of Junior Selection Grade was entitled to the Scale of Rs. 1640-2900/-, and upon grant of Senior Selection Grade was entitled to the scale of Rs. 1800-3330/-. The Board, vide office order bearing No. 416/90, dated 12.12.1990, implemented the report of the 5th Pay-Revision-cum-Fitment Committee and the employees of the P.R.D.A. were given revised 7 pay-scales in anticipation of the approval of the Bureau of Public Enterprises (Annexure-1 to L.P.A. 304/09). The schedule-1 to the resolution dated 18.12.1989, did provide for certain sub-scales but it was clarified in paragraph-11 thereof that the said sub-scales would not be admissible in the Selection Grade Scales. The erstwhile Board of the authority in its resolution dated 16.4.1994, decided to do away with the sub-scales. A conscious decision was taken whereby the Assistants drawing their salary in the approved scale of Rs. 1500-2750 were entitled to the Junior Selection Grade scale of Rs. 1640-2900/-, and Senior Selection Grade Scale of Rs. 1800- 3330/- (Annexure-16). The said conscious decision of the Board of the Authority was implemented, vide office order No. 151 of 1994, dated 5.7.1994 (Annexure-1 series), whereby the Assistants drawing their salary in the basic grade of Rs. 1800-2750/- were allowed a pay-scale of Rs. 1640-2900/- in the Junior Selection Grade, and of Rs. 1800-3330/- in the Senior Selection Grade. The petitioners contended that the Board was fully empowered to take such decisions by virtue of the powers conferred by Section 81 of the Bihar Regional Development Authority Act, 1981 (hereinafter referred as the Act). The petitioners contended that pursuant to the said decision taken by the Board they were receiving their remunerations and at the time of their respective superannuation they were drawing their salary in the Senior Selection Grade Assistants Scale of Rs. 1800-3330/-, and which is not in dispute. As stated it is the non-payment of the retiral benefits with regard to the petitioner of C.W.J.C. No. 12197 of 2003, followed by the 8 issuance of the order dated 25.5.2004, whereby the scales were sought to be lowered down and recovery was sought to be made that led to the filing of the writ petition. On the other hand, the petitioners of C.W.J.C. No. 7271 of 2004 (Shyam Kishore Singh), and C.W.J.C. No. 3041 of 2004 (Tikendra Narayan Singh & Iqbal Ahmad), were aggrieved by the orders dated 25.2.2004 and 29.1.2004, passed by the Board of the authorities and its functionaries down-grading the pay-scale and directing for recovery. The writ petitions were allowed and the learned Single Judge was pleased to hold that the order dated 5.7.1994, was passed pursuant to a decision taken by the Board dated 16.4.1994, and whereby it was decided that the basic pay of the Assistants would be Rs. 1500-2750/-, and thereafter it would be Rs. 1640-2900/- in the Junior Selection Grade, and Rs. 1800-3330/- in the Senior Selection Grade. It was also held that the reliance by the authorities on the judgment rendered by this Court in the case of Pramod Kumar Singh Versus P.R.D.A. reported in 2002(4) P.L.J.R. 616, was in a different context and in different set of circumstances, and that even in the said judgment with reference to Section 81 of the Act, it was held that the P.R.D.A. had the authority to determine and fix the remuneration of its employees. It was noticed that the issue decided in the said judgment was relatable to 26 categories of employees serving in the Authority whose pay-scales had been fixed above the scales payable to the Secretariat staff. There existed about 53 categories of posts in the P.R.D.A., and the case of the present writ petitioners did not fall in the said category of 26 9 employees whose pay-scales had been fixed above the Secretariat staff. On the contrary, the petitioners were receiving remunerations by reason of the pay fixation referred to above equivalent to the pay-scales payable to the Secretariat staff. The learned Single Judge while allowing C.W.J.C. No. 12197 of 2003, was pleased to hold that the writ petitioners would be entitled to the retiral benefits to be calculated on the basis of the pay-scale of Rs. 1800-3330/-, as determined by the 5th Pay Revision-cum-Fitment Committee subject to further revision, if any. The authorities were also directed to pay the arrears of salary and payment of the retiral dues to be made within two months of the date of production of a copy of the order. Similarly C.W.J.C. No. 7271 of 2004, and C.W.J.C. No. 3041 of 2004, were also allowed by a common judgment and order and the orders impugned in the respective writ petitions dated 25.02.2004 and 29.01.2004, passed by the P.R.D.A. and its functionaries were quashed, and it was held that the petitioners were entitled to consequential monetary benefits treating that they had lawfully been given the scales of Rs. 1640-2900 in Junior Selection Grade, and Rs. 1800-3330/- in the Senior Selection Grade. It was further directed that any recovery made from the petitioners ought to be immediately refunded. In so far as the petitioner of C.W.J.C. No. 7271 of 2004 is concerned, a further direction was given to the authorities to take a final decision in the matter of clearance of the medical bills submitted by the petitioner amounting to Rs. 99,314/-, and if the petitioner was found entitled to 10 payment of money, the same should be paid within one month and in the event of the decision being adverse to the petitioner, the reasons be communicated to him within two months. Aggrieved by the judgment and order passed by the learned Single Judges, the Municipal Corporation is before us. Learned Advocate General on behalf of the appellants, inter alia, contended that in absence of the approval granted by the Bureau of Public Enterprises, the Board of the erstwhile Authority was not competent to take decisions of revision of pay-scales. It was contended that the reliance upon Section 81 of the Bihar Regional Development Authority Act, 1981 was misplaced and did not cover situation arising in the present case. It was contended that the P.R.D.A. was bound by the pay-scales recommended by the Bureau of Public Enterprises. It was lastly contended that fixation of pay being an executive function, the learned Single Judges had committed error in interfering in areas which fell exclusively within the domain of the executive. It was also contended that the earlier resolutions of the P.R.D.A. and the Board stood superseded under the subsequent resolutions dated 22.02.2003 (Annexure-8 to the L.P.A. 304 of 2009), 26.3.2003 (Annexure-9 to the L.P.A. 304 of 2009), and 25.2.2004 (Annexure- 6). It was also contended that the resolution dated 16.4.2004 (Annexure-16), was not finally approved by the Board rather stood reviewed by the subsequent resolutions. The learned Advocate General supported the order of recovery which was necessitated by reason of the order dated 25.2.2004. 11 Mr. Shrawan Kumar appearing on behalf of the respondents-writ petitioners supported the orders passed by the learned Single Judge impugned in the appeals. It was submitted that the resolutions of the Board and the functionaries of the P.R.D.A. were perfectly in accordance with the stipulations of the Bihar Regional Development Authority Act, 1981, and the Board was fully empowered to determine the pay-scale of its employees in exercise of power vested under Section 81 of the Act. It was contended that there was no error in the fixation of pay-scales of the writ petitioners and they were fully entitled to the benefits arising out of the said fixation and were also entitled for payment of the retiral benefits on the basis of their last salary drawn in the pay-scale of Rs. 1800-3330/- i.e. the Senior Selection Grade Assistant. Mr. Shrawan Kumar appearing for the writ petitioners assailed the order of down-grading the pay-scale and the recovery of the payments made to the employees as being palpably unreasonable and a perverse act of the authorities. It was contended that the scales having been granted to the petitioners by a conscious decision of the Board of the P.R.D.A., could not be curtailed by subsequent resolutions nor any action for recovery could be taken in the circumstances that the scales had been granted to the petitioners under the decision of a competent authority, and that in the absence of any allegation of fraud or misrepresentation on the part of the writ petitioners in the matter of grant of pay-scale it was wholly unreasonable on the part of the authority to order for recovery. 12 We have heard the learned counsel appearing on behalf of the contesting parties and have considered the materials available on record. It is rather surprising that not a single order has been placed before us authorizing the Authority for down-grading the pay- scales of the writ petitioners which had been granted to them upon their promotion to the post of Junior Selection Grade and Senior Selection Grade Assistants. In the absence of any such decision, the order dated 25.2.2004 becomes palpably unreasonable and unsustainable. The writ petitioners had been granted the pay- scales in the Grade of Assistants, in the Junior Selection Grade, and in the Senior Selection grade by reason of a conscious decision of the Board as reflected in its resolution dated 26.4.2004 (Annexure-16), and 5.7.1994 (Annesure-1 series). The said orders have been passed by the Board in exercise of power vested by Section 81 of the then existing Bihar Regional Development Act, 1981. It is relevant to state that though the cases of the present petitioners was not covered by the judgment of this Court rendered in the case of Pramod Kumar Singh (supra), for the reason that their scales had been fixed above the scale of Secretariat staff but the exercise undertaken by the Three Men Committee pursuant to the liberty granted in the said judgment resulting in the impugned order dated 25.2.2004 (Annexure-6), is grossly arbitrary as it resulted in downgrading the petitioners to the Junior Selection Grade though having superannuated in the scale of Senior Selection Grade Assistant. The arbitrariness gains in proportion by reason of the fact that the said decisions were taken and orders 13 impugned in the writ petitions were passed in the absence of any proceedings, much less any duly constituted proceedings and in utter violation of the principles of natural justice. It would be necessary to mention here that even the sub-scales provided in the resolution dated 18.12.1989 (Annexure-1) were higher than the scale fixed for the petitioners under the Board‟s resolution. In the circumstances, the decision impugned in the writ petitions taken by the P.R.D.A. and its functionaries suffered from patent illegality and the vice of arbitrariness and thus unsustainable. Even the principles of natural justice were grossly violated as none of the petitioners were given opportunity of hearing before the issuance of the order. The decision taken by the authorities to recover the excess amount paid to its employees is perverse to the Core for the reason that no responsibility could be attributed to the writ petitioners in the matter of the fixation of their pay-scales and/or the disbursement of salary pursuant thereto. A retired employee is not to be subjected to proceedings for recovery of alleged excess amount paid to him by reason of fixation of pay-scale by an authority competent to do so unless the same was by way of undue favour, arbitrary, malafide, ultra vires or void ab initio. We are satisfied that the case of the present petitioners do not fall within the said exception. We are in full agreement with the reasonings assigned by the learned Single Judges allowing the respective writ petitions, and the arguments of the learned Advocate General do not persuade us to interfere with the same. In the result, the appeals are dismissed, but without any 14 order as to costs. We, however, need to stress here that as the present issue relates to employees who retired as far back as between the years 2002 and 2005, the appellant herein would be well advised to carry out the obligations arising out from the respective orders passed in the writ petitions forthwith and without any further delay preferably within one month from the date of production of copy of this order. I agree. S.K. Katriar, J. Patna High Court Dated the 6th of August,2009 N.A.F.R./S.Sb/- (Jyoti Saran, J.) (S.K. Katriar, J.)