IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 118 of 2016 1. Ajay Kumar Mandal, S/o Shri Nakul Mandal 2. Arun Prasad, S/o Kailash Prasad 3. Dilip Kumar Singh, S/o late Anant Lal Singh 4. Apurba Kumar Guin, S/o Jamini Guin 5. Sabita Patel, W/o Dr. Surjit Singh 6. Pramada Lall, D/o Kanhai Lall 7. Md. Wasi Imam, S/o Ahmad Hussain 8. Rajendra Kumar Rajak, S/o Feku Rajak 9. Manoj Kumar, S/o late Ramji Prasad, 10. Dipak Kumar, S/o Brinda Prasad Singh 11. Sajid Hussain, S/o late Hafiz Wajid Hussain 12. Rajendra Singh, S/o late Ram Kailash Singh 13. Ravindra Kumar Ravi, S/o Kushilal Prasad Yadav 14. Wakil Ram, S/o Rambachan Ram 15. Yogendra Prasad Singh, S/o Bhola Singh 16. Suresh Singh, S/o late Lakhan Singh … Petitioners Versus 1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Dhurwa, Ranchi 2. Secretary, School Education and Literacy Department, Govt. of Jharkhand, Dhurwa, Ranchi 3. Director, Secondary Education, School Education and Literacy Department, Govt. of Jharkhand, Dhurwa, Ranchi 4. District Education Officer, Gumla, Gumla 5. District Education Officer, Ranchi 6. District Education Officer, Palamau, Medininagar, Palamau 7. District Education Officer, Garhwa, 8. District Education Officer, East Singhbhum, Jamshedpur, East Singhbhum 9. District Education Officer, Latehar, ... ….. Respondents ------ CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK ----- For Petitioners : Mr. Rajiv Ranjan, Sr. Advocate Mr. Aitz Hussain, Advocate For Respondents : Mr. D.K. Dubey, Sr. SC-I Ms. Nilam Tiwari, JC to SC-I Ms. Ruchi Rampuria, JC to SC-I --- 05/ 01.09.2017 The petitioners have approached this Court with a prayer for quashing the order bearing Memo No. 3214 dated 23.11.2015 issued by the Director, Secondary Education, School Education and Literacy Department, Govt. of Jharkhand, whereby Memo No.6/Wa-25/2006-2709 dated 21.08.2015 has been cancelled/revoked (as contained in Annexure-4 to this writ petition). Further prayer has been made to hold and declare the order dated 23.11.2015 as illegal and arbitrary and also for implementing the order dated 21.08.2015 by which the petitioners were granted the benefits of ACP(Assured Career Progression). Factual Matrix The petitioners were appointed on the posts of laboratory Assistant in Government +2 Schools after following the due process for appointment and on the recommendation of the Vidyalaya Sewa Board, Patna (Bihar). All the petitioners were appointed by the Director, Secondary Education, Govt. of Bihar through appointment letters dated 15.07.1993, on the post of Laboratory Assistant in the scale of Rs. 1400-2600/- along with admissible allowances. After receiving the appointment letters, the petitioners joined their posts in different government schools of State. The petitioners having requisite qualifications for appointment as Laboratory Assistant, were also confirmed in their services on the post of laboratory assistant vide memo No. 1777 dated 22.09.2014 issued by the Director, Secondary Education, Govt. of Jharkhand. It is the specific case of the petitioners that they were appointed in the scale of Rs.1400-2600/- along with admissible allowances in the year 1993, the same pay-scale was revised and they were granted the pay scale of Rs. 5000-8000/- w.e.f. 01.01.1996 by way of 5 th Pay Revision. The petitioners were allotted State of Jharkhand in order of cadre division issued by the Govt. of India dated 03.03.2006. In the cadre division, the pay scale of the petitioners have been shown as Rs. 5000-8000/-. After having completed 12 years of continuous service, the case of petitioners were considered for grant of benefits of ACP by the Screening Committee in its meeting dated 31.07.2015 and on its recommendation, they were granted the benefits of ACP with effect from the date on which they completed 12 years of continuous service and accordingly an order bearing Memo No. 6/Wa-25/2006-2709 dated 21.08.2015 was issued by the Director, Secondary Education, Govt. of Jharkhand, in which the petitioners' name find place at serial Nos. 3, 6, 11,14, 26, 28, 29, 30, 36, 41, 45, 46, 52, 57, 62 and 75. In pursuance of benefits of ACP granted to the petitioners, the petitioner Nos. 2 to 6 have also received some payments towards the benefits of ACP. But, surprisingly, all of sudden and without any notice or show cause and without affording any opportunity of hearing, the Director Secondary Education, School Education & Literacy Department, Govt. of Jharkhand has issued an office order bearing memo No. 6/Wa-25/2006-3214 dated 23.11.2015, whereby the letter bearing Memo No. 6/Wa-25/2006-2709 dated 21.08.2015 has been cancelled/revoked on the basis of a decision taken in the Screening Committee meeting dated 19.11.2015. This letter was circulated by the District Education Officer, Ranchi giving direction to the Principals/Headmasters of the +2 High Schools to recover the amount paid to the laboratory assistants vide memo no. 3402 dated 28.11.2015. Aggrieved by the said letter, the petitioners represented before the respondent-authorities regarding the illegal order of recovery and regarding the sustainability of order dated 28.11.2015, but no heed was paid. Hence, this writ petition has been preferred challenging the said order of recovery. Mr. Rajiv Ranjan, learned senior counsel appearing on behalf of the petitioners strenuously urges that order dated 23.11.2015, which is at Annexure-4, is illegal, arbitrary and unconstitutional. The said order is not sustainable in the eyes of law. Learned senior counsel draws the attention of the Court towards Annexure-17 of the rejoinder and argues that vide letter dated 04.06.2005, the State of Jharkhand also issued a direction in view of circular dated 01.09.2000, which was the basis of issuance of Annexure-4, which has already been quashed and set aside vide letter dated 04.08.2009, issued by the Director, Secondary Education, Govt. of Jharkhand. Learned senior counsel for the petitioners further submits that same issue was earlier also under consideration before the Hon'ble Court and this Hon'ble Court vide order dated 13.02.2008 passed in W.P.(S) No. 1169/2007 has been pleased to quash the order of recovery, which was issued without any show cause or notice and held that it is not sustainable in the eyes of law. Learned counsel for the petitioner further submits that already the letter dated 04.06.2005 has already been quashed and set aside in view of the order passed by this Hon'ble Court, the order dated 23.11.2015 which is at Annexure-4 to the writ petition, is also not sustainable in the eyes of law and as such it should be quashed and set aside and amount, if any, has been recovered should be refunded as the petitioners are entitled for the benefits of ACP and scale of Rs. 5500-9000/-. Per contra, counter-affidavit has been filed by the respondents. Mr. D.K. Dubey, learned counsel appearing on behalf of the respondents vehemently opposes the contentions of the learned counsel for the petitioners and submits that in view of circular placed on record by way of counter-affidavit, the impugned order is fully justified and there is no illegality in issuance of the said order i.e. Annexure- 4. Learned counsel for the respondents further submits that petitioners are not entitled for the pay scale of Rs.5500-9000/- in view of Circular dated 01.09.2000, which speaks that persons who were appointed in the scale of Rs. 1400-2600/-, are not entitled for grant of the pay scale of Rs. 5500-9000/-. Learned counsel strenuously urges that as the petitioners were appointed, but have no requisite qualification of Science Graduate along with Diploma/certificate and as such, they are not entitled to the said scale and there is no illegality in the impugned order. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners need consideration, the order dated 23.11.2015 is illegal and arbitrary on the following grounds:- I. The said order has been issued without following the principles of natural justice and before passing the order of recovery, no opportunity of hearing was given to the petitioners, if any opportunity would have not been given they would be in possession to satisfy the respondents regarding the non-applicability of said circular. II. No reasons have been assigned in the impugned order. Reasons cannot be submitted by way of counter-affidavit, the said proposition of law has been held in case of Commissioner of Police Vs. Gordhandas Bhanji, AIR1952SC16 which has been reiterated in case of Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors. reported in 1978 Volume 1 SCC, 405. III. It is an admitted fact that the petitioners were granted the pay- scale in the erstwhile State of Bihar. After bifurcation and cadre division, the petitioners joined the State of Jharkhand with the same pay-scale in view of the Bihar Reorganization Act, Section 73 (1) which reads as follows:- “Nothing in Section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. IV. The letter dated 01.09.2000 was issued by the Govt. of Bihar in entirely different context, the same is not applicable also in the petitioners' case. It has nothing to do with the reduction of the petitioners' scale which has been granted on the revised pay scale of Rs. 1400-2600/- and as such the petitioners are entitled for the pay scale of Rs. 5500-9000/-. No misrepresentation has ever been made by the petitioners for getting the same pay scale as they were entitled in accordance with law and in view of the benefits of ACP. As a cumulative effect of the aforesaid facts, rules, observations and guidelines, I hereby quash and set aside the order dated 23.11.2015 which is at Annexure-4 to the writ petition. As the petitioners are entitled for the benefits of ACP and the Scale of Rs. 5500-9000/-, no recovery shall be made from the pay scale rightly given to the petitioners. Recovery made, If any, may be refunded to the petitioners. Resultantly, this writ petition stands allowed. (Dr. S.N. Pathak, J.) punit/