IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 889 of 2014 ------- 1. Ambika Prasad 2. Ram Eqbal Singh 3. Vinay Kumar Sinha 4. Md. Murtaza 5. Kamta Singh 6. Md. Khaliquzzaman 7. Abhay Kumar Singh 8. Surendra Sharma 9. Lal Babu Prasad 10.Ram Pravesh 11.Ramani Kant Singh 12.Yugal Kishor Sinha 13.Shivajee Singh 14.Surendra Prasad Singh 15.Bishwambhar Prasad Singh 16.Akshaywer Prasad Singh 17.Dharma Deo Singh 18.Kripa Narayan Singh 19.Sunil Kumar Sinha 20.Rajendra Panjiyara 21.Nand Kishore Tiwary 22.Vijay Bahadur Singh 23.Anil Kumar Singh 24.Ram Chandra 25.Mrs. Kumari Karuna Singh 26.Umesh Dikshit 27.Bimal Kumar Lakra 28.Rakesh Kumar Kanaujia 29.Mrs. Sarita Barla 30.Mrs. Emlen Purty 31.Ram Pravesh Singh 32.Manoj Kumar Sinha 33.Yogendra Prasad Singh … … Petitioners VERSUS1 State of Jharkhand through the Principal Secretary/ Secretary, Government of Jharkhand, Department of Agriculture and Sugarcane Development, Ranchi.
2. The Principal Secretary/ Secretary, Government of Jharkhand, Department of Finance, Jharkhand Mantralaya, Ranchi.
3. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
4. The Director Soil Conservation, Jharkhand, Krishi Bhawan Campus, Ranchi.
5. The Director Horticulture, Jharkhand, Krishi Bhawan Campus, Ranchi.
6. State of Bihar through the Principal Secretary/Secretary, Government of Bihar, Department of Agriculture, Vikas Sachivalaya, Patna 7. The Director of Agriculture, Bihar, Patna, Vikas Sachivalaya, Patna with W.P.(S) No. 6209 of 2012 … Sunil Kumar Sinha ... Petitioner VERSUS1 State of Jharkhand through the Principal Secretary/ Secretary, Government 2 of Jharkhand, Department of Agriculture and Sugarcane Development, Ranchi.
2. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
3. The Director Soil Conservation, Jharkhand, Krishi Bhawan Campus, Ranchi.
4. The Soil Conservation Officer, Simdega. …. Respondents with W.P.(S) No. 6270 of 2012 … Ranjit Das ... Petitioner VERSUS1 State of Jharkhand through the Principal Secretary/ Secretary, Government of Jharkhand, Department of Agriculture and Sugarcane Development, Ranchi.
2. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi. …. Respondents with W.P.(S) No. 3767 of 2013 … Manoj Kumar Sinha ... Petitioner VERSUS1 State of Jharkhand through the Principal Secretary/ Secretary, Government of Jharkhand, Department of Agriculture and Sugarcane Development, Ranchi.
2. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
3. The Assistant Director of Agriculture, Quality Control Fertilizer Laboratory, Krishi Bhawan, Ranchi. …. Respondents with W.P.(S) No. 1101 of 2014 … 1. Shailendra Kumar 2. Surendra Kumar 3. Vishwajeet Kumar Sinha 4. Deo Shanker Dubey 5. Manoj Kumar Gupta 6. Md. Jubail Ali 7. Bishnudeo Mandal 8. Ishwar Singh 9. Ratneshwar Prasad 10. Rajendra Singh ... Petitioners VERSUS1 The State of Jharkhand 2. Secretary, Department of Finance, Government of Jharkhand, Project Bhawan, Ranchi.
3. Secretary, Department of Personal & Administrative Reforms, Project Bhawan, Dhurwa, Ranchi.
4. Secretary, Department of Agriculture & Sugarcane Development, Nepal House, Ranchi.
5. Director, Department of Agriculture and Sugarcane Development, Krishi Bhawan, Kanke Road, Ranchi.
6. Deputy Director (General), Directorate of Agriculture and Sugarcane Development, Krishi Bhawan, Ranchi. …. Respondents 3 with W.P.(S) No. 1716 of 2014 … Arjun Prasad Singh ... Petitioner VERSUS1 The State of Jharkhand.
2. The Secretary, Department of Agriculture and Cane Development, Govt. of Jharkhand, Nepal House, Ranchi.
3. The Director of Agriculture, Govt. of Jharkhand, Krishi Bhawan, Ranchi.
4. Deputy Director of Agriculture, Govt. of Jharkhand, Krishi Bhawan, Ranchi.
5. The Joint Director Cum Controller, weights and measure, Govt. of Jharkhand, Krishi Bhawan, Ranchi.
6. The Assistant Controller, Weights and measure, Krishi Bhawan, Ranchi.
7. The Secretary, Department of Finance, Govt. of Jharkhand, Project Bhawan, Ranchi. …. Respondents with W.P.(S) No. 2003 of 2014 … Amresh Kumar Sinha ... Petitioner VERSUS1 State of Jharkhand through the Principal Secretary/Secretary, Govt. of Jharkhand, Department of Agriculture & Sugarcane Development, Nepal House, Ranchi.
2. The Principal Secretary, Government of Jharkhand, Department of Finance, Jharkhand Mantralaya, Ranchi.
3. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
4. The Director, Soil Conservation, Jharkhand, Krishi Bhawan, Ranchi.
5. The Soil Conservation Officer, Lohardaga. …. Respondents with W.P.(S) No. 2220 of 2014 … Dhirendra Srivastava ... Petitioner VERSUS1 The State of Jharkhand.
2. The Secretary, Ministry of Agriculture, Nepal House, Ranchi.
3. The Secretary, Ministry of Finance, Government of Jharkhand, Project Building, Dhurwa, Ranchi.
4. The Director, Department of Agriculture and Sugarcane, Krishi Bhawan, Ranchi.
5. The Deputy Director, Department of Agriculture and Sugarcane, Krishi Bhawan, Ranchi.
6. The Joint Director Agriculture, Santhal Pargana Range, Dumka.
7. The Accountant General, office at Doranda, Ranchi. …. Respondents 4 with W.P.(S) No. 2839 of 2016 … 1. Mrs. Kalpana Sinha 2. Mrs. Renu Bala 3. Mrs. Pratima Kumari ... Petitioners VERSUS1 State of Jharkhand through the Principal Secretary/Secretary, Govt. of Jharkhand, Department of Agriculture, Animal Husbandry & Cooperative, Nepal House, Ranchi.
2. The Principal Secretary/ Secretary, Government of Jharkhand, Department of Finance, Jharkhand Mantralaya, Ranchi.
3. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
4. The Director Horticulture, Jharkhand, Krishi Bhawan, Ranchi.
5. State of Bihar through the Principal Secretary/Secretary, Government of Bihar, Department of Agriculture, Vikas Sachivalaya, Patna.
6. The Director of Agriculture, Bihar, Patna, Vikas Sachivalaya. …. Respondents with W.P.(S) No. 4286 of 2016 … 1. Sachidanand Pandey 2. Bijay Kumar Keshri 3. Diwakar Pandey 4. Om Prakash Sinha 5. Satya Narayan Bishwas ... Petitioners VERSUS1 State of Jharkhand through the Principal Secretary/Secretary, Govt. of Jharkhand, Department of Agriculture, Animal Husbandry & Cooperative, Nepal House, Ranchi.
2. The Principal Secretary/ Secretary, Government of Jharkhand, Department of Finance, Jharkhand Mantralaya, Ranchi.
3. The Director of Agriculture, Jharkhand, Krishi Bhawan, Ranchi.
4. State of Bihar through the Principal Secretary/Secretary, Government of Bihar, Department of Agriculture, Vikas Sachivalaya, Patna.
5. The Director of Agriculture, Bihar, Patna, Vikas Sachivalaya. …. Respondents with W.P.(S) No. 4963 of 2016 … Shailendra Kumar Mishra … Petitioner VERSUS1 The State of Jharkhand through the Chief Secretary of the State of Jharkhand, Project Bhawan, Ranchi.
2. The Secretary of Agriculture and Sugercane Development, the State of Jharkhand, Nepal House, Ranchi.
3. The Director of Agriculture, the State of Jharkhand, Krishi Bhawan, Ranchi.
4. The Joint Director of Agriculture Cum Controller Weight and Measurement, and Agriculture Department, Krishi Bhawan, Ranchi. \ 5. The Accountant General, Doranda, Ranchi. …. Respondents 5 with W.P.(S) No. 5008 of 2016 … 1. Ramjee Pal 2. Rajiv Ranjan ... Petitioner VERSUS1 The State of Jharkhand.
2. The Principal Secretary, Department of Agriculture and Sugarcane Development, Govt. of Jharkhand, Nepal House, Ranchi.
3. The Director Agriculture, Govt. of Jharkhand, Krishi Bhawan, Kanke Road, Ranchi. …. Respondents with W.P.(S) No. 5238 of 2016 … Ashok Kumar Jha ... Petitioner VERSUS1 The State of Jharkhand 2. The Principal Secretary, Department of Agriculture, Government of Jharkhand, Nepal House, Ranchi.
3. The Principal Secretary, Department of Finance, Project Building, HEC, Dhurwa, Ranchi.
4. The Director, Department of Agriculture, Government of Jharkhand, Krishi Bhawan, Ranchi.
5. Accountant General (A & E) Jharkhand, Ranchi.
6. The Controller-cum- Joint Director, Department of Agriculture, Project Building, HEC, Dhurwa, Ranchi.
7. The Deputy Controller, Department of Agriculture, Hazaribagh 8. Principal Secretary, Food Public Distribution & Consumer Affairs Department, Government of Jharkhand. …. Respondents with W.P.(S) No. 1127 of 2017 … Shambhu Prasad ... Petitioner VERSUS1 The State of Jharkhand 2. The Principal Secretary, Department of Agriculture, Government of Jharkhand, Nepal House, Ranchi.
3. The Principal Secretary, Food, Public Distribution and Consumer Affairs, Government of Jharkhand, Nepal House, Ranchi.
4. The Director, Department of Agriculture, Government of Jharkhand, Agriculture Directorate, Nepal House, Ranchi.
5. The Principal Secretary, Finance Department, Govt. of Jharkhand, Project Building, HEC, Ranchi.
6. The Accountant General, Doranda, Ranchi. …. Respondents with W.P.(S) No. 1552 of 2017 … 1. Ravi Shankar Singh 2. Dinesh Kumar Singh 3. Manmohan Jha 4. Madan Mohan Pandey 6 5. Bindeshwari Mishra ... Petitioners VERSUS1 The State of Jharkhand.
2. The Principal Secretary/ Secretary, Government of Jharkhand, Department of Agriculture and Sugarcane Development, Ranchi.
3. The Director Agriculture, Govt. of Jharkhand, Krishi Bhawan, Kanke Road, Ranchi. …. Respondents with W.P.(S) No. 4847 of 2017 … Lal Babu Shaw ... Petitioner VERSUS1 The State of Jharkhand 2. The Principal Secretary, Department of Agriculture, Government of Jharkhand, Nepal House, Ranchi.
3. The Director, Department of Agriculture, Government of Jharkhand, Agricultural Directorate, Nepal House, Ranchi.
4. The Director of Agriculture-cum- Controller, Weight and Measure, Krishi Bhawan, Ranchi.
5. The Assistant Director of Agriculture-cum-Deputy Controller, Weight and Measure, Dumka.
6. The Accountant General, Jharkhand, Ranchi. …. Respondents CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For Petitioners :Mr. Naresh Prasad Singh, Advocate Mr. Arvind Kumar Singh, Advocate Mr. Krishna Murari, Advocate Mr. Indrajit Sinha, Advocate Mr. Ajay Kumar Sah, Advocate Mr. Arshad Hussain, Advocate Mr. Haider Ali, Advocate Mr. Sunil Kumar, Advocate Mr. Saurav Arun, Advocate Mr. Mukesh Kumar Sinha, Advocate For Respondents: Mr. D.K Dubey, Sr. SC-I Mr. Rajesh Kumar, GP-V Mr. Prashan Kumar Singh, GP-V Mr. Amit Kumar Verma, Advocate Mr. Manoj Kr., S.C. Mines Mr. Sunil Singh, J.C. to S.C. (Mines) Mr. Suresh Kumar, Advocate Mr. Anuj Burman, J.C. to S.C. V7C.A.V. On 15/09/2017 Pronounced on 18/12/2017 Dr. S. N. Pathak, J.
Heard learned counsel for the petitioners and learned counsel for the respondents.
2. Since the issues involved in all these writ petitions are common except some variations, they are being disposed of with a common order.
3. All the petitioners, except in W.P.(S). No. 6209 of 2012, 6270 of 2012, 3767 of 2013 and 5238 of 2016, have prayed for quashing the order as contained in Memo No. 263 Ranchi dated 22.01.2014 issued by Secretary, Agriculture and Cane Development, Govt. of Jharkhand, whereby the applicable Scales of Pay of the Officers of the Jharkhand Subordinate Agriculture Services, Category-1 to 9 on account of the First and the Second Financial Upgradation under the A.C.P. Scheme i.e. Rs.6500-10500 and Rs.10000-15200 respectively has been amended and thereafter, unilaterally a lower Scales of Pay of Rs.5500-9000 and Rs.6500-10500 respectively has been allowed. Further prayer has been made to treat the earlier order as contained in Memo No. 683 Ranchi dated 20.3.2007 as valid and legal. Petitioners have also prayed for payment of cost of litigation since the respondents have unnecessarily harassed the petitioners.
4. The facts in short is that the Department of Agriculture, Govt. of Bihar, vide notification dated 22.11.1967 has declared the post of Block Agricultural Officer and equivalent posts as the Gazetted post. It is the specific case of the petitioners that they have been appointed under the due process of law under the erstwhile State of Bihar, Department of Agriculture and after creation of the State of Jharkhand, their services were allocated to the State of Jharkhand, where they have served/ are serving. It is the further case of the petitioners that erstwhile Govt. of Bihar upgraded 1423 posts of Agriculture Inspectors and equivalent to the State Agriculture Service Class-II. Thereafter on 15.12.1994, the State Govt. fixed the Kalawadhi (time period) for allowing promotions to the officers of the Department of Agriculture. It has been further provided therein that the qualifying service of the officer concerned shall be counted from the date of his initial joining the service. Subsequently, on 08.02.1999, the erstwhile Govt. of Bihar revised the pay-scale of its employees w.e.f. 01.01.1996, wherein 587/ 1423 Agriculture Graduates were shown to be included in Bihar Agriculture Service and the pay-scale of Rs.5000-8000 was allowed to them and further, the government decided to withdraw the Time Bound Promotion Scheme. It is the further case of the petitioners that on 15.11.2000, the erstwhile State of Bihar was bifurcated into two successor States namely, the successor State of Bihar and 8 the successor State of Jharkhand and it was inter alia provided that the condition of the services applicable immediately before the appointed date 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 of the Bihar Reorganization Act, 2000, shall not be varied to his disadvantage except with the previous approval of the Central Govt. It is the further case of the petitioners that the Govt. of India vide its office memorandum dated 09.08.1999, introduced and implemented the ACP Scheme for its officers and employees and subsequently, the State of Jharkhand vide its resolution dated 14.08.2002, also implemented the said ACP Scheme w.e.f. 09.08.1999 for its officers and employees. Similarly, the State of Bihar had also implemented the said ACP Scheme w.e.f. 09.08.1999 vide its resolution as contained in memo No.2563 F. dated 25.06.2003. It is the specific case of the petitioners that this Hon’ble Court vide its order dated 11.05.2005 passed in W.P.(S). No. 2128 of 2005, in cases of similarly situated officers, directed the Secretary, Deptt. of Agriculture, Govt. of Jharkhand to consider the claims of the petitioners therein by himself or by constituting a Committee and also to take a final decision in accordance with law within a period of two months. When the order dated 11.05.2005 of this Hon’ble Court was not complied with, a contempt case being Cont. Case (C). No. 311 of 2006 was filed by Sitaram Singh. After filing of the said contempt case, the Principal Secretary, Deptt. of Agriculture, Govt. of Jharkhand issued an office order dated 20.03.2007, whereby the scale of pay of Rs.6500-10500 and Rs.10000-15200 was allowed for the officers of Jharkhand Subordinate Agriculture Service and accordingly, the petitioners were granted the financial upgradation in the said scales of pay. It is the further case of the petitioners that vide its resolution dated 17.12.2007, the Govt. of Jharkhand upgraded the pay-scale of Class-II Gazetted Officers from 6500-10500 to 8000-13500 notionally w.e.f. 15.11.2000 and monitory benefits w.e.f. 01.04.2007 and hence, the petitioners also became eligible and entitled for the same pay- scale. Thereafter, the Deptt. of Finance, Govt. of Jharkhand through its resolution dated 28.02.2009, revised the pay-structure under 6th pay revision of its employees w.e.f. 01.01.2006 and the petitioners were allowed Pay Band-II i.e. Rs.9300-34800 Grade Pay of Rs.4200/-, which was later on enhanced to grade pay of Rs.4600/-. Thereafter, the Deptt. of Finance, Govt. of Jharkhand through its resolution dated 12.08.2011 allowed the pay-scale of Rs.6500-10500 and Rs.10000-15200 to the Junior Engineers on account of 1st and 2nd ACP and later on, the pay-scale of Rs.8000-13500 was also allowed to them. Thereafter, very surprisingly vide office order dated 20.03.2007, respondent No. 1 on the alleged advice of respondent No. 2 has arbitrarily and illegally amended aforesaid office order dated 20.03.2007 and the lower pay-scale of Rs.5500-9000 and 9 Rs.6500-10500 has been allowed to the petitioners on account of 1st and 2nd ACP respectively and vide order dated 22.01.2014 it has been ordered to ensure recovery of the alleged excess payment made to the petitioners and others on this account. Hence, these writ petitions have been filed by the petitioners for redressal of their grievances.
5. Learned counsel for the petitioners submits that the concerned respondent- authorities have acted arbitrarily and malafidely in downgrading the pay-scales of the petitioners, without giving any opportunity of hearing regarding the intention of the Government to downgrade the Pay-scales. The aforesaid Office Order dated 22.1.2014 was issued to the detriment and peril of the petitioners. Learned counsel further submits that the aforesaid office order dated 20.03.2007 was valid and legal and the same scales of pay was allowed by the Successor State of Bihar to the similarly situated persons whose services were allocated to Bihar Cadre and with the passage of time, the said office order had attained its finality. Learned counsel further argues that office order dated 20.03.2007 has been amended allegedly on the advice of the Department of Finance through the office order dated 22.01.2014. The respondents have illegally and arbitrarily downgraded the Scales of pay of the officers of the Jharkhand Subordinate Agriculture Service in general and that of the present writ petitioners in particular. Learned counsel further submits that the act of omission and commission on part of the respondents are in flagrant violation of Articles 14, 21 and 300 (A) of the Constitution and the respondents are duty bound to act as per the law and rules in discharging their duties.
6. Per contra, counter-affidavit has been filed. Learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioners and submits that the Finance Department has issued resolution dated 18.12.2007 making it necessary that those services which do not have their service rules or there is no hierarchy of posts in the service rules but only some percentage of posts of State Services/ Cadre are earmarked for their promotion, in such cases the posts of State Services cannot be construed to be the hierarchical post for the purpose of grant of the benefits of ACP. The Jharkhand Subordinate Agriculture Service did not have their own service rules and only some percentage of Class-II posts of State Agriculture Services are to be filled-up by the Subordinate Agriculture Service Officer, so the posts of the State Services cannot be construed to the next higher post in their hierarchy and while granting the benefits of ACP they cannot be allowed the scale payable to the employees of the State Services. Hence, the respondents have amended the earlier pay scale given vide office order dated 20.03.2007 and has allowed the pay scale of Rs. 5500-9000/- and 6500-10500/- under 1st an 2nd ACP Scheme respectively. Learned counsel further argues that so far comparison between officers of the Agriculture Department and the Junior Engineers are concerned, the same is 10 not warranted, as both have different qualifications and different work allocation and hence, the pay scale as approved by the Finance Department is as per rule. The benefits of any of the petitioners under the ACP scheme have not been cancelled, rather the pay scale, has been amended by office order dated 22.01.2014, as per the instructions of the Finance Department. Learned counsel further submits that respondents have passed the said order on the instructions and directions of the Finance Department wherein the Finance Department has categorically objected the pay-scale granted to the petitioners and other officers of the Agriculture Department and hence, as per the direction of the Finance Department, the said office order dated 22.01.2014 has been passed. Justifying the impugned order dated 22.01.2014, learned counsel for the respondents submits that no illegality has been done by the respondents, as the respondents have acted within the ambit of the relevant rules and regulations provided under the law.
7. Be that as it may, having gone through rival submissions of the parties, this Court is of the considered view that the cases of the petitioners need consideration. It is settled principles of law that any order visiting civil consequences cannot be passed without affording any opportunity of hearing and without following the cardinal principles of natural justice. Admittedly, in the instant cases, the order was passed for downgrading the pay-scale of the petitioners after 7 years and that too without affording any opportunity of hearing to the concerned employees. The ACP benefits which were granted to the petitioners in the year 2007, has subsequently been withdrawn in the year 2014. When Clause 3(X) was repealed subsequently, it cannot be reviewed retrospectively. After perusal of the records and going through the order dated 20.03.2007, it is clear that the said benefit was given to the petitioners by the order of the Court and after due consultation and approval of the Finance Department and the benefits of ACP was given in the scale of Rs.6500-10500 under 1st ACP and Rs.10000-15200 under 2nd ACP. The same Authority reviewed the order after seven years i.e. on 22.01.2014 holding therein that the pay-scale which has been given to the petitioners are not in accordance with the financial rules and approval of the Finance Department, which is just contrary to what has been said in the order dated 20.03.2007 by the same Authority. It amounts to reviewing its own order and to the utter surprise of the petitioner, the same order has again been reviewed and cancelled by the Deputy Director of Agriculture vide its order dated 07.02.2010 and amended the pay-scale. The order dated 20.03.2007, passed by the Secretary of the Department has been reviewed/ recalled by the successor Secretary of the same Department. Law in this regard is well settled. It is not open to the Authority to review/ recall its own earlier order unless fraud or misrepresentation is detected. 11 8. In view of the above facts, the impugned orders are not tenable in the eyes of law on the following grounds:- (i) There are promotional avenues available to the petitioners in Agriculture Services Class-II and hence, considering the said pay-scale, office order No. 683 dated 20.03.2007 was issued. The Respondents come to a wrong conclusion considering the Category-IX of the Agriculture Subordinate Service as the posts having no promotional avenues and have downgraded the pay-scale in the scale of Rs.5500-9000 and Rs.6500-10500. (ii) The order of recovery is not sustainable in the eyes of law in view of the facts that there is no any misrepresentation on the part of the petitioners for getting the said pay-scale and neither any fraud has been played by them. The issue has already been set at rest in catena of decisions rendered by the Hon’ble Apex Court as well as by the Hon’ble High Courts. (iii) The benefits which was given by the State of Bihar cannot be taken away illegally and arbitrarily by the State of Jharkhand after bifurcation.
9. The Hon’ble Apex Court in case of R.T. Rangachari Vs. Secretary of State, reported in AIR1937PC27has held as follows:- “In a case in which after Government Officials, duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.” Further, in case of H.C. Suman and Another Vs. Rehabilitation Ministry Employees Cooperative House Building Society Ltd., New Delhi and Others, reported in (1991) 4 SCC485 the Hon’ble Apex Court has held that “once a quasi-judicial order becomes final, it cannot be reviewed by the same authority passing the same order unless such power is conferred by statute on the authority”. The Hon’ble Apex Court in case of S. Nagaraj and Ors. Vs. State of Karnataka and Anr., reported in 1993 Supp. (4) SCC595 has observed as under:- “12....Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on 12 themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsbury's Laws of England (Fourth Edn., Vol. 9 p. 35, para
55) the law on orders improperly obtained is stated thus: “The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes a contempt, and that the party aggrieved should apply to the court for relief from compliance with the order.” Any order passed by a court of law, more so by the higher courts and especially this court whose decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority howsoever high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by an authority according to its own understanding.”
10. It is clear from the order dated 20.03.2007 that it has been issued in pursuance to the order and direction issued in W.P.(S). 2128 of 2005 in case of Kedar Nath Choubey & Ors. Vs. State of Jharkhand & Ors. and in view order dated 11.05.2005, a Committee was constituted vide resolution No. 1837 dated 11.08.2005, headed by the Director of the Agriculture Department and it was finalized by its decision dated 19.08.2005 that the employees of Bihar Agriculture Subordinate Services are entitled for the benefit of 1st ACP of Rs.6500-10500 and 2nd ACP of Rs.10,000-15,200 and it was approved by the Finance Department and Clause 3(X) was deleted and as such orders dated 22.01.2014 issued by the Secretary of the concerned Department and order dated 07.02.2014 issued by the Director of the concerned Department, reviewing the earlier order dated 20.03.2007, are not tenable in the eyes of law and also in view of the fact that when Clause 3(X) was repealed subsequently, it cannot reviewed by giving retrospective effect.
11. So far as recovery is concerned, there has been no misrepresentation or fraud on the part of the petitioners. The Hon’ble Apex Court in case of Col. B.J.
Akkara (Retd.) vs. Govt. of India, reported in (2006) 11 SCC709has held that, “recovery of excess wrong payment of emoluments/ allowances of an employee is not permissible if: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” The same principle has been reiterated by the Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih (whitewasher) & Ors., reported in (20015) 4 SCC334 Para-18 of the said judgment is reproduced herein below:- 13
“18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” This view has also been reiterated by the Hon’ble Apex Court in case of Kusheshwar Nath Pandey Vs. State of Bihar & Ors., reported in (2013) 12 SCC508 wherein it has been held that benefits given long back cannot be reviewed and altered to the disadvantage of the employees even if it has wrongly been given and there is no misrepresentation on behalf of the employees. Thus, from perusal of the judgments, referred to above, it emerges that if excess payment is not made on account of any misrepresentation or fraud on the part of the employees, and such payment was made by the employer by applying wrong principle for calculating such allowances on the basis of particular interpretation which is subsequently found erroneous, recovery of such excess payment cannot be made.
12. As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions, the impugned order dated 22.01.2014 issued by the Secretary of the concerned Department and order dated 07.02.2014 issued by the Director of the concerned Department, reviewing the earlier order dated 20.03.2007, are hereby quashed and set aside. As the petitioners have already been retired, if any amount has been recovered, the same should be refunded to them within a period of six weeks from the date of receipt/production of a copy of this order and if amount has not been recovered, the same shall not be recovered in future. Needless to say that the petitioners are entitled for the pay-scale of Rs.6500-10500 on account of grant of 1st ACP and Rs.10000-15200 by way of 2nd ACP.
13. So far as the petitioners in W.P.(S). Nos. 6209 of 2012, 6270 of 2012 and 3767 of 2013 are concerned, they are aggrieved by the action of the State Government, 14 whereby, their demand regarding grant of pay-scale of Rs.8000-13500 is not accepted. Though, the impugned order dated 22.01.2014 is not under challenge in these writ petitions but the same is applicable to these petitioners also. The fate of these petitioners shall also be guided by the decision as rendered above.
14. With respect to petitioner in W.P.(S). No. 5238 of 2016, since the petitioner has already retired on 31.01.2013 and the order of recovery was passed by the State of Jharkhand on 06.07.2015 i.e. after his retirement, in view of settled propositions of law, as discussed above, the petitioner is entitled for the benefits of 1st and 2nd ACP, as it was given by the State of Bihar and hence, no recovery could have been made by the State of Jharkhand and also the order of recovery dated 06.07.2015, after retirement, is not tenable in view of legal propositions, as discussed above and as such, in the instant case, the order dated 06.07.2015 is also quashed and set aside. If any amount has been recovered, the same should be refunded to him within a period of six weeks from the date of receipt/production of a copy of this order and if amount has not been recovered, the same shall not be recovered in future. Further, the respondent shall also consider the case of this petitioner (in W.P.S. No. 5238 of 2016) regarding grant of increments for the year 2011 and 2012, in accordance with law and if it is found admissible, the same may be granted to the petitioner.
15. Needless to say that the respondents shall consider the individual cases of the petitioners as per their facts, in accordance with law.
16. Resultantly, all the writ petitions stand disposed of. (Dr. S.N. Pathak, J.) Pallavi/ Kunal/