Jharkhand High Court

The State Of Jharkhand Through The ... vs Sachidanand Pandey on 29 August, 2023

                             1                         L.P.A. No. 207 of 2018




      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       L.P.A. No. 207 of 2018
                                With
                        I.A. No. 3736 of 2018
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1. The State of Jharkhand through the Principal Secretary/Secretary, Department of Agriculture and Sugarcane Development, Govt. of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi.

2. The Director, Department of Agriculture, Govt. of Jharkhand, Officiating at Krishi Bhawan, Kanke Road, P.O. Ranchi University, P.S. Gonda, District Ranchi.

... ... Appellants/Respondents Versus

1. Sachidanand Pandey s/o Late Parmanand Pandey, Soil Conservation (Survey) Officer, Chaibasa, District West Singhbhum residing in the House of Mr. Sukhdeo Hembrom, At Xavier Nagar, P.O. & P.S. Chaibasa District West Singhbhum.

2. Bijay Kumar Keshri s/o Late Jai Ram Sah, Surveillance Officer, Office of the Deputy Director (Plant Protection) Krishi Bhawan, Kanke Road, Ranchi, P.O. & P.S. Kanke, District Ranchi, residing in the house of Mr. Mahendra Prasad, Near Chandani Chowk, Kanke Road, Ranchi, P.O. & P.S. Kanke, Dist.-Ranchi.

3. Diwakar Pandey s/o Late Jagdish Pandey, Junior Plant Protection Officer, Daltonganj, Palamau residing in the house of Mr. Pankaj Shukla, at Sudna, P.O. & P.S. Medini Nagar, (Daltonganj), District Palamau.

4. Om Prakash Sinha s/o Late Dhaautar Sinha, Junior Plant Protection Officer, Ranchi, Krishi Bhawan Campus, Kanke Road, Ranchi, P.O. & P.S. Kanke, Dist.-Ranchi, resident of J.P. Marg, Kanke Road, Ranchi, P.O. & P.S. Kanke, Dist.-Ranchi.

5. Satya Narayan Bishwas s/o Late J.L. Bishwas, Junior Plant Protection Officer, Chaibasa, District West Singhbhum residing in the House of Mr. Sukhdeo Hembrom, At Xavier Nagar, P.O. & P.S. Chaibasa District West Singhbhum.

... ... Respondents/Writ Petitioners

6. The Principal Secretary/Secretary, Department of Finance, Jharkhand Mantralaya, P.O. & P.S. Dhurwa, District Ranchi-834004.

7. The State of Bihar through the Principal Secretary/Secretary, Government of Bihar, Department of Agriculture, Vikas Sachivalaya, Patna, P.O. & P.S. Dist.-Patna (Bihar).

8. The Director of Agriculture, Bihar, Patna, Vikas Sachivalaya, Patna, P.O., P.S. & Dist.-Patna (Bihar).

... ... Proforma Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellants : Mr. Jai Prakash, AAG-IA Ms. Omiya Anusha, AC to AAG-IA For Respondents : Binit Chandra, JC to GA (Bihar)

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th Order No.10/Dated 29 August,2023 Per Sujit Narayan Prasad, J:

I.A. No. 3736 of 2018:

1. The instant Interlocutory Application has been filed for condonation of delay of 96 days in filing the instant appeal.

2. Heard learned counsel for the appellants.

3. Having regard to the averments made in this application, we are of the view that the appellants have shown sufficient cause for delay in preferring the appeal.

4. Accordingly, I.A. No. 3736 of 2018 is allowed and delay of 96 days in preferring the appeal is condoned.

L.P.A. No. 207 of 2018:

5. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order dated 18.12.2017 passed by the learned Single Judge of this Court in W.P.(S) No. 4286 of 2016, whereby and whereunder, the learned Single while disposing of the writ petition along with similarly tagged writ petitions has quashed order dated 22.01.2014 issued by the Secretary, Department of Agriculture and Sugarcane Development, Govt. of Jharkhand, and held that although order dated 22.01.2014 is not under challenge in this writ petition [WP(S) No. 6209 of 2012] but fate of other writ petitions in which order dated 22.01.2014 has been quashed shall be guiding factor for this writ petition.

6. The brief facts of the case, as per the pleading made in the writ petition(s) reads as under:

The writ petitioners were appointed in the cadre of Bihar Subordinate Agriculture Service, Category-I. It is the case of the writ

petitioners that during the entire service period no regular promotion was granted to the petitioner(s).

The Principal Secretary, Department of Agriculture and Sugarcane Development, Govt. of Jharkhand in consultation with the Finance Department vide office order dated 20.03.2007 has made promotional hierarchy for the officers of Category 1 to 9 of the Cadre of Subordinate Agriculture Service, according to which 1 st and 2nd ACP by way of financial up-gradation was granted in the pay-scales of Rs. 6500-10,500 and Rs. 10,000 to 15,200 respectively.

Accordingly, the writ-petitioners were granted 1st financial up- gradation in the pay-scale of Rs. 6500-10500. But, in the meantime, the Govt. of Jharkhand vide resolution dated 17.12.2007 upgraded the pay- scale of Class II gazetted officer of the State Government in the pay scale of Rs. 8000-13500 in place of Rs. 6500 - 10500 notionally w.e.f. 15.11.2000 and actual benefit w.e.f. 01.04.2007. In the light of aforesaid resolution, prayer has been made by the writ-petitioners that they are entitled for 1st financial up-gradation in the scale of Rs. 8000- 13500 w.e.f. 09.08.1999/15.11.2000 but the respondents-authorities did not pass any order.

Aggrieved thereof, the writ-petitioners approached this Court by filing writ petition by filing W.P. (S) No. 4286 of 2016, which was tagged together with other analogous cases and disposed of vide common order, against which, the instant intra-court appeal has been filed.

7. It is evident from the fact pleaded in batch of writ petitions [WP(S) No. 889 of 2014 and batch matters] 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 petitioner(s) that he was appointed following 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 served.

8. It is the specific case of the petitioner(s) 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, Department 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 up-gradation in the said scales of pay.

9. It is the further case of the petitioner(s) that vide its resolution dated 17.12.2007, the Govt. of Jharkhand upgraded the pay-scale of Class-II Gazetted Officers from Rs.6500-10500 to Rs.8000-13500 notionally w.e.f. 15.11.2000 and monetary benefits w.e.f. 01.03.2007 and hence, the petitioner 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.

But very surprisingly vide office order dated 20.03.2007, respondent-authority arbitrarily and illegally amended aforesaid office order dated 20.03.2007 and the lowered the pay-scale of the petitioners

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 count.

Aggrieved thereof, the numbers of officers/employees moved before this Court by filing series of writ petitions, which were heard together.

10. The ground was taken before the learned Single Judge that once the decision has been taken by the State Government on 20.03.2007, consequent thereupon many resolutions have been issued enhancing/up- grading the pay-scales based upon the decision taken by the Department of Agriculture vide order dated 20.03.2007, the same cannot be allowed to be recalled unilaterally and arbitrarily.

11. The learned Single Judge, on consideration of the factual aspect as also considering the fact that once decision has been taken it is not open to the authority to review/ recall its own earlier order unless fraud or misrepresentation is detected and further considering the law laid down by Hon'ble Apex Court in Col. B.J. Akkara (Retd.) vs. Govt. of India & Ors, [ (2006) 11 SCC 709]and in State of Punjab & Ors vs. Rafiq Masih (whitewasher) &Ors., [ (2015) 4 SCC 334] has quashed order dated 22.01.2014 and directed that 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 the order and if amount has not been recovered, the same shall not be recovered in future, which is subject matter of instant intra-court appeal.

12. Mr. Jai Prakash, learned A.A.G.-IA appearing for the appellants-State has submitted that learned Single Judge has not appreciated the fact that the decision so taken on 20.03.2007 since is in absence of consultation of finance department and as such on the basis of objection of the Finance Department the State Government has taken decision to recall order dated 20.03.2007 and the aforesaid fact since has not been appreciated by learned Single Judge, therefore, the order passed by learned Single Judge suffers from infirmity and requires interference by this Court.

13. It has further been contended by referring to the Rules of Executive Business, which is applicable in the State of Jharkhand that the Finance Department is the nodal agency where financial implications are involved, therefore, concurrence of finance department was necessary for taking decision of enhancement of pay-scales, therefore, decision was taken vide order dated 22.01.2014 whereby the decision so taken vide order dated 20.03.2007 was recalled, cannot be said to suffer from error.

14. However, learned A.A.G.-IA in his all fairness has placed an order passed by learned Co-ordinate Bench of this Court in L.P.A. No. 142 of 2018 [arising out of batch of cases in which W.P. (S) No. 6209 of 2012, the subject matter of instant intra-court appeal was there] along with analogous case decided on 7th February, 2023 wherein exactly the same issue has been dealt with and the order impugned recalling the decision so taken on 20.03.2007 was quashed and set aside.

Therefore, submission has been made that at this moment counsel has nothing to say since learned Co-ordinate Bench has decided the issue.

15. It has further been submitted that similar issue has also been dealt with by this Court and vide order dated 24.07.2023 passed in L.P.A. No. 233 of 2018 the appeal has been dismissed, as such, the instant appeal may also be disposed of in terms of the said order.

16. This Court has heard learned counsel for the appellants and perused the documents available on record as also the finding recorded by learned Single Judge.

17. Although basis of entire order is based upon the order passed by this Court in W.P.(S). No. 2128 of 2005.

18. It appears from order dated 11.05.2005 passed in W.P. (S) No. 2128 of 2005 that the grievance agitated on behalf of similarly situated employees as that of writ petitioner, is that all of them have retired after 09.08.1999 and under the Assured Progressive Scheme the petitioners are entitled for financial up-gradation.

In the aforesaid background while disposing of the writ petition, the Departmental Secretary was directed to consider the case of the petitioners by constituting a Committee in this regard basis upon which decision was taken on 20.03.2007.

19. The State after having granted enhanced salary based upon decision dated 20.03.2007, later come out with impugned order dated 22.01.2014 by cancelling the decision so taken on 20.03.2007.

20. The learned Single Judge, taking into consideration the pleadings available on record, set aside the impugned order dated 22.01.2014 mainly on the ground that once the decision has been taken by the State there is no occasion to cancel the same by sitting upon its own order by way of exercising the power of review.

21. Learned Single Judge has given such finding based upon the principle that the power of review can only be exercised if provided under the Statute.

22. It appears from order dated 20.03.2007, appended as annexure-3 to the paper book wherein the pay-scale of Rs.6500-10500 and Rs. 10000 to 15200 had been decided to be granted by way of 1st and 2nd ACP while taking decision in terms of order dated 11.05.2005 in W.P.(S) No. 2128 of 2005. But after lapse of about seven years and without issuing any notice, the impugned order dated 22.01.2014 was passed by which the decision taken as on 20.03.2007 has been recalled.

23. The decision was taken by the learned Single Judge has been questioned that while taking decision on 20.03.2007 there is no concurrence of the finance department but the fact about decision taken by the State Government has not been disputed.

24. Law is well settled that once the decision has been taken by the State Government the different departments have no jurisdiction to raise objection and only recourse available to take decision by initiating the file from its inception to be sent before the Cabinet for its consideration.

25. It is admitted fact that there is no endeavour taken in that respect.

26. The learned Single Judge, after taking note thereof, has quashed the impugned order holding the writ petitioners entitled for the pay-scale for they were entitled to.

27. Further the question of recovery has also been dealt with.

28. It appears from the order passed by learned Single Judge that while interfering with the decision of recovery reliance has been placed upon the judgment rendered by Hon'ble Apex Court in the case of State of Punjab vs. Rafiq Masih (whitewasher) &Ors (supra).

29. This Court, after discussing the fact on merit and taking into consideration the fact that the Co-ordinate Bench of this Court has already decided the identical issue vide order dated 07.02.2023 in LPA No. 142 of 2018 and analogous cases, as would appear from paragraphs 36 to 38 which read as under:

"36.From the materials on record, it appears that this was the understanding within the Department of Agriculture and Sugarcane Development, Government of Jharkhand that the government employees who were working on the post of Inspector/Weight & Measure are entitled for the pay-scale of Rs.6500-10500/- as 1st ACP and the pay-scale of Rs.10000- 15200/- on grant of 2nd ACP and, accordingly, such benefits were accorded to the respondents. This becomes so apparent on a glance at the order dated 20th March 2007 which contains the recommendation of the Committee constituted by the Government of Jharkhand in compliance of the order passed by this Court in W.P.(S) No. 2128 of 2005 title "Kedar Nath Choubey and others v. State of Jharkhand and others". Moreover, in a country like India with a written Constitution and which professes its undying allegiance to the Rule of Law it is necessary that the rights of the parties which have concretised on account of efflux of time should not be tinkered with lightly by the State authorities. An administrative decision if taken on a mistake of fact can be corrected, but then, it is not every mistake which can be permitted to be corrected in the garb of a mistake committed in the past. Though, Mr. Jai Prakash, the learned Additional Advocate General has contended that without concurrence of the Department of Finance the aforesaid ACP benefits were granted to the respondents, it is not in dispute that the decision as contained in the Notification dated 20th March 2007 has been implemented by the State of Jharkhand. Seven years thereafter, the State of Jharkhand has issued the Notification No. 263 dated 22nd January 2014 which has seriously affected the respondents. It is also admitted at bar that all the respondents except a few have by now superannuated from service. Even otherwise, keeping in mind the judgment in "State of Punjab v. Rafiq Masih (whitewasher)" (2015) 4 SCC 334 the order passed by the writ Court that no recovery shall be made from the respondents and if any recovery has been LPA No. 142 of 2018 with batch matters made the amount shall be refunded to the respondents does not call for any interference by this Court.

37. Having regard to the aforesaid facts and circumstances in the case, the writ Court's order as contained in paragraph no.12 of the

order dated 22nd January 2014 that the writ petitioners are entitled for the pay-scale of Rs.6500-10500/- on account of grant of 1st ACP and the pay-scale of Rs.10000-15200/- by way of 2nd ACP also does not call for any interference by this Court. However, it is made clear that we have accorded our concurrence to the writ Court's order dated 18th December 2017 in the peculiar facts and circumstances of the case.