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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAVI RANJAN, SUJIT NARAYAN PRASAD, JJ.
The State of Jharkhand – Appellant
Versus
Narayan Maity S/o Late Sasadhar Maity – Respondent
L.P.A. No. 386 of 2020, I.A. Nos. 6364, 6365 of 2020
Decided On : 23-08-2021
Letters Patent Appeal- Clause-10-Typist- Principle of fence sitter - Recovery of amount been directed to be made from the writ petitioner quashed with a direction to respondents that the amount so recovered, if any, be refunded in favour of the writ petitioner with a further direction to make payment of arrears of salary and arrears of 6th Pay Revision and other admissible dues, within a period of twelve weeks from the date of receipt/production of copy of this order -Concerned authority has not only cancelled such benefits rather the direction has also been passed for recovery of excess amount but the question is that when the Government has taken a policy decision for deemed cancellation of promotion by way of executive instruction which is through the Cabinet and assented by the Governor of the State, the Chief Engineer cannot be allowed to sit over such decision by passing order of recovery of the amount -Held, The principle of fence sitter can only be made applicable when there is delay and laches on the part of the concerned employee but when policy decision has been taken by the State Government, it is the requirement on the part of the State Government to follow the said policy decision uniformly to all concerned. But herein the policy decision dated 08.02.1999 has not been followed scrupulously and uniformly upon all otherwise the benefit of upgradation has been granted in favour of the writ petitioner –Hence not applicable – Appeal dismissed
JUDGMENT :
1. The matter has been heard with the consent of learned counsel for the parties through video conferencing. There is no complaint about any audio and visual quality.
I.A. No. 6364 of 2020
Perused the office note and stamp report.
In view of the stamp report dated 11.12.2020, it appears that in terms of the order dated 23.03.2020 and 06.05.2020 passed in suo motu Writ (Civil) No. 3 of 2020 by the Hon’ble Supreme Court, the office has reported that the appeal is within time, therefore, no order is required to be passed in the present interlocutory application.
Accordingly, interlocutory application being I.A. No. 6364 of 2020 stands disposed of.
L.P.A. No. 386 of 2020
The instant intra-court appeal is under Clause-10 of Letters Patent of Patna High Court directed against the order/judgment dated 22.06.2020 passed by the learned Single Judge of this Court in W.P. (S) No. 3921 of 2019, whereby and whereunder, the orders passed by the Administrative Authority dated 20.10.2011 and 08.04.2013, by which, recovery of Rs. 3,95,388/- has been directed to be made from the writ petitioner, have been quashed with a direction upon the respondents that the amount so recovered, if any, be refunded in favour of the writ petitioner with a further direction to make payment of arrears of salary and arrears of 6th Pay Revision and other admissible dues, within a period of twelve weeks from the date of receipt/production of copy of this order.
2. The brief facts of the case required to be enumerated which reads as hereunder:
According to the writ petitioner, even though, he has rendered a considerable period of service, entitling him the benefit of grant of Junior and Senior Selection Grade and accordingly, he was granted the same w.e.f. 11.07.1988 and 11.07.1993 vide office order as contained in memo no. 1542 dated 30.12.1999.
The Finance Department of Government of Bihar came out with a resolution dated 08.02.1999 for implementation of the recommendation of the 5th Pay Revision which contains a Clause as under Clause-11 which clearly stipulates that all time bound promotions as well as the selection grade granted to the employees stand cancelled in the new pay scales.
The respondent authority has come out with a decision as contained in memo no. 1381 dated 20.10.2011, whereby and whereunder, Senior Selection Grade granted to the writ petitioner has been cancelled with a direction to recover the payment made in excess due to such promotions and accordingly, a sum of Rs. 3,95,388/- has been directed to be recovered from the writ petitioner in 100 installments (1st installment @ Rs. 4338/- and 99 installments @ Rs. 3950/-).
The writ petitioner has approached to this Court on the basis of the fact that one Sanat Kumar Das in similar circumstances, has approached to this Court by filing the writ petition being W.P. (S) No. 149 of 2012 and Coordinate learned Single Judge of this Court has allowed the writ petition vide order dated 12.12.2017 and pursuant to the directions of this Court, the recovered amount has been paid vide letter as contained in letter no. 1438 dated 04.12.2018.
The learned Single Judge after considering the aforesaid aspects of the matter and taking into consideration the fact that the writ petitioner has also made a representation to that effect on 11.06.2019 but no decision has been taken, has allowed the writ petition being W.P. (S) No. 3921 of 2019, which is the subject matter of the present intra-court appeal.
3. Mr. Rohit, learned AC to AAG-I appearing for the State-appellant has raised the question of delay caused by the writ petitioner in preferring the
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