An order based on concession cannot be challenged by the State authority.

JUDGMENT :

The matter has been heard with the consent of learned counsel for the parties through video conferencing. There is no complaint whatsoever regarding audio/visual quality.

2. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 06.10.2020 passed by the learned Single Judge of this Court in W.P.(S) No.3561 of 2013, whereby and whereunder, while allowing the writ petition, the respondents have been directed to refund the amount of Rs.3,99,257/- which has been deducted from the retiral benefits of the writ petitioner within a period of two months from the date of receipt/production of copy of this order, failing which, the writ petitioner shall also be entitled for interest @ 7% per annum from the date of deduction till the date of payment.

3. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder :-

The writ petitioner was appointed on the post of Clerk in the office of Deputy Director Mines, Dumka, Department of Mines and Geology on 02.05.1977. He was temporarily granted 1st Assured Career Progression benefit w.e.f. 09.08.1999 and 2nd upgradation under the aforesaid Scheme w.e.f. 02.05.2001 vide memo no.575/M dated 31.03.2005 issued under the signature of the Director, Department of Mines and Geology. The respondent authorities have issued an order on 25.08.2011 requesting all the Head of the Departments/Divisional Commissioners/Deputy Commissioners/Superintendent of Police/District and Sessions Judge to recover the excess amount paid to the Clerks who were granted 1st Assured Career Progression benefit in the pay scale of Rs.5000-8000/-and 2nd Assured Career Progression benefit in the pay scale of Rs.5500-9000/-, since the same has wrongly been fixed.

The writ petitioner, being aggrieved with the said action of the respondent authorities, has approached to this Court by filing the writ petition being W.P.(S) No.3561 of 2013. In the aforesaid writ petition, the State has appeared and conceded the fact that the similar issue has already been decided in W.P.(S) No.2461 of 2010.

The learned Single Judge, after considering the aforesaid aspect of the matter and on the concession of the State appellant, has allowed the writ petition by quashing the order dated 28.05.2015, as appended to I.A.No.6819 of 2019 with a direction upon the respondents to refund the amount of Rs.3,99,257/-which has been deducted from the retiral benefits of the writ petitioner within a period of two months from the date of receipt/production of copy of this order, failing which, the writ petitioner shall also be entitled for interest @ 7% per annum from the date of deduction till the date of payment, against which, the present intra-court appeal has been preferred.

4. Mr. Rahul Saboo, learned S.C.-I appearing for the appellant-State of Jharkhand, has submitted that the order passed by the learned Single Judge suffers from illegality, reason being that, the writ petitioner, although, was not entitled for the pay scale which was granted in his favour by way of upgradation (both) under the Assured Career Progression Scheme but the monetary benefit has been granted and therefore, the recovery which was directed to be done, cannot be said to suffer from any illegality, since the writ petitioner was not entitled to get the aforesaid pay scale by way of upgradation under the Assured Career Progression Scheme.

Therefore, submission has been made that the order passed by the learned Single Judge is not sustainable in the eye of law.

5. We have heard the learned counsel for the appellant-State, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order.

6. It is evident from the order passed by the learned Single Judge, wherein, reliance has been put upon the order passed by the Coordinate learned Single Judge of this Court in W.P.(S) No.2461 of 2010.

7. It is evident