2025:JHHC:18106 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1519 of 2019 ------- Smt. Dimple, aged about 38 years, Wife of Ashwini Kumar, Resident of Flat No. 3C, Sai Astha Apartment RIMS, P.O. and P.S. Sadar, District - Ranchi, (Jharkhand). … … Petitioner Versus 1. The State of Jharkhand; 2. Secretary Finance, Government of Jharkhand, P.O. and P.S. Kotwali, District - Ranchi, Jharkhand; 3. Superintending Engineer, D.W.& S Mechanical Division, P.O. and P.S. Kotwali, District - Ranchi, Jharkhand; 4. Executive Engineer, D.W. & S Mechanical Division, P.Ο. and P.S. Kotwali, District - Ranchi, Jharkhand. ... … Respondents With W.P.(S) No. 4294 of 2019 ------- 1. Manish Kumar, aged 34 years, son of Late Birendra Singh, resident of Q No. B-60, Sector-I, Dhurwa, P.O Dhurwa, P.S. Jagannathpur, District Ranchi. 2. Naveen Kumar, aged 33 years, son of Late Ashok Kumar Pandey, resident of Qr. No. C-55, Ratu Road, P.O. G.P.O. P.S. Sukhdeonagar, District Ranchi. … …Petitioners Versus 1. The State of Jharkhand through the Additional Chief Secretary, Department of Finance, Government of Jharkhand, Project Bhawan, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi. 2. The Additional Chief Secretary, Water Resource Department, Government of Jharkhand, Nepal House. Doranda, P.O. and P.S. Doranda, District Ranchi. 3. The Chief Engineer, Water Resource Department, Deoghar, P.O., P.S. and District Deoghar. 4. The Chief Engineer, Planning & Monitoring, Water Resource Department, Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi. 5. The Executive Engineer, Irrigation Division, Water Resource Department, Siktia, P.O. and P.S. Siktia, District Deoghar. ... … Respondents ------- CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN ------- For the Petitioner : Mr. Ajit Kumar, Sr. Adv. 2025:JHHC:18106 2 : Mr. Rajendra Krishna, Adv. : Mrs. Aprajita Bharadwaj, : Mrs. Divyashree, Adv. : Mr. Shubham Mayank, Adv. : Mr. Manish Kumar, Adv. For the Respondents : Mrs. Darshana Poddar, AAG-I : Mr. Awanish Shekhar, AC to AAG-I : Mr. J. F. Toppo, GA-V ------- CAV on:- 16/06/2025 Pronounced on:-04/07/2025 Since both these writ applications involve common question of law, as such both were heard together and are being disposed of by this common order. 2. Prayer of W.P.(S) No.1519 of 2019 (i) For issuance of an appropriate writ(s)/ order(s)/direction(s) particularly a writ in the nature of certiorari for quashing the Resolution dated 08.07.2014 contained in Memo No. 2388/ Finance Department (Annexure 4) Government of Jharkhand, whereby and whereunder it has been resolved that any appointment made against the post of Account Clerk after 10.07.2004 would be treated as the appointment made against the post of Lower Division Clerk (Accounts), and the appointment which would be made in future against the post of Lower Division Clerk (Accounts) would have the pay scale of Rs. 3050-4590/ unrevised corresponding to revised scale having P.B-1, Rs. 5200-20200 with Grade Pay of Rs. 1900/-, taking into consideration the fact that the petitioner was appointed against the post of Account Clerk having pay scale of Rs. 4000 100 6000 unrevised in 01.07.2005 and revised pay scale of Rs. 5200- 2200+ Grade Pay of Rs. 2400 in the year 2006 itself in the light of 6th pay revision. Therefore the right which has already been conferred upon the petitioner at the time of his appointment regarding his post and pay scale cannot be taken away after 9 years of his continuance service, and that too in the furtherance of the resolution/ decision taken by Government in the year 2014, much after the appointment, and giving retrospective effect, with effect from 09.07.2004 without any reasoning behind the same. (ii) Further prays for issuance of an appropriate writ(s)/ order(s)/ direction(s) or particularly a writ in the nature of mandamus commanding upon the respondents not to give effect resolution dated 08.07.2014 as far as the petitioner is concerned on account of the fact that the applicability of the resolution dated 08.07.2014 will adversely affect the petitioner and further taken into consideration that fact that the giving retrospective effect of the resolution dated 08.07.2014 is not tenable in the eyes of law. (iii) During the pendency of the writ petition, the operation of the impugned resolution dated 08.07.2014 contained in Memo No. 2388/ Finance issued under the signature of Secretary, Finance Department, Government of Jharkhand (Annexure 4) and order passed by Executive Engineer (Drinking Water and Sanitation, Mechanical Division, Ranchi vide order no 47 dated 07.07.2015 (Annexure-6) may kindly be stayed. (iv) For issuance of an appropriate writ(s)/ order(s)/direction(s) particularly a writ in the nature of certiorari for quashing the order passed by Executive Engineer, Drinking Water and Sanitation, Mechanical Division, Ranchi (hereinafter to be referred as DW&C, Mechanical Division, Ranchi) vide order no. 47 dated 07.07.2015 (Annexure - 6) wherein in the light of the Resolution of Finance Department, Government of Jharkhand vide Memo No. 2388/ Finance dated 08.07.2014 (Annexure 4), it has been stated that the excess payment made to the petitioner of amount Rs. 4,21,956.00/-(Four Lakh Twenty One Thousand Nine Hundred 2025:JHHC:18106 3 Fifty Six) can be recovered from salary of the petitioner in 60 installments of Rs. 7,700/- per month. Pursuant to the aforesaid order the concerned Department had initiated the recovery of the excess payment made to petitioner, by deducting Rs. 7,700/- from the salary of the petitioner. Prayer of W.P.(S) No.4294 of 2019 (i) For quashing/setting aside the order contained in Memo No. 1441/Bi dated 28.5.2019, as communicated to the petitioner vide Memo No.3020 dated 10.6.2019 as contained in Annexure-10, whereby and where under the claim of the petitioner for cutoff date for demerger of Senior Accounts Clerk and Junior Accounts Clerk of 8.7.2014 instead of 09.07.2004 as fixed by the department vide letter no. File No. 12/S (Nayalay Mamla)- 07/2014-2388/F dated 8.7.2014, has been rejected on the ground that it will have effect in the matter of Accounts Clerk working in the Collectoriate and Muffasil offices: (ii) For issuance of an appropriate writ(s)/order(s) and/or direction(s), particularly a writ in the nature of Mandamus directing the respondents to treat the service of the petitioner as Senior Accounts Clerk and to provide revised pay scale meant for Senior Accounts Clerk to the petitioners considering the fact that in the light of merger of Junior Accounts Clerk and Sr. Accounts Clerk vide letter no. 1876 dated 18.2.1981 no decision of demerger has yet been taken by the State Government and aforesaid fact of demerger has also been accepted by the Commissioner and secretary, Department of Finance vide letter no. 6389 dated 28.09.99; (iii) For issuance of an appropriate writ(s)/order(s) and/or direction(s), particularly a writ in the nature of Mandamus, directing the respondents to show cause as to why and under what authority the cutoff date for demerger of Senior Accounts Clerk and Junior Accounts Clerk has been fixed as 09.07.2004 vide de letter no. File No. 12/S (Nayalay Mamla)- 07/2014-2388/F dated 8.7.2014 issued by the Department of Finance; (iv) For issuance of an appropriate writ(s)/order(s) and/or direction(s), particularly a writ in the nature of Mandamus directing the respondents to consider the representation filed by the petitioners and make the date of demerger effective from the date of publication of letter no.2388/F dated 08.07.2014 issued by the Department of Finance i.e. from 8.07.2014: 3. Factual Matrix of W.P.(S) No.1519 of 2019 The brief facts of the case are that the Petitioner was appointed against the post of Account Clerk (Lower Division) in pay scale of 4000-100-6000 unrevised vide order no. 740 dated 25.06.2005. The pay scale of the Petitioner was revised pursuant to 6th Pay Revision with P.B.-1 of Rs. 5200- 20200 with grade pay of Rs. 2400/- which is evident from letter dated 25.06.2009. Further, the service of the Petitioner was confirmed from 01.03.2013 vide office order dated 31.12.2015. The Government of Jharkhand, vide resolution no. 2388/Finance Department dated 08.07.2014, resolved that any appointment against the post of Account Clerk after 2025:JHHC:18106 4 10.07.2004 would be treated as the appointment made against the post of Lower Division Clerk (Accounts) and the appointment which would be made in the future against the post of Lower Division Clerk would have the pay scale of Rs. 3050-4590/- unrevised corresponding to revised scale having P.B.–1, 5200-20200 with grade pay of Rs. 1900/-. In the light of aforesaid resolution, the Petitioner’s pay band was again revised with reduced grade pay from Rs. 2400/- to Rs. 1900/-. Further, the Petitioner was informed by order dated 07.07.2015 passed by Respondent No. 4 about the recovery of the excess amount paid from 01.07.2005 to 30.09.2014 for a sum of Rs. 4,61,956/- (Rupees Four Lakh Sixty-One Thousand Nine Hundred and Fifty-Six only) from the salary of the Petitioner in 60 installments. Being aggrieved the Petitioner has preferred the present writ application. 4. Factual Matrix of W.P.(S) No. 4294 of 2019 The brief facts of the case are that the Petitioner No. 1 was appointed and joined the post of Junior Accounts Clerk on 04.12.2006 in the Irrigation Division, Sikatia, Deoghar, while Petitioner No. 2 joined the post of Junior Accounts Clerk on 10.03.2011 under the Superintending Engineer, Circle No. 2, Planning and Monitoring, Water Resources Department, Ranchi. The State of Bihar, vide Letter No. 1876 dated 18.02.1981, merged the posts of Junior Accounts Clerk and Senior Accounts Clerk, resulting in a single post of Senior Accounts Clerk with a revised pay scale of Rs. 260–408/-, effective from 01.05.1980. The Finance Department, Jharkhand, issued Letter No. 2388/F dated 08.07.2014, wherein demerger of Junior Accounts Clerk and Senior Accounts Clerk was ordered effective from 09.07.2004. 2025:JHHC:18106 5 The Petitioners after being aggrieved by para-4 of Letter No. 2388/F dated 08.07.2014, which fixes the effective date of demerger as 09.07.2004 and not retrospectively from the date of the original merger i.e., 01.05.1980, which caused adverse service-related implications. The Petitioners filed writ petition being WP(S) No. 3208 of 2018 and an order was passed in it dated 07.08.2018 and for the compliance of it, Cont. Case (Civ) No. 369 of 2019 was filed. Thereafter, an order contained in Memo No. 1441/Bi dated 28.05.2019, as communicated to the Petitioner vide Memo No. 3020 dated 10.06.2019; whereby the claim of the Petitioner for cutoff date for demerger of Senior Accounts Clerk and Junior Accounts Clerk of 8.7.2014 instead of 09.07.2004 as fixed by the department vide letter no. File No. 12/S (Nayalay Mamla)- 07/2014-2388/F dated 8.7.2014, had been rejected on the ground that it will have effect in the matter of Accounts Clerk working in the Collectorate and Muffasil offices. Due to issuance of that impugned order (Annexure 10), the contempt case was withdrawn and being aggrieved by the order, the petitioners preferred the present writ application. 5. Learned counsel for the respective Petitioners have submitted that the Account Clerk is the grade III post and basic scale of the grade III post, as per the 6th pay revision is Rs. 5200-20200 with grade pay of Rs. 2400; moreover, at the time of appointment of the Petitioner against the post of Account Clerk there was no any bifurcation of the post namely Lower Division Clerk Accounts and Upper Division Clerk having the pay scale of Rs. 5200-20200 with grade pay of Rs. 2400/- which is also the basic grade pay scale of the third-grade employee such as Accounts Clerk and therefore, this is untenable in the eyes of law. 6. Learned Counsel for the Respondent-State has submitted that by Circular no. 1543 dated 10.07.2004, the State Government has decided to separate the integration of clerks working in Secretariat as well as in Muffassil. However, 2025:JHHC:18106 6 the decision regarding separation of Lower Division Clerk (Accounts) and Upper Division Clerk (Accounts) has not been taken as the matter was sub-judice before the High Court. Further, she has submitted that as per the Finance Department Circular No. 1543 dated 10.07.2004, the appointment made till 09.07.2004 in Lower Division Clerk (Accounts) / Junior Accounts Clerk will be considered as Upper Division Clerk (Accounts) / Senior Accounts Clerk and they have been given pay scale of Rs. 4500-7000 as per circular no. 660 dated 08.02.1999. And, from 10.07.2004, the Upper Division Clerk (Accounts) is the promoted post and the appointment made after 10/7/2004 is considered as Lower Division Clerk (Accounts) in the pay scale of Rs. 3050-4590 unrevised and revised pay scale PB-I, 5200- 20200 GP 1900/- She has also submitted that the State government issued letter bearing no. 1543 dated 10.07.2004 by which the State Government resolved that now on all appointments on the post of clerks would be made in the pay scale of Rs. 3050- 4590/-. She has further submitted that in the present writ applications the policy decision of the Government has been sought to be challenged and as such, the Court, in exercise of powers conferred under Article 226 of the Constitution of India, cannot interfere with the same. 7. Having heard learned counsel for the rival parties and after going through the respective documents annexed with the respective affidavits it appears that in the year 1980 the State of Bihar carried out the merger of Lower Division Clerk (LDC) and Upper Division Clerk (UDC) and amalgamated into one post of Upper Division Clerk. Thereafter in the year 1981 amalgamation of Junior Accounts Clerk and Senior Accounts Clerk was carried out and one post of Senior Accounts Clerk was created. The Government of Jharkhand vide letter no. 1543/F dated 10.07.2004 carried out the demerger of LDC and UDC in the State of Jharkhand. However, in the year 2025:JHHC:18106 7 2014, the Finance Department, Government of Jharkhand vide letter No. 2388/Fi dated 08.07.2014 carried out the demerger of Junior Accounts Clerk and Senior Accounts Clerk and it was made effective retrospectively from 09.07.2004. 8. The main grievance of the Petitioners in both these writ applications are that vide resolution no. 2388/Fi dated 08.07.2014, the demerger of Junior Accounts Clerk and Senior Accounts Clerk was carried out by the Government of Jharkhand wherein it was, resolved that any appointment against the post of Account Clerk after 10.07.2004 would be treated as the appointment made against the post of Lower Division Clerk (Accounts) and the appointment which would be made in the future against the post of Lower Division Clerk would have the pay scale of Rs. 3050-4590/- unrevised corresponding to revised scale having P.B.–1, 5200-20200 with grade pay of Rs. 1900/-. In crux, the decision of the demerger was applied retrospectively. 9. In this regard, learned Counsel for the Respondents has contended that it is policy decision of the State Government to demerge the Junior Accounts Clerk and Senior Accounts Clerk and in the letter bearing no. 1543 dated 10.07.2004 though the words Accounts (clerk) was not mentioned specifically it included all the clerks inclusive of Accounts (clerk) and thus resolution no.2388 was only clarificatory in nature. This contention is not acceptable to this Court, inasmuch as, it is a settled law that if a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. 2025:JHHC:18106 8 10. In this regard reliance is placed upon the judgment rendered by Hon’ble Apex Court in V. Vincent Velankanni vs. Union of India and Others1, the relevant paragraphs are quoted herein below: “43. If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The principles in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit v. Dr. Manu2, in the following terms:— “52. From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.”” Further in the case of Bharat Sanchar Nigam Limited & Ors. v.Tata Communications Limited3, the Hon’ble Supreme Court has reiterated that retrospective changes adversely affecting service conditions of the employees must be avoided unless expressly mandated and justified by Statutory authority. The relevant paragraphs are quoted herein below: “33. It is a settled principle of law that it is the Union Parliament and State Legislatures that have plenary powers of legislation within the fields assigned to them, and subject to certain constitutional and judicially recognised restrictions, they can legislate prospectively as well as retrospectively. Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject. By a retrospective legislation, the legislature may make a law 1 2024 SCC OnLine SC 2642 2 2023 SCC OnLine SC 640 3 (2022) 20 SCC 96 2025:JHHC:18106 9 which is operative for a limited period prior to the date of its coming into force and is not operative either on that date or in future. 34. The power to make retrospective legislations enables the legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act, but at the same time, administrative/executive orders or circulars, as the case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the legislature in the statute. Keeping in mind the aforestated principles of law on the subject, we are of the view that applicability of the Circular dated 12-6-2012 to be effective retrospectively from 1-4-2009, in revising the infrastructure charges, is not legally sustainable and to this extent, we are in agreement with the view expressed by the Tribunal under the impugned judgment.” 11. Applying these principles to the case at hand, this Court is of the view that the resolution no. 2388 dated 08.07.2014 in no manner can be given a retrospective effect. Moreover, it is also evident from the decision of demerger of general Clerical cadre which took place vide letter no. 1543/F dated 10.07.2004 specially provided that such demerger shall be prospective in nature and protection was very much given to all the persons who were appointed till 10.07.2004 in the merged scale. 12. Now coming to the other limb of the argument that it is a policy decision of the State Government; has no legs to stand as the State Government cannot take the defence of policy decision to bypass procedural safeguards. In this regard reference may be made to the case of T.R. Kapur v. State of Haryana4 wherein it has been categorically held that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. 4 1986 Supp SCC 584 2025:JHHC:18106 10 Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. As such the resolution dated 08.07.2014 contained in Memo No. 2388/Fi is non-est in the eye of law. 13. Further, with regard to the order of recovery of Rs. 4,61,956 from Petitioner in W.P.(S) 1519 of 2019 passed by Executive Engineer DW & C vide order no. 47 dated 07.07.2015 also deserves to be set aside in view of the law laid down by Hon’ble Apex Court in recent decision of Jogeswar Sahoo & Ors. vs. The District Judge, Cuttack & ors.5 wherein it has been categorically held that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if 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, such excess payments of emoluments or allowances are not recoverable. Even otherwise, this issue has already been dealt by a Co-ordinate Bench of this Court being W.P.(S) No. 6348 of 2019. 14. Accordingly, both these writ applications stand allowed and resolution dated 08.07.2014 contained in Memo No. 2388 and order of recovery from petitioner in W.P.(S) 1519 of 2019 passed by Executive Engineer DW & C vide order no. 47 dated 07.07.2015; and also the order contained in Memo No. 1441/Bi dated 28.05.2019 as communicated to the Petitioners vide memo no. 3020 dated 10.06.2019 in W.P.(S) No.4294 of 2019, are hereby, quashed and set aside. The Respondent authorities are directed to treat the service of the Petitioners as Senior Accounts Clerk and provide revised pay scale as per the applicable law. 5 CIVIL APPEAL NO(s). __________ OF 2025 (Arising out of SLP(C) No(s). 5918/2024) order dated APRIL 04, 2025 2025:JHHC:18106 11 15. With the aforesaid observations and directions, these writ petitions are allowed. Pending I.A., if any, stand closed. (Deepak Roshan, J.) Fahim/-