The State of Bihar vs Om Prakash Sinha

IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.904 of 2024
In
Civil Writ Jurisdiction Case No.16624 of 2022
CNR No. BRHC010898992024
======================================================
1. The State of Bihar through the Commissioner-cum-Secretary, Public Health
Engineering Department, Visheshwaraiya Bhawan, Bailey Road, Patna.
2. The Engineer-in-Chief cum Special Secretary, Public Health Engineering
Department, Visheshwaraiya Bhawan, Bailey Road, Patna.
3. The Chief Engineer, (Mechanical), P.H.E.D. Bihar,, Patna, Bisheshwaraiya
Bhavan, Bailey Road, Patna.
4. The Superintending Engineer (Mechanical) Circle, Patna.
5. The Executive Engineer, Public Health Mechanical Division, Sasaram.
... ... Respondents/Appellant/s
Versus
1. Om Prakash Sinha Son of Late Jai Govind Prasad Resident of Mohalla-
Madhubagh, Nawada, Ara, P.O. and P.S.- Nawada, District- Bhojpur at Ara.
Petitioner / Respondent
2. The Accountant General, Virchand Patel Marg, Patna.
... ... Respondent / Respondent
======================================================
Appearance :
For the Appellant/s : Dr. Maurya Vijay Chandra, AAG-2
Mr. Gaurav Govinda, AC to AAG-2
Ms. Ritambhara, AC to AAG-2
Ms. Preety Ranjan, Advocate

For the Respondent/s : Mr. Lalan Kumar Singh, Advocate
Mr. Amit Anand, Advocate
======================================================

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 27-10-2026
1. The State of Bihar and its officers being the
respondents of C.W.J.C. No. 16624 of 2022 are the appellants
before this Court, challenging the judgement and order, passed
rd
in the above-numbered writ petition on 23 of February, 2024.
Main challenge in the instant appeal relates to applicability of
letter no. 589, dated 08.04.2020, issued by the Public Health
Engineering Department and the claim of the petitioner for
entitlement of financial progression scheme, which was
denied by the Respondent No. 5 by his order, contained in
th
Memo No. 348, dated 26 of May, 2022, directing the writ
petitioner/respondent to repay the amount of Rs. 3,82,034/- by
way of recovery. The writ petition challenged the said
departmental order of recovery of payment and fixation of his
pay-scale, which was allowed by the learned Single Judge by
passing the impugned order.
2. The factual aspect of the case is more or less
undisputed. The writ petitioner / respondent was appointed as
a daily wage worker in the year 1981. Subsequently, his

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services were taken over in the work charge establishment in
the year 1988.
3. It is contended on behalf of the appellants that the
appointment of the writ petitioner was not against the
sanctioned and vacant post as no such sanctioned vacant post
was available in the year 1988. It is also contended that the
petitioner’s appointment in work charge establishment was
rd
contrary to Resolution No. 6394, dated 23 of October, 1987.
As a result the writ petitioner and other similarly placed
employees were reverted to the daily wage employees and the
said reversal was assailed in C.W.J.C. No. 7359 of 2002 and
also other cases.
4. In the meantime, the writ petitioner was absorbed
th
in the regular service on 30 of November, 2006.
5. C.W.J.C. No. 7359 of 2002 was subsequently
disposed of, directing the PHED Department to consider the
period from the date of reversion of the writ petitioner as daily
wager in the year 2002 till the date of regularization in the
year 2006 as services rendered under work charge
establishment. The PHED Department in compliance to the
said order passed appropriate resolution, bearing Resolution
nd
No. 707, dated 22 of May, 2018, resolving to grant

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ACP/MACP to the petitioner and other employees, who were
engaged under the work charge establishment and whose
services have been regularized in the year 2006. The petitioner
was granted such relief and after second MACP, his pay-scale
was fixed at Rs. 5200-20200/- with grade pay of Rs. 2000/-
w.e.f. 01.01.2009. Taking note of the departmental circulars,
PHED department fixed pay of Group-D / Class-IV
th
employees vide letter no 581, dated 8 of April, 2020. By the
aforesaid letter, it was made clear that the employees, who
were under work charge establishment, whose services were
absorbed in the year 2006 or earlier, shall be given benefit to
financial progression scheme under the departmental
th
resolution no. 3972, dated 12 of May, 2016. Subsequently,
st
the petitioner retired from service on superannuation on 31 of
December, 2020 and his pension was fixed vide order dated
th
20 of January, 2021. However, Respondent No. 5 of the writ
th
petition issued Memo No. 348, dated 26 of May, 2022 for
recovery of a sum of Rs. 3,82,034/-. The said order was under
challenge in the writ petition. The learned Single Judge
allowed the writ petition, holding, inter alia, that the petitioner
whose service was treated under the work charge
establishment is entitled to pay protection, ACP, MACP,

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pensionary benefit and other consequential benefits. The
impugned order was challenged by the State Government and
its authorities, alleging, inter alia, that the writ petitioner /
respondent was initially appointed as a daily wager. He was
regularized in the regular establishment in the year 2006, long
st
after 1 of January, 1996 and as such he was not eligible for
benefits of pay fixation as per the resolution under Memo No.
th rd
3972, dated 12 of May, 2016 and Memo No. 7577, dated 23
September, 2016, which were meant for Group-D/Class-IV
employees in the service before and as on 01.01.1996.
6. We have heard the learned counsel for the
appellants as well as the respondent.
7. It is held by the Hon'ble Supreme Court in State
of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.,
reported in (2015) 4 SCC 334 , at paragraph 18, as hereunder: -
“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, summarise the following few
situations, wherein recoveries by the

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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.”
8. The judgement of Rafiq Masih (White Washer)

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(supra) was rendered by the Hon'ble Supreme Court upon
referring to Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC
475; Shyam Babu Verma v. Union of India (1994) 2 SCC 521
and Col. (Retd.) B. J. Akkara v. Government of India & Ors.
(2006) 11 SCC 709.
9. A close reading of paragraph 18 of Rafiq Masih
(supra) postulates the situation 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. It was held in Rafiq Masih (supra) that recovery
from the employees belonging to Class-III and Class-IV of
service would be impermissible in law.
10. The Hon'ble Supreme Court in a very recent
decision in Civil Appeal Nos. 8329-8336 of 2016 (Dr. M. K.
Ravi Varma Etc. Etc. v. National Institute of Technology),
considered the judgement rendered in the case of Rafiq Masih
(supra) and all previous and subsequent judgments, and found
that Section 72 of the Contract Act was not considered in any
of the decisions. Section 72 of the Contract Act states: -
“72. Liability of person to whom money
is paid, or thing delivered, by mistake or
under coercion-
A person to whom money has been paid,

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or anything delivered, by mistake or
under coercion, must repay or return it.”
11. A plain reading of Section 72 of the Contract Act
shows that it is the duty of the person being a party to a
contract to repay the money or anything delivered to him by
mistake and under coercion. Therefore, the judgement in Dr.
Ravi Varma (supra), makes the judgement of Rafiq Masih
(supra) and all other judgments distinguished and held that if
the employer pays money even by mistake, it is recoverable.
12. It is pleaded by the learned Advocate on behalf
of the appellants that as on 01.01.1996, the respondent-writ
petitioner was not a Group-D employee of PHED. He was an
employee in work charge establishment. Subsequently, he was
absorbed as Group-D employee in the year 2006. Therefore,
he is not entitled to get the retirement benefit, which was
nd
granted to him on the basis of his last pay fixed after 2
MACP.
13. The issue was succinctly considered by the
learned Single Judge in paragraph nos. 16 and 17. The said
paragraphs are quoted below: -
“16. From bare reading of the
Government resolution no. 3972 dated
12.05.2016 and its clarification vide
resolution no. 7577 dated 23.09.2016,

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there is not an iota of confusion that
while taking a decision in the matter of
amendment of Pay Scale of 4th Grade
employee, a conscious decision was taken
to extend the benefit of financial
progression to Class-IV employees and
the petitioner being Nalkup Khalasi was
holding the post of Class-IV employees,
the date on which the resolutions have
come into effect. Further, the Government
of Bihar in the Department of PHED vide
resolution, as contained in Memo No. 707
dated 22.05.2018 (Annexure-4 to the writ
petition) specifically resolved that those
who were earlier working under work
charge establishment and later on
reverted to daily wager and thereafter
their services were absorbed under the
regular establishment in the year 2006, in
such cases, their services rendered as
daily wager shall be treated under Work
Charge Establishment and they shall be
allowed pay protection, ACP/MACP,
pensionary benefit and other
consequential benefits. However, the
benefit of pension and gratuity shall be
counted in the light of Clause-5(v) of the
Departmental Resolution No. 10710
dated 17.10.2013.
17. Thus, by extending the

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benefit(s) of the Resolution No. 3972
dated 12.05.2016 and Resolution No.
7577 dated 23.09.2016 to Group ‘D’
employees and to exclude the petitioner
and other similarly situated person, who
were absorbed in the year 2006 in Group
‘D’ employees shall be created two
different cadres in Group ‘D’, which were
inconsistent to the resolution issued by
the PHED, as contained in Memo No.
707 dated 22.05.2018, in terms thereof
the petitioner and other similarly situated
persons have been extended the benefit of
1st and 2nd ACPs.”
14. We do not find any illegality in the impugned
order as the pensionary and other consequential benefits to the
petitioner was not mistakenly granted; on the contrary, it was
granted on due consideration of the relevant rules and
regulations as well as departmental letters, prevailing at the
very point of time.
15. Considering such aspect of the matter, we are of
the opinion that the decision of Dr. Ravi Varma (supra) is not
applicable in the instant case.
16. The judgement of the learned Single Judge does
not suffer from any illegality or material irregularity.
17. Accordingly, the impugned judgement is

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affirmed.
18. The instant appeal is dismissed.
19. However, there shall be no order as to costs.

(Bibek Chaudhuri, J)
(Rana Vikram Singh, J)
skm/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 30.10.2026
Transmission Date N/A