Patna High Court
Abdhesh Kumar SinghversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- RITESH KUMAR
Holding
In view of clause 8.1 of the MACP Scheme 2010 and the binding precedent of LPA No 1126 of 2017, the petitioners are entitled to Pay Band‑3 with Rs 5,400 grade pay and the impugned orders are not illegal.
Summary
The petitioners, retired junior engineers of the Bihar Water Resources Department, challenged several departmental orders that altered their pay scale from Pay Band‑3 with Rs 5,400 grade pay to Pay Band‑3 with Rs 6,600 grade pay and sought recovery of excess retirement benefits. They argued that under the Modified Assured Career Progression (MACP) Scheme 2010, clause 8.1, they were entitled to the lower grade‑pay scale and that the Finance Department’s interpretation and the earlier judgment in LPA No 1126 of 2017 were binding. The State contended that the Finance Department’s clarification and the Supreme Court’s dismissal of the earlier appeal justified the revisions. The Court examined the statutory provisions of the MACP Scheme, the Finance Department resolutions, and the precedent, concluding that the petitioners are indeed entitled to Pay Band‑3 with Rs 5,400 grade pay and that the impugned orders were not illegal. Consequently, the writ petition was dismissed.
Issues considered
- Whether the departmental order granting Pay Band‑3 with Rs 6,600 grade pay to the petitioners violates clause 8.1 of the MACP Scheme 2010.
- Whether the recovery of alleged excess retirement benefits from the petitioners is lawful.
- Whether the Finance Department’s interpretation of the MACP Scheme and the earlier judgment in LPA No 1126 of 2017 are binding on the present dispute.
- Whether a party may challenge consequential orders without challenging the underlying statutory provision.
Subjects
- pay scale
- Modified Assured Career Progression
- MACP Scheme 2010
- grade pay
- government employees
- retirement benefits
- certiorari
- mandamus
- Finance Department resolution
- civil service
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 18031 of 2023
======================================================
1. Abdhesh Kumar Singh Son of Late Ram Bilash Singh, Resident of Van
Bihar Colony, Ward No. 2, P.O. Aashiana Nagar, P.S. Rajeev Nagar, District-
Patna, the retired Assistant Engineer, Water Resources Department, Flood
Control and Water Drainage Division, Kishanganj, District- Kishanganj.
2. Jitendra Kumar Bhagat, Son of Hari Prasad Bhagat, Resident of Village and
P.O. Chirouri, P.S. Chausa, District- Madhepura, the retired Junior Engineer,
Water Resources Department, Irrigation Division, Birpur, District- supaul.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary, Finance Department, Government of Bihar,
Patna.
3. The Secretary (Expenditure), Finance Department, Government of Bihar,
Patna.
4. The Additional Secretary, Finance Department, Government of Bihar, Patna.
5. The Principal Secretary, Water Resources Department, Government of Bihar,
Patna.
6. The Engineer-in-Chief (Headquarter), Water Resources Department,
Government of Bihar, Patna.
7. The Under Secretary (Prabandhan), Water Resources Department,
Government of Bihar, Patna.
8. The Superintending Engineer, Water Resources Department, Flood Control
and Drainage Circle, Purnea.
9. The Superintending Engineer, Water Resources Department, Irrigation
Circle, Saharsa.
10. The Executive Engineer, Water Resources Department, Flood Control and
Water Drainage Division, Kishanganj, District- Kishanganj.
11. The Executive Engineer, Water Resources Department, Irrigation Division,
Birpur, District- Supaul.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Awnish Kumar
For the Respondent/s : Mr.Government Pleader (19)
======================================================
CORAM: HONOURABLE MR JUSTICE RITESH KUMAR
CAV JUDGMENT
Date : 19-02-2026
Heard the parties.
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2 The present writ petition has been filed for the
following reliefs:
“(I) For issuance of an appropriate
writ in the nature of certiorari for quashing the
order dated 26.07.2022 passed by the respondent
No 6 and contained in his Memo No 3127 dated
26.07.2022, whereby and where under after
seeking the opinion of Finance Department, the
respondent No 6 has been pleased to hold that
since the Junior Engineers of the Water
Resources Department are entitled for the pay
scale of PB-3 + 5400 Grade Pay only by way of
benefits of second MACP, their claim for grant
of benefits of second MACP, their claim for
grant of benefits of second MACP in the pay
scale of PB-3 + 6600 Grade Pay is totally
misconceived and, therefore, rejected.
(II) For issuance of an appropriate
writ in the nature of certiorari for quashing the
letter dated 27.08.2021 issued under the
signature of the respondent No 10 and contained
in his Memo No 899 dated 27.08.2021, whereby
and where under after modification of the
petitioners’ pay scale on grant of benefits of first
MACP in the pay scale of PB 3 Grade Pay 5400
which was earlier granted to the petitioners in
PB3 Grade Pay 6600, direction was issued for
recovery of a sum of Rs 5,32,612/- from the
retirement benefits payable to the petitioner No 1
on account of his retirement on 31.01.2021.
(III) For issuance of an appropriate
writ in the nature of certiorari for quashing the
letter dated 30.112021 issued under the
signature of the Respondent No 10 and
contained in his letter No 1162 dated 30.11.2021
addressed to the Treasury Officer, Secretariat
Treasury, Irrigation Building, Patna whereby
and where under direction was issued for
recovery of a sum of Rs 5,32,612/- from the
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retirement benefits payable to the petitioner No
1.
(IV) For issuance of an appropriate
writ in the nature of certiorari for quashing the
letter dated 23.02.2022 issued under the
signature of the Respondent No 11 and
contained in his letter No 202 dated 23.02.2022
and addressed to the Accountant General, Bihar,
Patna whereby and where under the Accountant
General was requested for issuance of payment
of gratuity order in favour of the petitioner No 2
after deduction of a sum of Rs 4,33,308/- on
account of reduction of pay scale of petitioner
No 2 on grant of benefits of second MACP in PB
3 Grade Pay – 5400/- which was earlier granted
to the petitioner No 2 in PB – 3 Grade Pay –
6600.
(V) For issuance of an appropriate
writ in the nature of mandamus commanding
and directing the respondent-authorities for
grant of benefits of second MACP to the
petitioners in the pay scale of PB 3 + Grade Pay
6600 in view of the structure of different pay
scale under Schedule I of the Finance
Department Resolution contained in Memo No
630 dated 21.01.2010 read with the provisions of
the State Government Resolution contained in
Memo No 7566 dated 14.07.2010 on the ground
that in view of the provisions contained in
aforesaid resolution since the petitioners are
entitled for the pay scale prescribed under
Schedule I and not under Schedule II, the
opinion of the Finance Department relying upon
the Division Bench judgment of this Hon’ble
Court in LPA No 1126 of 2017 (Md Nasiruddin
and others Vs The State of Bihar and others)
and the impugned order passed by the
Respondent No 5 are totally illegal and cannot
be sustained in law.
(VI) For issuance of an appropriate
writ in the nature of certiorari for quashing the
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letter dated 10.04.2015 passed by te Respondent
No 4 and contained in his letter No 3655 dated
10.04.2015 whereby and where under he has
informed the Respondent No 5 that in view of
the Finance Department letter No 504 dated
16.01.2014, the pay scale of PB 3 + 5400 Grade
Pay would be a financial progression for the
Government servants working in PB 2 + Grade
Pay 4800 or 5400 and thus in the case of Junior
Engineers PB 2 + Grade Pay 5400 would be the
scale of first Assured Career Progression and
PB 3 + Grade Pay 5400 would be the scale of
second Modified Assured Career Progression on
the ground that if all the writ petitioners were
appointed as a Junior Engineer much before
01.01.2006 for whom there was a separate
recommendation for pay fixation as contained in
letter No 630 dated 21.01.2010, the case of the
petitioners would not be covered by the aforesaid
letter of Finance Department which can be
applied only in case of other Government
servant joining their services on or after
01.01.2006.
(VII) For a declaration that since the
petitioners were entitled for the benefits of first
Assured Career Progression much before the
introduction of Modified Assured Career
Progression Scheme Rules 2010, therefore, in
view of the amended provisions of Assured
Career Progression Rules, 2003 amended in
2008, the petitioners were entitled for the pay
scale of Assistant Engineer in the scale of Rs
6500 – 10,500 (PB 2 + Grade Pay 5400 with
effect from 01.01.2006), the aforesaid letter of
the Finance Department cannot be applied in
the case of the petitioners for reduction of their
scale which they were duly granted by way of
benefits of second Modified Assured Career
Progression.
(VIII) For issuance of an appropriate
writ in the nature of mandamus commanding
and directing the Respondent Authorities for
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payment of withhold amount of retirement
benefits of the petitioners as also for fixation of
their salary in accordance with the provisions of
MACP Rules, 2010 for the purposes of revision
of their retirement benefits.
(IX) For issuance of any other
appropriate writ/writs, order/orders,
direction/directions for which the writ
petitioners would be found entitled under the
facts and circumstances of the case.”
3 At the outset, the learned counsel for the petitioners
submits that the petitioner No. 1 was appointed as a Junior
Engineer in the Water Resources Department on 11.03.1987 and
since then he was discharging his duties until his retirement and no
complaint whatsoever was made against him. Similarly, the
petitioner No. 2 was appointed as a Junior Engineer in the Water
Resources Department on 31.08.1988 and until his retirement, he
served the Department without any complaint whatsoever. The
petitioner No. 1 was promoted to the post of Assistant Engineer in
the year, 2016 vide Notification dated 29.11.2016 and till the date
of his retirement, he was holding the post of Assistant Engineer.
4. The learned counsel for the petitioners further submits
that after introduction of Bihar State Employees Service Condition
(Assured Progression Scheme) Rules, 2003 (for brevity, ACP
Rules 2003), both the petitioners were granted the benefits of first
financial progression in the pay scale of Rs. 6,500 – 10,500/- w.e.f.
the date when they completed 12 years of continuous service, from
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the date of their appointment. The petitioner No. 1 was granted
the benefit of first ACP w.e.f. 09.08.1999 whereas the petitioner
No 2 was granted the same benefit w.e.f. 31.08.2000. The learned
counsel for the petitioners further submits that on the basis of the
recommendation of the 5th pay commission, since the pay scale of
Assistant Engineer w.e.f. 01.01.1996 was Rs. 6,500 – 10,500/- in
view of the amended provisions of ACP Rules 2003, the
petitioners were granted the aforesaid pay scale by way of benefits
of first ACP w.e.f. the date when they completed 12 years of
continues service. After implementation of the recommendation of
the sixth pay revision commission, the pay scale was further
revised w.e.f. 01.01.2006 and the petitioners were granted the
replacement pay scale of pay band 2 with grade pay of Rs. 5,400/-.
Subsequently, the ACP Rules 2003 was substituted by the
Modified Assured Career Progression Scheme and Rules, 2010
(for brevity MACP Rules 2010).
5. The learned counsel for the petitioners further submits
that from perusal of paragraph No. 2 of Schedule-1 of the MACP
Rules 2010, it would transpire that the next scale, as contemplated
under Schedule-1 of Finance Department Resolution No. 630
dated 21.01.2010 would be granted to the employees and since the
Department had revised the pay scale of its employees w.e.f.
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01.01.2006 and as per Schedule-1 appended with Resolution No.
630 dated 21.01.2010, there can be no doubt that after the scale of
pay band 2 + Grade Pay of Rs. 5,400/-, the next scale would be
pay band 3 with grade pay of Rs. 6,600/-. Since by way of
benefits of first ACP, the petitioners were already granted the pay
scale of pay band 2 with grade pay of Rs. 5,500/- w.e.f.
01.01.2006, by way of benefits of second MACP, the petitioners
were granted the pay scale of pay band 3 with grade pay of Rs.
6600/- by way of benefits of second MACP w.e.f. 01.01.2009 vide
orders contained in Memo No. 2140 dated 22.05.2014.
Accordingly, their pay scale was revised w.e.f. 01.01.2009 in the
pay band 3 with grade pay of Rs. 6,600/- and they were paid their
arrears of salary accordingly. All of a sudden, the Department
came out with an order contained in Memo No. 4447 dated
06.12.2017 by which the pay scale of pay band – 3 with grade pay
of Rs. 6,600/- which was granted to the petitioners earlier in terms
of MACP Rules, 2010 was modified/revised and the petitioners
were granted the scale of pay band 3 with grade pay of Rs. 5,400/-,
in view of the advisory issued by the Finance Department vide
letter No. 3655 dated 10.04.2015.
6. The learned counsel for the petitioners further submits
that similarly situated persons filed CWJC No. 411 of 2018
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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challenging the order contained in Memo No. 4447 dated
06.12.2017 whereby the pay scale of the Junior
Engineers/Assistant Engineers were revised in pay band – 3 with
grade pay of Rs. 5,400/-, in view of the advisory issued by the
Finance Department vide its letter No. 3655 dated 10.04.2015. The
writ petition was finally heard and disposed of vide order dated
22.11.2021 passed by a coordinate Bench of this Court wherein it
was directed that the re fixation/modification order shall be treated
to be show cause notice, since no notices were issued to the
petitioners and liberty was granted to the petitioners to file their
reply/explanation within a specific time and the authorities were
directed to pass a speaking order considering each of the
petitioners’ contentions in their explanation. The petitioners of
CWJC No. 411 of 2018 filed their respective representations and
the same was rejected by the authorities concerned vide Memo No.
3127 dated 26.07.2022. In the meantime, vide letter No. 899 dated
27.08.2021 issued under the signature of Executive Engineer,
Flood Control and Water Resource Division, Kishanganj, a
direction was issued for recovery of the excess payment made to
the petitioner No. 1 and vide letter No. 1162 dated 30.11.2021
issued under the signature of the Executive Engineer, Flood
Control and Water Resource Division, Kishanganj addressed to the
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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Treasury Office, Secretariat Treasury, Irrigation Department, Patna
for recovery of a sum of Rs. 5,32,612/- from the retirement
benefits payable to the petitioner No 1. Similarly, vide letter No.
202 dated 23.02.2022 issued under the signature of the Executive
Engineer, Irrigation Division, Veerpur, Supaul addressed to the
Accountant General, Bihar, Patna, a request was made to send the
pension papers of the petitioner No. 2, so that excess payment to
the tune of Rs. 4,33,308/- can be recovered from the gratuity
amount, to be payable to him after his retirement on 31.08.2021.
7. A counter affidavit has been filed on behalf of
respondents No 2 to 4 wherein it has been stated that the pay scale
of the petitioners w.e.f. 01.01.1996 was fixed at Rs. 5000 – 150 –
8,000/- and they were granted the first ACP in the pay scale of Rs.
6,500 – 10,500/-, which was subsequently enhanced to Rs. 8,000 –
13,500/- as benefits of first ACP. It is further submitted that w.e.f.
01.01.2006, the petitioners were given the replacement pay scale
of pay band – 2, i.e. Rs. 9,800 – 34,800/- with grade pay of Rs.
5,400/- and as the petitioners were not completing 24 years of
service before 13.07.2010, i.e. the date of repeal of ACP Rules
2003, the petitioners were entitled for two financial upgradation
under the MACP Scheme 2010, on completion of 20 years of
service or on 01.01.2009, i.e. the date of implementation of MACP
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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Scheme 2010, whichever is later. The Controlling Department of
the petitioners, while according the benefit of second MACP w.e.f.
01.01.2009, wrongly granted the pay scale of pay band 3, i.e. Rs.
15,600 – 39,100/- with grade pay of Rs. 6,600/- instead of pay
band 3 with grade pay of Rs. 5,400/-. The said error was rectified
vide Memo No. 4447 dated 06.12.2017 in view of Letter No. 3655
dated 10.04.2015 of the Finance Department.
8. The learned counsel for the State-respondents further
submits that as per Clause 8.1 of Schedule 1 of MACP Scheme, it
was notified that grade pay of Rs. 5,400/- in pay band 2 and pay
band 3 will be treated as separate grade pay for the purposes of
grant of upgradation under the MACP Scheme. Even the Ministry
of Personnel, Public Grievances and Pension, Department of
Personnel and Training), Government of India, New Delhi vide its
Letter No. 30909 dated 08.04.2013 informed the State
Government that in terms of para 8.1 of the Scheme, grade pay of
Rs. 5,400/- in pay band 2 and grade pay of Rs. 5,400/- in pay band
3 will also be treated as separate grade pay for the purpose of grant
of upgradations under MACP. Every financial upgradations
including non-functional grade granted are treated as an offset
against one financial upgradation under the MACP Scheme.
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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9. The learned counsel for the respondent-State further
submits that letter No. 3655 dated 10.04.2015 and letter No. 504
dated 16.01.2014 of the Finance Department were issued to clarify
the implementation of MACP Scheme 2010 and to clarify the
admissible pay scale benefits of MACP to the State Government
employees. Even vide judgment dated 04.10.2018 passed by a
learned Division Bench of this Court in LPA No. 1126 of 2017
(Md Nasimuddin & Others -Versus- The State of Bihar &
Others) reported in 2019 (1) PLJR 11, grade pay of Rs. 5,400/-
has been made available to two pay bands, i.e. pay band 2 and pay
band 3 and this separate grade pay in two pay bands have been
treated as a separate grade pay for the purposes of grant of
upgradation under the MACP Scheme. The judgment dated
04.10.2018 passed in LPA No. 1126 of 2017 was dismissed by the
Hon’ble Supreme Court of India vide order dated 18.04.2022
passed in SLP (C) No. 1925 of 2019.
10. The learned counsel for the State-respondents further
submits that the petitioners have not questioned the validity of
clause/para 8.1 or any of the provisions of the MACP Scheme and
they have challenged the subsequent orders/actions without
challenging the statutory provision which is not maintainable in
view of the judgment of the Supreme Court of India reported in the
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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case of Edukanti Kistamma (Dead) through LRS & Others
-Versus- S Venkatareddy, (2010) 1 SCC 756 wherein, in paragraph
No 22, the Hon’ble Supreme Court has held as follows:
“22. It is a settled legal proposition
that challenge to consequential order without
challenging the basic order/statutory provision
on the basis of which the order has been passed
cannot be entertained. Therefore, it is a legal
obligation on the part of the party to challenge
the basic order and only if the same is found to
be wrong, consequential order may be examined
(vide P Chitharanja Menon v A Balakrishnan
[(1977) 3 SCC 255 : 1977 SCC (L&S) 378 : AIR
1977 SC 1720] ; H V Pardasani v Union of India
[(1985) 2 SCC 468 : 1985 SCC (L&S) 482 : AIR
1985 SC 781] ; and Govt of Maharashtra v
Deokar's Distillery [(2003) 5 SCC 669 : AIR
2003 SC 1216] ).”
11. The learned counsel for the State-respondents further
submits that the decision taken by the Department is in consonance
with clause/para 8.1 of the MACP Scheme and the clarification
issued by the Central Government and the orders passed by the
learned Division Bench of this Court.
12 Having heard the learned counsel for the parties and
after going through the records, it appears that the petitioners, after
coming into effect of ACP Rules, were given the benefits of first
ACP in the pay scale of Rs. 6,500 – 10,500/- which was
subsequently revised to Rs. 8,000 – 13,500/-. After revision of
their respective pay scales in the sixth pay revision w.e.f.
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01.01.2006, they were given the replacement pay scale of pay
band 2, i.e. Rs. 9,800 – 34,800/- with grade pay of Rs. 5,400/- and
after the ACP Rules, 2003 was repealed with MACP Rules 2010,
the petitioners were entitled for two financial upgradations on
completion of 20 years of service or on 01.01.2009, whichever is
later, but while granting the said benefits w.e.f. 01.01.2009, the
Department granted the pay band 3, i.e. Rs. 15,600 – 39,100/- +
grade pay of Rs. 6,600/- to the petitioners instead of the pay scale
of pay band 3, i.e. Rs. 15,600 – 39,100/- with grade pay of Rs.
5400/-, for which they were entitled. When the Department
realized its mistake, the same was rectified by the order contained
in Memo No. 4447 dated 06.12.2017, in view of the Letter No.
3655 dated 10.05.2015 issued by the Finance Department. The
said rectification was made in view of clause/para 8.1 of the
MACP Scheme 2010. Clause 8.1 of the MACP Scheme, 2010 was
subject matter of a writ petition and finally, the same was decided
by a learned Division Bench of this Court in LPA No. 1126 of
2017 and the appeal preferred by the appellants of LPA No. 1126
of 2017 was dismissed by the Hon’ble Supreme Court of India on
18.04.2022 in SLP (C) No. 1925 of 2019.
13. Therefore, in view of clause 8.1 of the MACP
Scheme 2010, the petitioners are entitled for pay band 3, i.e. pay
Patna High Court CWJC No.18031 of 2023 dt.19-02-2026
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scale of Rs. 15,600 – 39,100/- with grade pay of Rs. 5,400/-, which
was incorrectly given to them in the pay band 3 with grade pay of
Rs. 6,600/-
14. Accordingly, I do not find any illegality in the
impugned order contained in Memo No. 3127 dated 26.07.2022,
Memo No. 899 dated 27.08.2021, letter No. 1162 dated
30.11.2021, letter No. 202 dated 23.02.2022 and letter No. 3655
dated 10.04.2015.
15. Accordingly, the writ petition is dismissed.
(Ritesh Kumar, J)
M.E.H./-
AFR/NAFR NAFR
CAV DATE 06.02.2026
Uploading Date 24.02.2026
Transmission Date NA
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