Calcutta High Court
Convent Of Our Lady Providence Girls ... vs Ratna Mitter & Ors on 23 December, 2016
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G.A 3118/2016
APO 269/2016
W.P. 449/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Ratna Mitter & Ors.
GA 3119/2016
APO 271/2016
WP 455/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Mrs. Geeta Kumari Singh & Ors.
GA 3120/2016
APO 273/2016
WP 450/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Mitali Ghosh & Ors.
GA 3122/2016
APO276/2016
WP 453/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Soma Dutta & Ors.
GA 3133/2016
APO 277/2016
WP 452/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Snigdha Singh & Ors.
GA 3135/2016
APO 272/2016
WP 451/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Ila Chakraborty & Ors.
GA 3136/2016
APO 270/2016
WP 454/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Mrs. Anita Nigam & Ors.
GA 3138/2016
APO274/2016
WP 456/2013
Convent of Our Lady Providence Girls High School & Ors.
Vs.
Smt. Krishna Bhattacharya & Ors.
Present :
The Hon'ble Justice Rakesh Tiwari
And
The Hon'ble Justice Debi Prosad Dey
For the Petitioner : Mr. Sanjay Kumar Baid, Adv.
Mr. Soumya Majumder. Adv.
Ms. A. Lala Sengupta, Adv.
For the State: : Mr. Sirsanya Bandopadhyay, Adv.
Ms. Chaitali Bhattacharya, Adv.
Heard on : November 16, 2016
Judgment on : December 23, 2016
Debi Prosad Dey, J. :-
Preparation of formal paper book is dispensed with on the prayer of learned
Advocates appearing for the respective parties. The appeal is taken up for
hearing along with the stay application.
The writ petitioner (namely respondent no.1 in the appeal) had filed a writ
in the nature of mandamus commanding the respondents particularly the respondent no. 4,5 and 6 namely the authority of Convent of Our Lady providence Girl's High School, Calcutta to release the arrear of balance salaries of the petitioner as well as the Dearness Allowance dues from June, 2002 to March, 2012 along with interest immediately and forthwith.
Learned trial Judge accordingly allowed the writ application being no. 449 of 2013 directing the respondents (namely the present appellants) to take appropriate steps to pay the petitioner both the difference in salaries along with the Dearness Allowance as revised till date within a period of 16 weeks from the date of communication of such order and to be further paid the revised salary and Dearness Allowance by law fixed regularly month by month.
Learned trial Judge also disposed of the writ petition no. 450 of 2013, 451 of 2013, 452 of 2013, 453 of 2013, 454 of 2013, 455 of 2013 and 456 of 2013 along with writ petition no. 449 of 2013.
By an executive order dated May, 29, 2002 the Dearness Allowance getting schools recognized by the West Bengal Board of Secondary Education were directed to pay the Dearness Allowance not less than what the teaching and non- teaching employees of the recognized government aided schools are being paid keeping in view the direction issued to the Anglo Indian School. The reasons for issuing such executive order has been quoted by the learned trial Judge as follows:-
"The reasons for issuing the Executive Order dated May, 29, 2002 stated in the order, are as follows:
"The undersigned is directed to say that pursuant to the order of the Hon'ble High Court dated October, 8, 2001 in W.P. No. 707 of 2002 in the case of staff Council, Gyan Bharati Vidyapith and Anr. Vs State of West Bengal & Ors., the matter regarding payment of salaries to the approved teaching and non- teaching employees of Dearness Allowance getting schools recognized by the West Bengal Board of Secondary Education at the rate of at least not less than what the teaching and non-teaching employees of the recognized Govt. aided schools are being paid, keeping in view the direction issued to the Anglo-Indian Schools has been taken up for consideration."
Stating the reasons for which the Order dated May, 29, 2002 was issued, the Government then stated in the Order its decision, which is as follows:
"After due consideration of the matter, it is decided that the authorities of all Dearness Allowance getting schools recognized by the West Bengal Board of Secondary Education in the state which receive Dearness Allowance component for the approved teaching and non-teaching staff of their schools from the Govt. of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Govt. for teaching and non-teaching employees of the Govt. Aided Schools with immediate effect."
Learned Advocate for the appellants contended that it would not be possible on the part of the appellant to pay such arrear right from 2002 in terms of the order of learned trial Court solely on the ground that the school authority did not collect appropriate fees from the student at the relevant point of time. Secondly, the school authority will have no alternative but to close down the school in case of payment of such arrears right from 2002.
Learned Advocate appearing on behalf of the appellant further contended that learned trial Court did not consider the point of limitation and thereby erroneously directed the appellant to pay the arrears from 2002. Learned Advocate for the state has however fairly contended that the state is always willing and is ready to pay the difference of Dearness Allowance to the school authority so that the school authority may comply with the order passed by learned trial Court. Learned Advocate appearing on behalf of the contesting respondent contended that learned trial Court was justified in ignoring such contention of inability of the appellants to pay the arrears relying on a decision of the Apex Court. Secondly, learned trial Court has also considered the point of limitation elaborately in its judgment and accordingly the appeal ought to be dismissed with exemplary cost.
Learned trial Judge has placed reliance on a decision reported in 1986(4) SCC 707(Frank Anthony Public School employees association Vs. Union of India) wherein the Apex Court has dealt with the similar fact situation.
Paragraph 23 may be reproduced below to appreciate the actual state of affairs dealt with by the Apex Court in dealing with such submission of the appellant.
"23. We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear ex-pressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to put the teachers in their proper place. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised."
We do hold that learned trial Judge has rightly placed reliance on such decision of the Apex Court and therefore the contention of the appellants on that score fails.
Admittedly learned trial Judge has directed the appellants to pay the difference of salaries as well as the dearness allowance right from 2002.
The Apex Court in the decision reported in 2008 volume 8 SCC 648 (Union of India and Ors. Vs. Tarsen Singh) has elaborately dealt with the point of limitation and the period of entitlement of the petitioner in respect of arrear salary and Dearness Allowance.
Para 7 and 8 of such decision may be reproduced below:
" 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches(where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."
It is therefore apparent from the aforesaid decision that learned trial Judge ought to have restricted the relief relating to arrears to only 3 years before the date of writ petition or from the date of demand to date of writ petition whichever is lesser. Secondly, it ought not to have granted interest on arrears in such circumstances.
We are in agreement to the aforesaid decision and hold that respondent no.1 is entitled to get the relief in terms of the order passed by learned trial Judge for only 3 years prior to the date of writ petition and shall not get any interest on arrears. The order of learned trial Judge is therefore modified in terms of the aforesaid order and the appeal is disposed of accordingly with the aforesaid modification only.
The stay application and other connected applications are also disposed of in terms of our order of judgment today.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Debi Prosad Dey , J.) (Rakesh Tiwary, J.)