Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Sm. Shila Bhattacharya & Ors on 11 August, 2016
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
W.P.S.T 147 of 2009
With
C.A.N 4633 of 2016
State of West Bengal & Ors.
Versus
Sm. Shila Bhattacharya & Ors.
For the Petitioners : Mr. Tapan Kumar Mukherjee,
Mr. Bikash Kumar Mukherjee.
For the Respondents : Mr. Bharat Bhusan,
Mr. Mani Sankar Chattopadhyay.
For the L.R : Mr. R. N. Saha. Hearing is concluded on : 29.07.2016. Judgment On : 11th August, 2016. Tapabrata Chakraborty J.
The State authorities have preferred the instant writ petition assailing the judgment dated 20th September, 2007 passed by the learned Tribunal in OA 1646 of 1998.
Records reveal that the original application was filed before the learned Tribunal by the respondents herein stating, inter alia, that they were appointed as Supervisors in various projects under the Integrated Child Development Scheme (hereinafter referred to as ICDS) under the Social Welfare Department of the Government of West Bengal and that though they were discharging identical nature of job like that of the Inspectors of Relief, they were illegally placed in scale no.9 (Rs.380/- to 910/-) instead of the scale no.10 (Rs.420/- to 1050/-) which was being enjoyed by the said Inspectors of Relief on the basis of earlier order passed in a writ petition preferred by the said Inspectors of Relief. The respondents were denied such benefits as they were not parties to the said writ petition. Aggrieved by such discrimination practiced by the State authorities, the respondents herein along with some other Supervisors preferred an application under Article 226 of the Constitution of India. Two other writ petitions were preferred by other groups of Supervisors. The said writ petitions, being Matter No.1272 of 1990, Matter No.1817 of 1990 and Matter No.2176 of 1990 were analogously heard and disposed of by a judgment dated 20th November, 1991 directing the State authorities to grant identical scale of pay, being the scale no.10, as granted to the Inspectors of Relief vide Finance Department notification No.7038-F dated 20th June, 1988 together with the benefits of revision of pay under the Revision of Pay and Allowance Rules (hereinafter referred to as ROPA Rules), 1981 and 1990. Under the ROPA Rules, the scale nos.9, 10 and 11 stood revised to Rs.1260/- to 2610/-, Rs.1390/- to 2790/- and Rs.1420/- to 3130/- respectively. The said judgment was complied with through issuance of a memorandum dated 26th November, 1992. Thereafter 700 Supervisors, similarly situated with the respondents herein, preferred three further writ petitions, being Matter No.1198 of 1993, Matter No.1196 of 1993 and Matter No.1297 of 1993. The said writ petitions were heard and disposed of by judgments dated 24th August, 1995 and 7th December, 1995 directing the State authorities to place the writ petitioners therein in scale no.10 with effect from 1st April, 1991. In compliance of such directions, the State authorities issued memorandum dated 12th August, 1997. In the midst thereof, the Government introduced the Career Advancement Scheme (hereinafter referred to as CAS) vide memorandum no.6075-F dated 21st June, 1990. The respondents herein upon completion of 10 years of continuous service became entitled to the benefits of the CAS and to avail the next higher scale of pay being the scale No.11. The respondent nos.1 to 10 herein were granted the benefits of CAS and placed in scale no.11 (Rs.1420/- to 3130/-) but such benefit was not extended to the other respondents. Aggrieved thereby, the respondents approached the concerned authorities and in response thereto, the Finance Department on 8th December, 1997 observed, inter alia, that CAS benefit is a scale related benefit and is available to the 1st/2nd higher scale in relation to the basic scale pertaining to the post of Supervisor and as the respondents are already enjoying scale no.10, which is admissible upon completion of 10 years service in terms of CAS, question of grant of further CAS benefit does not occasion. Pursuant to such observation made by the Finance Department, the Deputy Secretary to the Department of Social Welfare passed an order on 3rd April, 1998 reiterating the stand of the Finance Department. Subsequent thereto, the Director of Social Welfare also passed an order on 22nd April, 1998. Challenging the said memoranda OA 1646 of 1998 was preferred and upon contested hearing the same was finally disposed of by the judgment dated 20th September, 2007 quashing the orders impugned with a direction upon the petitioners to consider the case of the applicants/respondents for grant of career advancement benefits. The petitioners were also restrained from withdrawing the benefits from the applicants, who were enjoying the benefits under the said scheme. Aggrieved thereby, the State authorities have preferred the instant writ petition.
Mr. Tapan Kumar Mukherjee, learned senior government advocate appearing for the petitioners submits that the respondents herein approached the learned Tribunal claiming the benefits of scale no.10 on a purported plea that they are similarly situated with the Block Welfare Officers (previously designated as Inspector of Social Welfare). The respondents were appointed in scale no.9 under ROPA 1981 as Supervisors under ICDS. The work discharged by the respondents is in no manner similar to that of the work discharged by the Inspectors of Welfare, who were appointed in scale no.10 through a regular selection process and on the basis of recommendation of the Public Service Commission (hereinafter referred to as PSC). There is no similarity in the duties and responsibilities among the Inspectors of Welfare and the Supervisors and their cadres and channels of promotion are also different and that as such, the respondents cannot claim the scale no.10. Furthermore, the scale personal to the respondents is scale no.9 and having worked for more than 10 continuous years they became entitled to scale no.10 under CAS and their claim to avail the scale no.11 under CAS is absolutely unfounded in as much as CAS benefit is relatable to the basic scale for the post.
He further submits that the learned Tribunal erred in law in proceeding on the basis that the pay scale personal to the respondents is scale no.10. The grant of a scale higher than the basic scale pertaining to the concerned post on the basis of the Hon'ble Court's order cannot confer any right upon the concerned employee to avail the next higher scale in terms of CAS. The notification dated 21st June, 1990 no where provides that after completion of 10 years or 20 years they would be given the benefit of higher pay scale notwithstanding the fact they were given the pay scale recommended by the pay commission that is Rs.380/- to 910/-.
He further submits that Article 14 is not meant to perpetuate illegality. Article 14 of the Constitution has a positive concept. Equality is a right, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible.
Mr. Mukherjee further submits that the circumstances towards conferment of the benefits of the scale no.10 in favour of Kunal Kanti Mondal are distinguishable and that no discrimination was practised.
He further submits that in reply to the original application, the State authorities took a categoric stand to the effect that the said application was hopelessly barred by limitation but such point was not even considered by the learned Tribunal while delivering the impugned judgment.
In support of his arguments, Mr. Mukherjee has placed reliance upon the following judgments :
a) State of West Bengal & Anr. -vs- West Bengal Minimum Wages Inspectors Association & Ors., reported in (2010) 5 SCC 225;
b) State of West Bengal & Ors. -vs- Debasish Mukherjee & Ors., reported in (2011) 14 SCC 187.
Mr. Bhusan, learned advocate appearing for the respondents submits that on the basis of the solemn orders passed by the Hon'ble Court in the earlier writ petitions, the State authorities extended the benefits of scale no.10. Such conscious conferment of benefits on the part of the State authorities cannot be construed to be an inadvertent act. The orders passed by the Hon'ble Court in the earlier writ petitions were not appealed against and in compliance of the same the Supervisors under ICDS were placed in scale no.10 and the orders passed to that effect have also not been withdrawn subsequently and that as such the argument of Mr. Mukherjee that the respondents were mistakenly and erroneously placed in scale no.10 is absolutely unfounded. Furthermore one Kunal Kanti Mondal, Inspector of Social Welfare, who was one of the petitioners in the Matter No.1272 of 1990 has been granted CAS benefit with effect from 6th August, 1983 on completion of 10 and 16 years of service, when there was no general order of upgradation of scale of pay of Inspectors from scale nos.9 to 10.
Drawing the attention of this Court to a memorandum dated 26th November, 1992, Mr. Bhusan submits that pursuant to the judgment delivered on 20th November, 1991, the petitioners therein were placed in the revised scale no.10 with effect from 1st April, 1981 and also in the corresponding pay scale under ROPA, 1990. Subsequent thereto, in terms of the judgment delivered in the other writ applications on 24th August, 1995 and 9th April, 1997, the State Government fixed the scale of pay of Supervisor under ICDS projects, similarly situated with the respondents herein, in scale no.10. Having accepted the earlier judgments delivered by the Hon'ble Court and having implemented the same, the State authorities cannot turn back and take a different stand and cannot deny identical benefits.
He further submits that after acting in compliance of the earlier orders passed in various writ petitions, the State authorities could not have taken a stand to the effect that CAS benefit is a scale related benefit and as the Supervisors under ICDS projects are enjoying scale no.10 they should be deemed to be enjoying the CAS benefits as admissible on completion of 10 years service. Having granted the benefits of CAS to the Supervisors under ICDS projects for having rendered continuous service for 10 years in scale no.10 without any promotion, the State authorities cannot deny identical benefits to the respondents.
We have heard the learned advocates appearing for the respective parties and we have considered the materials on record.
Though Mr. Mukherjee has urged a point of limitation, no such ground of limitation has been taken in the writ petition. Furthermore, the memoranda challenged in the original application are pertaining to a period from December, 1997 to December, 1998 and the records reveal that the original application was filed in the year 1998 itself and that as such the plea of limitation as urged is not tenable in law.
The issue involved in the judgment delivered in the case of State of West Bengal and Another (supra) was as to whether the respondents therein, holding the post of Inspector, Agricultural, Minimum Wages were entitled to parity in pay scale with those holding the posts of Inspector (Co-operative Societies), Extension Officers (Panchayats) and Revenue Officers. The said judgment has no manner of application in the instant case since the issue of parity had already been considered in the earlier set of writ petitions and in compliance of the same the parity as declared by the Hon'ble Court was accepted and benefits were extended to the petitioners in the said writ petitions by issuing government memoranda. The judgment delivered in the case of State of West Bengal and Others -vs- Debasish Mukherjee and others is also distinguishable on facts since in the instant case no wrong was committed by the State authorities by placing the Supervisors under ICDS projects in scale no.10.
The State authorities did not prefer any appeal against the earlier orders of the Hon'ble Court and consciously complied with the mandate of the Hon'ble Court by placing the Supervisors, similarly situated with the respondents herein, in scale no.10 and by granting the CAS benefits through placement in scale no.11 and that as such the contention of Mr. Mukherjee to the effect that the benefits were erroneously extended to the petitioners in the earlier writ petitions, is not acceptable. After such compliance, the denial of extension of identical benefits to the respondents is derogatory to the mandate of the Court and such action is unsustainable in law [See the judgment delivered in the case of Manohar Lal (D) by Lrs. -vs- Ugrasen (D) by Lrs. & Ors., reported in 2010 (4) Supreme 519].
Fairness and reasonableness are paramount issues for administrative action. As a model employer the State Government must conduct itself with high probity and candour and cannot act arbitrarily by withholding the benefits as extended to similarly situated incumbents [See the judgment delivered in the case of The Madras Port Trust versus Hymanshu International by its Proprietor V. Venkatadri (dead) by L.R.S., reported in (1979) 4 SCC 176]. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently [See the judgment delivered in the case of State of Karnataka & Ors. -vs- C. Lalitha, reported in (2006) 2 SCC 747].
The learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error, least to say any patent error of law in the judgment impugned. The scope of judicial review is very narrow and limited and such jurisdiction should be exercised sparingly and only in appropriate cases where the judicial conscience of the Court dictates. The impugned judgment does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice warranting interference of this Court.
For the reasons discussed above, we do not find any reason to interfere with the judgment impugned. The writ petition and the connected application are, accordingly, dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.)