Calcutta High Court (Appellete Side)
Sachindra Sekhar Biswas vs The State Of West Bengal & Ors on 31 March, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No. 16372 (W) of 2004
Sachindra Sekhar Biswas
v.
The State of West Bengal & Ors.
Mr Himadri Barua, advocate, for the petitioner. Ms Chameli Majumdar and Ms Chhabi
Chakraborty, advocates, for the State.
Heard on: March 31, 2011
Judgment on: March 31, 2011
The Court: - The petitioner in this art.226 petition dated September 20, 2004 is
questioning a decision of the School Education Department of the Government of West
Bengal dated May 26, 2004 (at p.40) denying him the benefit of pay protection.
Relevant parts of the decision dated May 26, 2004 of the School Education
Department is quoted below:
"Here the SE Deptt. have come up with the proposal for protection of pay of Shri
Sachindra Sekhar Biswas, Asstt. Teacher, Kalupur Panchpota Jr. High School, North 24
Parganas, in relaxation to pay drawn by Shri Dipti Kr. Sarkar, Asstt. Teacher Champberia
Jr. High School. They were appointed to the post of Asstt. Teacher in the said two schools
on 03-01-68 and 01-01-69 respectively. Their pay under different ROPA Rules have revised
under the provisions of the rules. So far as it is seen that there does not appear to have any
departure of application of the provisions of the respective ROPA Rules. Besides, it has
been stated that Shri Biswas is senior to Shri Sarkar when they belong to separate schools.
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Relative seniority among the employees can be drawn only when they belong to the same
establishment/institution. In the position it can not be said that Shri Biswas is senior to
Shri Sarkar.
In the above premises question of protection of pay of Shri Biswas does not arise."
The petitioner felt aggrieved by the fact that one Dipti Kumar Sarkar working in
Champberia Junior High School in the district North 24 Parganas was getting higher pay,
though he was senior to Dipti. Both the petitioner and Dipti were Assistant Teachers in
the respective secondary schools from January 3, 1968 and January 1, 1969 respectively.
Both of them were enjoying the same scale of pay.
With effect from April 2, 1987 while the petitioner's pay was fixed at Rs.1730,
Dipti's pay was fixed at Rs.1795. This made the petitioner aggrieved. He moved W.P. No.
1244 (W) of 1999 before this Court under art.226. By an order dated May 14, 1999 the
petition was disposed of directing the Director of School Education, West Bengal to
examine the petitioner's grievances and give a reasoned decision.
In compliance with the order of this Court dated May 14, 1999 the Director gave a
decision dated January 14, 2004 (at p.37) saying as follows:
"I find that such difference arose as a result of application of note 2 below para 5 of
the ROPA orders, 1990 as in notification number 33-Edn(B) dated 7-3-90. This note
restricted the date of opinion of Shri Biswas to the date he completed 18 years of service
and this he had to compulsorily opt for the revised pay scale (ROPA '90) with effect from
1-1-86, thus denying the benefit of option from any date between 1-1-86 and 1-1-90 as
available to others in terms of para 6 ibid and thus denying him the benefit of taking one
increment in the unrevised pay scales on 1-4-86 (his normal date of increment) and
thereafter go to the next higher pay scale so as to get his pay fixed at Rs. 1730/- with effect
from 2-4-86. His junior Sri Sarkar however opted for the revised pay scale with effect from
2-4-86 after taking one increment and his pay was fixed at Rs. 1665/- with effect from 2-4-
86; he got the benefit of next higher pay scale on completion of 18 years' service on 1-1-
87 and his pay was fixed at Rs. 1730/- on 1-1-87 and with the date of increment remaining
the same his pay increased to 1795/- with effect from 2-4-87."
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After identifying the cause that led to fixation of Dipti's pay at a higher stage of the
revised scale under ROPA 1990, the Director indicated how subsequently the gap between
the petitioner's pay and Dipti's pay increased.
Recording his opinion that since the petitioner was senior to Dipti his pay should
be protected and revised with effect from January 1987 for ensuring that he did not get
less than Dipti, the Director referred the matter to the School Education Department on
the grounds that he was not authorized to allow the proposed pay protection to the
petitioner, and the proposal has been turned down by the impugned decision.
The pay scales of the category of employees mentioned in the Education
Department Order No.33-Edn.(B) dated March 7, 1990 were revised by the Government
and it was directed that the revised scales of pay would be notionally effective from
January 1, 1986, and that pay and allowances admissible to an employee in consequence
of revision of pay would be actually paid from January 1, 1988.
Both the petitioner and Dipti were holding teaching posts in recognized
Government aided secondary schools and in terms of the order both of them were entitled
to the revision of scale of pay of the assistant teacher from January 1, 1986.
Para 4 of the Government Order deals with "Drawal of pay in the revised scales,"
and it is quoted below:
"4. Drawal of pay in the revised scales:
Save as otherwise provided in this order, an employee shall draw pay in the
revised scale applicable to the post to which he is appointed.
Provided that an employee who was in service on the 31st December, 1985 and who
opts to come over to the revised scale of pay together with the revised terms and
conditions of Service, as may be determined by the Govt., may elect to draw pay in the
revised scale from any date between the 1st January, 1986 and the 1st January, 1990, and
continue to draw pay in the existing scale prior to that date. On electing to draw pay in
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the revised scale, such an employee shall draw pay in the revised scale, corresponding to
his existing scale."
Para 5 of the Order deals with "Option" and sub-paras (1) and (2) of the para
provide that the option under the proviso to para 4 should be exercised within 90 days
from the date of issue of the order, and that a teacher or a non-teaching employee of a
Government aided institution who was in service from December 31, 1985 will be free to
retain his existing scale of pay and existing terms and conditions of service.
Note 2 below para 5 referred to in the decision of the Director is quoted below:
"Note 2. The aforesaid option shall be applicable only in respect of the existing
scale of the employee as on the 1st January, 1986. If the employee has got appointment to a
higher scale of pay with effect from any date prior to the 1st January, 1990, he may exercise
option to come over to the revised scale corresponding to his existing scale (as on the 1st
January, 1986) from a date not later than the date with effect from which he got
appointment to the higher scale."
Para 16 of the Order deals with "Career Advancement Scheme & related issues"
and it, inter alia, provides that an employee whose pay was fixed in any of the revised
scales of pay and who had not got a single promotion or advancement to higher scale in
the same post even after completion of 18 years' continuous and satisfactory service,
should be placed in the next higher scale of pay, his destination remaining unchanged.
It is, therefore, evident that while the petitioner had completed 18 years'
continuous service on January 3, 1986 Dipti completed 18 years' continuous service on
January 1, 1987. The provisions concerning Career Advancement Scheme and related
issues had nothing to do with the question of fixation of pay of the two teachers in the
revised scale for which both of them opted.
The Director has held that while the petitioner was under a compulsion to opt for
the revised pay scale with effect from January 1, 1986, Dipti, having liberty to opt for the
revised pay scale with effect from any date between January 1, 1986 and January 1, 1990,
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opted for the same revised pay scale, after taking one increment in the old scale, with
effect from April 2, 1986 and for these he referred to the provisions of Note 2 below of
para 5 of the Government Order.
After going through the Government Order, I could not find how for the purpose
of exercising option for the revised scale completion of 18 years' service was relevant. It is
also to be noted that on January 1, 1986 the petitioner did not complete 18 years'
continuous service. In view of the nature of the two benefits--fixation of pay in the
revised scale and fixation in the next higher scale of pay by way of career advancement--
there was no reason to connect the 18-year concept to the question of fixation of pay in the
revised scale.
Pay in the revised scale was to be fixed first and the benefit of career advancement
was to be given to an employee whose pay had been fixed in any of the revised scales. It is
to be noted that this position was clarified by the Government that issued an order dated
December 27, 2001 (at p.36).
It is, therefore, evident that the petitioner was made to opt for the revised scale
with effect from January 1, 1986 on a wrong basis. In view of the provisions of para 4 of
the Order he could opt for the revised scale after taking the next increment in the old scale
with effect from April 2, 1986, the date from which Dipti opted for the scale after taking
the increment in the old scale, and in such case he would also have been entitled to, on
satisfying the requirements, the Career Advancement benefit under para 16 of the Order.
It seems to me that for no valid reason the petitioner was denied the benefit of fixation of
his pay in the revised scale after taking an increment in the old scale.
It was the same District Inspector of Schools who approved the fixation of pay in
the revised scale of both the teachers who until this fixation had been getting same pay in
same scale. In my opinion, the respondents did not act in the matter as a model employer;
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it was their duty to see that the petitioner was not denied maximum benefit available under the revised scale of pay.
I am, therefore, of the view that the School Education Department of the Government was unjustified in turning down the Director's proposal to refix the petitioner's pay in the revised scale under the Government Order at the same stage of the revised scale at which Dipti's pay was fixed. It is to be noted that the petitioner on reaching the age of superannuation has since retired from service. I think it will be appropriate to remand the matter to the School Education Department of the Government for giving a fresh decision.
For these reasons, I set aside the impugned decision dated May 26, 2004 of the School Education Department of the Government of West Bengal, allow the petition to this extent and order that the department shall give a fresh decision in the matter within eight weeks from the date of communication of this order. The decision shall be communicated to the petitioner at once. No costs. Certified xerox.
Ab (Jayanta Kumar Biswas, J.)