Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Sri Swapan Kr. Dinda & Anr on 28 September, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.S.T. No.197 of 2010
The State of West Bengal & Ors.
-VS-
Sri Swapan Kr. Dinda & Anr.
For the Petitioner : Mr. Joytosh Mazumdar
Mr. Manas Kr. Sadhu
For the Respondents : Mr. D.P. Adhikari
Mr. Jiban Hari Mallick Heard on : September 9 & 16, 2011.
Judgment on : September 28, 2011.
ASHIM KUMAR BANERJEE.J:
Respondents above named, fifty-one in number were working as Pharmacist under the Health Department of the State. They were all having diploma in Pharmacy from recognized Institute. The dispute arose as to whether the 2 Pharmacists having appropriate diploma from recognised Institute could be given a better pay scale than their colleagues having no diploma in Pharmacy. The issue stood resolved when the Government issued a notification dated April 25, 1977 extending the benefit of Special Pay of rupees thirty to the diploma holder Pharmacists by such benefit. The Pharmacists having diploma was granted a Special Pay of rupees thirty. Such circular was issued to resolve a controversy between the Pharmacists holding diploma and the Pharmacist without holding diploma that resulted in litigation. The Government rejected the claim of the diploma holders for a separate scale and satisfied them with a Special Pay of rupees thirty. Accordingly, the issue stood resolved for the time being.
In 1981, the State by introduction of ROPA 1981 abolished all Special Pay that gave rise to another unrest. The diploma holders approached the Court through C.R. No.1725(W) of 1955 in C.O. No.10802(W) of 1984. The learned single Judge vide order dated July 20, 1989 directed the State to extend benefit of scale of Rs.360-815/- for the diploma holders with effect from January 1, 1986. The corresponding scale on the basis of the third Pay Commission Report was also asked to be extended to them for the subsequent period. The Assistant Secretary, Health Department accordingly 3 issued a circular dated July 28, 1992 observing that all Pharmacists of Grade- III and Grade-II having diploma would be placed in a single scale of Rs.360- 815/- with their existing post and to be treated as a dying cadre. It was also observed that the Special Pay enjoyed by the diploma Pharmacist would not be merged at the time of fixation under ROPA 1981 and would continue as Special Pay separately. The diploma Pharmacists were given two additional benefits. Their initial start would be at Rs.360/- in the basic scale of Rs.300- 685/- and would continue to get Special Pay separately at the rate of Rs.30/-. Subsequently ROPA 1990 came into force, so was ROPA 1998. However, Special Pay continued to remain. While implementing ROPA 1998 the Finance Department issued a circular dated November 2, 1998 to the effect that the Special Pay drawn by a government employee under Rule5(33) for specific additional work or for other any specific reason would not be counted for the purpose of fixation of their pay. To remove any confusion the Department issued a clarification on August 5, 1999 appearing at page 59 of the petition. On a combined reading of the said two circulars we would find that the employees getting Special Pay as per Rule 5(33) would not be entitled to have that merged for the purpose of fixation of pay, however would continue to get such Special Pay as additional remuneration and such additional remuneration would come under Rule 5(28). Such circular, in our 4 view, was in the line of the earlier circular dated July 28, 1992. By the clarificatory circular through the Director, Health Service, such Special Pay admissible to the Pharmacists holding diploma in Pharmacy, was directed not be considered as pay and, therefore, could not be doubled to Rs.60/- from Rs.30/- under ROPA 1990 and the excess amount was directed to be recovered from them. By way of further clarification, it was made clear that such Special Pay could not be merged with unrevised pay, to be considered as an additional remuneration.
In this backdrop, the respondents approached the Tribunal by filing O.A. No.1335 of 2001 challenging the order dated November 2, 1998 and August 5, 1999 and consequential relief therefor. The Tribunal, vide judgment and order dated February 26, 2009, decided the issue.
On the question of recovery of the excess amount, the Tribunal very rightly held that as per the decision in the case of Shyambabu Verma -VS- Union of India reported in 1994 Volume-II Supreme Court Cases page-521, the State was not entitled to recover the same as the respondents were not at fault even if it was held that such benefit was 5 erroneously extended to them. The Tribunal set aside the circular directing recovery of the excess amount.
On the question of extension of further benefit of enhancement of Special Pay to the extent of Rs.200/-, the Tribunal rejected the same on the ground that no specific justification was shown for the same. We are in full agreement with the Tribunal on that score.
The third and the last issue was whether the respondents would be entitled to have their pay re-fixed as per ROPA 1990 taking in account such Special Pay at the rate of Rs.60/- considering it as an "existing emolument" in the revised scale. The Tribunal answered the issue as positive in favour of the respondents and asked the State to act accordingly.
Being aggreived by the decision of the Tribunal for re-fixation of their pay the State approached us by filing the above petition.
Mr. Joytosh Mazumdar, learned counsel appearing for the State contended as follows :-6
i) Special Pay could be attracted considering the peculiar nature of duty and its performance. It had no relation with the qualification of the candidate. Hence, such pay was not Special Pay within the meaning of Rule 5(33).
ii) Assuming the respondents were entitled to Special Pay, ROPA 1981 abolished such benefit. Hence, the respondents were no longer entitled to the same, far to speak of merging the same in the actual pay.
iii) By the Memo dated July 28, 1992 and November 2, 1998 such Special Pay was specifically excluded from the purview of re-fixation of pay. Hence, it could not be merged with the revised pay as erroneously directed by the Tribunal.
iv) Considering the pay structure appearing at page 55 such Special Pay was not to be extended to the respondents in view of abolition of the system by ROPA 1981. The same could at best be termed as additional remuneration as per Memo dated November 2, 1998.
v) In any event, the Memo dated November 2, 1998 was not under challenge and as such the clarification appearing at page 59 could not be challenged.7
vi) Once the concerned employee exercised option as per ROPA 1998 he was to be guided as per procedure laid down therein that did not stipulate merger of Special Pay as it was specifically debarred as mentioned above.
To support his interpretation on Special Pay, Mr. Mazumdar relied on two Apex Court decisions in the case of Unikat Sankunni Menon -VS- The State of Rajasthan reported in All India Reporter 1968 Supreme Court Page-81 (Volume-55) and Chief Commissioner of Income Tax (Administration) Bangalore -VS- V.K. Gururaj & Ors.reported in 1996 Volume-VII Supreme Court Cases Page-275.
Opposing the application of the State, Mr. D.P. Adhikari, learned counsel appearing for the respondents contended that Special Pay was extended as far back in 1977 at the rate of Rs.30/- per month. Such notification was upheld in a subsequent litigation that reached finality. It would be too late in the day to contend that the respondents were not entitled to the same benefit. Mr. Adhikari further contended that the amount of Rs.30/- so fixed in the year 8 1977 was not apt considering the price index. The same was doubled by introduction of ROPA 1990 as would appear from page 133 of the petition and the State rightly extended the said benefit. The State was not entitled to take back such benefit by a subsequent circular dated August 5, 1998 issued in the guys of clarification. He further contended that his case would be governed by the interpretation of "Special Pay" as provided in Rule 5(28) and not Rule 5(33) accordingly. Their pay should be fixed as per Example Two, appearing at page 155 of the petition. Pertinent to note, as per Example Two, the Special Pay was to be taken into account as per ROPA 1998 to be merged with the basic pay. Mr. Adhikari however did not make any submission on the issue of enhancement of Special Pay. Hence, we refrain from making any deliberation on that score. He prayed for dismissal of the petition filed by the State.
Rule 5(28) and Rule 5(33) being relevant herein are quoted below :-
Rule 5(28) :- "Pay means the amount drawn monthly by a Government employee as-9
i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
ii) special pay and personal pay ; and
iii) any other emoluments which may be specially classed as pay by Government."
Rule 5(33) :- "Special pay means an addition, of the nature of pay, to the emoluments of a post or of a Government employee granted in consideration of -
(a) the specially arduous nature of the duties ; or (b) a specific addition to the work or responsibility ; or (c) the unhealthiness of the locality in which the work is performed."
To examine the controversy let us find out the distinction between the two Rules quoted above.
10Rule 5(28) describes pay that would include Special Pay and Personal Pay. Special Pay was not specifically defined under Rule 5(28). As per Rule 5(33), Special Pay could only be extended in three eventualities -
i) Special arduous nature of duty ii) Specific addition of work or responsibility
iii) Unhealthiness of the locality in which the work is performed It is an admitted position that none of the eventualities so prescribed in 5(33) is present in the instant case. In our view, in the case in hand Special Pay was a misnomer. It was rather a "Qualification Pay" meaning thereby, building a class within the class considering their additional qualification that would rather get support from 5(28) that recognized Special Pay granted considering personal qualification. It was really a Personal Pay, if we rely on Rule 5(28) and find out its true spirit.
In the case of Unikat (Supra), the Apex Court in paragraph 8 observed that the Special Pay was granted considering the arduous nature of job. Hence, no question arose of any discretion under Article 14 or denial of opportunity under Article 16 of the Constitution. In the case of Chief Commissioner of 11 Income Tax (Supra), the Apex Court considered the special grant of pay for Rs.35/- to the upper division clerk-II in non-secretariat administrative office considering their handling of cases of complex nature involving deep study and competence. The Apex Court upheld the decision granting Special Pay. In both the cases the interpretation of Special Pay as done by the Apex Court was based on the definition so provided in Rule 5(33) that had no application in the instant case. As observed hereinbefore, the Special Pay in the case before us was rather a misnomer as it was building a class within a class considering the additional qualification, a group of employee has, which would rather help the employer to have better result of their performance. In the instant case the State, to resolve the controversy between two groups of Pharmacist, extended such Special Pay in 1986 by specifically observing that it would be extended only to those who had the diploma in Pharmacy from a recognised Institute. Such benefit was extended through Memo dated April 25, 1977 appearing at page 29 of the petition. Vide notification dated September 28, 1984 appearing at page 33-41, the State as per ROPA 1981 revised the pay structure and while doing so, gave initial start of Rs.360/- for Pharmacist Grade-III (diploma holders). While giving the scale of Rs.300- 12 685/- to the Pharmacist vide Memo dated April 29, 1986 the State declared such Special Pay to be a part of the pay for the purpose of fixation of their pay as per ROPA 1981. Vide circular dated July 28, 1992 the post was declared as a dying cadre extending the benefit of the scale of Rs.360-815/- to the Pharmacist. The diploma holders were extended Special Pay of Rs.30/-
"not to be merged" in their pay and to be considered as Special Pay separately as per ROPA 1981. Hence, we would find that although the 1977 benefit was considered to be an additional one as per 1986 Memorandum the same was directed to be considered as a part of the pay for pay fixation. Such benefit was subsequently withdrawn while they were extended a better pay scale of Rs.360-815/- by observing that the Special Pay would be considered as a separate pay. The respondents did not object to the same contemporaneously. They were happy with the Special Pay that got a hike as per page 133 when State doubled the amount as per the recommendation of ROPA 1990.
It is true that the State should not have withdrawn the benefit and started recovery to that extent through a purported clarification that was liable to be set aside and was rightly set aside. The respondents however, were entitled to, neither claim additional amount to the extent of Rs.200/- that was rightly 13 rejected by the Tribunal nor the merger of pay which was not contemplated earlier. The approach of the respondents before the Tribunal was however, not in clean hands. They complained of an illegality made by the State and in the guise of such complaint, wanted something more that was never extended by earlier Memorandum except by the Memo dated April 29, 1996 that was superseded by the subsequent Memorandums referred to above. The respondents never complained of the same. State is also not entitled to erroneously contend that such Special Pay as extended in 1977 at the rate of Rs.30/-, should continue for eternity. Any prudent man would agree that the price index prevalent in 1977 could not be compared with the one prevalent today or in the recent past. This aspect was taken into account in ROPA 1990 when Special Pay was doubled in respect of scale no.8 by fixing a maximum limit of Rs.100/-. The State very rightly doubled the amount from Rs.30/- to 60/- as per ROPA 1990 and extended the benefit to the respondent that could not be curtailed and/or called back. To that extent, we fully approve of the stand taken by the respondents and affirm the decision of the Tribunal on that score. We however do not approve the Tribunal's ultimate finding that the respondents were entitled to merger of the Special Pay at the time of refixation of their pay as per ROPA 1998. This would amount to taking advantage of a situation when State erroneously called back such entitlement. 14 In short, the respondents were extended the benefit of 'X'. they were happy with 'X'. The State called back 'X' that was negated by the Tribunal very rightly and while doing so extended the benefit of X + Y to the respondents that was never contemplated.
The Tribunal application succeeds in part.
The order of the Tribunal quashing the Memo dated August 5, 1999 stands affirmed. The order of the Tribunal quashing the Memo dated November 2, 1998 is set aside. The respondents would be entitled to have continuation of Rs.60/- as Special Pay to be treated separately and would not be taken into account at the time of re-fixation of their pay as per ROPA 1998. The decision of the Tribunal rejecting the prayer for enhancement of the amount of Special Pay to Rs.200/-, is affirmed.
The order of the Tribunal is modified accordingly.
W.P.S.T. 197 of 2010 is disposed of without any order as to costs. 15 Urgent Photostat copy will be given to the parties, if applied for. Dr. Mrinal Kanti Chaudhuri, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [DR. MRINAL KANTI CHAUDHURI,J.]