Calcutta High Court (Appellete Side)
Pradesh Kumar Ghosh And Others vs The Chairman on 3 July, 2015
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 5257 (W) of 2003
Pradesh Kumar Ghosh and Others
Vs
The Chairman, Kolkata Port Trust
and Others
For the Petitioners : Mr.Jahid Hossain, Learned Advocate
Mr.Deb Barman, Learned Advocate
For the State : Ms. Aloke Banerjee, Learned Advocate
Mr. Ashok Kumar Jana, Learned Advocate
Heard on : April 17, 2015
Judgment on : July 3, 2015
Samapti Chatterjee, J.
1. The petitioner filed the present writ petition assailing the Order dated 23rd July, 2002 issued by Deputy Manager (P.& IR Division) thus rejecting the prayer of the petitioners for granting higher scale of pay than the respondent nos. 5 and 6 on the basis of the higher post enjoyed by the petitioners.
2. The petitioner no.1 Sri Pradesh Kumar Ghosh has already retired. Since September, 1990 the petitioners have been working as Inland ]Master of Haldia Dock Complex under Marine Operation Division without any break and disturbance. At the time of appointment in the year 1990 pay scale of the petitioners was `1470-2800-/ but at the time of filing of the writ petition the pay scale of the petitioners was `8055- 8300. One Dulal Chandra Mullick who was an L.C Driver, Lower Grade post than the post of Inland Master (as enjoyed by the petitioners) was appointed in the month of August 1992 as a Second Class Driver at the scale of `1220-2160/- after newspaper advertisement dated 18th March 1992. The petitioners were surprised that the respondent no.2 made a gross discrimination in increment of salary of the petitioners in comparison to Sri Dulal Chandra Mullick, the respondent no.5, who has been admittedly enjoying Lower Grade than the petitioners of the same Marine Operation Division. The chart below shows as to the difference the respondent authority made in gross discrimination in increment of salaries of the petitioners as well as the said D.C. Mullick :-
D.C. Mullick Pradesh Ghosh & Ors.
(Inland Master)
_______________ ______________________
August,92 2nd Class Driver Rs.1220/- 1550/-
November, 93 1st Class Driver Rs.1345 (Approx) 1750/-
August,95 L.C. Driver Rs.2890/- 3170/-
August,99 L.C. Driver Rs.3310/- 3740/-
September,99 L.C. Driver Rs.4190/- 3890/-
3. It is further submitted that one Ashok Kumar Das, respondent no.6 joined in the year 1992 as LC Driver at the pay scale of `1220 but subsequently his scale of pay was abruptly increased than that of Sri D.C. Mullick, respondent no.5 without showing any reason.
4. It is also submitted that petitioners are all Inland Masters. They have been working at the higher post than respondent no.5 Sri D.C. Mullick who was a Second Class Driver and at present working as LC Driver but in spite of the fact that the said D.C. Mullick was junior to the petitioners in rank he has been allowed to enjoy higher pay scale than the petitioners for reason best known to the respondent which is illegal, arbitrary, unwarranted and very much discriminatory at the same time. Therefore, the petitioners made repeated representations before the authorities for fixing the petitioners pay scale at par with the respondent nos 5 and 6 after removing anomalies but all in vain.
5. Mr. Deb Barman, learned Advocate appearing for the petitioners vehemently urged that the petitioners could not be placed at a lower scale than the respondent nos 5 and 6 who are working at a lower post than the petitioners. Therefore the petitioners pay should be fixed on a higher scale than the respondent nos 5 and 6 who are admittedly working in lower posts than the petitioners as the petitioners have been enjoying the post of Inland Masters and their rank is higher than LC Driver which post is enjoyed by respondent nos 5 and 6.
6. Mr. Deb Barman further contended that employees who have been working at the highest post of Marine Operation Division they could not be given lower rate of pay than the lower rank employees (respondent nos 5 and 6) who are working at the post of LC Driver.
7. Mr. Deb Barman further vehemently urged that difference of terms of FR-22 is not at all applicable in the petitioners' case as has been sought to be explained by the respondents to bypass the petitioners legitimate claim for granting higher scale than the respondent nos 5 and
6.
8. Mr. Deb Barman further contended that a lower grade employee cannot and should not be awarded higher scale of pay than the higher rank of employees who should be adequately protected by the authority in the matter of pay scale. Therefore, act of non rectification of scale of pay of the petitioners by the respondent authorities is very much illegal arbitrary, unjust, unfair, discriminatory and is liable to be set aside by this Hon'ble Court.
In support of his contentions Mr. Deb Barman relied on a decision reported in (2009) 3 Supreme Court Cases Page-94 Paragraph-17 (Gurcharan Singh Grewal And Another vs Punjab State Electricity Board And Others) which is quoted below :-
"Para-17- Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2."
It is further submitted by Mr. Deb Barman that out of seven petitioners four petitioners were retired from service.
9. Per contra, Mr. Aloke Banerjee, learned Advocate appearing for the respondent Kolkata Port Trust submitted that as per note-sheet issued by Finance Department for Kolkata Port Trust Authority of its Haldia Dock Complex dated 12th June, 2000 it was subsequently clarified that the appointment of respondent no.6 Ashok Kumar Das was treated as a direct recruit with full protection of pay under the provision of FR-22.
10. It is also mentioned in the said note-sheet that respondent no.6 was appointed with the Haldia Dock Complex, an autonomous body from the Central Industrial Security Force, a Government Department.
Mr. Banerjee further contended that respondent no.6 applied through appropriate advertisement and the said application was forwarded by the Group Commandant of CISF, Kolkata. In a subsequent communication of the said Group Commandant, CISF it was stated as follows :
"under the provision of Rule 55 (1) read with Rule 11 of the CISF Rules, 1969, the resignation tendered by No.8443006/84435006 S.I. Marinee A.K. Das of C.I.S.F., unit Haldia is hereby accepted with effect from 24th August, 1992 (F/N) and that the benefits under Rule-26(2) of CCS Pension Rules, 1972 will be admissible to him".
Therefore the petitioners cannot claim at par with the respondent no.5 and 6 , as a result of which the petitioners also cannot claim the higher scale than the respondent nos 5 and 6.
11. Mr. Banerjee further vehemently urged that fixation of the pay scale of respondent nos 5 and 6 was done as per the provisions laid down in Government of India Order No.25 of FR-22 under the heading/protection of pay as the pay protection is admissible for candidates recruited from the central autonomous bodies/public sector undertakings. Therefore, on the basis of the Order under FR-22 the benefit of pay protection was given to those incumbents namely respondent nos 5 and 6. Since the respondent no.6 was in a higher scale of pay than the respondent no.5 in his parent organisation i.e. Central Industrial Security Force and therefore his basic was fixed at Haldia Dock Complex at a higher scale than the respondent no.5.
12. Mr. Banerjee further contended that protection due to counting of past services and the benefit that has been given to the respondent nos 5 and 6 are strictly in terms of provisions of FR and SR.
13. Mr. Banerjee further contended that due to that rule (FR-22) even a junior draws a higher rate of pay than his seniors. Therefore offering the same scale or higher scale to the senior at this point cannot be considered.
14. In conclusion Mr. Banerjee submitted that in terms of FR-22 the fixation of the pay scale of respondent nos 5 and 6 was made which cannot be termed as anomaly created by the respondent no.3 in respect of fixing of pay scale of the respondents no.5 and 6 and the petitioners. Therefore, Mr. Banerjee concluded that the writ petition is liable to be dismissed as there is no merit.
15. After considering the submissions advanced by the learned Advocates of the respective parties and after perusing the records I find that though the petitioners were enjoying higher posts than the respondent nos.5 and 6 and they were provided with the higher pay scale than the respondent nos 5 and 6 up to August 1999 but all on a sudden from September 1999 Sri D.C. Mullick was granted pay scale of `4190/- but the petitioners were granted pay scale of `3890/- which is admittedly lower pay scale than the pay scale of D.C. Mullick who is enjoying lower rank than the petitioners. The petitioners are enjoying higher posts and it is evident that although the petitioners have been enjoying lower pay scale than the respondent nos 5 and 6 as the post of Inland Master is the higher post than the L.C. Driver.
16. It is not at all admissible in the service jurisprudence that the higher post holder will be placed in a lower pay scale than the incumbents who are admittedly in lower rank but had been placed in a higher pay scale than the petitioners. The argument advanced by Mr. Banerjee that the respondent nos 5 and 6 were given privilege under FR- 22 as they have been directly recruited from the other central department which in my opinion is not tenable. If the respondent nos 5 and 6 who are admittedly in a lower posts than the petitioners would be provided with higher pay scale than the petitioners as per FR-22 then petitioners pay scale also should be considered by the authority and they also should be placed in a higher scale of pay than their juniors i.e. respondent nos.5 and 6 by giving the petitioners pay protection.
17. It is a settled position in the service jurisprudence that if any junior have been provided with higher pay scale then the senior should be given pay protection by the authority which is admittedly missing in the case in hand. From the abovementioned chart it is crystal clear that right from August 1992 till August 1999 petitioners have been enjoying higher pay scale than the respondent nos 5 and 6. All on a sudden without showing any reason abruptly from September 1999 pay scale of the L.C. Driver (respondent nos 5 and 6) jumped to the pay scale of ` 4190/- where as the petitioners being the senior in rank to the L.C Driver have been fixed under pay scale of `3890/- which is lesser pay scale than pay scale of L.C. Driver.
18. It is well settled principle that senior cannot be paid less pay than his juniors. I find there is some substance in the argument of Mr. Deb Barman that senior cannot be given lesser pay than the junior. Therefore, considering the submissions of Mr. Deb Barman and also relying on the decision (2009) 3 Supreme Court Cases Page-94 (supra) I am of the view that the impugned letter cannot be sustained in the eye of law. Therefore, the impugned letter dated 23rd July 2002 issued by Deputy Manager thus rejecting the petitioners prayer for removing the anomalies in the pay of the petitioners (Inland Masters) and the respondent nos 5 and 6 (L.C. Driver) is hereby quashed and set aside.
19. I direct the Manager to reconsider the petitioners' prayer afresh in the light of observations made herein above and also in the light of the decision in the case of Gurcharan Singh Grewal (Supra) within 8 (eight) weeks from the date of communication of this order and to pass a reasoned order and communicate the same to the petitioners within two weeks thereafter.
20. With the above directions the writ petition is allowed without any order as to costs.
21. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all requisite formalities.
(Samapti Chatterjee, J).