Calcutta High Court (Appellete Side)
(Union Of India & Ors vs Arup Kumar Saha) on 13 April, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
13.4.201
Sl. no.253 WPCT 57 of 2010
(Union of India & Ors. -vs- Arup Kumar Saha)
Mr. Amales Roy ...for the petitioners
Mr. Chiradip Sinha ...for the respondent
The respondent abovenamed was working in Central Statistical Organization (IS Wing). Initially, he was posted as Computer (Junior Scale) in 1971. He was confirmed in the said post with effect from August 1, 1979. On June 22, 1977 he was promoted to the next post being Computer (Senior Scale). He was confirmed in the said post with effect from September 25, 1987. He got next promotion in 1995 in the post of Data Processing Assistant. He retired with effect from June 30, 2007. As per ACP scheme, he got one ACP benefit with effect from August 9, 1999, however such benefit was given on February 28, 2001. He was accordingly fixed at the appropriate pay scale after such ACP benefit and retired as such. While his pension papers were being scrutinized by the Pension authority, they raised objection with regard to extension of ACP benefit. Such objection was raised in view of merger of two original posts, he held being Computer (Junior Scale) and Computer (Senior Scale). The said two posts were amalgamated on recommendation of the Fourth Pay Commission. By virtue of such recommendation the persons working in the post of Computer (Junior Scale) were upgraded 2 in Computer (Senior Scale) with effect from 1989. According to the Pension authority, in view of amalgamation of the said two posts having occurred after the respondent got promotion in the post of Data Processing Assistant, he was not entitled to claim that his first promotion from Computer (Junior Scale) to Computer (Senior Scale) could not be treated as promotion in view of merger. Pertinent to mention, the effect of the Fourth Pay Commission was given on April 7, 2000 whereas he got the second promotion in 1995.
The authority cancelled ACP benefit and attempted to recalculate his retiral benefit along with other similarly circumstanced colleagues, resulting in thirteen original applications filed before the Tribunal. The Tribunal heard those applications analogously and disposed of by a common judgment and order dated July 14, 2007 impugned in this application before us.
Mr. Amales Roy, learned Counsel appearing for the Union of India, the petitioners abovenamed submits that the authority does not want to initiate any recovery proceeding. They only want to withdraw the benefit notionally and recalculate his pensionary benefit ignoring ACP benefit, he got in 2001. The Tribunal rejected such contention.
The learned Counsel appearing for the respondent while opposing the application contends that the benefit once given to the incumbent and that too, after obtaining prior approval of the higher authority, cannot be taken away in this process. 3
We have considered the rival contentions. We have carefully perused the judgment and order passed by the Tribunal impugned herein.
While we agree with the ultimate finding of the Tribunal, we are of the view that once the post was amalgamated by giving en block transfer to the persons from the feeder post to the promotional post, the juniors are automatically treated at par with their seniors working in the promotional post. If that be the situation, earlier promotion should not be taken into account. If we consider this hypothetical situation, we would find that the person getting promotion from Junior Scale to Senior Scale and working in the Senior Scale, would be deprived of ACP benefit, at least to the extent he enjoyed that promotional post whereas his junior by virtue of amalgamation of two posts would be entitled to the benefit of ACP ignoring his upliftment in view of amalgamation. This would create an anomalous situation. The authority rightly granted him ACP benefit in 2001 ignoring his first promotion. Such benefit, in our view, cannot be taken away on the objection of the Pension authority.
The matter may be viewed from another angle. Assuming the authority is entitled to re-calculate the retiral benefit by rectifying their so-called mistake, the benefit once given to the employee cannot be taken away to his detriment. Pension is always calculated on the basis of the last drawn 4 pay and the respondent must be paid on that basis. To that extent, we uphold the order of the Tribunal.
We, however, join issue to one direction of the Tribunal to the effect that the respondent would be entitled to have his pay re-fixed with effect from January 1, 2006. The learned Counsel appearing for the respondent contends before us that such re-fixation was granted in view of recommendation of the Pay Commission accepted by the authority.
We have perused the petition filed before the Tribunal. We do not find any such prayer made before the Tribunal. The respondent prayed for quashing of the order of the authority attempting to re-calculate his retiral benefit taking into account his promotion and consequential pensionary benefit, which was given by the Tribunal. Hence, the direction for re-fixation of pay, in our view, was beyond the scope of the writ petition.
The tribunal application succeeds in part. The order of the Tribunal impugned herein is confirmed in case of Arup Kumar Saha, save and except the last sentence in paragraph 23, wherein the Tribunal directed re-fixation of his pay with effect from January 1, 2006.
This order would, however, not preclude the respondent from applying for re-fixation of his pay on the basis of pay revision at the recommendation of the Pay Commission. He can make such application before the authority and the authority may consider the same.
WPCT 57 of 2010 is disposed of accordingly.
5There would be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) (Dr.Mrinal Kanti Chaudhuri,J.)