Calcutta High Court (Appellete Side)
Benoy Bhushon Chakraborty & Ors vs The State Of West Bengal And Others on 13 May, 2013
Author: Nishita Mhatre
Bench: Nishita Mhatre, Anindita Roy Saraswati
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
BEFORE :
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Anindita Roy Saraswati
W.P.S.T. NO. 210 OF 2012
Benoy Bhushon Chakraborty & Ors. ...Petitioners.
-vs-
The State of West Bengal and Others ...Respondents.
For the Petitioners: Mr. Benoy Bhushon Chakraborty
(Petitioner no.1)
appearing in person for himself
as well as for other Petitioners.
For the State : Mr. Ashok Banerjee -- Govt. Pleader
Mrs. Chaitali Bhattacharyya
Mrs. Tapati Samanta (Ghosh).
For the Union of India: Mr. Sanjay Bardhan
Mr. Surojit Bhattacharyya.
For the Respondent
No.4. : Mr. Anil Kumar Gupta.
Heard on : 21.3.2013.
Judgment on : 13.5. 2013.
Nishita Mhatre, J. :
1. The question involved in the present petition is whether the arrears of salary, which the petitioners are entitled to on the basis of the recommendations of the University Grants Commission (hereinafter referred to as U.G.C.), are to be paid in the first instance by the State Government which are then to be reimbursed by the Central Government or whether the State Government may pay the arrears after receiving the funds from the Central Government.
2. It is not in dispute that the petitioner Nos. 1 to 5 and 7 have all retired as Associate Professors from various Colleges whereas the other petitioners are still working as Associate Professors in the Colleges of West Bengal. On 31st December, 2008 the Union of India accepted the Scheme recommended by the U.G.C. to revise the pay scales of teachers in the Central Universities. Under the Scheme, the age of superannuation was enhanced for teachers in the Central Educational Institutions to 65 (sixty five) years. The Scheme was made applicable to teachers and other equivalent cadres of Library and Physical Education in all the Central Universities and Colleges and Institutions deemed to be Universities whose maintenance expenditure was met by the U.G.C. The implementation of the revised scales was made subject to acceptance of all conditions mentioned in the letter of 31st December, 2008 sent by the Deputy Secretary to the Government of India, to the Secretary of University Grants Commission. Clause 8 extends the Scheme to Universities, Colleges and other Higher Educational Institutions within the purview of the State legislatures provided the State Governments wish to adopt and implement the Scheme subject to certain conditions which were mentioned in the aforesaid letter. These are as follows :
(a) Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.
(b) The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own source.
(c) Financial assistance referred to in sub-clause (a) above shall be provided for the period from 1.01.2006 to 31.03.2010.
(d) The entire liability on account of revision of pay scales etc. of University and College teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.04.2010.
(e) Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.01.2006.
(f) State Governments, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.01.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s).
(g) Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned hereinabove.
3. Clause 9 of the Scheme provides that the revision in pay was effective from 1st January, 2006 with respect to the Basic Pay and Dearness Allowance. The other allowances were revised with effect from 1st September, 2008. The Scheme was made subject to the guidelines issued by the Ministry of Finance in its Office Memorandum dated 30th September, 2008. This Scheme was sent to the Chief Secretaries of all the State Governments, including the State of West Bengal.
4. On 27th February, 2009 the State of West Bengal accepted the Scheme. In his letter to the Director of Public Instruction, West Bengal, the Principal Secretary to the Government of West Bengal, mentioned that the Scheme was made applicable to the several posts covered by the Scheme with effect from 1st January, 2006. The letter also mentioned that the modalities of payment of arrears and related matters towards the implementation of the Scheme of revision were to be notified separately.
5. On 28th February, 2009 a letter was sent by the University Grants Commission to all the State Governments that they could adopt the Scheme for State Universities and Colleges with regard to payment of pay scales, enhancement of retirement age and release of 40% of the arrears during the current financial year. The State Governments were further directed to initiate immediate action to implement the Scheme in a time bound manner.
6. There is no dispute that the State of West Bengal has accepted the Scheme and paid ad hoc benefits under the Scheme from 1st April, 2009. This is reflected in its communication dated 21st May, 2009 which indicates that the modalities of payment of arrears and other related matters could not be informed in the absence of any notification/guidelines/fitment tables from the UGC/Government of India. However, the State Government felt that it was necessary to provide ad hoc interim relief to the employees. Accordingly the amount to be paid to each category of employees was stipulated.
7. A fresh communication from the Principal Secretary to the Government of West Bengal, to the Director of Public Instruction reveals that the ad hoc interim relief had been granted "after obtaining suitable inputs from the U.G.C./Government of India". The document also mentions that the assistance from the Central Government would be available from the period from 1st January, 2006 to 31st March, 2010. The State Government would take over the entire financial liability after 1st April, 2010 and the assistance from the Central Government would be restricted to the pay scales of only those posts which were in existence and filled up as on 1st January, 2006. Para 10 of this communication reads as follows :
"This order regarding revised pay will be effective from 1st January, 2006 notionally. For the present, the payment in the revised pay structure will be made with effect from 1st April, 2009. Regarding modalities of payment of arrears for the period prior to 1st April, 2009 and other related matters towards the implementation of the revision of pay that have not been dealt with in the preceding paras would be considered separately and notified in due course after obtaining suitable inputs/guidelines/regulations from the UGC/Government of India."
The order has been issued with the concurrence of the Finance Department of the Government of West Bengal.
8. For the first time on 11th May, 2010, the Government of India informed the State Governments that reimbursement of 80% of the additional requirement of the State Governments upon revision of pay scales of teachers in Universities and Colleges under the State Government would be made only if the State Governments implemented the Scheme in toto. This communication also mentions that the liability accruing with effect from 1st April, 2010 on account of the revision of pay scales would be met by the State Government, provided it opted for the revision of pay scales. In para 8 of this letter, the respondent, Union of India, has stipulated that the release of Central assistance to the State Government would be considered by the Ministry of Human Resources Development provided the State Governments accept the Scheme and implement the same as a composite one including the adoption of the age of superannuation for those who were engaged "in class teaching" and have disbursed the salary based on revised pay scales. Such reimbursement would be made only after scrutiny of the detailed proposal received from the State Government.
9. It appears that on 23rd December, 2009 the Principal Secretary of the Government of West Bengal informed the Director of Public Instruction of West Bengal that 20% of the arrears which were payable by the State Government for the period from 1st January, 2006 to 31st March, 2009 would be paid in three equal instalments; the decision with regard to the payment of balance i.e. 80% of the arrears would be taken separately and notified in due course after interaction with the Government of India. Thus, at this stage the State Government had accepted the Scheme of the U.G.C. and had decided to implement it from 1st January, 2006. There was no mention about there being a change in the retirement age or that the Scheme was being implemented subject to the retirement age being retained in accordance with the prevalent rules in the State of West Bengal. Moreover, the State and the Central Governments were not ad idem with respect to the modalities of payment of arrears.
10. In Civil Appeal No. 1683 of 2005 filed by the All Bengal State Government College Teachers' Association, the Supreme Court held that since the retirement age of teachers was a State subject, the Central Government could not impose a condition and direct that they should be superannuated after the age of 62 years. It was only after the letter of 23rd December, 2009 where the State Government had mentioned that the modalities regarding payment of 80% of the amount of arrears would be decided in future, that a letter was issued by the Ministry of Human Resource Development on 11th May, 2010, agreeing to reimburse the amounts paid by the State Government to its employees. There is also no dispute, as disclosed from the letter dated 5th January, 2012 of the Minister of School Education, Higher Education Department, Government of West Bengal, that 2/3rd of the arrears had already been paid to all those who were in employment and a section of the retired teachers. This letter also mentions that the State Government was not in a position to implement the provision of enhancement of the age of retirement from 60 years to 65 years. The letter also discloses that `1660.86 crores was expected from the Central Government as its share of the arrears.
11. Thereafter on 23rd March, 2012 another communication was sent by the Central Government calling upon the State Government to disclose whether it had actually disbursed full arrears to the Universities and Colleges in the State on account of the revision of pay scales for the period from 1st January, 2006 to 31st March, 2010.
12. The Ministry of Human Resource Development informed State Governments on 14th August, 2012 that the Central Government had decided to provide financial assistance to the State Governments to the extent of 80% for the period from 1st January, 2006 to 31st March, 2010 as reimbursement. Though, the Central Government expected the Scheme to be implemented in a composite manner, including the enhancement of the age of superannuation of the teachers, it conceded that the State Government could decide the age of retirement for the teachers in their respective States and the condition imposed for acceptance of the Scheme in a composite way was withdrawn. Again in this communication the Central Government informed the State Governments that 80% of the arrears which were payable by the Central Government would be reimbursed for the period from 1st January, 2006 to 31st March, 2010 in two to three instalments. This reimbursement was to be made on condition that the State Government had made the entire payment. A proforma was enclosed with the communication directing the State Governments to disclose all necessary information for reimbursement of the Central Government's share.
13. It appears that on 18th April, 2012 a response was sent by the Joint Secretary to the Government of West Bengal, to the Director, Department of Higher Education, Ministry of Human Resource Development, Government of India to certain queries received from the Government of India. The State Government revealed that it had disbursed its share of arrears , i.e. 20% of the total arrears payable for the period from 1st January, 2006 to 31st March, 2009 and had paid salaries in accordance with the revised scales of pay from 1st April, 2009 to 31st March, 2010, which included the share payable by the Central Government to the extent of 80% of the arrears.
14. The petitioners were aggrieved by the fact that they had not received the arrears on revision of the pay scales and, therefore, had filed the Original Application No. 1400 of 2010 before the Administrative Tribunal. While disposing the application the Tribunal hoped that the State Government would settle the issue regarding financial assistance from the Government of India within a short span. The Tribunal further directed that the State Government should take all steps to release the entire arrears including 80% of the Central Government's share to the deserving candidates after the receipt of the financial assistance from the Centre.
15. The petitioners have approached this Court contending, inter alia, that the Tribunal ought to have directed the State Government to pay the arrears of salary to the petitioners from 1st January, 2006 within a stipulated period of time, without waiting for any financial assistance from the Central Government.
16. The petition was moved for admission before us and on 14th September, 2012, we had directed the Central Government to disburse the funds for assisting the State Government to make payment of the arrears from 1st January, 2006 to 31st March, 2010.
17. The petitioner No.1 has appeared in person before us and has represented the other petitioners. He has argued the matter with great ability. He submitted that the Scheme was a package which the State Government had to accept and it included the academic qualifications required to be achieved by the employees governed by the Scheme. According to the petitioner No.1, the State Government immediately accepted this change in the required academic qualifications suggested by the Scheme. It, therefore, cannot now pick and choose those conditions it wants to implement in this Scheme. He has submitted, by placing reliance on the judgment of the Supreme Court in the case of The State of Maharashtra & Ors. -vs- Association of Maharashtra Education Service Class II Officers & Ors., reported in AIR 1974 SC 2184, that when the State Government accepted the Scheme of revision in pay scales as recommended by the U.G.C., it cannot depart from it. He further submitted that the State of West Bengal had committed a fraud on the Statute by not implementing the Scheme when it had accepted the offer of the Government of India to make the Scheme applicable to the employees of the Colleges in the State of West Bengal. According to him, although there was no specific letter of acceptance which has been annexed to the petition, there is an implied acceptance of the Scheme by the State Government as it paid the ad hoc interim allowance and thereafter started implementing the Scheme. The petitioner No.1 further submitted that the State has violated Articles 14 and 16 of the Constitution as it has revised the pay scales of other Class I Officers and paid the enhanced amount from its own treasury, while the petitioners, who are also Class I Officers, have not been paid arrears by the State Government on the spacious ground that it has not received fund from the Central Government. The next submission was that by not paying the salary for the work done by the teachers, the State Government has violated the principles of natural justice. The petitioner No.1 then pointed out that although the State Government claimed that it had paid its entire share, in fact it had only paid two and half instalments of its liability which is equivalent to 20% of the arrears. He has pointed out that if the Scheme is accepted notionally by the State Government, it cannot asked for any financial assistance from the Central Government. The petitioner No.1 urged that it was necessary for us to decide the issue immediately as one of the applicants before the Tribunal has expired and most of the petitioners were retired employees.
18. The learned Counsel, appearing for the Union of India, pointed out that para 12 of the Scheme of 31st August, 2008 calls upon the State to seek clarification from the Government of India in case there were any anomalies in the implementation of the Scheme. He submitted that the State was well aware that the Scheme was composite one and that reimbursement of the financial assistance by the Central Government was one of the conditions mentioned in the Scheme. According to him, the State could not insist on release of the fund by the Central Government to it initially, for making payment to the employees, as it had accepted the Scheme in which one of the conditions was for reimbursement of the payment. He pointed out a letter of 14th February, 2013 which discloses that the Government of West Bengal had, in fact, paid the full amount of arrears for the period from 1st April, 2009 to 31st March, 2010 and had then called upon the Central Government to furnish the financial assistance by reimbursing the Central Government's share. He, therefore, submitted that the State Government has been shifting its stand as it suits it by contending that reimbursement was not one of the pre-conditions for acceptance of the Scheme. The learned Counsel for the Union of India further pointed out that it is only after the State Government disburses the entire amount payable as arrears to the employees that the Central Government would reimburse its share of 80% of the arrears, in instalments, to the State Governments.
19. Taking exception to the submissions on behalf of the petitioners as well as the Union of India, the learned Counsel, appearing for the State, urged that the Scheme framed by the U.G.C. was applicable to the Central Universities and the State Government was not bound to accept the same nor was the State Government required to pay arrears from 1st of January, 2006. It was submitted that on reading the Scheme in its entirety, it was apparent that it does not mention the Central Government would reimburse its share of the arrears after they were released by the State Government. Furthermore, according to the learned Counsel, the Scheme reveals that it is at the discretion of the State Government to accept the Scheme from a particular date and the conditions of the Scheme. According to the learned Counsel, the State Government had never accepted the enhancement of age of retirement and, its stand had been vindicated by the aforesaid decision of the Supreme Court in Civil Appeal No.1683 of 2005. The learned Counsel then submitted the practice adopted by the State Governments and the Central Government hitherto, while implementing the earlier recommendations of the U.G.C. for revision in pay scales was always that the Central Government would release fund to the State Government from which the State Governments would disburse the arrears to the employees concerned. She submitted that this earlier procedure had become a custom or practice and before deviating from the same, the Central Government ought to have brought it to the notice of the State Governments that in future it would only reimburse the amount paid in the first instance by the State Government. She submitted that just as the Scheme reflected the change in the age of retirement, the Central Government ought to have mentioned a change in the modality of payment in the Scheme itself and then left it open for the respective State Governments to either accept the same or reject it. The learned Counsel submitted further that the State Government had a legitimate expectation that the Scheme would be implemented in the same manner as earlier Schemes, especially since the modalities of making payment were not changed till 11th May, 2010. She has relied on the judgments of the Supreme Court in the cases of Sethi Auto Service Station & Anr. -vs- Delhi Development Authority & Ors., reported in (2009) 1 SCC 180 and Transmission Corporation of Andhra Pradesh Limited & Anr- vs- Sai Renewable Power Private Limited & Ors., reported in (2011) 11 SCC 34.
20. The learned Counsel for the State drew our attention to the letter dated 21st May, 2009 where the State Government had decided to revise the pay of its employees covered by the Scheme notified with effect from 1st January, 2006 to 31st March, 2010, for the purposes of payment of pension etc. the modality of payment of arrears were to be decided "in due course". The learned Counsel pointed out that it was because the State Government did not want to face allegations of discrimination from its employees, that it implemented the Scheme in effect from 1st January, 2006 onwards as it had revised the pay scales of the other State Government employees from that date. It was only in order to bring parity with the other employees of the State Government that it decided to accept the Scheme and make the actual payment with effect from 1st January, 2006 . The learned Counsel pointed out that it was for the first time that on 11th May, 2010 that the Central Government disclosed to the State Governments its decision to deviate from the earlier practice and custom to release the fund at the first instance to the State Governments for payment of arrears. The learned Counsel submitted that such a custom or practice gets a statutory force and any departure from the same must be express and not implied. The learned Counsel then submitted that the Scheme of 31st December, 2008 was merely an offer by the Central Government to the State Governments to accept the same as a composite one. She drew our attention to certain letters indicating that the acceptance by the State Government was not unconditional as it had not accepted the age of retirement, nor had it accepted the condition of reimbursement and decided to implement the Scheme notionally between 2006 and 2009. The learned Counsel submits that under Section 7 of the Contract Act, the acceptance must be unconditional as observed in the judgment of Kilburn Engineer Ltd. -vs- Oil and Natural Gas Corpn. Ltd., reported in AIR 2000 Bombay 405. The learned Counsel then submitted that the acceptance of the Scheme was based on the decision of the Finance Department provided certain terms and conditions were implemented. Thus, according to her, it was not an unconditional acceptance and, therefore, the State Government cannot be directed to disburse the entire amount of arrears to the employees without being paid the share of the Central Government. The learned Counsel then pointed out that when we passed the order on 14th September, 2012 directing the Central Government to release the funds to the State Government, the Central Government ought to have filed an application for setting aside the order rather than refusing to implement it. She pointed out that it is apparent that the Central Government is playing hot and cold and has changed its stance every now and then with respect to payment of arrears. According to her, the letter received by the State Government on 31st January,2013 from the Central Government discloses that the State Government would have to submit an undertaking to the effect that arrears of salary have actually been disbursed to the teachers for the period from 1st January, 2006 to 31st March, 2010 and only then the State's proposal for financial assistance can be considered by the Ministry of Human Resource Development for release of the Central Government's share of 80% of the arrears. The learned Counsel pointed out that this shift in the Central Government's stand now and again is making it difficult for the State Government to implement the Scheme. She pointed out that the State Government had already sent to the Central Government the required information regarding the payment of arrears on 4th February, 2013. However, the State Government was called upon to submit the same in special format which also has been complied by the State Government.
21. We have heard the parties at length.
22. There is no dispute that the petitioners are entitled to a revision of their pay scales as recommended by the U.G.C. There is also no dispute that the State Government has paid the arrears for the year 2009-2010. The only question which, therefore, arises is whether the arrears from 2006 to 2009, for which period admittedly the State Government has paid almost its entire share of the liability, have to be paid in the first instance by the State Government and thereafter secure the reimbursement from the Central Government. As we have noted earlier, there is no mention about the modality of payment in the Scheme itself; the modalities were to be decided later. The word "reimbursement" has been used for the first time on 11th May, 2010 in the communication sent by the Central Government to the State Government. By then the State Government had already paid a part of its share of the arrears of 20% .
23. However, in our opinion we need not get into the niceties of law in the present case as to whether it is the State Government or the Central Government which should make the initial payment of 80% of the arrears. We have been informed that the State Government has already submitted its statement for reimbursement of the Central Government's share of 80% of the arrears to the Central Government for reimbursement in March, 2013. The State was liable to pay according to the statement annexed to its Affidavit, for the period from 1st April, 2009 to 31st March, 2010 an amount of `.50,59,23,731/- whereas the Central Government was liable to pay `.202,36,94,942/- as 80% of the arrears. Since the State Government has advanced the entire amount, including the Central Government's liability, it has submitted its proposal for reimbursement. This proposal is pending before the Central Government. We are concerned only with nine petitioners before us and, therefore, we do not think it necessary for us to go into the wider question as to whether the amount has to be first paid by the State Government and then it is required to seek reimbursement from the Central Government.
24. The liability to pay arrears to the petitioners from 1st January, 2006 to 31st March, 2011 is `.85,02,924/-, the State's share being `.17,00,580/- . The State Government has already made payment of `.18,28,837/- being the payment of arrears from 1st April, 2009 to 31st March, 2010, inclusive of the share payable by the Central Government. Therefore, today the balance payable to the petitioners by the State Government, i.e., 20% of the arrears for the period from 1st January, 2006 to 31st March, 2009, is `.13,29,826/- , out of which the State has paid `.11,08,185/-. The share of the Central Government is `.53,19,301/-.
25. We direct the State Government to pay the petitioners the balance 20% of arrears payable by the State Government within six weeks from today. The amount of `.53,19,301/- shall be paid by the State Government after receiving the reimbursement from the Central Government in accordance with the proposal sent already. We direct the Central Government to consider the proposal of the State Government which is pending with it within two months. The Central Government shall release the funds in accordance with the proposal to the State Government, if it is found in order, within one month thereafter. On receipt of payment of 80% of the arrears, the State Government shall first disburse the amount to the petitioners within four weeks of its receipt. The larger issue as to whether the Central Government was required to release the amount first to the State Government for it to disburse the same to the employees or whether it could reimburse the amount is left open to be decided in an appropriate case.
26. The writ petition is disposed of.
27. No order as to costs.
28. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the appearing parties upon compliance of all necessary formalities.
(Nishita Mhatre, J.) Anindita Roy Saraswati, J.
I agree.
(Anindita Roy Saraswati, J)