Calcutta High Court (Appellete Side)
Shree Sushil Kumar Pandey & Ors vs State Of West Bengal & Ors on 13 April, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P. No.14982 (W) of 2009
Shree Sushil Kumar Pandey & Ors.
v.
State of West Bengal & Ors.
Mr Malay K. Basu, senior advocate, with Mr Pramit Roy, Mr Indranil Roy and Mr Rajib
Mallick, advocates, for the petitioners. Mr Tarun Kr. Roy, senior advocate, with Mr
Supriyo Basu and Mrs Soma Roy Chowdhury, advocates, for the State. Mr Amal Sen and
Mr Supriyo Chattopadhyay, advocates, for the third and fourth respondents.
Heard on: April 13, 2010 Judgment on: April 13, 2010 The Court: The fifty-five petitioners in this art. 226 petition dated August 24, 2009, working in Shree Maheshwari Vidyalaya at 4 Sovaram Bysack Street, Kolkata, are seeking a mandamus quashing the Government Order dated May 21, 2009 and commanding the respondents to pay them salary and allowances under the Revision of Pay and Allowance Rules, 2009.
Case of the petitioners is this. Though in view of the Government Order dated May 29, 2002 they are entitled to salary and allowances under the Revision of Pay and Allowance Rules, 2009, taking a stand that the Government Order dated May 21, 2009 gave the Institute option either to pay them under the Revision of Pay and Allowance Rules, 1996, or to implement the Revision of Pay and Allowance Rules, 2009, the Institute has refused to revise their pay and allowances according to the 2009 Rules.
2The questions, therefore, are: (i) whether the Order dated May 29, 2002 created the petitioners' right to claim salary and allowances under the Revision of Pay and Allowance Rules issued by the Government of West Bengal from time to time; and (ii) whether by the Order dated May 21, 2009 the Government has given the Institute option either to pay the petitioners under the Revision of Pay and Allowance Rules, 1996, or to implement the Revision of Pay and Allowance Rules, 2009.
The reasons for issuing the Executive Order dated May 29,2002 were stated in the Order, and they are as follows:
"The undersigned is directed to say that pursuant to the order of the Hon'ble High Court dated October 8,2001 in W.P.No.707 of 2002 in the case of Staff Council, Gyan Bharati Vidyapith and Anr. -vs- State of West Bengal & Ors., the matter regarding payment of salaries to the approved teaching and non-teaching employees of D.A. getting schools recognised by the West Bengal Board of Secondary Education at the rate of at least not less than what the teaching and non-teaching employees of the recognised Govt. aided schools are being paid, keeping in view the direction issued to the Anglo-Indian Schools has been taken up for consideration."
Stating the reasons for which the Order dated May 29, 2002 was issued, the Government then stated in the Order its decision, which is as follows:
"After due consideration of the matter, it is decided that the authorities of all D.A. getting schools recognised by the West Bengal Board of Secondary Education in the state which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Govt. of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Govt. for teaching and non-teaching employees of the Govt. Aided Schools with immediate effect.".
It is not disputed that the Institute is recognized by the West Bengal Board of Secondary Education, and that it has been getting the dearness allowance component of the salary paid to its employees from the Government of West Bengal. The further admitted position is that accepting the Order dated May 29, 2002 it started paying salary and allowances to its employees including the petitioners according to the scales specified 3 in the Revision of Pay and Allowance Rules, 1998 that was in force at the date the Order was issued.
One Shree Digambar Jain Vidyalaya in Cotton Street, Kolkata is one of the recognized D.A. getting institutes in the State. Nine employees of the Institute moved W.P. No. 5103 (W) of 2003 under art.226 alleging that the Institute was not complying with the Order dated May 29, 2002. The Institute unsuccessfully contested the petition taking the plea of insufficient financial resources to pay its staff under the Revision of Pay and Allowance Rules, 1998.
Under the Executive Order dated February 27, 2009 the Revision of Pay and Allowance Rules, 2009 were issued directing notional revision as from January 1, 2006 and payment of actual benefit as from April 1, 2008. Then by an Executive Order dated March 24, 2009 the Government of West Bengal, School Education Department, Budget Branch notified that members of the staff of the recognised D.A. getting schools in the State would get dearness allowance at the rate of 97% of their basic pay from March 1, 2009.
The Executive Order dated May 21, 2009 was issued stating as follows:
"In continuation of this Department Memo No.52-SE(B)/5B-30/2007 dated 24.03.2009 the undersigned is directed by order of the Governor to say that the Governor has been pleased to declare that all whole-time approved teaching and non-teaching employees of D.A. Getting Schools/Anglo Indian Schools( Primary & Secondary) who are drawing pay scales as per ROPA 1996 will get Dearness Allowance @ 104% of basic pay( Pay Range upto Rs. 25,400/- per month) with effect from 1st April,2009 and those D.A. Getting Schools/Anglo-Indian Schools ( Primary & Secondary) who will implement the ROPA 2009 will get Dearness Allowance at per revised rate as already published vide this Department Memo No.46-SE(B) dated 27.02.2009 as per para 14."
Mr Basu, counsel for the petitioners, has contended that keeping the Executive Order dated May 29, 2002 in force, the Government of West Bengal could not issue the Order dated May 21, 2009 virtually neutralizing the effect 4 of the existing Order dated May 29,2002 whereby parity of pay was introduced for the first time for the benefit of the staff of the recognised D.A. getting institutes in the State of West Bengal.
Mr Sen, counsel for the Institute, has argued two points: (i) the moment the Order dated February 27, 2009 was issued, the Order dated May 29, 2002 lost its force; and (ii) even if the Order dated May 29, 2002 remained in force after the Order dated February 27, 2009, in view of the subsequent Order dated May 21, 2009 giving the option, the Institute was justified in not implementing the Revision of Pay and Allowance Rules, 2009.
Mr Roy, counsel for the State, has argued that both the petitioners and the Institute misinterpreted the Order dated May 21, 2009 whereby the Government did not give any D.A. getting institute any option either to pay its employees under the Revision of Pay and Allowance Rules, 1996, or to implement the Revision of Pay and Allowance Rules, 2009; for the Order was issued only for ensuring that the employees of the D.A. getting institutes yet to implement the Revision of Pay and Allowance Rules, 2009 received dearness allowance at a higher rate calculated on the basis of the basic pay fixed under the Revision of Pay and Allowance Rules, 1996.
The Government Order dated May 29, 2002 was issued for ensuring salary and allowances of the approved teaching and non-teaching employees of the D.A. getting institutes in the State recognized by the West Bengal Board of Secondary Education at a rate at least not less than the one at which the teaching and non-teaching employees of the recognized Government aided schools were paid. By the Order dated February 27, 2009 the Government only enforced the Revision of Pay and Allowance Rules, 2009 specifying the revised scales for the teaching and non-teaching employees of the Government aided schools.
I am unable to see how the provisions of cl.15 of the Order dated February 27, 2009 stating that the provisions of the Order shall have overriding effect can set at naught the 5 existing Order dated May 29, 2002 that had been issued for a different purpose altogether. The overriding effect of the clause was to apply only to the previous Orders that were issued by the Government enforcing the previous Revision of Pay and Allowance Rules.
I do not find any reason to accept the argument that once the Order dated February 27, 2009 was issued enforcing the Revision of Pay and Allowance Rules, 2009, the Order dated May 29, 2002 directing all recognised D.A. getting institutes in the State to pay their staff at the rate prescribed by the Government for the teaching and non-teaching employees of the Government aided schools lost its force. Life of the Order dated May 29, 2002 was not coterminous with the life of the Revision of Pay and Allowance Rules, 1998 during whose term, incidentally, the Order was issued.
It is of no consequence that in the Revision of Pay and Allowance Rules, 2009 nothing was said for the recognised D.A. getting institutes in the State. First, there was no scope for saying anything therein concerning revision of pay of the recognised D.A getting institutes; and secondly, in view of the existing Order of the Government dated May 29, 2002 it was not necessary. This order created right of the employees of all the recognised D.A. getting institutes in the State (including the petitioners) to claim revision of their pay under all the future Revision of Pay and Allowance Rules issued by the Government.
It is totally wrong to say that by the order dated May 29, 2009 the Government gave an option to the recognised D.A. getting institutes in the State either to pay their employees according to the scales specified in the Revision of Pay and Allowance Rules, 1996, or to implement the Revision of Pay and Allowance Rules, 2009. It is evident from what has been stated in the Order dated May 29, 2009 that it was issued only for notifying the Government's decision how it would pay dearness allowance to the recognised D.A. getting institutes paying their employees according to the provisions of the two rules.
6I am unable to accept the argument that counsel for the State has argued a case different from the one stated in para.3(v) of the State's affidavit. In para.3(v) of the affidavit the State has explained why it issued the Order dated May 29, 2009 mentioning two rates of dearness allowance. Counsel for the State has rightly submitted that by the Order dated May 20, 2009 the Government did not give any liberty to any recognised D.A. getting institute in the State not to implement the Revision of Pay and Allowance Rules, 2009.
In my opinion, in view of the Executive Order of the Government dated May 29, 2002 the petitioners were entitled to claim salary and allowances at the revised rates specified in the Revision of Pay and Allowance Rules, 2009 and the Institute was under an unqualified obligation to implement the scales specified in the rules. I do not find merit in the argument that if the provisions are implemented, then it will not be possible to keep the Institute running; for implementation of the 2009 Rules will create an additional financial burden of around Rs.1 crore.
Neither increase in financial burden resulting from implementation of provisions of law, nor insufficiency of financial resources to bear the additional financial burden created by implementation of the provisions of law is a valid ground to say that the Institute incurring the obligation to revise the petitioners' pay and allowances in compliance with the Government Order dated May 29, 2002 should not be asked to implement the revised scales specified in the Revision of Pay and Allowance Rules, 2009.
Mr Basu has rightly relied on the decision of the Supreme Court in Frank Anthony Public School Employees' Association v. Union of India & Ors., (1986) 4 SCC 707, holding as follows:
"23. We must refer to the submissions of Mr Frank Anthony regarding the excellence of the institution and the fear that the institution may have to close down if they have to pay higher scales of salary and allowances to the members of the staff. .........................................Regarding the fear expressed by Shri Frank Anthony that 7 the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to ' put the teachers in their proper place'. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised."
For these reasons, I dispose of this petition ordering as follows. The Institute shall implement the Revision of Pay and Allowance Rules, 2009 with effect from the date they were implemented by the Government aided institutes. Pay and allowances of the petitioners shall be revised and arrears shall be paid within eight weeks from the date of communication of this order. The Government shall pay the balance dearness allowance, if any, within four weeks from the date the requisition for the amount is received from the Institute. No costs. Certified xerox.
sh (Jayanta Kumar Biswas, J.)