Calcutta High Court (Appellete Side)
Manohar Mishra vs State Of West Bengal And Others on 12 May, 2009
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No.J (2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
W.P.S.T. No.455 of 2006
Present:
The Hon'ble Mr. Justice Ashim Kumar Banerjee
and
The Hon'ble Mr. Justice Prasenjit Mandal
Manohar Mishra.
Versus
State of West Bengal and others.
For the Petitioner: Mr. Asit Baran Mukherjee.
For State: Mr. Sandip Srimani,
Mr. Amitava Chowdhury.
Heard On: 04.05.2009 & 05.05.2009.
Judgement On: May 12, 2009.
Prasenjit Mandal, J.: This application is at the instance of the
writ petitioner and is directed against the judgment and order
dated 5th July, 2006 passed by the learned State Administrative
Tribunal in O. A. No.164 of 2003 whereby the learned Tribunal
dismissed the application of the writ petitioner.
The writ petitioner was appointed constable in the police
department, Government of West Bengal in 1948. He was superseded
by many batchmates and his juniors such as Ashutosh Chakraborty
and Sudarsan Chowdhury got higher pay for anomalous fixation of
pay. In order to get protection of pay and allowance under Rule
55(4) of the West Bengal Service Rules, Part - I, the writ
petitioner moved the Hon'ble High Court by a writ petition which
was disposed of directing the respondents to revise or re-fix the
pay of the writ petitioner again with effect from 01.04.1981
provided that the pay of the juniors in the cadre with identical
revised pay scale had been fixed at a higher stage than the
seniors. The pay of the writ petitioner was re-fixed accordingly
with effect from 01.04.1981 by an order dated 04.03.1994 and the
writ petitioner was allowed to draw the arrears on the condition
that he was to give a written undertaking that he would refund the
money, if drawn in excess on recommendation of the Finance
Department after completion of the State gradation list. No
appeal was preferred by the respondents against the said order.
The writ petitioner retired from service on superannuation at the
age of 58 years on 01.11.1996 but the respondents did not release
the pensionary benefits according to the fixation made by the
authorities in terms of the order of the Hon'ble High Court. The
writ petitioner then moved the learned Tribunal and the learned
Tribunal directed the respondents to treat the application as a
representation of the writ petitioner and to dispose of the same
by passing a speaking order. Pursuant to that order, the writ
petitioner submitted a representation to the respondent
authorities but the directions of the learned Tribunal were not
complied with. Thereafter, the writ petitioner filed another
application before the learned Tribunal and then again the learned
Tribunal directed the respondent authorities to dispose of the
matter treating the application as representation of the writ
petitioner by passing a speaking order. Then the S.P., North 24
Parganas passed the reasoned order on 09.08.2002 wherein the
prayer of the writ petitioner was rejected and the pay of the writ
petitioner was re-fixed at Rs.1630/- with effect from 01.02.1996.
The writ petitioner again moved before the learned Tribunal
praying for retiral benefits on the basis of re-fixation of the
last basic pay drawn at Rs.1770/- and also to set aside the order
dated 09.08.2002 passed by the S.P., North 24 Parganas. The
learned Tribunal dismissed that application on contest. Being
aggrieved by the said order of dismissal, the writ petitioner
preferred this application.
Mr. Mukherjee, learned Advocate for the writ petitioner,
submitted before us that according to Rule 55(4) of the W.B.S.R.
Part-I the pay of a senior cannot be less than that of the juniors
and as such the writ petitioner had to file one writ application
earlier in 1993 and the Hon'ble High Court directed the respondent
authority to revise the pay of the writ petitioner in terms of
Rule 55(4) of the W.B.S.R. Part-I with effect from 1st April, 1981.
The S.P., North 24 Parganas re-fixed the pay of the writ
petitioner with reference to the same cadre namely one Ashutosh
Chakraborty with effect from 01.04.1981; but ultimately when the
service book of the writ petitioner was sent to the Pay
Implementation Cell of the Finance Department, Government of West
Bengal before grant of pension to the writ petitioner, his pay was
lowered down. In fact, he also contended that at that time, the
service book of the writ petitioner was sent to the Pay
Implementation Cell along with that of one Sudarsan Chowdhury and
that was the cause of all troubles in respect of fixation of pay
of the writ petitioner. For that reason, discrepancy arose. He
contended that the service book of Ashutosh Chakraborty should
have been sent along with the service book of the writ petitioner
to the Pay Implementation Cell for checking if at all required.
He contended that the pay fixation of the writ petitioner had been
done as per order of the Hon'ble High Court and so it could not be
re-fixed by the Administrative Officer of the Government of West
Bengal and so the fixation of pay as well as pensionary benefits
of the writ petitioners was totally wrong. The learned Tribunal
failed to appreciate such fact. So the judgment and order of the
learned Tribunal should be set aside and fixation of pay of the
writ petitioner should be taken at Rs.1770/- as on 01.02.1996. as
fixed earlier by the S.P., North 24 Parganas. Pensionary benefits
should be calculated taking his pay at Rs.1770/- per month at the
time of retirement.
On the other hand, Mr. Srimani, learned Advocate for the
State, submitted that the re-fixation of pay of the writ
petitioner had been done as per order of the Hon'ble High Court
dated 12.10.1993 in C.O. No.19277(W) of 1993. The S.P., North 24
Parganas re-fixed the pay of the writ petitioner. Thereafter the
writ petitioner filed two applications before the State
Administrative Tribunal successively in 1997 and 1998 and upon
hearing both the sides, the learned Tribunal directed the
respondent authority to dispose of the two applications as
representations by passing speaking orders. Accordingly, a
speaking order was passed on 30.04.1997. Before grant of his
pension his service book was sent to the P.I. Cell which re-fixed
his pay at Rs.1630/- as on 01.02.1996. Pension had been
sanctioned accordingly. As per his undertaking, the writ
petitioner is bound to refund the excess amount drawn by him.
Having considered the submissions of the learned Advocates of
both the sides and on perusal of the materials on record, we find
that it is an admitted position that the writ petitioner was
appointed constable in 1948. Then he was promoted to Police
Driver with effect from 21.03.1964. He was again promoted to the
rank of Grade - I, Police Driver on 01.04.1981. He was again
promoted to the rank of Assistant Sub-Inspector of Police with
effect from 25.02.1985. His pay was re-fixed after ROPA, 1990 had
come into force. His pay was fixed at Rs.1630/- with effect from
01.02.1996. Subsequently, his pay was again re-fixed at Rs.5075/-
with effect from 02.02.1996 in terms of ROPA, 1998. Ultimately,
he retired from service on superannuation on 31.10.1996 (P.M.).
Thus, we find that the writ petitioner got promotion thrice in his
service career. That is why, he was deprived of the benefits of
the Career Advance Scheme.
In terms of the order of His Lordship (Justice Susanta
Chatterjee) of the Hon'ble High Court at Calcutta the
Superintendent of Police fixed the pay of the writ petitioner at
Rs.1670/- from 01.02.1994, Rs.1720/- from 01.02.1995 and Rs.1770
from 01.02.1996. When the service book of the writ petitioner was
sent to the P.I. Cell, Finance Department for checking before
grant of pension, the P.I. Cell found anomaly in the fixation of
the pay and held that the pay fixation of the writ petitioner
would be Rs.1630/- on 01.02.1996 (corresponding to Rs.5075/- under
the ROPA, 1998) and pension benefits were released by the Account
General, West Bengal according to such fixation of pay.
As per materials on record, one Sudarsan Chowdhury was
appointed constable in 1966. He got promotion twice as Police
Driver and Grade - I Police Driver in his service career and thus
he got the benefits of the 20 years' Career Advance Scheme before
his promotion to the rank of Grade- I Police Driver. His pay was
re-fixed later. Correction of error to rectify incorrect fixation
of pay is permissible. The respondent authority had done so in
the instant case. Yet his pay was fixed at Rs.4950/- at the time
of retirement of the writ petitioner. Thus, we find that pay of
Sudarsan Chowdhury was fixed lower than the pay of the writ
petitioner at the time of his (writ petitioner's) retirement.
The learned Advocate for the writ petitioner submitted before
us that the wrong had been done when the service book of Sudarsan
Chowdhury was sent along with the service book of the writ
petitioner to the P.I. Cell for checking. The service book of
Ashutosh Chakraborty should have been sent instead of that of
Sudarsan Chowdhury. Here we find that Sudarsan Chowdhury was
appointed constable in 1966 and Ashutosh Chakraborty was appointed
constable in 1967. As per affidavit-in-opposition, the pay of
Ashutosh Chakraborty was re-fixed in 2004. So, we do not find any
wrong in sending the service book of the writ petitioner along
with that of Sudarsan Chowdhury who was appointed earlier than Sri
Chakraborty.
The learned Advocate for the writ petitioner referred to the
decision reported in AIR 1990 SC 817 to show that the directions
of the Hon'ble High Court cannot be altered by the State by
passing an administrative order. With due respect to the learned
Advocate for the writ petitioner, we hold that this decision will
not be applicable in the instant situation because the facts of
that case and of the case at hand are completely different. The
decision related to grant of permit in respect of cutting of trees
of the forest. Similarly, the decision reported in AIR 1996 SC
188, we hold, will not applicable in the instant situation because
the fact of that situation is also completely different from the
one in the instant case. In that decision it was held that when
the order of the Court had been final and binding against the
State, any action contrary to that final order is not permissible.
In the instant case the pay of the junior to the writ petitioner
was fixed less than that of the writ petitioner later. So the pay
of the writ petitioner was altered to a lesser amount. So also in
respect of the decision reported in AIR 2002 SC 2755 referred to
by Mr. Mukherjee. So neither of these decisions is applicable in
the instant case.
So far as the fixation of pay by the District Superintendent
of Police, North 24 Parganas fixing the pay of the writ petitioner
at Rs.1770/- on 01.02.1996 is concerned, we find that such
fixation had been found wrong by the P.I. Cell, Finance
Department, Government of West Bengal. We find that the District
Superintendent of Police, North 24 Parganas fixed the pay the writ
petitioner at such higher stage in making compliance of the order
of the Hon'ble High Court in C.O. No.19277(W) of 1993 in terms of
Rule 55(4) of the W.B.S.R. Part-I. He is not the final authority
in assessing the fixation of the pay but the P.I. Cell had been
entrusted to do that job and in our view this cell had done
rightly. However, as the pay of the writ petitioner had been
fixed wrongly in making compliance of the order of the Hon'ble
High Court and as the writ petitioner retired from service in the
meantime, we are of the view that though the writ petitioner gave
an undertaking to refund the excess amount drawn, in consideration
of the situation such excess amount should not be recovered after
retirement of the writ petitioner. However, pension benefits as
granted by taking the pay of Rs.1630/- as on 01.02.1996 should
sustain.
In view of our above observations, we hold that the writ
petition should be disposed of with the above observations.
Accordingly, the writ petition is disposed of.
There will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be
made available to the learned Advocate for the parties on their
usual undertakings.
ASHIM KUMAR BANERJEE, J.
I agree, [ASHIM KUMAR BANERJEE, J.] [PRASENJIT MANDAL, J.]