Calcutta High Court (Appellete Side)
Basudeb Aich vs State Of West Bengal & Ors on 21 June, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1
21.06.2019
srm
W.P. No. 26616 (W) of 2015
Basudeb Aich
Versus
State of West Bengal & Ors.
With
W.P. No. 26951 (W) of 2015
Madan Gopal Mukherjee & Ors.
versus
The State of West Bengal & Ors.
Ms. Nandini Mitra,
Mr. Sanjay Saha
...for the Petitioners.
Mr. Kumar Jyoti Tewari
...for the UOI.
Petitioner Nos.1 and 3 in W.P. No.26951 (W) of 2015 have since
withdrawn from pursuing the remedy by way of this writ petition and
as such the petition survives only in respect of Bagala Prasad Patra.
The petitioners in both the writ petitions are presently working as
Superintendent (Technical) in the Indian Institute of Engineering,
Science & Technology. The petitioners were appointed pursuant to an
advertisement dated September 18, 1991 whereby applications were
sought from the aspiring candidates for appointment to several posts
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including the post of Workshop Instructor for Government Engineering
Colleges in West Bengal. The requisite qualifications as per the
advertisement was as hereunder:
"The advertisement specified requisite qualification and
experience for the said post, which are as follows:
i) Diploma in Mechanical Engineering from State Council for
Engineering and Technical Education, West Bengal or its
equivalent
ii) Two years experience in Shop Training Work in the
appropriate field in any industry/institution
OR
i) Madhyamik or equivalent.
ii) ITI/Trade Certificate in relevant trade or its equivalent.
iii) 4 years experience in shop training work in appropriate
field in any industry/institution.ʺ
Based on the performance of the petitioners and two others at the
interview the names of the petitioners were recommended by the Public
Service Commission on April 19, 1993. The petitioners were appointed to
the post of Workshop Instructor (Fitting Shop) in the Institution, which
was previously known as Bengal Engineering College. Subsequently, the
Bengal Engineering College became a Deemed University. The
petitioners were confirmed in their services after completion of their
period of probation. The post of the petitioners who were originally
working as Workshop Instructor (Fitting Shop) in the pay scale of
Rs.1260‐2610/‐ were re‐designated as Technical Assistant, Grade‐II with
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the pay scale of Rs.1300‐2884/‐ with effect from December 17, 1993,
pursuant to an Office Order No.66/0/0 dated March 1, 2001 issued by the
Vice Chancellor of the Bengal Engineering College (Deemed University)
in terms of G.O. No.406‐Edn(U)/IU(BE)‐1/99 dated June 21, 1999 issued
by the Higher Education Department, Government of West Bengal.
Thereafter the said Institution became an Autonomous Institution.
Thereafter by a resolution dated May 30, 2006, the Board of
Management of the Institution, which was by then known as BESU
decided to grant promotion to the employees including the persons from
the post of Technical Assistant, Grade‐II to Technical Assistant, Grade‐I
in the pay scale of Rs.4800‐10925/‐. Thereafter the petitioners were
promoted to the post of Superintendent Technical with effect from
September 20, 2013 in the Pay Band of Rs.9000‐28300/‐ with Grade Pay of
Rs.4800/‐ with effect from their date of joining. Thereafter, the petitioners
claimed the benefit of upward revision of pay scale available to
Technical Assistants on the basis of the Government Orders. The
Executive Council of the BESU in its 35th meeting held on May 30, 2013
decided to promote the petitioners, as already stated hereinabove, by
giving them one time relaxation but, while implementing the decision it
was observed that the petitioners did not fit into the categories
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mentioned in G.O. dated October 18, 1985 and G.O. dated April 24, 1979.
Those government orders stated that persons similarly situated like the
petitioners who were claiming upward revision of pay scale of Technical
Assistants should have a degree in the subject of Higher Secondary/Pre
University/School Final with requisite technical qualification such as
ICE, LME, LEE or other training of 3 years duration recognised by the
Council of Technical Education. So BESU made a request to the
Secretary to the Government of West Bengal, Higher Education
Department, University Branch to grant a one time relaxation to the
petitioners so that the petitioners would come within the purview of the
Government Orders as mentioned hereinabove. The said letter was
issued by the Registrar on January 21, 2015.
A similar request was made by the Dean Administrative Affairs.
Pursuant to the requests made by the Registrar and Dean of the
University, the Deputy Secretary, Government of West Bengal, Higher
Education Department, issued a letter stating that the request for one
time relaxation of qualification for Technical Assistants for the purpose
of their promotional benefit could not be acceded to as it would lead to
similar demands from similarly placed employees in other Technical
Institutions under the Higher Education Department.
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Aggrieved, the petitioners have moved this Hon'ble Court.
The petitioners based their claims on Clauses 7(i) and 7(iii) of the
Notification dated December 14, 1992 on the basis of which the Bengal
Engineering College had become a Deemed University and thus an
Autonomous Institution. The provisions of the said Clauses are set out
below:
"i) The State Government may by issuing specific order(s) direct
any of the officers, teachers or other employees who were either
posted or were liable to be posted to B.E. College, prior to transfer
of the college to the society, to be allotted to the Deemed
University in their respective positions on the same tenure, the
same pay and allowances and upon the same terms and
conditions of service and with the same rights and privileges as to
pension, gratuity, provident fund, savings‐cum‐group insurance
scheme and other matters as they would enjoy as State
Government employees without however any special allowances
for such allotment until such time as may be decided upon by the
State Government.
Clause 7(iii) of the said notification is very significant in that it is
stated there would be no distinction between the Government
employees allotted to the society and the employees appointed by
the society in all matters relating to duties and responsibilities."
By a Notification dated February 17, 1993, the Government of
West Bengal, Higher Education Department, transferred to the B.E.
College (DU) all the posts indicated in the list annexed to the said memo
sanctioned by the State Government prior to conversion of the
University to a Deemed University. The said transfer had concurrence of
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the Finance Department, Government of West Bengal. With effect from
December 17, 1993, the petitioners were re‐designated as Technical
Assistant, Grade‐II.
It is the case of the petitioners that 84 employees under the
Department of Higher Education Government of West Bengal who were
transferred to this University were given one time relaxation of their
educational qualification in order to bring them within the purview of
Government Orders dated April 24, 1979 and October 17, 1985.
Ms. Mitra, learned Advocate appearing on behalf of the
petitioners, draws attention of the Court to Memorandum dated July 25,
2008 issued by the Assistant Secretary to the Government of West
Bengal, Higher Education Department, University Branch to substantiate
that one time relaxation of qualification was granted to 84 Government
employees allotted to BESU for facilitating their absorption against the
re‐designated posts in the University. Prima facie it appears that the
petitioners, are similarly situated, and are the original employees of the
University itself who had the requisite qualifications, mentioned in the
advertisement leading to their appointments upon recommendation of
the Public Service Commission. There is hardly any difference in the
qualifications mentioned in the Government orders and the
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advertisement pursuant to which the petitioners were selected in
accordance with law.
Now, the University has come under the Ministry of Human
Resources government of India and the Union of India has since been
impleaded as a respondent. Mr. Tewari learned Advocate has entered
appearance on behalf of the Union of India.
It is submitted by Ms. Mitra by placing reliance on a Memorandum No.F.32‐2/2012‐TS.III dated December 20, 2017 issued by the Under Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education that benefits claimed by the writ petitioners in these two writ petitions have been given to non‐teaching employees of NITs who were recruited prior to February 5, 2014. Paragraph 3 of the said Memo is quoted below:
"3. Apart from the above, while approving the above mentioned RRs, the Council of NITSER had also desired to look into the issues regarding relaxation of educational qualifications for the regular internal non‐teaching staff who were recruited prior to implementation of RRs (2014) and one‐time age relaxation for the ad‐hoc/temporary/contractual staff of the NITs for regularisation. The Oversight Committee examined above referred issues. The recommendations have been examined in the Ministry and it has been decided that:‐
(i) For the promotion of Non‐Teaching employees who were recruited before the implementation of above mentioned RRs issued on 5th February, 2014 will continue to be governed by the same educational qualifications, which were prevalent before 5th 8 February, 2014. However, such employees will have to undergo requisite skill test/trade test for future promotion(s) upgradation.
Those who have been recruited as per the RRs issued on 5th February, 2014 will continue to be governed by the same." It is submitted by Ms. Mitra that now the University is not under the Higher Education Department, Government of West Bengal and the Higher Education Department did not have any role in the matter as the University had come under the Department of Higher Education, Ministry of Human Resource Development, Government of India and thus the benefit of the afore‐mentioned memorandum should be given to the petitioners.
Mr. Tewari, learned Advocate appearing on behalf of the Union of India, does not dispute such fact. However, he submits that till date the petitioners have not approached the Union of India.
Under such circumstances, liberty is granted to the petitioners to make a comprehensive representation to the Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education with a request to award the benefits, as prayed for, so that they may be retained in the position they are holding as Technical Assistant, Selection Grade II and can enjoy the pay scale attached to the said post which they are continuing to enjoy as 9 already granted by the Government of West Bengal to other similarly situated persons who had been transferred to the said college earlier.
Let such representation be made within a period of 10 days. Let this matter appear in the Combined Monthly List of August, 2019.
In the meantime, the Secretary, Government of India, Ministry of Human Resource Development, Department of Higher Education or authorised Officer of the said Department not below the rank of Joint Secretary is directed to consider the long standing grievances of the petitioners and pass a reasoned order in accordance with law and the prevailing government orders of the said Ministry. The said reasoned order and the stand of the Union of India will be submitted in Court supported by an affidavit by any authorised Officer of the Union of India on the next date of hearing and an advance copy of the said affidavit should be supplied to the petitioners within July 30, 2019.
(Shampa Sarkar, J.)