Calcutta High Court (Appellete Side)
Gobinda Chandra Das vs State Of West Bengal & Ors on 3 August, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Rakesh Tiwari
W.P.S.T No. 13 of 2011
GOBINDA CHANDRA DAS
...PETITIONER
VERSUS
STATE OF WEST BENGAL & ORS.
...RESPONDENTS
For the petitioner : Mr. Kashi Kanta Moitra Mr. Arup Kumar Lahiri Mr. Animesh Mukherjee.
For the respondents : Ms. Chaitali Bhattacharya, Ms. Sukla Das Chanda.
Heard on : 15/06/2016, 17/06/2016
and 22/06/2016.
Judgment on : 03/08/2016
Rakesh Tiwari, J. :- Heard learned counsel for the parties and perused the record.
The writ petitioners filed writ application under Article 226 of the Constitution of India before this Court thereby giving rise to C.O no. 15740 (W) of 1986, wherein the learned Single Judge passed an interim order to the effect that pay protection be granted to the petitioners pursuant to the order, wherein the petitioners had been enjoying under Rule 55(4) of the West Bengal Service Rules Part-I. The case of petitioner was opposed by the respondents/State on the ground that petitioner was not entitled to the benefit of Rule 55(4) in view of the decision of the Supreme Court in State of West Bengal versus Subal Chandra Das and others reported in (1996) 7 SCC 191. Subsequently, after the constitution of the Tribunal, the said writ application was transferred to the Tribunal and was renumbered as T.A no. 250 of 2001 and the claim of the petitioner was rejected by the Tribunal vide its order and judgment dated 30/08/2010.
The contention of the learned counsel for the petitioner is that it is settled law that junior cannot draw more than senior and aggrieved by the fact he had preferred W.P.S.T no. 86 of 2005 wherein he had come out with the case that all the seven writ petitioners were appointed as Lower Division Clerk during the years 1965 to 1969 as direct-recruits and all of them were promoted to the post of Upper Division Clerk in the year 1981. The respondent no. 7, on the other hand, was initially appointed as a Muharrir in the year 1959, was appointed as Lower Division Clerk in the year 1972 by way of promotion and subsequently, was further promoted to the post of Upper Division Clerk in the year 1985. The State Government upgraded the pay-scale of the Muharrir by making the same identical with that of the Lower Division Clerk with effect from April 1, 1970, as a result, respondent no. 7, who was junior to the writ petitioners on the date of amalgamation of the pay scale, had been enjoying higher scale of pay under Rule 55(4) of the West Bengal Service Rules Part-I. The order impugned is assailed by the petitioner saying that the Tribunal erred in law and misapplied the decision of the Supreme Court in the case of State of West Bengal (supra) by totally overlooking the fact that the said decision cannot have any application to the facts and circumstances of the present case. He stated that on the date of amalgamation of the post of Muharrir with that of the Lower Division Clerk, all the petitioners were senior to the respondent no. 7 and all of them were promoted to the post of Upper Division Clerk earlier to the promotion of respondent to the post of Upper Division Clerk and as such, order and judgement of the learned Tribunal is illegal and liable to be set aside.
The State had not appeared before the Tribunal and now before us, the learned counsel for the State would contend that the writ petitioner was appointed on 22nd January, 1972 on the post of Lower Division Clerk with the pay of Rs.230-445/- wherein his pay was fixed at Rs.230/- on 22nd January, 1972 and on 22nd January, 1973 his pay was fixed at Rs.235/-, therefore, it is evident that on the date of his joining of the petitioner in service i.e. on 22nd January, 1972, respondent Amar Prosad Dawn was already in service for 13 years and his pay even as Mohurrier in the old scale of pay in terms of West Bengal Revision of Pay and Allowances Rules, 1970 which was at Rs.240/- i.e. higher than that of the petitioner on the date of his joining at the scale of pay of Rs.230/- in the post of Lower Division Clerk.
Counsel for the respondent submits that it is evident that there is no Rule under which the pay of the petitioner could be stepped up to Rs.240/- at the time of entry in service when he was placed in the minimum of the pay scale of Rs.230-445/- on the date of joining of the petitioner, which was already drawing once pay as Mohurrier due to his length of service. Thereafter, being promoted to the post of Lower Division Clerk and after getting New Intermediate Selection Grade because of his greater length of service the pay of respondent Amar Prosad Dawn became progressively higher in terms of Court's order with effect from 1st August, 1974 whereas the petitioner continued to enjoy normal increment and fixation of pay in terms of ROPA, 1981. As a result the pay of respondent Amar Prosad Dawn was more than that of the petitioner. It is also submitted that the cases on which parity is being claimed by the petitioner being W.P.S.T no. 832 of 2005 and W.P.S.T no. 788 of 2006 are different on facts and circumstances, therefore, those judgments are not be helpful to him. Moreover an employee would get pay protection only if he fulfill the requirements of Rule 55(4) of West Bengal Service Rules, Part I. It is urged by the respondent counsel that during his service period the petitioner did not raise any objection and it was only after a long gap of retirement, that he raised objection and submitted his representation in writing before the respondent no. 3 claiming for pay protection under Rule 55(4) of the West Bengal Service Rules, Part I without waiting for reply, he moved an application before the learned Tribunal under Section 19 of the Central Administrative Tribunals Act which was registered as O.A no. 3829 of 2008. As directed by the learned Tribunal, scrutiny of the respective service particulars of the petitioner and respondent Amar Prosad Dawn and other pro forma respondents of the instant case was made by the Principal Secretary, Finance Department, Government of West Bengal. He rejected the prayer of the petitioner by passing a reasoned order dated 11th February, 2008 with remarks that the aforesaid employees connected in the case started their careers in different cadres having different pay scales.
Being aggrieved by and dissatisfied with the orders passed by the Principal Secretary, Finance Department, the Additional Chief Secretary and Commissioner in General, L and L.R Department, the petitioner preferred another application before the Tribunal being O.A no. 198 of 2009 praying for a direction upon the respondent authorities to grant him pay protection by setting aside the order dated 11th February, 2008 aforesaid. The Tribunal vide its order dated 30th August, 2010 rejected the claim of the petitioner. It is stated that dissatisfied with the said order of learned Tribunal, the instant Writ Petition was filed by him in which that the Tribunal after being satisfied from the materials on record had passed the impugned order, therefore, the scope of judicial review of such order is limited and no such case is made out for interference of this High Court in the impugned order passed by the learned Tribunal. In view of the facts and circumstances stated hereinabove, the instant Writ Petition is not at all maintainable and the same is liable to dismiss by imposing costs upon the petitioner.
As regards as the case of Subal Chandra Das and others (supra) is concerned. It is submitted that the Apex Court in that case directed that merger of feeder promotional post that is Moharrir and Lower Division Clerk would result in formation of a single cadre and pay scale will be same with effect from 1st April, 1970 thereby rejecting the claim of entitlement of direct recruitee as Lower Division Clerk to higher scale of pay than that of promotee to Lower Division Clerk.
After hearing of the learned counsel for the parties it appears that the case of the writ petitioner is that he was initially appointed as Lower Divisional Clerk having entered into the service on 22nd January, 1972 under the office of the District Magistrate and Collector, Birbhum. He was promoted to the post of Upper Division Clerk and lastly to the post of Additional Accountant after enjoying the benefit of Career Advancement Scheme after completion of 20 years and 25 years of service respectively he retired from service on 2nd January, 2006. During his tenure of service period the petitioner did not claim or prayed for any pay protection or raise any objection with regard to loss of his service benefits/pay benefits.
The pro-forma respondent Amar Prosad Dawn entered into service as 'Mohurrier' on 6th November, 1959 and he was subsequently promoted to the post of Lower Division Clerk on 1st June, 1972. The scale of pay of Mohurrier were merged with the scale of pay of Lower Division Clerk being Rs.230-425/- with effect from 1st April, 1970 under West Bengal Revision of Pay and Allowances Rules, 1970. Consequently respondent Amar Prosad Dawn was allowed Rs.230/- on 1st April, 1970, Rs.240/- on 1st April, 1971 and Rs.250/- on 1st April, 1972. Thereafter, on 1st June, 1972 he was promoted to the post of Lower Division Clerk with pay protection keeping in view his length of service of 13 years.
It is apparent that the promotee Lower Division Clerk and the scale of the petitioner was the same but the higher pay of the pro forma respondents was because of their length of service and grant of increment due to availing the benefit of new intermediate selection grade. Moreover, in the aforesaid case was Subal Chandra Das, the Apex Court had not expressed any view to reduce such pay of Rs.230/- who were entitled to get more because of their length of service period and that in the facts and circumstances the persons who had more length of service on the date of amalgamation were required to be given pay protection under Rule 55(4) W.B.F.R as alleged.
In the instant case, the petitioner does not meet the requirement as mentioned in the said Rule and, therefore, he is not entitled to get any pay protections. The matter relating to pay protection under Rule 55(4) of the West Bengal Service Rules, Part I is subject to fulfillment of the following are mandatory which require fulfillment of the following terms and conditions:-
1) The senior has not exercised any option to retain his pre-revised scale;
2) The senior was in a lesser scale of pay prior to his promotion;
3) Both the senior and junior employees shall have to be in the same cadre and identical scale of pay.
Rule 55(4) clearly provides that benefit of this Rule shall not be admissible where a senior Government employee exercises his or her option to retain in revised scale of pay or where the pay drawn by the Senior Officer in the lower post before promotion to the higher post was also less than of his junior.
In view of the Rule 55(4), the petitioner was rightly not allowed NISG scale and as such they being lower in the L.D. gradation were not entitled to get such benefits. Accordingly, the pro forma respondents were allowed NISG benefits as become entitled to the benefits of NISG scale because of their length of service and get the benefit being included in 10% (ten per cent) of the cadre strength.
If a person is getting higher pay in the same pay scale due to the reason of length of service the same cannot be a ground to direct grant of similar benefits to the direct recruit employees on the ground of equality before law. As stated by us in the earlier Subal Chandra Das only shows that they have to be parity in pay scale and not in fixation of pay in that scale.
For all the reasons stated above, the petition is dismissed.
There will be no order as to costs.
Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all requisite formalities.
(Rakesh Tiwari, J.) (Nishita Mhatre, J.)