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1999 DIGILAW 527 (CAL)

Keshab Chandra Saha v. State of West Bengal

1999-10-01

RUMA PAL, SAMARENDRA NATH BHATTACHARJEE

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JUDGMENT Samarendra Nath Bhattacharjee, J. 1. These two writ applications are directed against the judgment dated 19.3.97 and 21.7.97 respectively pursuant to the order of the Tribunal. All the writ petitioners belonged to the Upper Division Assistant cadre (hereinafter referred to as UDA) being promoted from the post of Lower Division Assistants (hereinafter referred to as L.D.A.). Some of them entered into the service as L.D. As, and others are Mohurrers in the year 1970. The respondent No.11 Anil Baran Dey joined his service since 1962 as Mohurrer and was also promoted as Upper Division Assistant in 1986 later than the writ petitioners. So, the writ petitioners were senior in the Upper Division Assistant cadre to the respondent No.11. But they were drawing lesser pay than the respondent No.11. They submitted a representation to the Collector, Burdwan where they were posted for pay protection which was rejected by Memo No. 445/Estt./IX/b4/94-95" dated 24.2.95 on the ground that: – "Anil Baran Dey, UDC was initially appointed as Mohurrer on 30.7.62 and thereafter, he was appointed as LDC on 12.4.73 and lastly promoted to the post of UDC on 24.4.86. He was allowed New Intermediate Selection Grade to the post of Mohurrer from 1.3.74 in the scale of pay Rs. 370-535/-. But the above application did not get the benefit of N/I Selection Grade. Therefore, the case of the applicants are not similar to Sri Dey as they are not come under the purview of G.O. No. 13250-F dated 7.11.83." The writ petitioners, thereafter, filed the writ application before the Tribunal. The respondent-state filed affidavit-in-opposition but did not appear on the date of hearing. The learned Tribunal allowed the writ petition by holding that: – "The petitioners are entitled to get pay protection as provided in Rule 55(4) of the West Bengal Service Rules, Part-I. Furthermore, we are not persuaded to accept the contention of the respondents that the case of the petitioners do not come within the purview of Finance (Audit Branch ) Department's Memo No. 13250-F dated 7.11.1983." 2. The State-Respondent, thereafter, filed the application for review of the order which was also rejected by the Tribunal by its order dated 21.7.97. These two applications have been preferred against the order mentioned above. 3. The State-Respondent, thereafter, filed the application for review of the order which was also rejected by the Tribunal by its order dated 21.7.97. These two applications have been preferred against the order mentioned above. 3. It has been contended by the learned Counsel appearing for the writ petitioners before us that the Tribunal committed gross error of law and failed to appreciate the interpretation of Rule 55(4) of West Bengal Service Rules, Part-I. The Tribunal has failed to appreciate the fact that Anil Baran Dey, the respondent No.11 here-in-had longer length of service by his joining in 1962 whereas other petitioners joined in 1970 and thereafter. 4. Anil Baran Dey got New Intermediate Selection Grade (hereinafter referred to as NISG) sometimes in 1974, when he was promoted to UDA, he carried this benefit which could not be granted to the writ petitioners. The learned Counsel appearing for the writ petitioners further argued that the Tribunal failed to appreciate that the decision reported in Government of Andhra Pradesh & another vs. M. Pandurang & other, 1996 (7) SCC 11 and also State of Andhra Pradesh & other vs. G. Sreenivasa Rao & other, 1989 (2) SCC 290 , wherein the Apex Court laid down the law that if the juniors, by the circumstances of the length of service, were getting higher scale of pay, parity cannot be claimed by the senior on that basis. 5. The learned Counsel appearing for the respondents has cited a decision reported in Union of India & other vs. P. Jagdish & other, 1997 (3) SCC 176 , wherein some of the posts of Senior Clerks were identified as posts involving arduous nature of work and the incumbents thereof were given a special pay of Rs. 35/- per month. When employees junior to respondents in the cadre of Senior Clerks but having worked in the identified posts with the benefit of the special pay were promoted as Head Clerks, the pay of such juniors was fixed at a slab higher than the respondents. The question that came up before Their Lordships whether the respondents could claim: – (i) Refixation of their pay in the cadre of Head Clerks on the notional basis that they were drawing Rs. 35/- per month as special pay in the cadre of Senior Clerks. The question that came up before Their Lordships whether the respondents could claim: – (i) Refixation of their pay in the cadre of Head Clerks on the notional basis that they were drawing Rs. 35/- per month as special pay in the cadre of Senior Clerks. (ii) Stepping up their pay in the cadre of Head Clerks to the level of the pay of the said juniors. The Supreme Court answered the first point in the negative and the second point in the affirmative. Relying upon the above decisions, the learned Counsel appearing for the respondents submits that in the present case itself, Anil Baran Dey had got the NISG on promotion to higher grade and as such the second part of the table should be made applicable to this case. It should be noted that in the case before the Supreme Court, the posts of Senior Clerks were identified as post carrying special pay of Rs. 35/- per month and the same was attached to the post whereas New Intermediate Selection Grade is available to all the employees who had completed ten years of service without getting promotion. Their Lordships disapproved the stepping up of pay of the Head Clerks from those identified post although special pay is not attached to the post of Head Clerks. Their Lordships hold that the stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of Head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their Junior Officer in the higher post of Head Clerk. That case is, therefore, distinguishable from the instant case before us. 6. Admittedly, despite granting of NISG scale to the respondent No.11, the petitioners who have been promoted in the Upper Division Assistant cadre earlier than the respondent No.11, the scale was granted to the respondent No.11, the feeder post and he carried the benefit to the promotional post. That case is, therefore, distinguishable from the instant case before us. 6. Admittedly, despite granting of NISG scale to the respondent No.11, the petitioners who have been promoted in the Upper Division Assistant cadre earlier than the respondent No.11, the scale was granted to the respondent No.11, the feeder post and he carried the benefit to the promotional post. The jurisdiction of the Government in granting relief is circumscribed by the provision of Rule 55(4) of the West Bengal Service Rules as follows: – Rule 55(4): – "If a Government employee while officiating in a higher post draws pay at the rate higher than his Senior Officer either due to fixation of his pay in the higher post under the normal rules, or due to revision of pay scales, the pay of the Government employee senior to him shall be refixed at the same stage and from the same date his Junior draws the higher rate of pay irrespective of whether the lion in the lower post held by the Senior Officer is terminated at the time of refixation of pay, subject to the conditions that both the Senior and Junior Officers should belong to the same cadre and the pay scale of the post in which they have been promoted are also identical. The benefit of this rule shall not be admissible in case where a senior Government employee exercise his option to retain unrevised, 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 that of his junior." It is clear from the second part of the Rule that the benefit shall not be admissible where pay drawn by the Senior Officer in the lower post before promotion to the higher was also less than that of his junior. Admittedly, the petitioners do not get the benefit of NISG scale as Lower Division Assistant and it was granted to Anil Baran Dey. So, in the feeder post Anil Baran Dey enjoyed higher pay. 7. The Division Bench of this Court in F.M.A.T. No. 3346 of 1994 held that Section 55 (4) does not apply in the case of redesignation of Mohurrers as Lower Division Assistants and in the case where only because of fortutious circumstances a person at one point of time was in the lower scale of pay. 8. 7. The Division Bench of this Court in F.M.A.T. No. 3346 of 1994 held that Section 55 (4) does not apply in the case of redesignation of Mohurrers as Lower Division Assistants and in the case where only because of fortutious circumstances a person at one point of time was in the lower scale of pay. 8. In view of the above circumstances, and clear judicial decision regarding non-applicability of Rule 55 (4) to the case before us, we have no hesitation to hold that the writ petitioners before the Tribunal had no case for equal pay with the respondent No.11, and, as such, we are of the opinion that the Tribunal has failed to consider this point having serious financial consequences and far reaching effect which calls for interference by us. 9. We, accordingly, set aside the order passed by the Tribunal dated 19.3.97 and allow the writ application, being No. C.O.S.T. 31 of 1997 without any order as to costs. 10. In view of the order passed above, the second impugned writ application being No. C.O.S.T. 32 of 1997 will automatically become infructuous. Ruma Pal: – 11. The facts of this case have been set out in some detail in the judgment of my learned Brother. Certain arguments were put forward by the respondents by way of preliminary submissions which need to be dealt with. 12. The first submission of the respondents is that the application of the petitioners was under Article 227, that this was apparent from the cause title and that, therefore, the Court has limited scope of judicial review of the order of the Tribunal. 13. The submission of the respondent is unacceptable. The format, and the reliefs prayed for in the writ petition, clearly show that the applications were framed under Article 226 and the Court's jurisdiction under that Article has sought to be invoked. 14. The second submission of the respondents was that since the prayer was for a Writ of Certiorari, the Court would not interfere unless there were an error apparent on the records. It is submitted that no such error existed in this case which warranted interference by the Court. 15. As has been carefully observed in the judgment by my learned Brother, the fact that the respondent No.11 had been getting a higher scale of pay while serving in the feeder post formed part of the records. It is submitted that no such error existed in this case which warranted interference by the Court. 15. As has been carefully observed in the judgment by my learned Brother, the fact that the respondent No.11 had been getting a higher scale of pay while serving in the feeder post formed part of the records. The point had also been categorically taken in the affidavit-in-opposition filed by the private writ petitioners before the Tribunal and this has not been denied by the respondents in their affidavit-in-reply. 16. Giving this fact, namely, the respondent No.11 had been granted New Intermediate Selection Grade with effect from 1974 while he was serving in the post of Lower Division Assistant and also giving the fact that each of the petitioners was admittedly granted New Intermediate Selection Grade and was promoted in 1986, in view of the clear statement of law as held by my learned Brother, the Tribunal had no other option but to draw the conclusion that the respondents case has, therefore, fallen within the scope of Rule 55 (4) and that they could not have been granted any relief in the circumstances of the case. 17. Apart from the Rule, the principle has been clearly enunciated by the Supreme Court in the State of Andhra Pradesh & other vs. G. Sreenivasa Rao & other, 1989 (2) SCC 291, where it was stated that: – 'Equal pay for equal work' does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualification and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily, grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily, grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/ executive instructions, when persons recruited from different sources are given pay protection when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/ passing a test/acquiring higher qualifications or as incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. The decision recognized that junior could get higher pay in circumstances which are rationally justifiable. The question before us, therefore, is whether the grant of higher pay to the respondent No.11 could rationally be justified even though he was promoted to the post of Upper Division Assistant subsequent to the respondents. In the case of Government of Andhra Pradesh & another vs. M. Pandurang & other, 1996 (7) SCC 11 , the Supreme Court found that one of the juniors had been granted selection grade scale of pay, and that by necessary consequence, he would draw higher scale of pay though he happened to be junior to others in the promoted post. The Supreme Court held that in such a situation there was no question of granting parity of scale of pay to the seniors working in the cadre. 18. Factually, the decision applied to the facts of this case. In the decision relied upon by the respondents in the case of Union of India & other vs. P. Jagdish & other, 1997 (3) SCC 176 , the Supreme Court had dealt with a case where the juniors' getting higher salary than the seniors in the promoted category could not be rationally justified. As observed by my learned Brother, the facts of the case are clearly distinguishable from the case before us. As observed by my learned Brother, the facts of the case are clearly distinguishable from the case before us. In that view of the matter, I have no hesitation in concurring with the views expressed by my Learned Brother that the writ application must be allowed and the orders of the Tribunal granting parity of pay to the respondent No.11 with the writ petitioners/ respondents cannot be sustained.