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2000 DIGILAW 387 (CAL)

Samir Chakravorty v. State of West Bengal

2000-08-04

H.Banerji, S.B.Sinha

body2000
Judgment S.B. Sinha, J. Both these applications arising out of a common judgment and order dated 26.8.1998 passed by the West Bengal Administrative Tribunal in case O.A. No. 1101 of 1997 and O.A. No. 924 of 1997 were taken up for hearing together and are being disposed of by this common judgment. 2. The petitioners were originally appointed in the post of Muharrir on diverse dates between 1950 to 1964. They were promoted to the post of Lower Division Clerk between 1966 and 1972. The respective position of parties would appear from the following:- Sl. Date of Appointment Date of Promotion Date of Promotion as Muharrir to the post of L.D.C. to the post of U.D.C. (Petitioner No.) 1. 30.12.1964 2.1.1967 1.4.1981 2. 11.12.1963 19.9.1965 1.1.1981 3. 16.12.1964 16.9.1965 1.1.1981 4. 20.10.1962 12.7.1966 1.4.1981 5. 6.1.1966 15.11.1972 1.5.1981 6. 14.12.1964 16.8.1965 1.4.1981 7. 2.1.1965 2.1.1967 1.4.1981 8. 16.2.1965 2.1.1967 1.4.1981 9. 16.12.1963 18.9.1965 1.4.1981 By a notification dated 22.4.1974 the West Bengal Services (provision for promotion prospects of Class IV employees) Rules, 1974 was published which was given retrospective effect and retrospective operation with effect from 1st April, 1974. In terms of the said Rules, the Muharrirs who came within the zone of consideration were allowed New/Intermediate Selection Grade (in short NISG) scale in Rs.305-402/- pursuant whereto the petitioners were granted the NISG scale of Rs.370-535/- by an order dated 28.7.94 by the Collector of Midnapore. The said order has since been recalled by an order dated 18.6.97. 3. The contention of the respondent is that as the petitioners had not completed 10 years of service in terms of 1994 Rules in one post, they were not entitled to the said scale. 4. The said order has since been recalled by an order dated 18.6.97. 3. The contention of the respondent is that as the petitioners had not completed 10 years of service in terms of 1994 Rules in one post, they were not entitled to the said scale. 4. The relevant portion of the Government Notification dated 18.1.1988 on the basis whereof the petitioners had been granted the aforementioned benefit, reads thus :- "In the circumstances stated above, the Government has been pleased to decide that the pay scale of the Muharrirs working in the Regional Offices under the Irrigation and Waterways Department and in the Regional Office of the Land and Land Reforms Department i.e. the WBS (ROPA) Rules, 1970 would be revised from Rs.180-350/- to Rs.230-425/- with effect from 1.4.70 subject to the condition that there would be no arrear adjustment of salary prior to February, 1978 and that their pay in the revised scale of Rs.230-425/- would be fixed under the provisions of WBS (ROPA) Rules, 1970." 5. The State Government, however, did not accept the said action on the part of the Collectors of several Districts and in terms of its letter dated 3.1.1995, states: "In terms of Finance Department Memo. No. 485-F dated 18th January, 1988 the pay scale of Muharrirs working in the Regional Offices under the Irrigation and Waterways Department and the Regional Offices of the Land and Land Reforms Deptt. was revised from Rs.180-350/- to Rs.230-425/- with effect from 1st April, 1970 under the WBS (ROPA) Rules, 1970, subject to the condition that there would be no arrear adjustment of salary prior to February, 1978 and that their pay in the revised scale of Rs.230-425/- would be fixed under the provisions of WBS (ROPA) Rules, 1970. In terms of the aforesaid Memorandum, Government allowed only the basic grade scale of pay to the Muharrirs Government have never allowed the corresponding New/Intermediate Selection Grade of Rs.370-535/-. If, however, the said New/Intermediate Selection Grade scale has been allowed in any case in terms of the aforesaid Memo., that should immediately be withdrawn, and the overdrawals shall be recovered in suitable monthly instalments from the respective incumbents." 6. It is stated at the Bar that validity of the aforementioned order was questioned in writ application and an interim order was passed where after the same had not been given effect to. 7. Mr. It is stated at the Bar that validity of the aforementioned order was questioned in writ application and an interim order was passed where after the same had not been given effect to. 7. Mr. K.K. Moitra, the learned senior Counsel appearing on behalf of the petitioner, inter alia, submitted that having regard to the decision of the Apex Court in State of West Bengal vs. Subal Chandra Das & Ors., reported in 1996(7) SCC 191 as the posts of Muharrir and Lower Division Clerk merged in terms of a circular of 1988, the impugned order could not have been passed. According to the learned Counsel, the order impugned before the learned Tribunal dated 18.6.97 was passed holding that the post of Muharrir was not a feeder post of Lower Division Clerk as also on the ground that the petitioner did not come within the purview of zone of consideration namely, 15% of the total posts. The learned Counsel in this connection has also drawn our attention to a Notification dated 18.6.1997 as contained in Annexure 'W' to the writ application (Annexure 'T' before the learned Tribunal) which is to the following effect:- "Moreover, the effect of Notification No. 4081-F, dated 21.4.1980 of Finance Department, Government of West Bengal cannot also be extended to any erstwhile Muharrir who had come over to LDA/Peshkar/Cadre/post/service prior to 1.3.74 as they had neither been a Muharrir as on 1.3.1974 nor they held the post on 1.3.1974 to which the post of Muharrir was a lower feeder post and as such, for such category of erstwhile Muharrirs, the applicability of the Notification No. 10303-F, dated 19.11.74 has also become restrictive to a great extent as the question of inter se seniority in the LDA/Peshkar cadre would be jeopardised." In the said circular it was further provided: "Therefore, in super-session of order issued by the Collector, Midnapore under its Memo No. 1714 (125)/Estt. dt.18.7.94 and its modification under Memo No. 3025(125)/Estt. dt.12.12.95 and any order issued by the Collector, Midnapore effecting the fixation of pay of any of those 71(seventy one) employees covered by the former two orders as above, it is hereby ordered that the 71 (seventy one) employees as per annexure to this order who were granted New/Intermediate Selection Grade Scale of pay of Rs.370-535/- vide the order of the Collector, Midnapore under Memo No. 1714(125) -Estt. dt.18.7.94 and its subsequent modification under Memo No. 3025(125)-Estt. dated 12.12.95 and in respect of whom the effect of mentioned two orders of the Collector, Midnapore has been extended by any subsequent order of fixation of pay by the Collector, Midnapore are not eligible to enjoy such benefit in the circumstances set forth in the foregoing paras of this order and it is, further ordered that the re-fixation of pay disallowing such benefit be immediately done by the respective head of offices and overdrawal, if any, be also arranged to be recovered immediately as per provisions of prevailing rules and orders, the formal proposal of revision of pension and recovery from relief to pension, if any, be also mooted to the competent authority. In respect of personnel whose petitions are subject matter of C.C. Nos. 22431(W) to 22434(W) of 1995 in the Hon'ble High Court, Calcutta, the provisions of this order will apply mutatis mutandis on further orders in respective cases." 8. According to the learned Counsel the District Magistrate, Midnapore failed to take into consideration that the petitioners in the mean time had acquired a higher status by reason of the promotion to the post of Upper Division Clerk. 9. The learned Counsel submitted that the petitioner had claimed reliefs only on the basis of the circular letters as obtaining in the year 1974 where for only two conditions had been laid down namely, (1) 10 years' of continuous service; and (2) only 15% of the persons who were in the feeder post, would come within the purview of zone of consideration. It may be, as was submitted by the learned Counsel, that the petitioners had not completed a period of 10 years in the post of Muharrirs but they had completed 10 years by working in the feeder post as also the post of Lower Division Clerk. In this connection our attention has been drawn to various circulars and clarificatory letters issued by the State. In the Memorandum dated 31.7.75 a query was answered in the following terms :- "For sometime past Government have had under consideration certain points raised in connection with the operation of the amendment of the West Bengal Services (Revision of Pay and Allowance) Rules, 1970 made in this Department Notification No. 10303-F, dated 19th November, 1974. In the Memorandum dated 31.7.75 a query was answered in the following terms :- "For sometime past Government have had under consideration certain points raised in connection with the operation of the amendment of the West Bengal Services (Revision of Pay and Allowance) Rules, 1970 made in this Department Notification No. 10303-F, dated 19th November, 1974. I am directed by order of the Governor to say that the Governor after careful consideration is pleased to decide on those points as follows :- Points Decision a) Whether the officer who is officiating a) The case of officers officiating in the in the higher post can be appointed to the higher post and having lien on the lower New/Intermediate Selection Grade of the feeder post shall have to be considered for lower feeder post on which he holds lien, appointment to the New/ Intermediate and if so- Selection Grade of the lower feeder post if otherwise eligible." In a Memorandum dated 13th March, 1976, it is stated:- "In continuation of this Department Memo No. 4049-F, dated the 7th June, 1975, the Governor has been pleased to decide that the aforesaid Memo, shall apply mutatis mutandis to a Government servant holding promotion post on officiating basis prior to the date of introduction of the New/Intermediate Selection Grade in the lower feeder post but for his officiating in the higher promotion post. 2. The provisions contained in Finance Department Memo No. 7247-F, dated 25th October, 1975 will also be applicable in such cases." 10. Yet again in the circular letters dated 29.7.78 and 15.6.78 the Board of Revenue Stated :- "To The Collector, Midnapore, Copy of Board's Memo No. 10849-DE, dated 15.6.78 along with a copy of Dy: Commissioner, Cooch-Behar's Memo No. C/3658/II/108, dated 17.5.78 to which it is reply is sent herewith for information and guidance. Sd/-Illegible Astt. Secy. to the Board of Rev. W.B. Copy of Board's order No. 10849-DE, dated 15.6.78 addressed to the Dy. Commissioner, Cooch-Behar. Sub: Selection Grade of Muharrirs. In inviting a ref. Sd/-Illegible Astt. Secy. to the Board of Rev. W.B. Copy of Board's order No. 10849-DE, dated 15.6.78 addressed to the Dy. Commissioner, Cooch-Behar. Sub: Selection Grade of Muharrirs. In inviting a ref. to his Memo No. C/3658-II-108, dated 17.5.78 of the subject mentioned above the undersigned is directed to say that senior-Muharrirs who have been promoted to L.D. posts and who would have been eligible for appointment to the Selection Grade Post of Muharrirs but for their promotion should not be deprived of the benefit which their juniors have derived Muharrirs who have been officiating as L.D. Clerks shall be eligible for the Selection Grade of Muharrirs in terms of Finance Department's Memo No. 5874-F, dt.22.8.75 read with Finance Deptt. Memo. No. 9186-F, dated 19.11.76 and for the purpose of calculating 10 years service as Muharrirs their service in the promotion post of L.D. Clerk should also be taken into account." 11. The only contention which arises for consideration as to whether the impugned order could have been passed by way of rectification of mistake or not. The law in this regard is well settled. 12. In Comptroller & Auditor General of India & Ors. vs. Farid Sattar, reported in J.T. 2000 (4) SC 374, it has been stated :- "The terms and conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer would be appointed to a post which is lower to the post which he was occupying prior to his transfer and he was also required to tender technical resignation from the post which he was holding with a view to join the lower post as a direct recruit and was to rank junior to the junior most employee in the cadre of Accountant. He was further required to forego any benefit of passing any departmental examination while working in the higher post. In such a situation, the pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher post since he was to be considered as a direct recruit in the lower post. Under the terms and conditions of the transfer, the pay which the respondent was drawing on higher post was not required to be protected when he joined the lower post of Accountant." 13. Under the terms and conditions of the transfer, the pay which the respondent was drawing on higher post was not required to be protected when he joined the lower post of Accountant." 13. In Sairindhri Dolui vs. State of W.B. & Ors., reported in 2000 (1) SLR 803, it is stated :- "Even otherwise a mistake bona fide committed can be rectified. See Yogendra Narayan Chowdhury & Ors. vs. Union of India & Ors., reported in 1996 Lab. I.C. 759 : (1996) 1 SLR 42 (SC)." 14. Yet again in Union of India vs. Tata Iron & Steel Co. Ltd., reported in AIR 2000 Cal. 56 , it has been held that in respect of a payment which has been made by way of mistake, even the principles of estoppel would not be applicable. 15. In Registrar, High Court, Original Side vs. Samarendra Nath Bhattacharjee & Ors., reported in 89 C.W.N. 305, a Division Bench of this court has held that where the mistake is obvious, the same can be rectified. The question, however, in this case is whether the mistake was so obvious which would entitle the Collector of a District to rectify the purported mistake without giving an opportunity of hearing to the petitioners? 16. In an unreported judgment in F.M.A.T. No. 3346 of 1994 (State of West Bengal vs. Govinda Nath Dey & Ors.) disposed of on 10.5.99, a Division Bench of this court upon taking into consideration the decision of the Apex Court in Subal Chandra Das (supra) and various other decisions noticed:- "It would have been an ideal situation where the State could remove the disparity but unfortunately it appears that various learned Judges of this Court did not consider this aspect of the matter and directed grant of new intermediate selection grade to the Muharrirs and LDCs. The mistakes sought to be rectified by the State also did not fructify because of several orders passed by learned single Judges of this court pursuant whereto either the District Magistrate, Hooghly (who had no jurisdiction to pass such orders) or the State was compelled to grant to scale of pay Rs.380/- to the Muharrirs. Equal pay for equal work as adumbrated under Article 39(d) read with Article 14 of the Constitution of India cannot also be said to have any application as in the instant case. Equal pay for equal work as adumbrated under Article 39(d) read with Article 14 of the Constitution of India cannot also be said to have any application as in the instant case. The LDCs doing similar work have been deprived of the same pay only by reason offortutious circumstances or by mistake committed by the authority or the District Magistrate, Hooghly the erstwhile Muharrirs are getting higher scale. As has been held in Union of India vs. E.S. Soundara Rajan, reported in AIR 1980 SC 959 , in such a case Article 14 will have no application. In Jaipal vs. State of Haryana, reported in AIR 1988 SC 1504 , the Apex Court was concerned with applicability of doctrine of equal pay for equal work. The said decision, however, was distinguished in Nain Singh Bhakuni vs. Union of India, reported in AIR 1998 SC 622 ." 17. Although in a different context, in Kerr on 'Fraud and Mistake', it is stated:- "Where by a common or mutual mistake a written instrument does not express the intention of the parties there is a possible case for rectification of a document Rectification is thus primarily a remedy for mistake rather than fraud, though in certain cases a 'fraudulent' party may be confronted with the alternatives of rectification or cancellation. Rectification depends on evidence of intention; but in some cases the Courts can on the fact of a document tell there was a mistake and rectify the document on that evidence alone. This may be really only a matter of construction." 18. The learned Author has opined that it is a rule of equity not to encourage stale demands, or give relief to parties who sleep on their rights. The learned Author states:- "The rule that a man who sleeps .on his rights cannot come to a Court of Equity for relief holds good, not only in circumstances where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would have been given had there been no delay." 19. In Bhagwan Shukla vs. Union of India, reported in AIR 1994 SC 2480 : 1994 AIR SCW 3503: 1994 Lab I.C. 2493, the Supreme Court has also applied the principles of natural justice in the later cases. In Bhagwan Shukla vs. Union of India, reported in AIR 1994 SC 2480 : 1994 AIR SCW 3503: 1994 Lab I.C. 2493, the Supreme Court has also applied the principles of natural justice in the later cases. As the question raised in this writ application between the parties is contentious, in my opinion, even for rectification for such mistake it was obligatory on the part of the respondents to comply with the principles of natural justice. 20. In Divisional Superintendent, Eastern Railway vs. L.N. Kashri, reported in AIR 1974 SC 1889 : 1974 Lab. I.C. 1275, it was held that reduction of scale of an employee without hearing him would be illegal. 21. The aforementioned decisions have been cited with approval by a learned single Judge of this Court in Mrs. Malabika Dhar vs. University of North Bengal, reported in AIR 1995 Calcutta 303, where a decision to cancel an admission was taken by the Executive Council of the University on the ground of an accidental mistake, held that situational fairness demanded that the petitioner should be allowed to continue her studies as it was not a case of admission by collusion or manipulation. These decisions are being referred to only for the purpose of showing that even in the case of rectification of mistake, principles of natural justice can be taken recourse to. 22. The word 'civil consequences' is of wide amplitude. (See: D.K. Yadav vs. Z.M.A. Industries Ltd., reported in 1993(3) SCC 259 . 23. The S.K. Dogra vs. Union of India & Ors., reported in Calcutta Law Times 1996(1) HC 73, the Supreme Court decision in Bhagwan Shukla (supra) was followed by this court holding.:- "In fact, by reason of the decisions of the Supreme Court of India, principles of natural justice are encompassed within the purview of Article 14 of the Constitution of India. Any action taken in violation of the principles of natural justice must be held to be arbitrary. …………………………………………… Fairplay in action warrants that no such order which has the effect of an employee suffering civil consequence should be passed without putting the concerned (employee) to notice and giving him a hearing in the matter." 24. Any action taken in violation of the principles of natural justice must be held to be arbitrary. …………………………………………… Fairplay in action warrants that no such order which has the effect of an employee suffering civil consequence should be passed without putting the concerned (employee) to notice and giving him a hearing in the matter." 24. The law which emerges is that where the mistake is apparent or where even if the principles of natural justice are complied with, the results would be no different, the aggrieved persons may not be heard but where there was a possibility that the same may be different, having regard to the inconsistent stand taken by the State from time to time, in our opinion, an opportunity of hearing should be given. Having regard to the fact that the Board of Revenue to which the District Magistrate was subordinate has taken one view and the view of the State Government has not been implemented owing to an order of injunction passed by this Court, we are of the opinion, that in the light of the observations made in Gobinda Nath Dey's case (supra), the State should case out with a clear policy decision or pass an appropriate order giving an opportunity of hearing to the petitioner. The State has conceded before the learned Tribunal that recoveries cannot be made in respect of the amount which had already been paid. However, there cannot be any doubt whatsoever that in the event a genuine mistake has been committed which requires a rectification after giving an opportunity of hearing to the petitioner, the same is permissible. Having regard to the fact that the decision will have repercussion through out the State of West Bengal, we direct that such opportunity of hearing to the petitioner be given by a committee consisting of Secretary, Finance and the Secretary, Revenue. Any further action may be considered by the State Government only in terms of the report of the said Committee. 25. For the reasons aforementioned, the impugned order can not be upheld which is set aside accordingly. The writ applications are disposed of with the aforementioned directions. In the facts and circumstances of this case there will be no order as to costs. H. Banerji, J.: I agree. Writ applications are disposed of with directions.