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2001 DIGILAW 640 (CAL)

State of West Bengal v. Sambhu Nath Sadhukan

2001-10-03

ASHOK KUMAR MATHUR, GIRISH CHANDRA GUPTA

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JUDGMENT Ashok Kumar Mathur, CJ. 1. This is an appeal directed against the order passed by learned Single Judge dated 25.8.1999 whereby the learned Single Judge has allowed the writ petition and observed that the primary school teachers working in the Bhadreswar Municipality Schools shall be entitled to benefit of career advancement scheme and Bhadreswar Municipality shall be entitled to be reimbursed by the State for the amount paid to such teachers. Aggrieved against this order the State of West Bengal has filed an appeal which came to be registered as MAT No.1345 of 2000. Another appeal has also been filed by the Bhadreswar Municipality against the same herein which came to be registered as MAT No.3379 of 1999. Since both these appeals arise out of the same order, therefore they are being disposed by the common order. 2. The brief facts which are necessary for disposal of both these appeals are that all the writ petitioners are primary school teachers in different schools under the Bhadreswar Municipality and they were given benefit of career advancement scheme and their pay scales were revised. They were fixed in pay scale from the 1st April, 1984 as a primary school teacher. Thereafter when the revision of pay was under taken in 1990 their pay scales were re-fixed from 1st January, 1988 and they were also given the benefit with effect from 1st April, 1986. As State Government has introduced a career advancement scheme in the Revision of Pay Scale and Allowances Rules, 1990 (for short ROPA Rules, 1990) the same benefit was also extended to these primary teachers of Bhadreswar Municipality. But the Municipal Authorities subsequently started making deduction from their salaries of payment made to them towards Career Advancement Scheme because State Government informed the Municipality that no sanction has been given for granting of career advancement scheme to the primary school teachers of Municipalities. Therefore, the Municipality has refused to grant career advancement increment to them. It is alleged that teachers made protest and the teachers were assured by Chairman, Bhadreswar Municipality that they will be paid the arrears of salaries in respect of career advancement scheme in due course of time. Therefore, the Municipality has refused to grant career advancement increment to them. It is alleged that teachers made protest and the teachers were assured by Chairman, Bhadreswar Municipality that they will be paid the arrears of salaries in respect of career advancement scheme in due course of time. But suddenly on 6th September, 1994 a communication was issued by the Chairman of Bhadreswar Municipality to the Joint Secretary, Bhadreswar Puorasabha Prathamick Sikshak Samity that the Government of West Bengal has not allowed any payment of career advancement increment to Municipality primary teachers by the communication dated 22.9.1992. Therefore Municipality have to realize the excess amount already paid to these teachers and it was also clarified that payment of salaries would be made on the basis of Government decision. The petitioners' association, as well as, the Chairman protested the action, but without result, therefore, teachers filed the present writ petition challenging the orders dated 6th September, 1994 and 10th September, 1994. The writ petition was opposed by the Bhadreswar Municipality. The contention of the Municipality was that they have no objection to grant career advancement increment to these teachers but because of the fact that State of West Bengal has declined to extend this benefit to such employees the career advancement increment, same cannot be given to the petitioner. Therefore, in pursuance of the communication received from the State of West Bengal this benefit was withdrawn. The Municipality tried to plead with the Government but without any result. It is also submitted that this benefit of career advancement scheme was given to the petitioner on the clear understanding that the amount is paid to them on the condition that in case the Government does not approve then the excess payment made will be recovered from the teachers who have received such the benefit under the career advancement scheme and the teacher accepted that condition. Government has clarified that the teachers of the Municipal Schools are not the State Government employees and they are not entitled to benefit of career advancement scheme, therefore the Municipality had no option but to effect recovery. It is also pointed by the learned counsel for Bhadreswar Municipality that Municipality Schools are maintained and managed by the Municipalities under sections 64 and 65 of the West Bengal Municipal Act, 1993. Under section 64, Municipality exercise discretionary functions relevant portion of section 64 reads as under:- "64. It is also pointed by the learned counsel for Bhadreswar Municipality that Municipality Schools are maintained and managed by the Municipalities under sections 64 and 65 of the West Bengal Municipal Act, 1993. Under section 64, Municipality exercise discretionary functions relevant portion of section 64 reads as under:- "64. Discretionary functions of the Municipality.- A Municipality may, at its discretion, provide, either wholly or partly, out of the municipal property and fund, for the following matters within the limits of the municipal area:- (1) In the sphere of public works,- (a) giving relief to, and establishing and maintaining, in time [famine, flood and earthquake,] relief works for, destitute persons within the limits of the municipal area; (b) Construction or maintenance of, or providing or giving aids for, passengers' sheds, libraries, museums, community halls, officer, godowns, shops, markets, dharmashalas, rest houses, sports complex, place of entertainment, swimming pools, public wash houses and bathing places and homes for the disabled and destitute and other public buildings designed for convenience of the community; (c) Construction and maintenance of old age homes and orphanages, domiciliary care of the sick, orphan, destitute and aged people; (d) Construction or maintenance of, or providing aids to, hospitals, dispensaries, asylums, rescue homes, maternity houses, and child welfare centers; (e) Construction, purchase, organization, maintenance, extension and management of mechanically propelled transport facilities for the conveyance of the public; (f) Construction, maintenance, repair, and purchase of any works for the supply of electrical energy or gas; (g) Construction of dwellings for the inhabitants, specially low-cost dwellings for the socially backward classes of citizens; (h) Providing accommodation for all classes of employees of the Municipality. (2) In the sphere of education,- (a) establishing and maintaining pre-primary schools such as balwadies and creches; (b) promotion of civic education, adult education, social education, non-formal education and the like; (c) promotion of cultural activities including music, physical education, sports and theatres; (d) advancement of science and technology in the way of life; (e) advancement of civic consciousness of public health and general welfare by organizing discourses, seminars and conferences; (f) publication of municipal journals, periodicals and souvenirs, purchase of books, and subscriptions to journals, magazines and newspapers." All the primary school education was transferred by the State Government to the Municipality under section 65 (2) (j). The relevant portion of sections 65 (1) & (2) (j) reads as under:- "65. The relevant portion of sections 65 (1) & (2) (j) reads as under:- "65. Transfer of functions of State Government.- (1) Notwithstanding contained in this Act or in any other law for the time' being in force, the State Government may, subject to such conditions as it may think fit to impose, transfer, by an order, published in the Official Gazette, to a Municipality any such functions and duties relating to Government under any law which the State Legislature is competent to enact, or which is otherwise within the executive power of the State, and appear to relate to matters arising within a municipal area being of an administrative character, and shall, on such transfer allot to the Municipality such fund and personnel as may be necessary to enable the Municipality to discharge the functions and duties so transferred. (2) Without prejudice to the generally of the provisions of sub-section (1), the State Government may transfer to the Municipality such functions and duties as are performed by the departments of the Stale Government on any of the following matters:- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (j) education including primary education, adult education, vocational education, social education, non-formal education, audio-visual education and library services; xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 3. Municipal Fund had been also created under section 67 under Chapter VII under the heading Municipal Fund. The expenses of such primary schools are being maintained from that fund. It is submitted that the Secretary of the Association was duly informed by Bhadreswar Municipality that they have no specific Government order for granting career advancement to such employees. The Secretary of the petitioners' association was also informed about the limitation of the Municipality. It is submitted that because of the financial limitation Municipality can only pay salary admissible under law. Though no affidavit in opposition was filed by the State. The communications of State Government dated 22.9.1992 and 15.9.1994 read as under:- "Government of West Bengal Municipal Affairs Department ...................... .Branch No. 289/C-9/M2P-22/91 From: Shri S.B.Guha, Deputy Secretary to the Government of West Bengal. To: The Chairman, Bhadreswar Municipality. Dated Calcutta, the 22nd September, 1992 Sub: Payment of career increment to Municipal Primary Teachers. Sir, In inviting a reference to your letter No. 2412 dated 8.6.92 on the subject noted above I am directed to say that there is no specific Government order for granting career increment to the Municipal employees or Municipal Primary Teachers. Yours faithfully, Deputy Secretary. Dated Calcutta, the 22nd September, 1992 Sub: Payment of career increment to Municipal Primary Teachers. Sir, In inviting a reference to your letter No. 2412 dated 8.6.92 on the subject noted above I am directed to say that there is no specific Government order for granting career increment to the Municipal employees or Municipal Primary Teachers. Yours faithfully, Deputy Secretary. Government of West Bengal Directorate of Local Bodies Purta Bhavan, Salt Lake City, Calcutta-91 No.2874/DLB/C-3/Misc-14/82Pt.II Dated: 15.9.1994. From: The Director of Local Bodies, West Bengal. To : The Chairman, Bhadreswar Municipality P.O. Bhadreswar, Dist-Hooghly. Sub: Extension of the career advancement scheme to the Municipal school teachers. Sir, It has come to the notice of this Directorate that some ULBs are extending the benefit of the career advancement to their school teachers in the revised scale of 1990 though the said benefit has not yet been extended to the Municipal school teachers by the Government., like the teachers of Government/Government sponsored/Government aided Institutions. Under the above circumstances, you are requested not to extend the benefit of the said scheme until the suitable Government order is issued in this respect. Yours faithfully, Directorate of Local Bodies, West Bengal." 4. Learned Single Judge without going into the various provision of Municipal Act, 1993 and ROPA Rules, 1990 directed to pay the benefit of career advancement scheme to these Municipal teachers and to reimburse that amount by State. 5. Against that order both these appeals have been filed by the State and by the Municipal as aforesaid. We have heard learned counsel and perused the records. The first and foremost question is whether the employees of the Municipalities can be treated at par with State employees or not. Under the West Bengal Municipal Act, 1993 all the employees working in Municipalities are not the employees of the Government of West Bengal. The Municipality employees are governed by their service rules framed by the Municipal Act, 1993, under Chapter V of the Act which deals with Municipality and Municipal establishment provides that all the employees of the Municipality holding post under the establishment of Municipalities do not become the employees of the State. Their service condition has to be framed by the Municipality and they are governed by those service conditions. Their service condition has to be framed by the Municipality and they are governed by those service conditions. Under sections 64 and 65 of the Act of 1993 the State Government can transfer some or more of its duties to the Municipalities and one of the duty which has been enumerated in 65J is imparting of a primary education. All these primary schools of Municipalities are established by the Municipalities on transfer of a primary education to the Municipalities and therefore these Municipal primary school teachers are employees of the Municipality. Since the schools are directly under the Municipality therefore all these primary teachers are employees of the Municipalities and they cannot claim themselves the same status as that of the employees of the State. Since they are the Municipal employees therefore their service condition has to be governed by the West Bengal Municipal Act, 1993 and Rules framed therein and they are being paid from the Municipal fund created under Part 3 Chapter VII. Therefore primarily these employees received their salaries from the Municipal fund and the pay scales and other service conditions are regulated by the Municipalities under the Act of 1993. It is only from time to time, the revision of pay scales takes place in the State then the Municipalities also correspondingly amend their pay scales under the direction of the State. It is not that the revision of pay scales in the State is automatically made applicable to the employees of the Municipalities. As and when the revision of pay scales for the State employees take place then separate orders are required to be passed by the State for corresponding revision of pay scales of the Municipal employees also. But it is not automatic. It is only after the Government directs, then pay scale will be applicable to the employees of Municipality, as it involves financial burden. 6. Therefore now question is whether the ROPA Rules, 1990 under which career advancement scheme was framed can be made admissible to the employees of Municipality or not. The revised pay scale of teachers and non-teaching staff were issued by Memorandum of Government of West Bengal dated 7th March, 1990. This memorandum clearly says that this is applicable to certain class of persons. The revised pay scale of teachers and non-teaching staff were issued by Memorandum of Government of West Bengal dated 7th March, 1990. This memorandum clearly says that this is applicable to certain class of persons. The relevant State notification reads as under: "Revised Scale of Pay of Teachers And Non-Teaching Staff (Notionally effective from 1.1.1986) (Actually effective from 1.1.1988) GOVERNMENT OF WEST BENGAL Education Department Budget Branch No. 33-Edn. (B) Dated, the 7th March, 1990 MEMORANDUM In Finance Department Resolution No.805-F, dated the 30th January, 1987, the Government constituted, a: Pay Commission with term of reference which included that the Commission would also examine the structure of emoluments and conditions of service of the (a) teaching and non-teaching staff of Government sponsored or aided- (I) Schools up to class XII standard (II) Training Institutions of Primary Teachers, (III) Libraries, (IV) Polytechnics and Junior Technical Schools, (b) Non-teaching employees of non-Government colleges (sponsored and aided), (c) Employees of District School Boards with due regard to the financial resources of the State Government." After careful consideration of the recommendation of the Pay Commission in regard to the scales of pay, age of superannuation, retirement benefits and other terms and conditions of service, the Governor is pleased to direct that for all categories mentioned above, all but scale numbers 9 to 15 as recommended by the Pay Commission at pp. 65-66 of Volume I of its Report and scale numbers 9 to 15 as recommended at p. 69 ibid shall be adopted. The revised pay scales (details of which have been shown in Annexure III) to be prescribed for different posts/cadres/employees shall correspond to the pay scales prescribed earlier for such posts/cadres/employees (hereinafter referred to as existing scales details of which have been shown in Annexure II), by G.O. No. 372-Edn. (B), dated the 31st July, 1981 as amended from time to time and other subsequent orders issued on the subject. The Governor is also pleased to direct that the date of effect of the Revised Scales, the manner of fixation of pay in the revised scales and other conditions of service of employees shall be as set out in the following paragraphs: "16. The Governor is also pleased to direct that the date of effect of the Revised Scales, the manner of fixation of pay in the revised scales and other conditions of service of employees shall be as set out in the following paragraphs: "16. Career Advancement Scheme and related issues.- (1) An employee whose pay is fixed in any of the revised scales of pay shown in serial numbers 1 to 12 of Annexure III and who has not got a single promotion/advancement to a higher scale in the same post even after completion of 18 years continuous and satisfactory service shall be placed in the next higher scale of pay, his designation remaining unchanged. This benefit of next higher scale of pay shall also be admissible to an employee having break-in-service, if the total period of his service excluding the period of break-in-service is not less than 18 years' provided the break is condoned. The pay of such an employee in the next higher scale shall be fixed at the stage next above the pay fixed in the revised scale of pay of his post, the date of his increment remaining unchanged. (2) All teaching and non-teaching employees of Government sponsored/aided institutions shall be entitled to an additional increment in the revised scale for every 10 years of continuous and satisfactory service, counted from the date of appointment, subject to maximum of two such increments in addition to the benefits which may be admissible under sub-para (1) of this paragraph. 7. Therefore this Rule has not been made applicable to the employees of the primary school teachers of the Municipalities. The Career Advancement Scheme appears in Rule 16 quoted above is applicable to Government (sponsored or aided) Institutions. Therefore ROPA Rules, 1990 are not applicable to the primary school teachers of the Municipality. Since this pay scale has not been made applicable therefore career advancement scheme is not applicable automatically. Municipality has to bear the expenses for payment of the salaries to such employees and unless Municipalities undertakes to bear this burden then alone they can introduce the career advancement scheme by adopting to their employees. It cannot be said as a matter of routine that since the revision of pay scale has been introduced in the State, their scheme for career advancement will automatically be applicable to the employees of Municipalities. It cannot be said as a matter of routine that since the revision of pay scale has been introduced in the State, their scheme for career advancement will automatically be applicable to the employees of Municipalities. The question is of finance and ultimately it has to be paid by the Municipality only and if the Municipality funds are not sufficient to pay then in that case who will bear the burden. This revision of pay scale including career advancement scheme is applicable to State sponsored or aided schools. The Government has clarified that the Government has not extended this benefit to the employees of the primary school teachers of the Municipalities. Therefore direction to the State Government to undertake the burden of payment of the benefit of career advancement scheme to the Municipality teachers is absolutely illegal. The State Government is not undertaking this burden and they have made it clear in their communication to the Municipalities. In fact before enforcing this benefit of career advancement scheme to the primary teachers of Municipalities the Municipalities should have sought permission of the Government. After granting this benefit, they wrote to the Government and the Government informed them on 2nd September, 1992 that there is no specific Government order for granting career advancement increment to the Municipality employees or Municipality primary teachers. The Municipality on its own cannot saddle the Government with financial liability which has not been undertaken by the State. The action of Municipality granting this benefit was totally unauthorized. Though Municipality while granting the benefit has laid down the condition in the note sheets dated 29.10.91 signed by the Chairman of Bhadreswar Municipality that career advancement scheme is made applicable subject to approval of the Government, if not approved this amount is liable to be recovered. Now the Government did not agree therefore the recovery has started. Learned Counsel for State has also invited our attention to recent communication of State Government to another Municipality that is Chandernagore dated 16.11.2000 that the Municipal employees are not entitled to get the benefit of career advancement scheme. Therefore this shows the stand the Government up till this date. 8. Our attention was also invited to Calcutta Gazette, Extraordinary, dated 24th March, 1976 published dated 19th March, 1976. In this Pay Committee was appointed to make recommendation for employees of the local bodies, their pay scales and other service conditions. Therefore this shows the stand the Government up till this date. 8. Our attention was also invited to Calcutta Gazette, Extraordinary, dated 24th March, 1976 published dated 19th March, 1976. In this Pay Committee was appointed to make recommendation for employees of the local bodies, their pay scales and other service conditions. And in this notification our attention was invited to clause 3 (vii) wherein it was laid down that pay scales to Municipal, Local Bodies, primary school teachers and non-teaching staff shall be as prescribed by education department. It was submitted that as per this clause memorandum of Education Department of Government of West Bengal 1990, i.e., ROPA Rules, 1990 is applicable and teachers are entitled benefit of career advancement scheme. But this submission is devoid of merit for simple reason that after Act of 1993 having come into force this notification ceased to have any effect. Now service condition of Municipal teachers is governed by Act of 1993 and these employees are not employees of State, therefore they are not entitled to same benefit as is applicable to Government sponsored or aided schools. No order has been brought to our notice whereby any sanction has been issued by the State Government extending the benefit of this career advancement scheme to such Municipal employees. 9. Hence as a result of the above discussion both appeals that of State and the Municipality are allowed and the order passed by learned Single Judge is set aside. The writ petition is dismissed. However, whatever amount has been drawn by teachers towards career advancement scheme shall not be recovered looking to lowly paid employees. There will be no order as to costs. I agree. Writ petition dismissed.