Debasish Kar Gupta ( 1 ) THIS writ application is filed by the petitioner challenging the order passed by the Chairman, Bhadreswar Municipality as communicated to him by letter dated September 4, 2000 in compliance of the order dated 6th September, 2000 passed in M. A. T. No. 1238 of 2000 by the Hon'ble Division Bench of this court. ( 2 ) THE fact of the case in a nut shell is that the petitioner is a medical graduate in Homoeopathy having been successful in the degree course and he was awarded the DMS Degree. As per letter of appointment dated 21 st January, 1986, the petitioner was appointed in the post of Medical Officer (Homoeo)attached to Rajkishan Charitable Dispensary under the Bhadreswar Municipality in the pay scale of Rs. 340-750/- with other admissible allowances. The petitioner made a representation dated 9th September, 1987 to the concerned respondent for proper fitment and/or upgradation in the scale of pay by removing discrimination like the other similarly placed candidates. The Municipality sent the above representation to the State Government for consideration on 30th october, 1987. As per communication dated 9th November, 1987 the respondent no. 2 informed the petitioner that the appointment of the petitioner was made in the post of "homoeopathic Doctor" as notified and not as "medical Officer (Homoeo)". The petitioner had challenged the decision of the respondents of changing his designation as "homoeopathic Doctor" by filing a writ petition and the same was dismissed. The scale of pay of the petitioner, Medical Officer (Homoeo) and Medical Officer (MBBS) at different times were follows: - Petitioner Medical Officer (Homoeo ) Medical Officer (MBBS) 1981 340-750 500-1360 600-1600 1990 1140-2160 1640-3635 2200-4000 ( 3 ) THE petitioner submitted a representation dated 28th March, 1988 to the Member Secretary, Pay Commission, Office of the 3rd Pay Commission, government of West Bengal for consideration of his grievance in respect of scale of pay as also for recommending his scale of pay at par with that of medical Officer (MBBS ). The petitioner did not receive any reply thereto. Thereafter, the petitioner made further representation dated 10th February, 1995 to the Municipal Authority for consideration of his grievance in respect of his scale of pay. The Municipal Authority sent his representation to the State government for consideration. The petitioner did not receive any reply thereto. Thereafter, the petitioner made further representation dated 10th February, 1995 to the Municipal Authority for consideration of his grievance in respect of his scale of pay. The Municipal Authority sent his representation to the State government for consideration. ( 4 ) IN the mean time the State Government, on receipt of a large number of representations from the Medical Officers (Homoeo) working under the Health and Family Welfare Department, Government of West bengal for upward revision of the pay scale of the post, referred the matter to the Pay Review Committee for examination. The Pay Review Committee submitted its recommendation to the State Government. After careful consideration of the recommendation of that Pay Review Committee, the Government of West Bengal as per Finance department's Notification No. 8933-F dated 23rd August, 1995 revised the scale of pay of the Homoeopathic Medical Officer working under the Health and Family welfare Department, Government of West Bengal possessing both BHMS (Decree) and DMS (Duration of four years) as Rs. 2,200-4,000/ -. ( 5 ) ACCORDING to the petitioner he was entitled to the above scale of pay of the Homoeopathic Medical Officer. The petitioner filed a writ application being c. O. No. 4034 (W) of 1995 for getting the benefit of the scale of pay of Rs. 2,200-4,000/- which was the scale of pay of the Medical Officer (Homoeo) working under the Department of Health, Government of West Bengal. ( 6 ) IN the mean time three Medical Officers (Homoeo) working under the howrah Municipal Corporation filed a writ petition being C. O. No. 6537 (W) of 1991 (in re : Dr Basab Dutta and Ors. v. Howrah Municipal Corporation) for getting the benefit of the scale of pay of Rs. 2,200 - 4,000/- which was similar to that of the Medical Officers (Homoeo) working under the Health Department, government of West Bengal and the same was disposed of on 6th July, 1998 with a direction upon the Howrah Municipal corporation to award the aforesaid higher scale of pay to the writ petitioners of the above writ application. The howrah Municipal Corporation preferred an appeal being M. A. T. No. 2315 of 1998 (in re: Howrah Municipal Corporation and Ors. v. Dr. Basab Dutta and Ors. ,)which was ultimately dismissed on 19th March, 1999 by a Division Bench of this Court. The howrah Municipal Corporation preferred an appeal being M. A. T. No. 2315 of 1998 (in re: Howrah Municipal Corporation and Ors. v. Dr. Basab Dutta and Ors. ,)which was ultimately dismissed on 19th March, 1999 by a Division Bench of this Court. ( 7 ) THEREAFTER, the writ application filed by the petitioner being C. O. No. 4034 (W) of 1995 was disposed of on 16th March, 2000 with a direction upon the Chairman of the Municipality to treat the above writ application as the representation of the petitioner. The Chairman of the Municipality was further directed to give an opportunity of hearing to the petitioner and if it was found that the petitioner was entitled to get the benefit then to refer the case of the petitioner to the State Government for sanction. The petitioner preferred an appeal being M. A. T. No. 1238 of 2000 before the Division Bench of this Hon'ble court against the above order dated 16th March, 2000 which was disposed of on 6th July, 2000 with a direction as follows: -"having heard the learned Counsel for the parties, we are of the opinion that in the event the respondent Municipality finds that the case of the petitioner is squarely covered by a Division Bench decision of this court in Howrah Municipal Corporation and Ors. v. Dr. Basab Dutta and ors. (M. A. T. No. 3215 of 1998), the Chairman of the Municipality may pass an appropriate order having due regard thereto and in the event it is found that the petitioner stands on the same footing as that of the case of dr. Basab Dutta and Ors. , in view of the direction in the said order of the division Bench, the matter need not be referred to the State Government again. This appeal treating the same as on day's list and the application are disposed of with the aftermentioned direction. There will be no order as to costs. Urgent xerox copy of this order may be supplied on priority basis. " ( 8 ) THEN the petitioner was served with an order passed by the respondent no. 2 as per his communication under Memo No. 4776 dated 4th September, 2000 rejecting the claim of the petitioner. This writ application is filed challenging the aforesaid order of rejection of the claim of the petitioner by the respondent No. 2. ( 9 ) MR. 2 as per his communication under Memo No. 4776 dated 4th September, 2000 rejecting the claim of the petitioner. This writ application is filed challenging the aforesaid order of rejection of the claim of the petitioner by the respondent No. 2. ( 9 ) MR. Milan Bhattacharjee, the learned Counsel appearing on behalf of the petitioner submits that admittedly the petitioner is a qualified Doctor. Mr. Bhattacharjee relied upon a Government Order No. 8933-F dated 23rd august, 1995 (Annexure P-4 at page 49 to the writ petition) by which the homoeopathic Medical Officers working under the Health and Family Welfare department, Government of West Bengal possessing both BHMS (degree)and DMS (duration of four years) were given scale of pay 2,200/ - 4,000/- which was similar to that of the Medical Officers (MBBS ). According to Mr. Bhattacharjee the issue of fixing the scale of pay of petitioner being the Homoeopathic Doctor under the respondent Municipality at par with that of the Medical Officer (Homoeo)working under the Health Department, Government of West Bengal has already been settled in view of the above order. The higher scale of pay has already been granted to the Medical Officers (Homoeo) of the Howrah Municipal corporation by an order passed by a Division Bench of this Court in M. A. T. No. 2315/98. According to him, the ratio laid down by a Division Bench of this court in the above appeal is squarely applicable in case of the petitioner. Mr. Bhattacharjee further submits that the impugned order passed by the respondent no. 2 cannot be sustained in law because the same is without any basis. In passing the impugned order, the respondent No. 2 misinterpreted the ratio of the judgment of M. A. T. No. 2315 of 1998. According to Mr. Bhattacharjee following the doctrine of equality as guaranteed under Article 14 read with Article 39 (d) of the Constitution of India the petitioner is entitled to get the benefit of the scale of pay which the Medical Officer (Homoeo) working under the Department of Health, government of West Bengal are enjoying. Mr. According to Mr. Bhattacharjee following the doctrine of equality as guaranteed under Article 14 read with Article 39 (d) of the Constitution of India the petitioner is entitled to get the benefit of the scale of pay which the Medical Officer (Homoeo) working under the Department of Health, government of West Bengal are enjoying. Mr. Bhattacharjee strongly contend that the petitioner is similarly circumstanced with the Homoeopathic Medical officer of the Howrah Municipal Corporation and as such the benefit of scale of pay given to them in compliance with the judgment of the Division Bench of this court in M. A. T. No. 2315 of 1998 is to be awarded to the petitioner also. ( 10 ) THE second limb of submission of Mr. Bhattacharjee is this the respondent No. 2 passed the impugned order without jurisdiction because a division Bench of this Court while disposing of the Appeal No. 1238 of 2000 of the petitioner directed the respondent Municipality to find out as to whether the case of the petitioner is squarely covered by a Division Bench judgment of this court and then directed the Chairman of the Municipality to pass an appropriate order. The Chairman cannot be claimed to be the Municipality in view of the provisions of the provisions of Howrah Municipal Corporation Act, 1980. Rather, it is the Board of Commissioners whose joint decision is the decision of the municipality. Mr. Bhattacharjee submits that there is no material-on-record to show that the Board of Directors gave their findings on the basis of which the respondent No. 2 passed the impugned order and as such the impugned order is liable to be set aside on that ground also. ( 11 ) MR. Kamalesh Bhattacharjee, the learned Counsel appearing on behalf of the respondent Nos. 1 and 2 draws my attention to the judgment of a Division bench of this Court passed in M. A. T. No. 2315 of 1998 and submits that the division Bench only considered as to whether the notification dated 19th March, 1991 of the Government of West Bengal was binding upon the Howrah Municipal corporation. Mr. Bhattacharjee further submits that the Government in a Finance department resolution No. 805-F dated 30th January, 1987 constituted a Pay commission to examine the pay structure and condition of service of the Howrah municipal Corporation also. Mr. Bhattacharjee further submits that the Government in a Finance department resolution No. 805-F dated 30th January, 1987 constituted a Pay commission to examine the pay structure and condition of service of the Howrah municipal Corporation also. As such the Pay Commission considered the case of the Medical Officers (Homoeo) of the Howrah Municipal Corporation also and the Commission submitted its report in january 1989. Thereafter, the scales of pay and other conditions of service in respect of the employees of the Howrah municipal Corporation was recommended by the State Government. The Division bench, after taking into consideration the above Government decision as also taking into consideration the provisions of Sections 17 and 215 of the Howrah municipal Corporation Act, 1980 directed the Corporation to implement that decision. Mr. Bhattacharjee further submits that neither the case of the petitioner was taken into consideration by the Pay Commission nor there was a decision of the State Government with regard to the scale of pay of the petitioner. Therefore, the ratio laid down in the above judgment is not applicable in case of the petitioner. Mr. Bhattacharjee further placed the provisions of Sections 13 (2), 15, 16 and 53 (3) of the Howrah Municipal Corporation Act, 1980 and submits that the order of a Division Bench of this Court passed in M. A. T. No. 1238 of 2000 has been complied with. Mr. Bhattacharjee placed reliance on a case of the State of West Bengal v. Sambhu Nath Sadhukhan and Ors. , reported in 2002 (1) CHN 271 in which the question came up before a Division Bench of this court as to whether the employees of the Municipality can be treated at par with the State Government employees in the matter of payment of carrier advancement scheme. The answer of the Division Bench of this Court was negative. He submits that the ratio laid down in the above case is applicable in this case and the petitioner is not entitled to get the benefit of the scale of pay enjoyed by the Medical Officers (Homoeo) working under the Health Department-Government of West Bengal. ( 12 ) I have heard the learned Counsels appearing for the parties as also i have taken into consideration the materials-on-record. ( 12 ) I have heard the learned Counsels appearing for the parties as also i have taken into consideration the materials-on-record. The most important issue involved in these cases is that whether the case of the petitioner is squarely covered by the judgment passed in the case Howrah Municipal Corporation and Ors. v. Dr. Basab Dutta and Ors. , passed in M. A. T. No. 2315 of 1998. ( 13 ) IN M. A. T. No. 2315 of 1998 a Division Bench of this Court considered the case of three Medical Officers (Homoeo) working under the Howrah Municipal Corporation. Some relevant portions of that judgment is quoted hereunder for proper adjudication of the case of the petitioner: -"the only contention raised in this appeal is that as a Notification dated 19th March, 1991 is binding upon the Howrah Municipal Corporation unless and until the State Government agrees to bear extra financial burden for making the enhanced scale of pay in respect of Homoeopathic medical Officers, the appellant is not in a position to do so. The said notification dated 19th March, 1991 reads thus: in Finance Department Resolution No. 805-F dated the 30th january, 1987, the Government constituted a Pay Commission to examine the present structure of pay and conditions of service of the employees of the Howrah Municipal Corporation also, and to suggest changes which may be desirable and feasible with due regard, inter alia, to the financial resources of the State Government. The Commission submitted its report in January 1989. After careful consideration of the recommendations of the Third pay Commission, the Governor has been pleased to decide that the scales of pay and other conditions of service in respect of the employee of the howrah Municipal Corporation will be as set out in the following paragraphs: order ordered that the resolution be communicated to the Howrah municipal Corporation and all concerned and published in an Extra-Ordinary issue of the Calcutta Gazette. "in the above judgment a Division Bench of this Court further observed as follows: -"it is admitted that the State Government has prescribed rules as regard the scale of pay of the Officers of the Howrah Municipal corporation. " ( 14 ) THEREFORE, it appears that in the case of Howrah Municipal Corporation v. Dr. Basab Dutta and Ors. "in the above judgment a Division Bench of this Court further observed as follows: -"it is admitted that the State Government has prescribed rules as regard the scale of pay of the Officers of the Howrah Municipal corporation. " ( 14 ) THEREFORE, it appears that in the case of Howrah Municipal Corporation v. Dr. Basab Dutta and Ors. , the Pay Commission took the task of examining the case of the Medical Officer (Homoeo) working under the Howrah Municipal corporation also and passed an order with regard to scale of pay in respect of those Medical Officers (Homoeo ). ( 15 ) IN this case neither the Pay Commission nor any Pay Review committee consisting of the experts examined the case of the petitioner nor there was any recommendation to give higher scale of pay to the petitioner. From the materials-on-record it appears that the petitioner had challenged the action of the respondent Municipality in changing his designation by way of a writ application which was ultimately dismissed. There is no material-on-record to show that the petitioner being designated as Homoeopathic Doctor is discharging similar functions to that of Medical Officer (Homoeo) or Medical officers (MBBS) working under the Health Department, Government of West bengal. There is no material-on-record to show that the petitioner is similarly circumstanced with the Medical Officers (Homoeo) working under the Howrah municipal Corporation. Therefore, in my view, the case of the petitioner is not covered by the judgment dated 9th March, 1999 passed in the case M. A. T. No. 2315 of 1998 (Howrah Municipal Corporation and Ors. v. Dr. Basab Dutta and ors. ). ( 16 ) WITH regard to the judgment delivered by a Division Bench of this court in the case of State of West Bengal v. Sambhu Nath Sadhukhan and Ors. With Commission of Bhadreswar Municipality v. Sambhu Nath Sadhukhan (M. A. T. No. 1345 of 2000 and M. A. T. No. 3379 of 1999) (supra), Mr. Kamalesh bhattacharjee rightly point out that in the above case the first and foremost question came up before a Division Bench of this Court was that whether the employees of the Municipalities can be treated at par with the State Government employees or not. The relevant portion of the above judgment is quoted hereunder: -"against that order both these appeals have been filed by the State any by the Municipal as aforesaid. The relevant portion of the above judgment is quoted hereunder: -"against that order both these appeals have been filed by the State any 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. 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. 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 employee of Municipality, as it involves financial burden. " ( 17 ) IN my view the ratio laid down in the above case of the State of West bengal v. Sambhu Nath Sadhukhan and Ors. (supra) is fully applicable in the case of the petitioner since the petitioner has been working in a dispensary run by the respondent Municipality. The petitioner is an employee of the Municipality and he cannot claim the same status as that of the State employee. Therefore, the scale of pay enjoyed by the Medical Officer (Homoeo) working under the health Department of the Government of West Bengal cannot be granted to the petitioner automatically. ( 18 ) SINCE, I have decided the most important issue of granting higher scale of pay to the petitioner at par with that of the Medical Officers (Homoeo)working under the Health Department of the Government of West Bengal, no useful purpose will be served by deciding the next issue involved in the matter as to whether the respondent No. 2 being the Chairman of the respondent municipality acted without jurisdiction in passing the impugned order in absence of any resolution taken by the Board of Commissioners. ( 19 ) IN view of the above observations the writ application is dismissed. In the facts and circumstances of the case, there will be, however, no order as to costs.