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2007 DIGILAW 229 (CAL)

MONOHAR KUMAR MITRA v. STATE OF WEST BENGAL

2007-03-28

DEBASISH KAR GUPTA

body2007
( 1 ) THE petitioner files this writ application for a direction upon the respondents to allow the petitioner to draw his basic pay and allowance in the scale of pay of Rs. 3600-7050 as was drawn immediately prior to issuance of the order dated November 15, 2002 passed by the District library Officer, Howrah. ( 2 ) THE fact of the case in a nutshell is this the petitioner being a local inhabitant and interested in being involved in literacy programme, associated himself with the working of Dakshin Durgapur Udayan Pathagar, district-Howrah (hereinafter referred to as the said library) from the month of November, 1978 on payment of a consolidated pay of Rs. 15/- per month. Subsequently, the said library was converted into a Government sponsored rural library from the year 1980. Thereafter, the petitioner was appointed as Librarian on temporary basis in respect of the said library in the scale of pay of Rs. 184/- 270/- plus admissible allowances as per rules. The scale of pay of the petitioner was revised in terms of the Revision of Pay and Allowance Rules, 1981. ( 3 ) AFTER the promulgation of the West Bengal Public Libraries Act, 1979 the provisions of the aforesaid Act came into force with effect from july 15, 1982. In accordance with the provisions of sub-section (J) of section (2) a "public Library" means a library open to the and (I) established or maintained by the Government, or (II) declared by the Government as a sponsored public library under Section 16a of the West Bengal Public libraries Act, 1979. Since the said library came within the scope of Section 16a of the West Bengal Public Libraries Act, 1979, the same became the public library under the provisions of the aforesaid Act. The Government local library authority was constituted in accordance with the provisions of sub-section (1) of Section 8 of the West Bengal Public Libraries Act, 1979 in respect of the District of Howrah. In accordance with the provisions of sub-section (c) of Section 10 of the West Bengal Public Libraries Act, 1979, the local library authority was empowered to employ from time to time the officers and staff of the public libraries in such a manner and on such terms and conditions as may be prescribed. In accordance with the provisions of sub-section (c) of Section 10 of the West Bengal Public Libraries Act, 1979, the local library authority was empowered to employ from time to time the officers and staff of the public libraries in such a manner and on such terms and conditions as may be prescribed. ( 4 ) THE petitioner was appointed in the post of Librarian with effect from October 16, 1987 in relaxation of the professional training in librarianship on condition that he would complete the said course of training within the period of 3 years of appointment and he would not be allowed any increment in his time scale of pay for the post till acquiring the above qualification in the Librarianship as per provision of Government order No. 15-EDN (SE) dated Febraury 9, 1980. The petitioner completed the aforesaid training course successfully in the year 1991. But the petitionier had been allowed annual increments in his time scale of pay even before completing the professional training in Librarianship prior to 1991. As per Order dated November 15, 2002 passed by the District Library officer, Howrah the scale of pay of the petitioner was re-fixed in terms of the Government Order No. 55-EDN (SE) dated February 9, 1980 allowing incremental benefits in his time scale from October 19, 1991,. e. from the date of completing professional training in Librarianship. By virtue of the aforesaid order the amount overdrawn owing to drawal of yearly increments till the date of completing the professional training in librarianship was directed to be adjusted accordingly. The subject-matter of challenge in this writ application is the aforesaid order dated November 15, 2002 passed by the District Library Officer. ( 5 ) APPEARING on behalf of the petitioner Mr. Pratap Kumar Sen, learned Advocate submits that the petitioner being a qualified existing candidate at the time of promulgation of the West Bengal Public Libraries act, 1979 cannot be denied of the yearly increment. It was not a condition of the service of the petitioner to complete the professional training in librarianship as appears from his letter of appointment. The petitioner was selected by the District Advisory Council of Social Education, Howrah. Mr. Sen, further submits that the scale of pay prescribed in the Revision of Pay and Allowances Rule, 1981, for the Librarian (for matriculate with/ without certificate in Librarianship was Rs. 300-685 ). The petitioner was selected by the District Advisory Council of Social Education, Howrah. Mr. Sen, further submits that the scale of pay prescribed in the Revision of Pay and Allowances Rule, 1981, for the Librarian (for matriculate with/ without certificate in Librarianship was Rs. 300-685 ). Therefore, the impugned order of refixation of pay of the petitioner as also withdrawal of increments till acquiring the professional training in Librarianship cannot be sustained in law. ( 6 ) MR. Sen relies upon the decision of Shyam Babu Verma and Ors. v. Union of India and Ors. , reported in 1994 (2) SCC 521 to submit that in the event higher scale of pay erroneously given to the petitioner due to no fault on his part, it should only be just and proper not to recover any excess amount already paid to him. Mr. Sen, further relied upon the decision of cycle Corporation Employees Union v. Cycle Corporation of India Ltd. , reported in 1997 (1) CLJ 489 to submit that the deduction of pay without compliance of the rules of natural justice is not permissible. Relying upon the decision of United Bank of India v. Nepal Sankar Chowdhury, reported in 2001 (1) CLJ 681 Mr. Sen submits that in a given circumstances the recomputation and reduction of commuted value of pension was not allowed in a writ application and the Division Bench was not inclined to interfere with that order. ( 7 ) APPEARING on behalf of the State-respondents Mr. Partha sarathi Deb Burman draws the attention of this Court toward the G. O. No. 15-Edn (SE)/sl-48/79 Pt. 1 dated February 9, 1980 which was issued to prescribe the procedure to be followed for conversion of libraries under private management into sponsored libraries. Clause (F) of the above procedure provided that if professionally qualified candidates are not found from the employment exchanges or from the existing sponsored/government Public Library employees, the employment exchanges may be requested to send the names of the candidates having minimum academic qualification for consideration of appointment. Such candidates, if selected and appointed would have to under go professional training as required for the respective posts within three years from the date of joining. Till he was acquiring required professional qualification he would not be eligible for annual increment in the pay scale which would be a term of appointment. Mr. Such candidates, if selected and appointed would have to under go professional training as required for the respective posts within three years from the date of joining. Till he was acquiring required professional qualification he would not be eligible for annual increment in the pay scale which would be a term of appointment. Mr. Deb Burman submits that in the instant case annual increments were given to the petitioner contrary to the above order. So, there was not illegality in refixing the pay of the petitioner by passing the impugned order dated november 15, 2002. ( 8 ) AFTER giving my anxious consideration to the materials-on-record as also to the submissions made on behalf of the respective parties, I find that it is an admitted fact that after coming of the said library within the preview of the West Bengal Public Libraries Act, 1987, the petitioner was appointed as librarian of the said library with effect from October 16, 1987 as an existing staff in relaxation of professional qualification. It is also an admitted fact that the petitioner obtained certificate in professional training in librarianship in the year 1991. lt is also evident from the Government order No. 15-Edn (SE)/sl-48/79 Pt. 1 dated February 9, 1980, that the petitioner had not been eligible for annual increments till he acquired the certificate in professional training in librarianship in the year 1991. For proper adjudication of this case, the provisions of Clause (F) of the procedure followed for conversion of libraries under private management into sponsored libraries as provided in Government order No. 15-Edn (SE)/sl-48/79 Pt. 1 dated february 9, 1980 are quoted below : - "at the time of appointment in sponsored libraries, preference should be given to existing qualified staff of the sponsored/govt. Public Libraries applied for the post whether their names are registered with employment exchange or not. Appropriate employment exchange may be requested to send names of the suitable candidates, giving specific time within such names must be communicated to the DACSE/lla. At the same time suitable open advertisement should also be made in appropriate manner so that existing qualified staff of sponsored/govt. Public libraries may apply for the post. If professionally qualified candidates are not found/from the employment exchanges or from the existing sponsored/govt. Public library employees, the employment exchanges may be requested to send the names of candidates having minimum academic qualification for consideration of appointment. Public libraries may apply for the post. If professionally qualified candidates are not found/from the employment exchanges or from the existing sponsored/govt. Public library employees, the employment exchanges may be requested to send the names of candidates having minimum academic qualification for consideration of appointment. Such candidates, if selected and appointed will have to undergo professional training as required for the respective post within three years from the date of joining eligible for annual increment in the pay scale which will be a term of appointment. " ( 9 ) THEREFORE, it is an admitted position that the incremental benefits enjoyed by the petitioner was extended to him contrary to the provisions of the above Government Order No. 15-Edn (SE)/sl-48/79 Pt. 1 dated February 9, 1980. ( 10 ) I cannot accept the submission of Mr. Pratap Kumar Sen, learned advocate for the petitioner that obtaining the professional training certificate was not a condition of service of the petitioner as per letter of appointment. In this regard the relevant portions of the decision of Reshan lal Tanden v. Union of India, reported in AIR 1967 SC 1889 are quoted below : - " (6) We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'd' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'b', laid down that promotion to Grade 'c' from grade 'd' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the government. In other wards, the legal position of a Government servant is more one of status than of contract. In other wards, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310. But, it is obvious that the relationship between the government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows: "so we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status. " ( 11 ) IN view of the above the relationship between the respondent authority and the petitioner is in the nature of status and in the language of jurisprudence status is a condition of membership of a group of which conditions of service are exclusively determined by law and not by agreement between the above parties arising out of the letter of appointment. Therefore, refixation of pay of the petitioner in terms of the government Order No. 5-Edn (SE)/sl-42/79 Pt. 1 dated February 9, 1980 is sustainable in law. ( 12 ) I do not agree with the submission of Mr. Sen that in view of the provision of Revision of Pay and Allowance Rule, 1981, the incremental benefits should be given to the petitioner even prior to date of obtaining qualification in professional training. Because, one of the conditions for appointment of the petitioner in the post of Librarian on and from October 16, 1987 was non-payment of incremental benefits till the date of obtaining qualification in professional training. ( 13 ) HOWEVER, with regard to the question of recovery of the. overdrawal amount, it is an admitted position in the instant case that incremental benefits were given to the petitioner by mistake at the instance of the respondent authorities. The petitioner was not responsible in any way for the same. In this regard I fully agree with the submissions of mr. Pradip Kumar Sen, learned Advocate, that the in view of the decision of Shyam Babu Verma (supra), no step should be taken to recover or to adjust any excess amount paid to the petitioner due to-the fault of the respondents. In this regard, the relevant portions of the above decision of shyam Babu Verma (supra) are quoted below : - "11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w. e. f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of rs. 330-560 but as they have received the scale of Rs. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w. e. f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same. " ( 14 ) ON the basis of aforesaid settled principles of law, the respondents cannot be allowed to recover or adjust any excess amount already paid to the petitioner. ( 15 ) WITH the above observations this writ application is disposed of by quashing and setting aside the directions given by the respondent authority in the ultimate paragraph of the impugned order dated November 15, 2002 passed by the respondent No. 3 to adjust the overdrawal amount owing to drawing of yearly increments by the petitioner in violation of the terms and conditions of the letter of appointment. There will be, however, no order as to costs. .