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2007 DIGILAW 858 (CAL)

Sujit Das v. STATE OF WEST BENGAL

2007-12-07

KALYAN JYOTI SENGUPTA

body2007
JUDGMENT:- (1). BY the aforesaid writ petition, Sujit Das, the petitioner, asked for cancellation and/or setting aside of an order of deduction at the rate of Rs. 1,000/-per month from the salary of the petitioner and also for allowing the petitioner to enjoy the benefit of the pay scale under D-1 category. The writ petition was filed in the year, 1996 for the aforesaid reliefs and on 26th August, 1996 an interim order was passed restraining the respondent authorities from recovering the alleged excess amount already paid, from the salary of the petitioner. This writ petition appears to have been dismissed from time to time and then restored time and again subsequently, and had been pending since then. The facts of the case are admitted as it appears from reading of the pleading of both the sides. Such admitted facts are stated hereunder. (2). PURSUANT to an advertisement on 16th January, 1983 the petitioner applied for appointment to the post of Superintendent of Motor Vehicles department of respondent Corporation in the revised scale of pay of Rs. 470-20-550-25-750-30-870-40-1230/-plus usual dearness allowances. In the advertisement requisite qualification for the aforesaid post was B. E. in Mechanical Engineering from any recognised University with special subject in Automobile and minimum two years experience in a reputed automobile workshop. The petitioner did not or does not have the aforesaid qualification. Rather, he had qualification of Diploma in Mechanical engineering obtained in 1974 and then post-diploma in Automobile obtained in 1977. The petitioner claims his aforesaid two qualifications are to be equivalent to B.E. Mechanical Engineering. Pursuant to his application he was invited for taking interview. He was chosen as second along with other two candidates. The first candidate did not turn up, though appointment was made in his favour and subsequently cancelled. On 24th may, 1983 the Chairman of the Howrah Municipality appointed the petitioner on temporary basis for a period of six months from the date of joining at a pay of Rs. 470/-in the revised scale of pay of Rs. 470-Rs. 1230/ -. After completion of period of six months followed by another one year the petitioner was confirmed on or about 23rd March, 1985 with effect from 1st December, 1983 at the aforesaid scale of pay in the said post of Superintendent of Motor Vehicles Department. 470/-in the revised scale of pay of Rs. 470-Rs. 1230/ -. After completion of period of six months followed by another one year the petitioner was confirmed on or about 23rd March, 1985 with effect from 1st December, 1983 at the aforesaid scale of pay in the said post of Superintendent of Motor Vehicles Department. On or about 21st March, 1991 revision of pay and allowances was implemented pursuant to the Third Pay Commission and the petitioner filled in an option form for the new scale of pay of Rs. 2200-80-3000-100-40007-under D-1 category serial No. 24 which was corresponding to old pay scale of Rs. 470-Rs. 1230/ -. He was allowed the benefit of the said revised pay scale. Thereafter, suddenly it is found in the salary certificate for the month of june, 1996 the respondent Municipal Corporation without giving opportunity of being heard reduced the salary depriving the benefit of revised scale of pay and sought to deduct about Rs. 1000/- from his salary. In substance, the said revised pay scale of Rs. 2200-Rs. 4000/-was not allowed. Lesser revised pay scale viz. Rs. 1,500-Rs. 3,410/-was allowed. During pendency of the writ petition subsequent Pay Commission came into effect and it was implemented by the respondent authorities. The said pay scale of Rs. 2,200-Rs. 4,000/- was revised at the scale of serial No. 24 i. e. Rs. 8,000-Rs. 13. 500/ -. This fact has been brought on record by filing a supplementary affidavit. (3). IT is the case of the writ petitioner that even assuming that qualification possessed by him is not equivalent to B. E. Mechanical engineering still then the other employees who are having the same qualification were granted revised pay scale as sought for by him by regularising the same, The stand taken in the affidavit-in-opposition by the Howrah Municipal Corporation is that it has been specifically mentioned in the relevant Pay Commission Report that for granting pay scale of Rs. 2200-Rs. 4000/- the employee concerned has to have a degree in automobile/mechanical Engineering and five years experience in servicing, maintenance and repairs of motor vehicles and power driven machinery. The petitioner admitted that he does not have such qualification. 2200-Rs. 4000/- the employee concerned has to have a degree in automobile/mechanical Engineering and five years experience in servicing, maintenance and repairs of motor vehicles and power driven machinery. The petitioner admitted that he does not have such qualification. Moreover, the post of Superintendent of Motor Vehicle is meant to be filled up by way of direct recruitment and the other employees having Diploma in Engineering were given promotion to the post of Assistant Engineer and only on promotion they were given the said pay scale. It is true that the writ petitioner was allowed the said pay scale of Rs. 2200-Rs. 4000/-but on condition and/or undertaking that after scrutiny of his qualification excess salary which might be drawn shall be recovered. In view of this undertaking it is not open for the writ petitioner to challenge the deduction. Since the Government stipulation is issued on the strength of the aforesaid recommendation of Pay Commission which is an act of an expert body the respondent authorities cannot flout and violate the same. As such, the action taken by the Municipal Corporation was justified and lawful. (4). MR. Shyamal Sarkar, learned Counsel appearing for the petitioner, basing on the facts stated in the petition as well as in the supplementary affidavit, submits that admittedly the petitioner was appointed and confirmed to the said post of Motor Vehicles Superintendent and his service was accepted without any objection and demur. Admittedly, the writ petitioner was enjoying pay scale of Rs. 470-Rs. 1,230/ -. Corresponding revised pay scale in the Third Pay Commission was fixed at Rs. 2,200-Rs. 4,000/ -. Therefore, option being exercised the petitioner automatically ought to have got the aforesaid corresponding revised pay scale. Indeed he had given an undertaking that upon scrutiny of his qualification within one month the said decision for granting pay scale would be reversed. The said undertaking was for a limited period and on expiry of this period effect of undertaking stands extinguished. He further submits that some other employees who are similarly placed and circumstanced and having qualification of diploma in engineering were granted the said revised scale of pay of Rs. 2,200-Rs. 4,000/ -. Unfortunately, in the case of the petitioner this has been reduced. The other employees case were treated favourably by passing an order of regularisation whereas the petitioner was treated with hostile discrimination. 2,200-Rs. 4,000/ -. Unfortunately, in the case of the petitioner this has been reduced. The other employees case were treated favourably by passing an order of regularisation whereas the petitioner was treated with hostile discrimination. According to him, such discrimination cannot be meted out on the plea that the petitioner is holding the post of direct recruit whereas the other employees were holding promotional post. He submits that there cannot be any discrimination between the direct recruits and promotees when they are brought in one cadre. In support of his submission he has relied on the decision of the. Supreme Court reported in 1999 (4) SCC 756 . According to him, requirement of the qualification of graduate engineer for several posts including that of superintendent of Motor Vehicles which is being held by the petitioner has been given go by as Howrah Municipal Corporation also appointed other candidates holding diploma in engineering for the post of superintendent of Water Supply and Superintendent of Survey. By such appointment, all concerned understood that the diploma holder engineers who were already appointed in the said posts were entitled to get the said revised scale of pay of Rs. 2,200-Rs. 4,000/ -. This action of the Howrah municipal Corporation is governed by the doctrine of contemporaneous expositio and reversal of scale of pay by the respondent authorities was hit by such doctrine and not tenable in law. This doctrine has been applied by the Supreme Court in the case reported in AIR 1992 SC 564 (Paragraph-4) and also reported in AIR 1991 SC 1028 . He says that the other employees holding diploma in engineering were granted revised scale of pay as per ROPA 1991. (5). MR. D.P. Mukherjee, learned Counsel for the respondents with ms. Smritikana Mukherjee, learned Advocate, submits that going by the language mentioned in the Third Pay Commission followed by the government decision the petitioner cannot get the aforesaid revised pay scale. Admittedly, the petitioner does not possess degree in Mechanical engineering. At the time of submission of option form the writ petitioner filed an undertaking that in the event of verification by the Accounts and audit Department he may not be entitled to get pay scale of Rs. 2,200-Rs. 4,000/ -. Admittedly, the petitioner does not possess degree in Mechanical engineering. At the time of submission of option form the writ petitioner filed an undertaking that in the event of verification by the Accounts and audit Department he may not be entitled to get pay scale of Rs. 2,200-Rs. 4,000/ -. He will refund excess amount drawn by him on the basis of such option and the Howrah Municipal Corporation has liberty to deduct such amount from his future pay. Thus, the payment made in the scale of pay of Rs. 2,200-Rs. 4,000/-was a conditional one. The condition was that in future if on verification of qualification and service records it is found that fixation of pay and/or grant of scale of pay is not admissible to him, then the excess amount paid shall be recovered from his salary. (6). ULTIMATELY, on verification by Accounts and Audit Department it was detected that such scale of pay is admissible to a degree holder engineer and not a diploma holder and accordingly, the Mayor-in-Council took a decision of revision of pay of the petitioner as admissible to a diploma holder engineer and consequently the impugned order was passed by the Commissioner. The representation made by the writ petitioner was rejected because the Rules does not permit such grant of pay scale as it is admissible to a degree holder engineer only. (7). MR. Mukherjee further submits that instances given by the writ petitioner in the case of Sri Deb Kumar Chatterjee and Sri S. Roy are not applicable in this case as they were working as Superintendent of Water (Mains) Department and Deputy Assessor of Howrah Municipal Corporation respectively. They were diploma holder engineers but they were promoted to the post of the Assistant Engineer in terms of the Notification of 1998 issued by the State Government. While giving promotion from the post of sub-Assistant Engineer to the post of Assistant Engineer on the basis of the length of service and experiences they were given the scale of pay as admissible to degree holder engineer i.e. Rs. 2,200-Rs. 4,000/-as per ROPA, 1990. According to them, concept of "equal pay for equal work" cannot be applicable on the facts and circumstances of this case. The differentiation in the scale of pay has been accepted as a settled norm in different judicial pronouncements. 2,200-Rs. 4,000/-as per ROPA, 1990. According to them, concept of "equal pay for equal work" cannot be applicable on the facts and circumstances of this case. The differentiation in the scale of pay has been accepted as a settled norm in different judicial pronouncements. In support of his legal submission he has relied on the following decisions of Supreme Court reported as follows: AIR 1996 SC 2764 , 1995 Supple. (1) SCC 149 and AIR 1998 SC 1504. The Honble Apex court always permitted differentiation of scale of pay for equal work on a rational and intelligible diffentia. They contend that in the present case the rule making authority made a differentiation in the scale of pay on the basis of qualification which is really reasonable and rational. (8). I have heard the learned Counsels for the parties and I have considered the facts and circumstances of this case. I have already indicated the admitted fact. Now the issue which has fallen for consideration in the case is as follows: Whether the petitioner in holding the post from the beginning of Superintendent, Motor Vehicles Department, is entitled to get the revised pay scale as per Third Pay Commission report or not. It appears that there is no allegation as against the petitioner regarding his competency in discharging his duties for a long time in the said post and he was also drawing salary at a pay scale of Rs. 470-Rs. 1,230/-which was revised by the Third Pay Commission at Rs. 2,200-Rs. 4,000/ -. No material has been produced before this Court that the qualification possessed by the writ petitioner is or is not equivalent to degree in Automobile/mechanical Engineering. At the time of appointment the requisite qualification for the aforesaid post was, as per advertisement, B.E. in Mechanical Engineering in a recognised University with special subject in Automobile and minimum two years experience in a reputed automobile workshop. The respondent Corporation knowing fully well that the petitioner did not possess the aforesaid qualification as advertised appointed and confirmed him in the said post. Therefore, in my view, the respondent authorities by necessary implication had relaxed such requisite qualification. The post of Motor Vehicle Superintendent, carries pay scale of Rs. 470-Rs. 1,230/-, the Superintendent of Water Works (Mains) Department carries the same pay scale. Therefore, in my view, the respondent authorities by necessary implication had relaxed such requisite qualification. The post of Motor Vehicle Superintendent, carries pay scale of Rs. 470-Rs. 1,230/-, the Superintendent of Water Works (Mains) Department carries the same pay scale. When the petitioner was found eligible and competent to hold the said post with the aforesaid pay scale, at the subsequent stage the petitioner cannot be said to be disqualified to hold the said post. From the factual aspect it appears that other two employees viz. Sri Deb Kumar Chatterjee and Sri S. Roy were also holding the qualification of diploma engineering and they were given the benefit of the same revised pay scale as asked for by the petitioner. It is contended by the Municipal Corporation that Deb Kumar Chatterjee was promoted to the post of Assistant Engineer, so he was given the pay scale of Rs. 2,200-Rs. 4,000/-but factually it is not so. He had all along been in the post of superintendent of Water Works (Mains) which required, in terms of the third Pay Commission, minimum qualification of Degree in Engineering in Mechanical and Electrical Branch. Curiously, considering his length of service he was regularised treating him as a promote whereas in case of the petitioner, he was not considered and treated him holding the post of direct recruit without having requisite qualification. I think that Mr. Sarkar is right in saying hostile discrimination has been meted out as against his client, the writ petitioner. When on the self-same facts and situation a couple of persons can be regularised on one hand there is no reason why the writ petitioner should be deprived on the plea of being holder of post of direct recruit. It is true that the Pay Commissions stipulation cannot be changed by the Court but I think the said stipulation cannot have any retrospective effect and the petitioners service in holding the post of superintendent of Motor Vehicles Department cannot be disturbed for any reason or any manner whatsoever as at the earlier point of time he was duly selected and confirmed accepting his qualification to be appropriate. Therefore, he is entitled to get the corresponding revised pay scale for all the times to come. On retirement of the petitioner when the aforesaid post will be vacant the same must be filled in terms of the stipulation of the Pay commission, not otherwise. Therefore, he is entitled to get the corresponding revised pay scale for all the times to come. On retirement of the petitioner when the aforesaid post will be vacant the same must be filled in terms of the stipulation of the Pay commission, not otherwise. (9). THE doctrine of contemporaneous expositio in this case is not applicable. It applies in a case where interpretation of provision of any statute is required, particularly when plain meaning of statutory provision is not forthcoming, by reference to exposition it has received from contemporary authority. It is explained as to applicability of this doctrine in K. P. Vargheses Case ( AIR 1981 SC 1922 , para 11 ). (10). IN this case, there is no ambiguity of the language of advertisement in the newspaper regarding requisite qualification nor in the Pay Commission stipulation. (11). THE Supreme Court decision relied on by Mr. Sarkar reported in 1999 (4) SCC 756 is not also appropriate in this case. The petitioner and the other employees are not forming the same cadre and the same post consisting of the direct recruit and promotee. In the Supreme Court decision it was found that the employees belonged to the same post and cadre consisting of direct recruit and promotee. (12). THE decisions cited by Mr. Mukherjee noted above, in my view, are not applicable in the facts and circumstances of this case, though the principle laid down therein is not disputed. In this case, the petitioner has not challenged the stipulation of Pay Commission made in 1991. The said stipulation cannot have any retrospective operation as the petitioner was not appointed de hors any recruitment rule in the year, 1983. The stipulation of Pay Commission with regard to qualification cannot be applied to deprive the petitioners benefit of revised pay scale for this wilt amount to retrospective operation. Accordingly, I hold that the decision of withdrawing the benefit of pay scale of Rs. 2,200/- Rs. 4,000/-in terms of Third Pay commission of Municipal Corporation based on qualification is invalid and illegal. Consequently, the decision for deduction of alleged excess drawal of salary and recovery thereof is also invalid and illegal. Both the decisions are set aside and quashed. In the mean time it appears that during pendency of the writ petition the aforesaid Pay Commission has been revised by the subsequent Pay Commission. Consequently, the decision for deduction of alleged excess drawal of salary and recovery thereof is also invalid and illegal. Both the decisions are set aside and quashed. In the mean time it appears that during pendency of the writ petition the aforesaid Pay Commission has been revised by the subsequent Pay Commission. I direct the respondent municipal Corporation to give benefit of the corresponding revised pay scale made subsequently to the writ petitioner. All such payments will have to be made, if not made already. All differential payments shall also be made to the petitioner within six months from the date of receipt of xerox certified copy of this order. Thus, the petition is allowed. No order as to costs.