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2009 DIGILAW 366 (CAL)

Manohar Mishra v. STATE OF WEST BENGAL

2009-05-12

ASHIM KUMAR BANERJEE, PRASENJIT MANDAL

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Judgment : PRASENJIT MANDAL, J. (1) This application is at the instance of the writ petitioner and is directed against the judgment and order dated 5th July, 2006 passed by the learned State Administrative Tribunal in O.A. No. 164 of 2003 whereby the learned Tribunal dismissed the application of the writ petitioner. (2) The writ petitioner was appointed constable in the police department, Government of West Bengal in 1948. He was superseded by many batch mates and his juniors such as Ashutosh Chakraborty and Sudarsan Chowdhury got higher pay for anomalous fixation of pay. In order to get protection of pay and allowance under Rule 55(4) of the West Bengal Service Rules, Part I, the writ petitioner moved the Honble High Court by a writ petition which was disposed of directing the respondents to revise or re-fix the pay of the writ petitioner again with effect from 1.4.1981 provided that the pay of the juniors in the cadre with identical revised pay scale had been fixed at a higher stage than the seniors. The pay of the writ petitioner was re-fixed accordingly with effect from 1.4.1981 by an order dated 4.3.1994 and the writ petitioner was allowed to draw the arrears on the condition that he was to give a written undertaking that he would refund the money, if drawn in excess on recommendation of the Finance Department after completion of the State gradation list. No appeal was preferred by the respondents against the said order. The writ petitioner retired from service on superannuation at the age of 58 years on 1.11.1996 but the respondents did not release the pensionary benefits according to the fixation made by the authorities in terms of the order of the Honble High Court. The writ petitioner then moved the learned Tribunal and the learned Tribunal directed the respondents to treat the application as a representation of the writ petitioner and to dispose of the same by passing a speaking order. Pursuant to that order, the writ petitioner submitted a representation to the respondent authorities but the directions of the learned Tribunal were not complied with. Thereafter, the writ petitioner filed another application before the learned Tribunal and then again the learned Tribunal directed the respondent authorities to dispose of the matter treating the application as representation of the writ petitioner by passing a speaking order. Thereafter, the writ petitioner filed another application before the learned Tribunal and then again the learned Tribunal directed the respondent authorities to dispose of the matter treating the application as representation of the writ petitioner by passing a speaking order. Then the S.P., North 24 Parganas passed the reasoned order on 9.8.2002 wherein the prayer of the writ petitioner was rejected and the pay of the writ petitioner was re-fixed at Rs. 1,630/- with effect from 01.02.1996. The writ petitioner again moved before the learned Tribunal praying for retiral benefits on the basis of re-fixation of the last basic pay drawn at Rs. 1,770/-and also to set aside the order dated 9.8.2002 passed by the S.P., North 24 Parganas. The learned Tribunal dismissed that application on contest. Being aggrieved by the said order of dismissal, the writ petitioner preferred this application. (3) Mr. Mukherjee, learned Advocate for the writ petitioner, submitted before us that according to Rule 55(4) of the W.B.S.R. Part-l the pay of a senior cannot be less than that of the juniors and as such the writ petitioner had to file one writ application earlier in 1993 and the Honble High Court directed the respondent authority to revise the pay of the writ petitioner in terms of Rule 55(4) of the W.B.S.R. Part-l with effect from 1st April, 1981. The S.P., North 24 Parganas re-fixed the pay of the writ petitioner with reference to the same cadre namely one Ashutosh Chakraborty with effect from 01.04.1981; but ultimately when the service book of the writ petitioner was sent to the Pay Implementation Cell of the Finance Department, Government of West Bengal before grant of pension to the writ petitioner, his pay was lowered down. In fact, he also contended that at that time, the service book of the writ petitioner was sent to the Pay Implementation Cell along with that of one Sudarsan Chowdhury and that was the cause of all troubles in respect of fixation of pay of the writ petitioner. For that reason, discrepancy arose. He contended that the service book of Ashutosh Chakraborty should have been sent along with the service book of the writ petitioner to the Pay Implementation Cell for checking if at all required. For that reason, discrepancy arose. He contended that the service book of Ashutosh Chakraborty should have been sent along with the service book of the writ petitioner to the Pay Implementation Cell for checking if at all required. He contended that the pay fixation of the writ petitioner had been done as per order of the Honble High Court and so it could not be re-fixed by the Administrative Officer of the Government of West Bengal and so the fixation of pay as well as pensionary benefits of the writ petitioners was totally wrong. The learned Tribunal failed to appreciate such fact. So the judgment and order of the learned Tribunal should be set aside and fixation of pay of the writ petitioner should be taken at Rs. 1,770/- as on 1.2.1996. as fixed earlier by the S.P., North 24 Parganas. Pensionary benefits should be calculated taking his pay at Rs. 1,770/-per month at the time of retirement. (4) On the other hand, Mr. Srimani, learned Advocate for the State, submitted that the re-fixation of pay of the writ petitioner had been done as per order of the Honble High Court dated 12.10.1993 in C.O. No.19277(W) of 1993. The S. P. , North 24 Parganas re-fixed the pay of the writ petitioner. Thereafter the writ petitioner filed two applications before the State Administrative Tribunal successively in 1997 and 1998 and upon hearing both the sides, the learned Tribunal directed the respondent authority to dispose of the two applications as representations by passing speaking orders. Accordingly, a speaking order was passed on 30.04.1997. Before grant of his pension his service book was sent to the P.I. Cell which re-fixed his pay at Rs.1,630/-, as on 1.2.1996. Pension had been sanctioned accordingly. As per his undertaking, the writ petitioner is bound to refund the excess amount drawn by him. (5) Having considered the submissions of the learned Advocates of both the sides and on perusal of the materials on record, we find that it is an admitted position that the writ petitioner was appointed constable in 1948. Then he was promoted to Police Driver with effect from 21.3.1964. He was again promoted to the rank of Grade I, Police Driver on 1.4.1981. He was again promoted to the rank of Assistant Sub-Inspector of Police with effect from 25.2.1985. His pay was re-fixed after ROPA, 1990 had come into force. Then he was promoted to Police Driver with effect from 21.3.1964. He was again promoted to the rank of Grade I, Police Driver on 1.4.1981. He was again promoted to the rank of Assistant Sub-Inspector of Police with effect from 25.2.1985. His pay was re-fixed after ROPA, 1990 had come into force. His pay was fixed at Rs. 1,630/- with effect from 1.2.1996. Subsequently, his pay was again re-fixed at Rs. 5,075/- with effect from 2.2.1996 in terms of ROPA, 1998. Ultimately, he retired from service on superannuation on 31.10.1996 (P.M.). Thus, we find that the writ petitioner got promotion thrice in his service career. That is why, he was deprived of the benefits of the Career Advance Scheme. (6) In terms of the order of His Lordship (Justice Susanta Chatterjee) of the Honble High Court at Calcutta the Superintendent of Police fixed the pay of the writ petitioner at Rs. 1,610/- from 1.2.1994, Rs. 1,720/- from 1.2.1995 and Rs. 1,770/- from 1.2.1996. When the service book of the writ petitioner was sent to the P.1. Cell, Finance Department for checking before grant of pension, the P.1. Cell found anomaly in the fixation of the pay and held that the pay fixation of the writ petitioner would be Rs. 1,630/- on 1.2.1996 (corresponding to Rs. 5,075/-under the ROPA, 1998) and pension benefits were released by the Account General, West Bengal according to such fixation of pay. (7) As per materials on record, one Sudarsan Chowdhury was appointed constable in 1966. He got promotion twice as Police Driver and Grade I Police Driver in his service career and thus he got the benefits of the 20 years Career Advance Scheme before his promotion to the rank of Grade-I Police Driver. His pay was re-fixed later. Correction of error to rectify incorrect fixation of pay is permissible. The respondent authority had done so in the instant case. Yet his pay was fixed at Rs. 4,950/- at the time of retirement of the writ petitioner. Thus, we find that pay of Sudarsan Chowdhury was fixed lower than the pay of the writ petitioner at the time of his (writ petitioners) retirement. (8) The learned Advocate for the writ petitioner submitted before us that the wrong had been done when the service book of Sudarsan Chowdhury was sent along with the service book of the writ petitioner to the P.I. Cell for checking. (8) The learned Advocate for the writ petitioner submitted before us that the wrong had been done when the service book of Sudarsan Chowdhury was sent along with the service book of the writ petitioner to the P.I. Cell for checking. The service book of Ashutosh Chakraborty should have been sent instead of that of Sudarsan Chowdhury. Here we find that Sudarsan Chowdhury was appointed constable in 1966 and Ashutosh Chakraborty was appointed constable in 1967. As per Affidavit-in-Opposition, the pay of Ashutosh Chakraborty was re-fixed in 2004. So, we do not find any wrong in sending the service book of the writ petitioner along with that of Sudarsan Chowdhury who was appointed earlier than Sri Chakraborty. (9) The learned Advocate for the writ petitioner referred to the decision reported in AIR 1990 SC 8,17 to show that the directions of the Honble High Court cannot be altered by the State by passing an administrative order. With due respect to the learned Advocate for the writ petitioner, we hold that this decision will not be applicable in the instant situation because the facts of that case and of the case at hand are completely different. The decision related to grant of permit in respect of cutting of trees of the forest. Similarly, the decision reported in AIR 1996 SC 188 , we hold, will not applicable in the instant situation because the fact of that situation is also completely different from the one in the instant case. In that decision it was held that when the order of the Court had been final and binding against the State, any action contrary to that final order is not permissible. In the instant case the pay of the junior to the writ petitioner was fixed less than that of the writ petitioner later. So the pay of the writ petitioner was altered to a lesser amount. So also in respect of the decision reported in AIR 2002 SC 2755 referred to by Mr. Mukherjee. So neither of these decisions is applicable in the instant case. (10) So far as the fixation of pay by the District Superintendent of Police, North 24 Parganas fixing the pay of the writ petitioner at Rs. 1,770/-on 01.02.1996 is concerned, we find that such fixation had been found wrong by the P.I. Cell, Finance Department, Government of West Bengal. So neither of these decisions is applicable in the instant case. (10) So far as the fixation of pay by the District Superintendent of Police, North 24 Parganas fixing the pay of the writ petitioner at Rs. 1,770/-on 01.02.1996 is concerned, we find that such fixation had been found wrong by the P.I. Cell, Finance Department, Government of West Bengal. We find that the District Superintendent of Police, North 24 Parganas fixed the pay the writ petitioner at such higher stage in making compliance of the order of the Honble High Court in C.O. No. 19277 (W) of 1993 in terms of Rule 55(4) of the W.B.S.R. Part-l. He is not the final authority in assessing the fixation of the pay but the P.I. Cell had been entrusted to do that job and in our view this cell had done rightly. However, as the pay of the writ petitioner had been fixed wrongly in making compliance of the order of the Honble High Court and as the writ petitioner retired from service in the meantime, we are of the view that though the writ petitioner gave an undertaking to refund the excess amount drawn, in consideration of the situation such excess amount should not be recovered after retirement of the writ petitioner. However, pension benefits as granted by taking the pay of Rs. 1,630/-as on 1.2.1996 should sustain. (11) In view of our above observations, we hold that the writ petition should be disposed of with the above observations. (12) Accordingly, the writ petition is disposed of. (13) There will be no order as to costs.