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2013 DIGILAW 386 (CAL)

Swapan Kumar Sardar v. STATE OF WEST BENGAL

2013-06-28

SAMBUDDHA CHAKRABARTI

body2013
Judgment : The Court: The subject-matter of challenge in the present writ petition is an order, dated January 11, 2011, passed by the Principal Secretary, Finance Department, Government of West Bengal in compliance of the orders passed by a learned single judge of this court in two writ petitions. The petitioners are all employees of the Kolkata Metropolitan Development Authority (KMDA, for short). The petitioners have prayed for similar benefits of Modified Career Advancement Scheme (Scheme, for short) which was issued under the Government of West Bengal’s Memo, dated March 13, 2001, for the employees of the Government of West Bengal. Such benefit has not been extended to the employees of statutory bodies or corporations. By the order impugned the Principal Secretary had rejected the prayer of the writ petitioners for extension of the benefit of the said Scheme to them. The petitioners had earlier filed two writ petitions which were disposed of by a learned single judge of this court by a common judgment and order, dated February 24, 2010. The learned single judge held that it was necessary to consider the grievances of the petitioners afresh. The respondents, particularly the Principal Secretary, Finance Department and the Secretary, Urban Development Department were directed to consider the writ petitions as representations. His Lordship was inter alia pleased to direct the respondents to take an appropriate decision after giving the petitioners on opportunity of being heard within a period of three months. Pursuant to said direction the order impugned was passed by the Principal Secretary, Finance Department. The petitioners have challenged the said order on various grounds. According to them the learned single judge in the earlier writ petitions had observed that the respondents authorities failed to establish why the benefits of the Scheme could not be given to the employees of the KMDA when KMDA authorities had agreed to implement the Scheme out of their funds. The further point of attack is that the earlier judgment had considered the submissions of the parties that the benefit of the Scheme introduced pursuant to the recommendation of the Fourth Pay Commission were extended by the finance department; but no recommendation was made in respect of the employees of the KMDA. The further point of attack is that the earlier judgment had considered the submissions of the parties that the benefit of the Scheme introduced pursuant to the recommendation of the Fourth Pay Commission were extended by the finance department; but no recommendation was made in respect of the employees of the KMDA. It appears from the order impugned that the respondents had granted the benefits of the Scheme to the West Bengal Board of Secondary Education or the West Bengal Higher Secondary Council as a special case and since it has been given to different statutory bodies the same benefit should be extended to the petitioners as well. The contention of the respondents KMDA authorities is that the Career Advancement Scheme (CAS, for short) was allowed to the employees of the KMDA in the ratio of 10 years and 20 years respectively upon the recommendation of the Third Pay Commission. The Fourth Pay Commission had recommended CAS benefits in the ratio of 8 years, 16 years and 25 years for the direct employees of the state government only. But this was not recommended for the employees of the KMDA. According to the respondents the KMDA is under a legal obligation under Section 139 of the Town and Country (Planning and Development) Act, 1979 (the Act, for short) to strictly adhere to the directives of the state government inasmuch as unless the state government directs the CAS benefits to be extended to the employees of the KMDA, it could not on its own take any step. Since the entire authority to make recommendation is in the domain of the Pay Commission and since the Pay Commission has refused to grant the benefit to the employees of the KMDA the respondents cannot grant it. In reply the petitioners have maintained that there were several statutory authorities whose employees were enjoying the benefit of the Scheme at par with the state government. Denying the stand of the respondents authorities that in the absence of any concurrence from the Fourth Pay Commission KMDA by itself could not grant the benefit of the Scheme to its employees the petitioners alleged that in the 117th Board Meeting of the authority a resolution was adopted by the KMDA that financial benefits would be given to their employees either with the approval of the KMDA itself or by the approval of the state government. The order impugned merely records that different authorities have different rules. The government cannot bear the burden of the additional expenditure and the petitioners’ prayer was, therefore, dismissed. Apart from this it is not clear from the order impugned the specific ground on which it has been dismissed. Mr. Amjad Ali, the learned Senior Counsel appearing for the petitioners has challenged the stand of the respondents that it cannot take shelter behind Section 139 of the Act in view of the fact that making a financial benefit does not require framing of any regulation. The learned single judge of this court while disposing of the earlier two writ petitions had clearly directed the authorities, particularly the Principal Secretary to the Finance Department and the Secretary, Urban Development Department, Government of West Bengal to consider the writ petitions as representations and to take appropriate decision in respect thereof after giving the representatives of the writ petitioners an opportunity of being heard in the light of the observations made in the said order. The order impugned, however, was passed by the Finance Secretary alone. It does not appear from the order impugned if the Secretary, Urban Development Department had any role to play at all. Thus the order was not passed according to the directives given by this court. On this ground alone the order impugned is not sustainable. It is found that the respondents’ submissions centers round the refusal of the Pay Commission to extend the benefit of the Scheme to the employees of the KMDA and the responsibility for the same has been placed at the doors of the employees of the KMDA as their inability to convince the Pay Commission. In support of their case the respondents have relied on the case of Secretary to Government and Others –Vs.- C. Muthu, reported in (2001) 10 SCC 545 for a proposition that in granting relief while applying the principle of ‘equal pay for equal work’ the court or tribunal should be very circumspect and until and unless it is established that the two posts are almost similar in all aspects the court or tribunal should not venture to grant the reliefs sought for. But the court should not go into the question of pay fixation. In the case of Dy. But the court should not go into the question of pay fixation. In the case of Dy. Director General of Geological Survey of India and Another –Vs.- R. Yadaiah and Others, reported in (2001) 10 SCC 563 the Supreme Court held that ordinarily courts should not go into the question of fitment of officers in a particular group and the matter should be left to the discretion and expertise of special commissions like pay commission. This judgment was cited before the learned single bench also in connection with the disposal of the earlier two writ petitions. The court observed that undoubtedly the court has its inherent limitations and Pay Commission is a specialized body and the court cannot always be expected to have the wisdom to deal with all the aspects relating to a market economy. That is why the court had directed the matter to be decided by the two secretaries of the two departments involved in the matter. In the case of S. C. Chandra and Others –Vs.- State of Jharkhand and Others, reported in 2007(8) SCC 279 it has been decided that the fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualifications, mode of appointment etc. and it has a cascading effect. The respondents have relied on this judgment also in support of their contentions that even if the employees of two groups are doing identical works they cannot be granted equal pay if there is no complete and wholesale identity. For example, a daily rated employee may be doing the same work as a regular employee yet he cannot be granted the same pay scale. In Union of India and Others –Vs.-Hiranmoy Sen and Others, reported in 2008(1) SCC 630 the Supreme Court relying on the case of S. C. Chandra (Supra) held that if the two posts have been carrying the same pay scales merely because the scale of pay in respect of one post has been increased by itself cannot result in the increase in the pay scale of the other post to the same level. It is thus very clear that the court cannot take upon itself the responsibility of extending the benefit of the Scheme to the petitioners. It is thus very clear that the court cannot take upon itself the responsibility of extending the benefit of the Scheme to the petitioners. The factors to be taken into consideration, as in the case of pay fixation so also in deciding the question of extending the benefit of the Scheme, are varied and complex and depend upon a host of factors. About three decades ago the Supreme Court in the case of Delhi Veterinary Association and Others –Vs.- Union of India and Others, reported in AIR 1984 SC 1221 , approached the matter both from the employers’ and employees’ points of view. With the change of categories the requisite factors also change. In Marathwada Agricultural University and Others – Vs.-Marathwada Krishi Vidyapith, MSKS and Others, reported in (2007) 8 SCC 497 , again the various factors to be taken into consideration were indicated. There are so many factors like method of recruitment, the fitment of employees in a certain cadre, avenues of promotion, horizental and relativities with similar jobs, hierarchical arrangements, employers’ capacity to pay, etc. (Secretary, Finance Department and Others –Vs.- West Bengal Registration Service Association and Others, reported in AIR 1992 SC 1203 ). That is precisely why these are known as executive actions. It has already been noted that the order impugned in the writ petition cannot stand. And the court also cannot take upon itself the task in hand. I set aside the order impugned in this writ petition. But in view of what has been discussed above the matter is sent back to The Principal Secretary, Department of Finance and the Principal Secretary, Urban Development Department for a fresh consideration of the petitioners’ case. They are to treat this writ petition as a representation and dispose of the same by a reasoned order after giving the petitioners a fresh opportunity of being heard within a period of six weeks from the date of the communication of the order. The authorities shall communicate the decision within a week thereafter. The writ petition is disposed of. There shall, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.