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2013 DIGILAW 98 (CAL)

Shyamali Ganguly v. STATE OF WEST BENGAL

2013-02-14

SAMBUDDHA CHAKRABARTI

body2013
JUDGMENT SAMBUDDHA CHAKRABARTI, J. By this petition the petitioner has prayed for a writ of Mandamus commanding the respondents to take steps to review the fixation of scale of pay of the petitioner as lawfully admissible to her and to assess afresh in terms of the original scale the benefits given to her and to revise the same. She has also prayed for a writ of Mandamus commanding the respondents to offer proper and appropriate designation and status in the office according to her qualification and a writ of Prohibition prohibiting the respondents from disturbing her service in the respondent company. The case of the petitioner is that she is an employee of West Bengal Electronics Industry Development Corporation Limited (hereinafter referred to as the ‘Corporation’) which is a state government undertaking. She was working with the status of an Associate and has been given the benefit of the scale of a Sub-Assistant Engineer instead of that of an Executive Engineer. She joined the said Corporation in the year 1985 in the post of Quality Control Inspector. On September 30, 2004 she was given a fresh appointment for five years with effect from October 1, 2004 to the post of Associate and she was allowed to receive a monthly consolidated salary of Rs. 10,720/-. Her grievance is that from October, 2005 the pay structures of the employees were revised by the Corporation and she was placed in the pay scale of an Associate of Rs. 4,000 - 8,850/- with Basic Pay fixed at Rs. 7,050/-. In addition she was entitled to receive Dearness Allowance and House Rent Allowance as per the rules. She found that employees junior to her and who held executive rank of the union were offered higher pay scale than the petitioner and her pay scale was reduced. In the year 2009 she was absorbed in service and she was redeployed from the said Corporation to the Webel ISP Department with effect from August 30, 2009. The petitioner states that with effect from January 1, 2010 her basic pay scale had been fixed at Rs. 19,250/- and her only increment is fixed on July 1 every year. She alleges that the pay structure of the junior employees continued to be higher than that of the petitioner. The petitioner states that with effect from January 1, 2010 her basic pay scale had been fixed at Rs. 19,250/- and her only increment is fixed on July 1 every year. She alleges that the pay structure of the junior employees continued to be higher than that of the petitioner. Since she holds a B.Tech degree in Computer Science, the petitioner alleges, she is entitled to higher scale of pay in the rank of an Executive Engineer. She made her grievance to the appropriate authorities and drew their attention regarding the designation of the employees that in the designation of Associate all employees are not equally qualified. According to her there should be a promotional scheme to be implemented in the interest of justice and fair play. The authorities expressed their dissatisfaction with the performance of the petitioner which the petitioner had interpreted as a warning for desisting her from taking any sort of action in this regard. She has placed the entire alleged anomaly in the pay structure at the door of the executive members of the Union. She alleges that because of her protests the infuriated authority tried to complicate everything by disturbing her at her place of work. She was sought to be harassed and humiliated. She had made a representation to the Executive Director (T&BD) with regard to the allegations leveled against her particularly for removing all the tortures and humiliations she was facing at her place of work. She has also annexed the extracts of the pay-slips for the month of January, 2011 of the employees to show the disparity in the pay structure. The petitioner has further alleged that the respondents have affected her legal rights by not paying her the proper salaries and the scale of pay which had once been paid to her as an Associate. According to her the scale once offered to a particular employee cannot be taken away in the name of revision of scale of pay. But in the case of the petitioner at the time of revision of scale of pay she had been offered a lower one than her juniors having B.Sc, B.Com or B.A. degrees. With these allegations she has filed this present writ petition. The respondents nos. 2 to 5 have contested this writ petition by filing an affidavit-in-opposition. But in the case of the petitioner at the time of revision of scale of pay she had been offered a lower one than her juniors having B.Sc, B.Com or B.A. degrees. With these allegations she has filed this present writ petition. The respondents nos. 2 to 5 have contested this writ petition by filing an affidavit-in-opposition. The respondents have alleged that the petitioner had suppressed and misrepresented material facts and the petition lacks material particulars. According to them, the allegation relating to discriminatory treatment of the petitioner is not sustainable in the absence of any governmental policy of offering higher scale of pay against degree without performance. The respondents have also taken exception to the maintainability of the writ petition on the ground of inordinate delay and also on the ground of non-joinder of necessary parties inasmuch as the senior employees about whom she has made grievances have not been made parties to the petition. Respondents’ further case is that the petitioner being a workman within the meaning of the Industrial Disputes Act should have raised her demand under the said Act, particularly when the prayers she had made cannot be the subject-matter of any writ petition. They have alleged that the petitioner is trying to create a new contract of service which cannot be done by invoking the writ jurisdiction of the court. In reply to the allegations made by the petitioner the respondents have stated that since the said Corporation was on the verge of closure the petitioner was absorbed for a period of 5 years with effect from October 1, 2004 in the post of Associate. This was a fresh appointment at a consolidated salary of Rs. 10,720/-. In the appointment letter it had been stated that the petitioner after being appointed thus, the earlier appointment would come to an end and her new appointment would be solely governed by the concerned rules and regulations. On April 1, 2005 she completed her period of probation and was confirmed with effect from April 1, 2005. The petitioner was paid according to the terms of her employment with which there is no dispute. The grievance which the petitioner had made in the writ petition were contained in several representations made by her which have been taken care of by the authorities. After receiving her representation dated August 18, 2010 the respondent no. The petitioner was paid according to the terms of her employment with which there is no dispute. The grievance which the petitioner had made in the writ petition were contained in several representations made by her which have been taken care of by the authorities. After receiving her representation dated August 18, 2010 the respondent no. 5 herein issued a letter to the appropriate authority of the Allahabad Agricultural Institute, a deemed university, requesting for the confirmation of the genuineness of her degree and no reply since then has been received by the respondent no. 5 from the said deemed university. According to the respondents, the petitioner was found guilty in a case where she had made self-cancellation of her attendance made in the attendance-sheet in the month of July, 2010 and she was issued a showcause notice. Her salary was deducted for those days in which she made self-cancellation of her attendance. She was further informed that for growth of the organization the petitioner had to show her performance and her certificate will not help her in the automatic career growth. The performance of the writ petitioner was not satisfactory. The respondents did not dispute that 39 employees of the Corporation were absorbed with effect from July 29, 2009. With regard to the fixation of salary and scale of pay the respondents say that a Memorandum of Agreement was signed between the Corporation and its employees’ union. The revised scale of pay had been effected from January 1, 2006 and the actual payment on the basis of fixation of pay would be made with effect from October 1, 2010. The respondents have further stated that her B.Tech degree is an additional qualification and for the post she holds such degree is not required. They have further denied the allegation that junior but influential employees have been given higher scale of pay. By a letter dated October 4,2005 the Deputy Secretary to the Government of West Bengal issued a letter to the Chief Executive of the Corporation that the scale of pay of the employees of the said Corporation was accepted by the Government. In the said communication the name of the petitioner had appeared with the designation of an Associate and she is being paying in terms of the said scale of pay and there is no anomaly. In the said communication the name of the petitioner had appeared with the designation of an Associate and she is being paying in terms of the said scale of pay and there is no anomaly. The petitioner’s scale of pay is in terms of the recommendation of the 5th Pay Commission and has been fixed with effect from January 1, 2010 and the petitioner is being paid in terms of the said Pay Commission. The respondents have further denied the allegation of the petitioner regarding the anomalies in the scale of pay. The petitioner is holding the post of an Associate for which there is a minimum qualification and if she is over-qualified there is no condition of service for offering her higher scale of pay and as such the grievance of the petitioner has no basis. The respondents have alleged that the petitioner was not maintaining the official timing and continuously flouted the attendance report system and she used to send attendance through e-mail instead of signing the attendance register. The petitioner was informed that these were acts of indiscipline and the authorities decided her not to pay her salaries for those days on which her attendance had been cancelled by the petitioner herself. The respondents have also denied the allegation that in a preplanned manner the petitioner was attempted to be harassed and humiliated on one pretext or the other. On the other hand her representation was considered by the answering respondents and her B.Tech degree was kept in her personal file. The respondents have further alleged that the petitioner violated the terms and conditions of service by obtaining xerox copies of the pay-slips of other employees for the month of February, 2011 by manipulating the xerox operator. The respondents have not done anything affecting the legal right of the petitioner, but she had filed the present petition with hypothetical complaints only to harass the respondents. The respondents have asserted that ROPA rules are not applicable to the said Corporation. The respondents have prayed for the dismissal of the writ petition. The petitioner had filed her affidavit-in-reply to the said affidavit-in-opposition wherein she denied the allegations made by the respondents in their affidavit-in-opposition. The respondents have asserted that ROPA rules are not applicable to the said Corporation. The respondents have prayed for the dismissal of the writ petition. The petitioner had filed her affidavit-in-reply to the said affidavit-in-opposition wherein she denied the allegations made by the respondents in their affidavit-in-opposition. In the reply also the petitioner had reiterated her stand that the respondents had appointed employees having no technical degree and they are paid higher scale of pay; but in the case of the petitioner her qualification of B.Tech degree has not been taken into account and she has not been given the higher responsible post and scale of pay. The petitioner has further claimed that she being the senior-most employee in the same rank was getting a lesser pay than her juniors. She has also denied the contention of the respondents that the petitioner is a workman within the meaning of the Industrial Disputes Act. She asserted that her case was purely against differential treatment shown to her in respect of her position in the service, promotion, suitable scale of pay etc. She has further denied the allegation that she was found guilty of self-cancellation of attendance in the month of July, 2010 and she claimed the same to be an inadvertent mistake on her part which she duly rectified. She had also very assertively stated that her performance in office duties was never called in question. She had qualified in the B.Tech examination for upgradation in her service. She has further stated that the writ application has been filed challenging the alleged illegalities in respect of her legitimate expectation with regard to promotional benefits and the benefits of scale of pay. She has also reiterated that the discriminatory pay scale will be clear from the pay-slips which have been annexed as Annexure P-12 to the writ petition wherefrom it appears that the scale of pay of the junior employees in the same rank has been fixed at a higher rate than that of the petitioner and that she is qualified for upgradation to the post of Executive Engineer. But the respondents authorities have not considered her representations. Thus, the chief complaint of the petitioner is that she having held a higher qualification compared to other employees has not been given the executive rank and others having lesser qualification than her is enjoying better scale of pay. But the respondents authorities have not considered her representations. Thus, the chief complaint of the petitioner is that she having held a higher qualification compared to other employees has not been given the executive rank and others having lesser qualification than her is enjoying better scale of pay. In support of her contention she has annexed the payslips of some of the employees of the organization who, according to her, are juniors to her. The respondents have denied the allegation saying that the writ petitioner has been paid according to her post. But the contention of the writ petitioner as contained in paragraph 16 thereof with reference to the pay-slips of other employees to the writ petition has not been very specifically denied by the respondents. The petitioner has been working in the post of an Associate. If an employee fulfills the minimum eligibility criteria for holding the said post merely because of possessing a qualification higher than that prescribed for that post, he or she is not entitled to a higher scale of pay. In the case of State of Hariyana and another Vs. Kamal Singh Saharwat and others, reported in AIR 1999 SC 3775 , it was held that teachers working in different schools in the State of Hariyana were not entitled to claim higher pay or the scales of pay applicable to lecturers on their acquiring postgraduate qualifications or such qualifications as are prescribed for the post of lecturers without being appointed as lecturers. Thus, it follows that mere acquisition of higher educational qualification will not entitle an employee to a higher scale of pay or even promotion merely because he holds a degree higher than that required for the said post. In case the service rules specifically provide for any such entitlement of higher scale of pay that is a different proposition. But in the absence of any such provision the petitioner is not entitled to the higher scale of pay. It is also a trite proposition of law that in the absence of any provision in the relevant service rules an employee has no right to be promoted to a senior post. She has merely a right to be considered for that. In the case of High Court of Gujrat and Another Vs. It is also a trite proposition of law that in the absence of any provision in the relevant service rules an employee has no right to be promoted to a senior post. She has merely a right to be considered for that. In the case of High Court of Gujrat and Another Vs. Gujrat Kishan Majdur Panchayat and Others, reported in (2003)4 SCC 712 a three judge bench of the High Court had held that nobody has a vested right to be promoted. Again in HaryanaStateElectricity Board and Another Vs. Gulshan Lal and Others, reported in (2009)12 SCC 231 the Supreme Court reiterated that promotion to a higher post cannot be claimed as a matter of right. Before a person claims promotion the prevailing rules must be followed. If the employee concerned while working in a particular grade does not acquire experience of working therein he cannot be promoted to the next higher grade although experience in the immediately below post forms part of an essential qualification. Here the petitioner claims a promotion to the rank of an Executive Engineer without giving details of the rules, i.e., whether her case was considered, whether it is by way of fresh appointment or by promotion, who are the persons who are holding these posts etc. It cannot be the law that merely because an employee of the rank of an Associate holds a B.Tech degree he or she is to be promoted to the higher post. The petitioner’s assertion in the reply that persons who are junior to her in the same rank are getting higher scale of pay is without details as to those persons vis-à-vis whom discrimination has been alleged. She has merely referred to the qualification of one Samir Mukherjee and other employees and submits that she having held the B.Tech degree should have been awarded the higher scale of pay. I have already found that this point has no substance and the petitioner also does not disclose the details of such juniors enjoying higher scale of pay than that of the petitioner. It cannot be lost sight of that the respondents have very categorically stated in their affidavit that the petitioner’s appointment on October 1, 2004 in the post of an Associate was a fresh appointment. It cannot be lost sight of that the respondents have very categorically stated in their affidavit that the petitioner’s appointment on October 1, 2004 in the post of an Associate was a fresh appointment. It also appears from the letter dated September 30, 2004 that the petitioner had been selected for appointment in the Corporation to the post of an Associate for 5 years. In the absence of such details no conclusion can be drawn about the allegation of discrimination made by the petitioner that the juniors are getting higher scale of pay than that of her. It is also not possible to draw any conclusion from the pay-slips of some other employees whether they are juniors to the petitioner or why their scales of pay is higher. It may also be mentioned that the petitioner had accepted the fresh offer of appointment in the year 2004 and the salary of those employees at that particular point of time is not known to us. As such the petitioner cannot also be given any relief on this count as well. It is, however, made clear that if the petitioner makes a representation to the appropriate authorities giving complete details of employees who in spite of holding the same rank and being junior to her has been favoured with a higher scale of pay the authorities shall consider the same and remove the anomaly, if there be any, at an early date in accordance with law and the rules governing the service conditions of the corporation. With this the writ petition is disposed of. Accordingly, no separate order on the petitioner’s application being CAN 8359 of 2011 is required to be passed and the same is also disposed of. There shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.