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2014 DIGILAW 261 (CAL)

Ajoy Ghosh v. State of West Bengal

2014-03-21

NISHITA MHATRE, TAPASH MOOKHERJEE

body2014
Judgment : Nishita Mhatre, J. 1. The petitioners are aggrieved by the order passed by the West Bengal Administrative Tribunal in O.A. no. 1598 of 2004 on 4th March, 2010. 2. The facts in brief in the present petition are as follows: The petitioners were directly recruited as Compositors after following the due process of recruitment. Compositors were recruited either by direct recruitment or promotion from the feeder post of Distributors. There were two scales of pay for Distributors – one applicable for Basic Grade Distributors and the other for Grade-I Distributors. After the introduction of West Bengal Service (Revision of Pay and Allowances) Rules, 1981 (ROPA 1981) the scale of pay for Compositors was raised from Rs.230 - 425 to Rs.300 - 685, the scale of pay for Distributors changed from Rs. 180 350 to Rs. 260 - 537. A Government order was issued increasing the pay scale of Distributors who were qualified up to the Matriculation level to Rs.300 - 685. As a result, the Distributors who had qualified up to the Matriculation level were entitled to the same pay scale as the Compositors after ROPA 1981. Grade-I Distributors were entitled to a pay scale of Rs.340 - 750 from 1st April, 1981 causing various anomalies. The scale of feeder post became higher than that of the promotional post. Grade-I Distributors who were subsequently promoted to the post of Compositor continued to receive the higher scale of pay than the other Compositors. Senior incumbents to the post of Compositors who had been promoted from the post of Distributors earlier were drawing a lower pay scale than their juniors. Similarly, the directly recruited Compositors were drawing pay in a lower pay scale than that of the Distributors. 3. Considering the anomalies in the pay scale applicable to the Compositors, the Government issued a Memo on 4th July, 1986 whereby it was decided that Compositors who were promoted from the post of Distributors who were junior to the existing Grade-I Distributors should be permitted the benefit of the pay scale of Rs.340 - 750 on a personal basis, subject to the thorough examination of each individual case. It was also decided that the post of Distributor would not be the feeder post for the post of Compositor in future. It was also decided that the post of Distributor would not be the feeder post for the post of Compositor in future. Thereafter both the promotees as well as the directly recruited Compositors who were recruited prior to 4th July, 1986 were extended the pay scale of Rs.340 - 750 with effect from 1st April, 1981. The pay scale of Grade-I Distributors was enhanced to Rs.360 - 815. Consequently the pay scale of the Compositors, i.e., both the promotees as well as direct recruits, was enhanced to the same level. 4. After ROPA Rules, 1990 the scale of the Basic Grade Compositors became Rs.1040 - 1920 for scale no.7 and Rs.1200 - 2360 for scale no.8 with effect from 1st April, 1981. 5. A writ petition being Matter No. 3958 of 1993 was preferred by Compositors who had been recruited after 4th July, 1986 to fit them in the proper pay scale. The petition has been disposed of by directing the authorities to consider the case of the writ petitioners. In compliance of the High Court’s directions the Order issued by the Government on 27th October, 1994 granting the higher pay scale of Rs.360 – 815 corresponding to revised pay scale of Rs.1200 - 2360 awarded to the Basic Grade Compositors was withdrawn. The amount overdrawn was also directed to be deducted from the salary of the employees. Challenging that order the Compositors – both direct recruits and promotees prior to 4th July, 1986 – filed a writ petition being Matter No. 3334 of 1994 before this Court. An interim order was passed on 24th November, 1994 by this Court staying the order passed by the Government on 27th October, 1994. 6. After the constitution of the West Bengal Administrative Tribunal the petition was transferred to the Tribunal as T.A. no. 181 of 1998. That application was disposed of by the Tribunal directing the Secretary, Commerce and Industries, West Bengal, to consider the matter of fixation of pay after giving the applicants an opportunity of being heard and in consultation with the Finance Department. The applicants were directed to file their individual representations before the concerned authorities. The Secretary, Commerce and Industries, West Bengal, was directed to dispose of those representations within 3 months. The impugned order, i.e., the Order of 27th October, 1994 was stayed by the Tribunal while the representations were being considered. 7. The applicants were directed to file their individual representations before the concerned authorities. The Secretary, Commerce and Industries, West Bengal, was directed to dispose of those representations within 3 months. The impugned order, i.e., the Order of 27th October, 1994 was stayed by the Tribunal while the representations were being considered. 7. Accordingly, the petitioners herein and other Compositors submitted their representations which were decided by an order dated 1st September, 2004. It was held that the Government Order of 4th July, 1986 clearly granted the higher scale of pay only to those promote Compositors who were senior to the existing Grade-I Distributors on a purely personal basis. The Compositors who were direct recruits were found entitled to this higher pay scale. It was observed that the officer who had granted the higher pay scale to these direct recruits had no authority to do so without the approval of the State Government. Therefore, the withdrawal of the benefit erroneously granted to the direct recruits was justifiable. The matter was then referred to the Finance Department to decide whether the overdrawn amount paid to the Compositors could be waived as a one time measure after refixation of their pay in Scale no. 6 with effect from 1st April, 1981, and in corresponding scales thereafter. The Finance Department endorsed the views expressed by the Principal Secretary. However, it directed the recovery of the overdrawn amount through easy instalments. 8. The petitioners challenged this order in OA 1598 of 2004 before the West Bengal Administrative Tribunal. An interim order was passed in the aforesaid application by the Tribunal on 2nd December, 2004 directing that no further recovery should be made from the salary of the petitioners with respect to the overdrawn amount. The salary of the petitioners was refixed in the lower scale by the respondents pursuant to which the petitioners file CCP no. 38 of 2005. That contempt application was dismissed as the Tribunal was of the view that there was no violation of its order. 9. The Tribunal dismissed the application of the petitioners on 4th March, 2010 and ordered the recovery of the amount paid to them. The Tribunal was of the view that the petitioners had been extended the benefits of the higher pay scale by the Government under duress and coercion and, therefore, they were not entitled to the same. 10. The learned Advocate for the petitioners Mr. The Tribunal was of the view that the petitioners had been extended the benefits of the higher pay scale by the Government under duress and coercion and, therefore, they were not entitled to the same. 10. The learned Advocate for the petitioners Mr. P. Chaturvedi submitted that the Compositors who were direct recruits had been treated unfairly and unjustly by the Government. He pointed out that they were getting the benefit of a higher pay scale than the Distributors, who are in feeder post, till 1981. However, after the implementation of ROPA 1981 Grade-I Distributors who are in feeder post for Compositors were granted a higher pay scale than the petitioners. He pointed out that by the order of 4th July, 1986 the Government in consultation with the Finance Department had decided that the benefit of the pay scale of Rs.340 -750 should be granted after a thorough examination of each individual case. Thereafter a fresh order was passed on 24th May, 1988 refixing the scale of Grade-I Distributors to Rs.360 - 815 which was extended to Compositors as a whole, i.e., both the direct recruits as well as promotes with effect from 1st April, 1981. This had been ratified on 11th April, 1988. According to the learned Counsel, the invidious classification made by the respondents between direct recruits and promotees in so far as their pay scales are concerned is without justification and is arbitrary and in breach of Article 14 of the Constitution. He submitted that Compositors, whether recruited through promotion or directly, perform the same nature of work and therefore, they cannot be treated differently. According to him, if the direct recruits are not to be granted the same pay scales as the other Compositors, namely, the promotees, the direct recruits would draw salary which is less than the Distributors although the post of Distributors is a feeder post for the post of direct recruits. The learned Counsel has relied on several judgments which we will advert to presently. 11. Mr. Sadhan Roy Chowdhury, learned Counsel appearing for the State urged that the petition is without merit and that the order of the Tribunal has no error, much less an error apparent on the face of the record requiring interference by this Court in its writ jurisdiction. 11. Mr. Sadhan Roy Chowdhury, learned Counsel appearing for the State urged that the petition is without merit and that the order of the Tribunal has no error, much less an error apparent on the face of the record requiring interference by this Court in its writ jurisdiction. He submitted that the basic premise on which the petitioners had tried to build the edifice of the case is erroneous. According to him some Compositors who are promotees had been granted a higher pay scale only on a personal basis because while they were working as Distributors they were drawing that scale. Thus their pay had been protected after they were promoted to the post of Compositors. He therefore submitted that the direct recruits in the Grade of Compositors were not automatically entitled to higher pay scale when that was extended to the promotes only as a personal pay. He then urged that the direct recruits managed to secure the higher pay scale by pressurising the Government. Such tactics, according to him, must be abhorred and the Tribunal has rightly directed that the amount should be recovered from the employees. Apart from this, he pointed out that the officer who directed the extension of the higher pay scale to the petitioners and other direct recruits did so without being authorised in law; besides there was no approval from the Finance Department. Under such circumstances Mr. Roy Chowdhury urged that the petitioners had no right to claim the higher pay scale. 12. We have perused the copy of the decision of the Principal Secretary, Commerce and Industries, West Bengal, dated 31.03.2004 and of the Tribunal which has been impugned in the present petition. The main contention of Mr. Chaturvedi was that when the Government has decided to grant certain relief to a particular class of employees by creating an invidious classification, it is not permissible to have two sets of service conditions or two pay scales for the persons working in the same cadre and having the same responsibilities. 13. In the case of State of U. P. –vs.- J. P. Chaurasia & Ors reported in AIR 1989 SC 19 the Supreme Court has observed that the question whether it is permissible to have two pay scales in the same cadre for persons having same duties and responsibilities is an issue which must be determined by expert bodies like the Pay Commission. The Court noted the decisions in the case of Randhir Singh –vs.- Union of India & Others reported in AIR 1982 SC 879 and its other judgments and held that when the classification is based on some qualities or characteristics of persons grouped together it must have a reasonable relation to the object to be achieved. The Court observed that in service matters, merit or experience could be the proper basis for classification to promote efficiency. Entitlement to higher pay scales depends upon seniority-cum-merit or merit-cum-seniority and therefore, the differentiation so made in the same cadre would not amount to discrimination. 14. In the Case of D. S. Nakara & Others –vs.- Union of India reported in (1983) 1 SCC 305 the Supreme Court has observed that classification or further classification must be for a valid purpose and that any other classification may be hit by Article 14 of the Constitution. 15. In the case of P. K. Ramachandra Iyer & Others –vs.- Union of India & Others reported in AIR 1984 SC 541 the Supreme Court observed that the principle of ‘equal pay for equal work’ is deducible from Articles 14, 16 and 39(d) of the Constitution. The Court held that though the classification is permissible, unequal scales of pay based on an irrational classification would violate all the aforesaid provisions of the Constitution. 16. In Bhagwan Dass & Others –vs.- State of Haryana & Others reported in AIR 1987 SC 2049 , after considering the provisions of the Constitution the Supreme Court observed that ‘equal pay for equal work’ cannot be denied to persons who are doing the same kind of work only on the ground that the mode of recruitment was different. The Court held that when the duties and functions discharged by the employees appointed on a regular basis and those who were recruited on a temporary basis were similar. 17. In Supreme Court Employees Welfare Association –vs.- Union of India reported in AIR 1990 SC 334 the Supreme Court considered the doctrine of ‘equal pay for equal work’ and held thus : “38. 17. In Supreme Court Employees Welfare Association –vs.- Union of India reported in AIR 1990 SC 334 the Supreme Court considered the doctrine of ‘equal pay for equal work’ and held thus : “38. It follows from the above decisions that although the doctrine of ‘equal pay for equal work’ does not come within Art. 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay –scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Art. 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Art. 14 of the Constitution, it will be a case of ‘equal pay for equal work’, as envisaged by Art. 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of ‘equal pay for equal work’ will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Art. 14 of the Constitution, the abstract doctrine of ‘equal pay for equal work’, as envisaged by Art. 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Art. 37 of the Constitution. Dhirendra Chamoli v. State of U. P. (1986) 1 SCC 637 is a case of ‘equal pay for equal work’ as envisaged by Art. 14, and not of the abstract doctrine of ‘equal pay for equal work’. 18. In the present case as we have seen the decision of the Government was to grant a higher pay scale after ROPA 1981 to Compositors who are promoted from the post of Distributors. This was because they had the benefit of that higher pay scale while they were working as Distributors. The Government granted them the benefit of that higher pay scale by protecting their pay when they were promoted as Compositors by the Government Order dated 4th July, 1986. The directly recruited Compositors claimed that they are entitled to the same higher pay scale as they have performed the same duties as the promotees. The Government granted them the benefit of that higher pay scale by protecting their pay when they were promoted as Compositors by the Government Order dated 4th July, 1986. The directly recruited Compositors claimed that they are entitled to the same higher pay scale as they have performed the same duties as the promotees. However, there is insufficient material on record to ascertain whether the nature of duties performed by the promotees and the direct recruits was the same while they work as Compositors. Therefore, it is difficult for us to apply the dictum of ‘equal pay for equal work’ in the present case. The promotees were granted the higher pay scale no. 8 as personal pay because they were drawing that pay as Compositors. There is no material on record to indicate that the pay scale for Compositors as a class was what was being paid to those whose pay had not been protected. It is apparent that only one third of total posts of Distributors were converted to Grade-I having pay scale no. 8. Thus those Distributors were drawing a pay scale which was higher than the Compositors and, therefore, on promotion their pay had to be protected. 19. We do not find this classification invidious. This is especially so as the petitioners have failed to place any material on record to substantiate their claim that they were doing work of the same nature. Moreover, the Supreme Court in the case of State of U. P. –vs.- J. P. Chaurasia & Ors (supra) has held that it is possible to have two sets of pay scales in the same cadre. 20. In such circumstances, in our opinion there is no need to interfere with the conclusion of the Tribunal concluding that the petitioners would not be entitled to higher pay scale. However we do not agree with the decision of the Tribunal that the amount already paid to the petitioners must be withdrawn. There is no material on record to accept the claim made by the Government that it was pressurised into granting the higher pay scale to the direct recruits. It is not possible to proceed on the basis of conjectures and surmises. 21. In Syed Abdul Qadir and Ors. -vs.- State of Bihar and Ors. There is no material on record to accept the claim made by the Government that it was pressurised into granting the higher pay scale to the direct recruits. It is not possible to proceed on the basis of conjectures and surmises. 21. In Syed Abdul Qadir and Ors. -vs.- State of Bihar and Ors. reported in (2009) 3 SCC 475 the Bench of three learned Judges of the Supreme Court considered whether recovery of excess payment of emoluments/allowances should be made from an employee. The Court held that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or such excess payment was made by the employer on account of a wrong principle being applied for calculating the pay and allowances or on the basis of an interpretation of a rule or order which is subsequently found to be erroneous, no recovery should be made from the employee. The Court observed that if in a given case it was proved that the employee had knowledge that the payment received was in excess of what was due or where the error was detected within a short time of the wrong payment being made, the Court in its discretion may order recovery of the amount. In Chandi Prasad Uniyal and Others –vs.- State of Uttaranchal and Others reported in (2012) 8 SCC 417 a Bench of two learned Judges of the Supreme Court observed that except for the few instances pointed out in Syed Abdul Qadir’s case (supra) and in the case of Col. B. J. Akkara – vs.- Government of India reported in (2006) 11 SCC 709 the excess payment made due to wrong or irregular pay fixation can be recovered. 22. As we have found that there is no material on record to accept the contention of the Government that it was coerced into granting a higher pay scale to the direct recruits. In the peculiar facts and circumstances of this case we are of the view that no recovery should be made from the excess payment already received by the petitioners. Moreover, the Principal Secretary in his order has also recommended that the recovery should not be made. 23. The order of the Tribunal is thus modified to the extent that no recovery of the excess amount paid to the petitioners shall be made. Moreover, the Principal Secretary in his order has also recommended that the recovery should not be made. 23. The order of the Tribunal is thus modified to the extent that no recovery of the excess amount paid to the petitioners shall be made. However, they are not entitled to the higher pay scale of of Rs.360 – 815 with effect from 1st April, 1981 or as revised further. The petition is disposed of accordingly. No order as to costs.