Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 447 (CAL)

Manabendra Nath Roy v. State of W. B.

2014-05-15

ARINDAM SINHA

body2014
JUDGMENT The Court: The writ petitioner worked as a Law Assistant in the West Bengal Housing Board. By a letter dated 31st August, 1987 the Deputy Housing Commissioner and Secretary of the West Bengal Housing Board wrote to the Deputy Secretary, Housing Department, Government of West Bengal, inter alia, that it had been found on scrutiny the duties and responsibilities of those attached to the post of Law Assistant in the West Bengal Housing Board and those attached to the post of Law Assistant in the Housing Department were identical. The said Secretary requested the Housing Department to agree to the views expressed by him and to communicate approval to the Board so that further action could be taken in the matter. The writ petitioner, who had not been receiving the higher scale of pay as was being drawn by Law Assistants working in the Housing Department, filed this writ petition praying for such relief. By order dated 6th August, 2012 the respondent no.2 was directed to grant and release higher scale of pay to the writ petitioner with usual corresponding revision of pay as per ROPA Rules with effect from 24th June, 1983 to 23rd June, 1991 being the period in which the petitioner worked as Law Assistant. The said order was carried in appeal which was disposed of by order dated 10th July, 2013 on the agreement of learned Counsel appearing on behalf of the parties that various materials on record as also the decisions of the Hon’ble Supreme Court which were cited had not been considered by this Court while disposing of the writ petition. Hence, the matter was directed to be considered afresh by this Court. In the hearing pursuant to such order in appeal, on behalf of the respondent nos. 2 to 7 two judgments have been relied upon; (i) in the case of Union of India and Others vs. Pradip Kumar Dey, reported in (2000) 8 Supreme Court Cases 580; and (ii) in the case of West Bengal Minimum Wages Inspectors Association & Others vs. State of West Bengal, reported in 2006 (1) CHN 404 , the latter being a judgment passed by the Division Bench of this Court. The said respondents relied upon paragraph 8 of the judgment in Union of India’s case before the Hon’ble Supreme Court which held that in the absence of material relating to other comparable employees as to the qualification, method of recruitment, degree of skill, experience involved in any performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the finding that in the absence of such material it was not possible to grant relief was right. The Hon’ble Supreme Court went on to hold that the recommendation made to the pay commission for making higher pay scale on the basis of which claim was made by the respondents for grant of pay scale alone cannot be considered per-se proof of such things or they cannot by themselves vouch for the correctness of the same. The said recommendation though having been made by the Directorate of CRPF, could not be taken as the recommendation made by the Government. Accordingly on behalf of the said respondents it is contended that the said letter dated 31st August, 1987 was a mere recommendation and that alone could not justify the grant of parity in pay scale or could not be taken to be a recommendation made by the Government. The said respondents then relied upon the other decision delivered by a Division Bench of this Court reported in 2006 (1) CHN 404 to submit that the recommendation of the Board to the Department could not confer any right on the petitioner nor the State is bound to accept the same and the Court has to leave the matter to the experts except in case of hostile discrimination. It is significant at this point to note that the State did not appear when this Court had earlier passed the said order dated 6th August, 2012 nor when this matter was being heard. The letter written by the Secretary and Deputy Housing Commissioner of the West Bengal Housing Board to the Deputy Secretary, Housing Department stated it was found on scrutiny that the duties and responsibilities attached to the post of Law Assistant in the Board and the Department were identical, a finding on fact against which no further material to disprove the same could be produced by the contesting respondents. As aforesaid the State was not represented earlier nor in this hearing on remand. As aforesaid the State was not represented earlier nor in this hearing on remand. It is the Board having found existence of a fact which is now trying to disprove it. In the absence of any material produced to disprove such finding on fact there is no scope to find otherwise than what had been found by the earlier order dated 6th August, 2012. So far as the said letter being construed as a recommendation not conferring any right is concerned, the said respondents have also not been able to show before this Court as to why the said letter which proceeded on the basis of finding on fact could not be said to be a recommendation based on such facts to be taken up for consideration. There is nothing on record to show such recommendation had been turned down by the Government. The said respondents have also not been able to apprise this Court as to what or who apart from the author of that letter is the expert who would go into the matter of scrutinizing as to whether the work that is required to be done by a Law Assistant attached to the Board and another attached to the Department would be different and in what manner. In this regard reference may also be made to the West Bengal Housing Board Regulations dated 11th September, 2009 disclosed as annexure ‘O’ in the supplementary affidavit filed by the petitioner. Under serial no. 13 the scale of existing and revised pay structure of Law Assistant has been provided for as accepted by the Board which is what is prayed for by the writ petitioner. For the reasons aforesaid, the concerned respondents mainly the respondent no.2 is directed to grant and release the scale of pay as directed by the earlier order dated 6th August, 2012, till the time the petitioner retired factoring in any promotion that may have been granted in the meantime, including the consequential effect on the retiral benefits. The said respondents are to calculate the short-fall and disburse the same to him within a period of four weeks from the date of communication of this order upon the said respondents by the writ petitioner. The writ petition is disposed of.