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2015 DIGILAW 103 (CAL)

Jadavpur University v. Swapan Kanti Paul

2015-02-06

JAYANTA KUMAR BISWAS, TAPABRATA CHAKRABORTY

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Judgment :- Jayanta Kumar Biswas, J. 1. The appellants in the MAT are aggrieved by a single Judge judgment and order dated February 10, 2014 allowing a WP of the first respondent (Sri Swapan Kanti Paul) No.1625 (W) of 2013 under Article 226 of the Constitution of India. 2. The single Judge commanded the appellants to grant Swapan the relief he sought in prayer (b) of his WP. The prayer is quoted below: — “b) A writ and/or order or orders and/or directions in the nature of a writ of Mandamus commanding the Respondents, their employees, agents, subordinates and other assignees to extend the benefits of scale of pay of Rs.700-1600/- as revised Rs.2200-4000/- w.e.f. 1.4.1980 and the corresponding revised scale of pay including Career Advancement Scheme to the petitioner which has already given to the Private Respondent after superceeding the petitioner who is much more junior than the petitioner.” 3. The Jadavpur University published an employment notice dated May 14, 1976 inviting applications, inter alia, for one post of Junior Physical Instructor in Rs.125-360 pay scale. In response to the notice Swapan applied. By a letter dated December 21, 1977 the University offered him an appointment to the post of Junior Physical Instructor in Rs.125-360 pay scale. Swapan accepted the offer. Accordingly, he was appointed to the post in the scale. 4. The University published an employment notice dated May 13, 1985 inviting applications for one post of Physical Instructor in Rs.550-1160 pay scale. The last date for receiving the applications was fixed for June 10, 1985. It is nobody’s case that through the process initiated by the employment notice dated May 13, 1985 anyone was appointed in the University to the post of Physical Instructor in Rs.550-1160 pay scale. 5. The University published another employment notice dated August 27, 1987 inviting applications for one post of Junior Physical Instructor in Rs.450-1000 pay scale. In response to the notice one Dilip Ranjan Deb submitted his application dated September 24, 1987 in prescribed form. He specifically mentioned that he was applying for the post of Junior Physical Instructor. Dilip was appointed to the post of Junior Physical Instructor in Rs.450-1000 pay scale on June 1, 1989. 6. The University gave Swapan pay revision and career advancement benefits pursuant to orders issued by the State Government from time to time. He specifically mentioned that he was applying for the post of Junior Physical Instructor. Dilip was appointed to the post of Junior Physical Instructor in Rs.450-1000 pay scale on June 1, 1989. 6. The University gave Swapan pay revision and career advancement benefits pursuant to orders issued by the State Government from time to time. It issued letters dated January 28, 1993 and February 9/10, 1993 regarding his promotion to the post of Senior Physical Instructor in Rs.1500-3320 pay scale. Lastly, he was promoted to the post of Director of Physical Instructor in Rs.8000-13500 pay scale. For the purpose the University issued a letter dated November 10, 2005. 7. Dilip filed a WP No.13422 (W) of 2007 in this court under Article 226 of the Constitution of India. This court disposed of Dilip’s WP by a judgment and order dated July 4, 2008. The single Judge permitted Dilip to make a representation stating his grievances and directed the Principal Secretary, Higher Education Department, Government of West Bengal to dispose of the representation giving a decision. 8. The part of the judgment and order dated July 4, 2008, where the single Judge dealt with Dilip’s grievances, is quoted below: — “Having heard the learned Advocate for the respective parties, it appears that the grievances of the petitioner is that the petitioner has not been given the benefits of the revised scale of pay which has been due to the petitioner for a long time. It further appears that the petitioner is a senior Physical Instructor under Jadavpur University. The petitioner made a representation to the Registrar. Jadavpur University being annexure p.8 to the writ petition wherein the petitioner prayed, inter alia, that the evised scale of pay should be implemented in the case of the petitioner and the petitioner’s pay be fixed accordingly.” 9. It is evident from the single Judge judgment and order dated July 4, 2008 that Dilip moved his WP, while holding the post of Senior Physical Instructor (presumably having been promoted to the post from the post of Junior Physical Instructor), with the grievance that he had not been given the benefits of the revised pay scale due to him. 10. In compliance with the order dated July 4, 2008 the Additional Chief Secretary, Higher Education Department, Government of West Bengal gave a decision dated September 29, 2008. 10. In compliance with the order dated July 4, 2008 the Additional Chief Secretary, Higher Education Department, Government of West Bengal gave a decision dated September 29, 2008. The decision reveals that Dilip had submitted a representation stating his grievances. The representation is, however, not a part of the pleadings of this case. 11. In his decision dated September 29, 2008 the Additional Chief Secretary recorded Dilip’s grievances, which are as follows: — “Shri Deb has further cited that in the notice inviting application, Jadavpur University had invited applications for the post of Physical Instructor in the scale of pay of Rs.550-1160/- with essential qualification of graduate and diploma/degree in physical education and the desirable qualification of a first class degree in physical education and proficiency at least one major game and experience in organising sports at University level. In spite of applying for the post of Physical Instructor, after being selected, he was actually appointed as Junior Physical Instructor in a lower scale of pay, although he possessed the requisite qualifications for the post of Physical Instructor.” 12. The Additional Chief Secretary accepted Dilip’s case and claim and held that the post of Junior Physical Instructor held by him (Dilip) should be redesignated as Physical Instructor with effect from June 1, 1989, when he (Dilip) had joined the University; and that Dilip should be given the Rs.2200-4000 pay scale with effect from June 1, 1989 and other consequential benefits including career advancement benefit. 13. Swapan was due to retire on August 31, 2010. Citing Dilip’s case he submitted a representation dated July 8, 2010 to the University. He prayed for the following relief:— “Considering all the above mentioned fact, I would earnestly request you to kindly take necessary steps in fixing my Pay as Physical Instructor and as Director of Physical Instruction as per Pay Scale given to Mr. Deb, who is junior to me, and working under Director of Physical Instruction. Hope you will take appropriate measures to implement the legitimate Pay Scale in my favour as Mr. Deb being a Junior, has superseded me.” 14. Swapan then filed a WP No.16321 (W) of 2010 under Article 226 of the Constitution of India. By an order dated June 5, 2012 this court disposed of the WP directing the fourth respondent in the WP to give a decision dealing with his (Swapan’s) claim. Deb being a Junior, has superseded me.” 14. Swapan then filed a WP No.16321 (W) of 2010 under Article 226 of the Constitution of India. By an order dated June 5, 2012 this court disposed of the WP directing the fourth respondent in the WP to give a decision dealing with his (Swapan’s) claim. By an order dated July 16, 2012 the direction was modified. The Principal Secretary, Higher Education Department, Government of West Bengal was directed to decide the claim. 15. In compliance with the orders the Secretary, Higher Education Department, Government of West Bengal gave a decision dated January 4, 2013. The Secretary held that Swapan was not entitled to compare his case with Dilip’s case; and that having been appointed to the post of Junior Physical Instructor in a specified scale, he was not entitled to claim the pay scale of the post of Physical Instructor to which he had not been appointed. 16. Feeling aggrieved by the decision of the Secretary dated January 4, 2013 Swapan filed the WP. The State Government and the University contested the WP. In its affidavit-in-opposition the University took, inter alia, a plea that Dilip having obtained the relief by making a misrepresentation of facts, Swapan was not entitled to the benefit of the Physical Instructor pay scale wrongly given to Dilip. 17. The single Judge rejected the University’s case. In the quite long judgment the Judge held that since the University had not taken any step to rectify the mistake, if a mistake had led to the grant of the Physical Instructor pay scale to Dilip, it was not entitled to deny Swapan the benefit of the Physical Instructor pay scale and other benefits. 18. Mr. Bhattacharyya appearing for the appellants has taken us through the pleadings of the parties and the single Judge judgment and order, and has submitted that having regard to the WP case, the single Judge ought not to have upset the decision of the Secretary dated January 4, 2013, especially when Swapan’s case was not comparable in any manner whatsoever with Dilip’s case. 19. Ms. Nandy appearing for Swapan has submitted as follows. It was never Swapan’s case that the University had wrongly appointed him to the post of Junior Physical Instructor. In other Universities the post was of Physical Instructor in a higher scale. 19. Ms. Nandy appearing for Swapan has submitted as follows. It was never Swapan’s case that the University had wrongly appointed him to the post of Junior Physical Instructor. In other Universities the post was of Physical Instructor in a higher scale. Dilip was given the Physical Instructor pay scale from June 1, 1989, the date of his initial appointment. Equality entitled Swapan to the same benefits as from December 21, 1977, the date of his initial appointment. 20. Swapan was appointed by the University to the post of Junior Physical Instructor as back as December 21, 1977. He was promoted to the post of Senior Physical Instructor in 1993, and to the post of Director of Physical Instructor in 2005. He retired from the service on August 31, 2010. Benefits received by Dilip in 2008, it is evident, prompted him (Swapan) to make the representation dated July 8, 2010 seeking the Physical Instructor pay scale as from December 21, 1977. 21. Dilip moved this court in 2007 alleging that the University had not given him the due pay revision benefits. He was permitted to make a representation. What representation he made has remained unknown. But the decision dated September 29, 2008 reveals that he claimed the Physical Instructor pay scale on the grounds that though he had applied for the post of Physical Instructor and was recruited for such post, the University wrongfully appointed him to the post of Junior Physical Instructor having a lower pay scale. 22. With its affidavit-in-opposition to Swapan’s WP (out of which this MAT arose), the University produced the relevant documents to show that Dilip’s case before the Additional Chief Secretary giving the decision dated September 29, 2008 granting Dilip the Physical Instructor pay scale and benefits was based on a misrepresentation of facts. 23. On the facts, we are unable to see how Swapan could compare his case with Dilip’s case. Simply because the University did not take steps for setting the wrong, if any, right (as to benefits given to Dilip), in our opinion, Swapan did not become entitled to claim the same benefits. Swapan could claim the benefits, only if he had a legal right to claim them. 24. Swapan was not appointed to the post of Physical Instructor. The employment notice was for one post of Junior Physical Instructor in the University. Swapan could claim the benefits, only if he had a legal right to claim them. 24. Swapan was not appointed to the post of Physical Instructor. The employment notice was for one post of Junior Physical Instructor in the University. He applied for the post and was appointed to the post. Even if a higher scale Physical Instructor post was in existence in other Universities, that could not automatically entitle him to claim pay scale of the post of Physical Instructor. 25. The pleadings reveal that in 1985 the University published an employment notice proposing to appoint a Physical Instructor in a scale higher than the scale of the post of Junior Physical Instructor. But there is nothing to show that any Physical Instructor was actually appointed through the process. And, in any case, Swapan appointed to the post of Junior Physical Instructor in a specified scale, could not, in the absence of any law creating his right, claim the higher scale of a Physical Instructor. 26. We are, therefore, of the view that the Secretary giving the decision dated January 4, 2013 was fully justified in refusing Swapan the Physical Instructor pay scale, etc. as from December 21, 1977. 27. In our opinion, the single Judge erred in law by upsetting the decision of the Secretary and granting Swapan the WP prayer (b) relief on the grounds that Dilip had been granted the Physical Instructor pay scale and other benefits, though he (Dilip) had also been appointed by the University to the post of Junior Physical Instructor. In our opinion, the judgment and order of the single Judge cannot be sustained and Swapan’s WP is liable to be dismissed. 28. For these reasons, we allow the MAT, set aside the single Judge judgment and order, and dismiss Swapan’s WP. No costs. Certified xerox.