State Of West Bengal v. Gobinda Nath Dey & Others .

JUDGMENT

S.B Sinha, J.:— This appeal is directed against a judgment and order dated 8.9.94 passed by a learned single Judge of this court passed in CO. No. 1309/89 whereby and whereunder the writ application filed by the writ petitioners/respondents was allowed.

89 writ petitioners who were Lower Division Clerks working in the different capacities in the District of Hooghly filed a writ application claiming inter alia the following reliefs:—

“A writ in the nature of Mandamus commanding the Respondents, their officers, subordinates and agents to forthwith refix the petitioners' pay at the same stage at which the pay of their juniors has been fixed from the same date on and from which the petitioners' juniors have been given the higher pay and also to give all arrears of pay upon such re-fixation and to act in accordance with law.”

2. The writ petitioners were appointed directly as Lower Division Clerks having the minimum qualification of Matriculate in between 1948 and 1968. They had been promoted in the posts of Upper Division Clerks during the period 1963.

3. It appears that from time to time various persons who were initially appointed as Muharrars were subsequently promoted to the posts of Lower Division Clerk between 1957 to 1977. The Muharrars were appointed in the District of Hooghly required to have the minimum educational qualification as Class VIII pass. The State of West Bengal introduced new intermediate selection grade by amending Allowances Rules, 1970 by a notification dated 19.11.74, item Nos. 23 and 24 whereof relate to LDC's and Muharrars respectively which reads thus:—

“1. 2. 3. (Rs.) (Rs.) All Services/Posts 230-5-275-7½-365-10-425 370-10-400-15-535 Ditto 180-5-245-7-350 305-10-425”

4. It is admitted that Muharrar in the Collectorate of Hooghly was initially the feeder post for promotion to the post of LDC. Due to spate of litigation Muharrars were designated as LDC, and in this behalf a recommendation was made by the First Pay Commission to the following effect:—

“The scale of pay of Lower Division Clerk is Rs. 125-200/- and that of Moharrirs Rs. 100-140. It has been recommended elsewhere the existing posts of Moharrirs should as far as possible be converted into posts of Lower Division Clerks. The revised scale recommended for these posts is the revised scale recommended for Lower Division Clerks in District offices.”

5. Accepting the said recommendations, the Government issued two orders wherein a policy decision was taken that the scale of pay of Mohurrers working in the Regional offices under the Irrigation and Waterways Department and in the Regional offices of Land and Reforms Department would be revised from Rs. 180-350 to Rs. 230-425 w.e.f 1.4.70 Another order dated 13.12.89 was issued which reads thus:—

“The Governor has been pleased to decide that all the existing posts of Muharrirs, L.R Act Muharrirs and Copyists held by a person having passed in School Final or its equivalent as the minimum educational qualification and excepting those of the above mentioned posts which are held by persons not having the educational qualification of School Final or its equivalent in the Registration offices will be designated as posts of Lower Division Clerks. This order takes effect from 1.7.89 and henceforth all such new posts to be created to the Registration offices will be designated as LDC.”

6. Some of the Muharrars while acting in that capacity had got the benefit of new intermediate selection pay. However, in the District of Hooghly, upon re-designation of their posts while fixing their pay instead of and in place of granting the new intermediate selection grade to which they are entitled as Muharrars, they were granted the scale of pay applicable to the Lower Division Clerks. The State of West Bengal, the Appellant herein states that the same was done by mistake. In paragraph 20 of the affidavit-in-opposition, it was stated:—

“I further say that the pay scale of the Muharrir was raised and revised with effect from 1st April, 1970 with the G.O No. 485-F. dated the 18th January, 1988 in compliance to the direction of the Hon'ble Supreme Court of India, subject to the condition that there would be no arrear adjustment prior to 1st February, 1978. I say that by the said order dated 18th January, 1988 the New/Intermediate Selection Grade scale of Moharrir was not revised. I further say that the said order dated 18th January, 1988 has got no application to the staff who were not Moharrir during the material period and who have vacated the post of Moharrir accepting the offer of appointment as Lower Division Clerk. I say that the Collector, Hooghly in allowing the fixation of pay in the scale of Rs. 370-535/- with the highest fixation at Rs. 380/- to the referees (annexure ‘E’ to the writ petition) did not act correctly and all those fixations are wrong and erroneous.”

7. The Appellant thereafter issued a two corrigendum being dated 20.2.90 wherein it was stated:—

“In terms of the aforesaid Memorandum, Government allowed only the basic grade scale of pay to the Moharrirs. Government have never allowed the corresponding New/Intermediate Selection Grade of Rs. 370-535/-. If, however, the said New/Intermediate Selection Grade scale has been allowed any case in terms of the aforesaid Memo that should immediately be withdrawn, and the overdrawals shall be recovered in suitable monthly instalments from the respective incumbents.”

8. The grievance of the writ petitioners inter alia was that the pay of Muharrars having been fixed at Rs. 380, although they were junior to them as also academically less qualified but their pay were fixed at a lower scale.

9. It further appears that some surplus staff of Rehabilitation Department were absorbed as Lower Division Clerks under different orders passed by this court. Their services were directed to be continued and were given the same scale of pay as that of Lower Division Clerk.

10. It is an admitted case that existing scale of pay of the LDC was Rs. 232-425/- for Selection Grade, LDC Rs. 310-550/- and for UDC the scale of pay is Rs. 505-670/-. The new selection grade of pay was in force from March, 1974 till March 1981. The said scale of pay was introduced to avoid stagnation. However, after 1981, new avenues of promotion were created in terms of the recommendations of various pay commissions whereby and whereunder provisions for Career Advancement Scheme were introduced.

11. It is further admitted that in terms of a judgment passed by this court, the Government was directed to prescribe 1:1 ratio between Muharrars and Lower Division Clerks for promotion to Upper Division Clerks.

12. The contention of the petitioners in the writ application inter alia was that they are entitled to the same salary in terms of Rule 55(4) of the West Bengal Services Rules Part-I (hereinafter called as referred to as ‘the said rules’)

13. The learned trial judge by reason of the impugned order dated 8.9.94 relying on the basis of several decisions of this court held that they are entitled to pay protection. Under the aforementioned circumstances, the appellants were directed to fix the pay of the writ petitioners to equal to the juniors w.e.f 1.3.74 and thus the respondents were directed to revise the scale of pay of the petitioners accordingly in terms of Rule 55(4) of the Rules and were further directed to pay all arrears to them within a period of one month from the date of communication of the said order.

14. Mr. Anindya Mitra, the learned senior counsel appearing on behalf of the appellants has raised the following contentions in respect of the application. (1) Rule 55(4) of the Rules in the facts and circumstances of this case cannot be said to be applicable. (2) A Muharrar by way of fortuitous circumstances having been placed on a higher scale of pay, the writ petitioners were not entitled thereto. (3) The State had rectified the said mistake and in any event by reason of such mistake the writ petitioners did not derive any illegal right. Reliance in this connection has been placed on Hargovind Dayal Srivastava v. G.N Verma reported in 1977 (1) SCC 744.

15. Reliance in this connection has also been placed on an unreported decision of the learned single Judge of this Court in Manjur Mondial v. State of West Bengal in C.R No. 2672(W) of 1982, the said decision is at page 167 of the paper book.

16. Mr. Ashbke Dey the learned counsel appearing on behalf of the Respondents, on the other hand, submitted that upon comparison of the services records of the Muharrars vis-a-vis the petitioners stated in from the affidavit-in-opposition filed before this court, it would appear that the writ petitioners had been discriminated against.

17. The learned counsel submits that whereas the Muharrars had been placed in the scale of pay to Rs. 370-535, all others have been placed to Rs. 230-450/-. It has been submitted that service jurisprudence postulates that senior or a person higher in rank must get a higher pay and at least the same scale of pay. Strong reliance in this connection has been placed on judgment of learned single Judge of Kerala High Court in R. Madhaban v. State of Kerala Small Department reported in 1992 (2) LLJ 341, Jaipal v. State of Haryana reported in AIR 1988 SC 1504, Union of India v. E.S Soundara Rajan reported in AIR 1980 SC 959, and in Abid Hussain v. Union of India reported in AIR 1987 SC 820.

18. Mr. Dey would urge that in view of the various decisions of this court which had been given effect to by the State, it does not lie in its mouth to contend that it rectified the mistake in granting higher scale of pay to the Muharrars. Our attention had been drawn to a Notification dated 31.1.97 in terms whereof pursuant to an Order passed in CO. No. 4506(W) of 1992, the office order dated 4.12.91 have been cancelled and the persons named therein were allowed to retain their pay at Rs. 380 per month w.e.f 1.3.74 in the scale of Rs. 370-585/-. The learned counsel contends that salary is a property within the meaning of Article 300A of the Constitution of India. Under Article 14 the petitioners are entitled to the same salary in terms of the doctrine of ‘Equal Pay for Equal Work.’

19. The main question which arises for consideration in this appeal is as to whether Rule 55(4) will be applicable to the fact of this case and in any event whether the writ petitioners were entitled to a higher scale of pay as the same had been granted to the Muharrars either by mistake or by the State in compliance of the order passed by this Court. Rule 55(4) of the West Bengal Service Rules, Part-I reads thus:—

“If a Government employee while officiating in a higher post draws pay at a rate higher than his senior officer either due to fixation of his pay in the higher post under the normal rules, or due to revision of pay scale, the pay of the Government employees senior to him shall be refixed at the same stage and from the same date his junior draws the higher rate of pay irrespective of whether the lien in the lower post held by the senior officer is terminated at the time of refixation of pay, subject to the condition that both the senior and junior officers should belong to the same cadre and the pay scale of the posts in which they have been promoted are also identical.

The benefit of this rule shall not be admissible in case where a senior Government employee exercises his option to retain un-revised scale of pay or where the pay drawn by the senior officer in the lower post before promotion to the higher post was also less than that or his junior.”

20. A bare perusal of the said rule will clearly show that the same applies only in a case of promotions. In the instant case, the Muharrars had not been promoted to the post of Lower Division Clerk, but they had merely been re-designated by the State. Such re-designation of post or merger of cadre is within the domain of State in terms of its rule making power of Proviso to Article 309 of the Constitution of India or Article 162 thereof.

21. The question as to whether re-designation of the Muharrars was permissible in law came up for consideration before the Apex Court in State of West Bengal v. Subal Chandra Das reported in 1996 (7) SCC 191, wherein it was clearly held that such re-designation is permissible and by reason of such re-designation on intermediate scale of pay can be granted to LDCs and UDCs who were recruited directly. The contention that the LDCs are entitled to higher scale of pay was rejected stating:—

“The contention of Shri Verma is that Moharrirs, who were holding lower scale of pay prior to their being fused into the category as LDC, are now getting higher scale of pay as LDCs while the direct recruited LDCs are stagnated at the same scale of pay. Therefore, the High Court was justified in directing to create intermediate scale of pay. We find no force in the contention. It is seen that once Moharrirs have been redesignated as LDCs and fused into the category of LDCs all become a class. It would appear that in an earlier litigation filed by the parties, inter se promotion between the Moharrirs and LDCs and UDCs was considered and the High Court in a writ petition had directed the Government to prescribe 1:1 ratio between Moharrirs and LDCs for promotion to the post of UDCs. The State Government had acted upon and issued rules in that behalf. Therefore, each source, until exhausted, has channel of promotion to UDC within their respective 50% quota.

On the Muharrars being integrated as LDCs, no further distinction or discrimination in the scale of pay or promotion chances between Moharrirs and the direct recruit LDCs is maintainable. All are now entitled to get the same scale of pay and other service benefits. It would appear that in some instances some of the Moharrirs, due to length of service, are getting higher pay.”

22. The apex Court, however, keeping in view the pendency of this litigation did not enter the question as to whether their pay should be protected.

23. It is, therefore, evident that the apex court has clearly held that Rule 55(4) of the Rules would not be applicable in a case of this nature and re-designation of Muharrars was permissible in law. It is now a well settled principle of law that only because of a fortuitous circumstances a person at one point of time was in the lower scale of pay by itself would not create any right in his seniors to a higher salary.

24. In Union of India v. E.S Soundara Rajan reported in AIR 1980 SC 959, upon which Mr. Dey himself has relied on, the Supreme Court stated the law in the following terms:—

“Indeed a series of other decisions right down to (1977) 1 SCR 377 at 389 have taken the view that even though two categories may be close cousins they are quite distinct. There cannot be any discrimination spelt out merely because they have been dealt with in regard to their salary scales or the conditions of service differently. Equity postulates identity of the class and once that is absent, discrimination cannot arise. This argument appeal to us and we are not prepared to agree with the conclusion reached by Andhra Pradesh High Court so long as Commercial Clerks and ASMs/SMs fell into two different categories and this seems to be plain and is contained in the narration of facts by the Andhra Pradesh High Court as well as Madras High Court. It is equally important to remember the well established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising out of some peculiar developments or situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less alike. If one class has not been singled out for special treatment, the mere circumstances of advantages accruing to one or the other cannot result in breach of Article 14 of the Constitution. On this basis we should agree with the reasoning of the High Court of Madras and so declare the law correctly.”

26. Thus, the contention of the respondents to the effect that they have been discriminated against cannot be held to be a valid contention. In Union of India v. O.P Saxena reported in 1997 (6) SCC 369, the apex court inter alia held that the seniors are not entitled to stepping up of pay as a matter of right.

27. This aspect of the matter again came up for consideration before the apex court in Union of India v. R. Swaminathan reported in AIR 1997 SC 3554 wherein upon consideration of the rule relating to fixation of pay in terms of Rule 22(i)(a) of the fundamental rules, it was held that they are exits of the seniors for stepping up of pay dealing with a contention that all seniority for regular promotion is maintained.

28. This matter again was considered by the apex court in Union of India v. M. Suryanarayana Rao reported in 1998 (6) SCC 400 and Union of India v. P. Jagdish reported in 1997 (3) SCC 176.

29. This aspect of the matter has also been considered by the Central Administrative Tribunal in Jiban Kumar Bose v. Union of India reported in 1998 (2) CLT 23.

30. In view of the aforementioned clear pronouncement of law there cannot be any doubt whatsoever that the petitioners have no legal claim to any right to get the same scale of pay which became payable to the said erstwhile Muharrars. It would have been an ideal situation where the State could remove the disparity but unfortunately it appears that various learned Judges of this court did not consider this aspect of the matter and directed grant of new intermediate selection grade to the Muharrars and LDCs. The mistakes sought to be rectified by the State also did not fructify because of several orders passed by learned single Judges of this Court pursuant whereto either the District Magistrate, Hooghly (who had no jurisdiction to pass such orders) or the State was compelled to grant the scale of pay Rs. 380/- to the Muharrars. Equal Pay for Equal work as adumbrated under Article 39(d) read with Article 14 of the Constitution of India cannot also be said to have any application as in the instant case. The LDCs doing similar work have been deprived of the same pay only by reason of fortuitous circumstances or by mistake committed by the authority or the District Magistrate Hooghly, the erstwhile Muharrars are getting higher scale. As has been held in Union of India v. E.S Soundra Rajan reported in AIR 1980 SC 959, in such a case Article 14 will have no application. In Jaipal v. State of Haryana reported in AIR 1988 SC 1504, the apex court was concerned with applicability of doctrine of equal pay for equal work. The said decision, however, was distinguished in Nain Singh Bhakuni v. Union of India reported in AIR 1998 SC 622.

31. For the self same reason, the decision of the Supreme Court in Abid Hossain v. Union of India reported in AIR 1987 SC 820 cannot also be said to have any application in the instant case. The decision in D.S Nakara v. State reported in AIR 1983 SC 130, and Madhavan Assari v. KSSID & E. Corpn. Ltd. reported in 1992 (2) LLJ 341 it was observed that it is a fundamental principle of natural justice that everything is equal. In the later judgment, it was held “It looks obnoxious and revolting in any good sense that senior should get a lower pay merely because he was promoted earlier. In view of the subsequent decision of the Supreme Court as noticed hereinbefore the same cannot held to be a binding precedent or a good law.

32. It is also well settled that if a mistake has been committed, the same may be rectified. Even if the same had not been or could not be rectified by reason of some orders passed by this court, the writ petitioners cannot claim any legal right only on the basis thereof. An illegality is incurable. The illegality can not be perpetuated only because somebody has been deprived of its benefit, the same by itself cannot be a ground for committing the same mistake in case of others.

33. In Chandigarh Administration v. Jagjit Singh reported in 1995 (1) SCC 745, the Apex Court has held:—

“Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law, indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition.”

34. In Chandigarh Administration v. Naurang Singh reported in 1997 (4) SCC 177, the apex Court held:—

“We are, however, of the opinion that a mistake committed by the Administration cannot furnish a valid or legitimate ground for the court or the tribunal to direct the Administration to go on repeating that mistake. The proceedings placed before us clearly show that the pay revision of 19.9.1975 was an unscheduled one, effected merely on the basis of a letter written by the Principal of the College”.

35. As indicated hereinbefore a learned single Judge already held that Rule 55(4) does not apply to a case of promotion. Rule 55(4) however, had been applied by other learned Judges of this court without considering the aforementioned proposition and passed order and judgment without noticing the earlier binding precedent of this court in Manju Mondal (supra) and, thus, the same must be held to have been rendered per incurium.

36. It may be true as has been held by one of us in Pran Gopal Roy v. Laksmi Banerjee reported in 1995 (5) SIR 694 that salary is a porperty, but in the instant case, the State had not passed any order depriving the writ petitioners from any salary to which they were legally entitled to.

37. For the foregoing reasons, we have no other option but to allow the appeal and dismiss the writ application. We will, however, request the State to consider the matter so as to take such appropriate steps for amelioration of the grievances of the writ petitioners and other persons similarly situated. In the facts and circumstances of this case, there will be no order as to costs.

S.N Bhattacharjee, J.:— I agree.

Application dismissed

R.B