Sri Tapan Kumar Ghosh & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 1582 Cal

                      IN THE HIGH COURT AT CALCUTTA
                                 (Appellate Side)
                      (CONSTITUTIONAL WRIT JURISDICTION)


                                                     Reserved on: 01.03.2021

                                                     Judgment on: 13.04.2021



                                                     WPST 22 of 2014


Sri Tapan Kumar Ghosh & Ors.
                                                          ...Petitioners
                                    -versus-

The State of West Bengal & Ors.
                                                          ...Respondents


CORAM:       HON'BLE MR. JUSTICE RAJESH BINDAL
             HON'BLE MR. JUSTICE ANIRUDDHA ROY


Present:-         Mr. Partha Sarathi Bhattacharyya, Senior Advocate, with
                  M/s Raju Bhattacharyya, and
                  Arunava Maiti, Advocates.
                                                          ...for the petitioners

                  Ms. Chaitali Bhattacharyya, and
                  Mr. Kartik Chandra Kapas, Advocates
                                                          ...for the respondents


                                    JUDGEMENT

Aniruddha Roy, J:

1. The present writ petition has been filed assailing the order dated

November 20, 2013 (for short, the impugned order) passed by the

West Bengal Administrative Tribunal, Kolkata (for short, the Tribunal)

in OA 683 of 2012 (Tapan Kumar Ghosh & Ors. Vs. The State of West

Bengal & Ors.) (for short, the Original Application) whereunder the

writ petitioners were granted the revised scale of pay corresponding to

the pre revised scale No. 12 having requisite academic qualification as

recommended by the 5th Pay Commission and refusing to grant the

same relief in respect of 3rd and 4th Pay Commission.

2. The writ petitioners had joined the feeder post of Research Assistant

after qualifying the necessary examinations conducted by the West

Bengal Public Service Commission (for short, PSC) from time to time

between 1993-1999. The petitioners had either qualified Bachelor of

Science (Honours)(B.Sc) or Master of Science (M.Sc) and had been

discharging duty as Research Assistant in terms of the relevant

recruitment rules in different sections of River Research Institute,

West Bengal (for short, RRI). From the recruitment rules it appeared

that nothing was mentioned as to the particular pay scale for the Post

of the Research Assistant to which the writ petitioners are entitled to.

3. Out of the twelve numbers of writ petitioners six of them namely first,

third, fourth, fifth, sixth and eleventh petitioners were promoted from

the post of Research Assistant to the Assistant Research Officer

during the period from August 2009 and March 2010. The writ

petitioners after joining on the Post of Research Assistant and while

discharging duties as such were compelled to draw pay in the Scale

No. 9 i.e. ₹1260-2610 under ROPA, 1990 and corresponding to

₹4000-8850 under ROPA, 1998 although the higher pay scale was

granted to other employees of different departments, who were placed

under the similar circumstance.

4. The writ petitioners submitted representations before the respondent

authorities claiming higher pay scale and such grievance of the writ

petitioners was not redressed. The writ petitioners then applied before

the Tribunal by filing OA No. 1844 of 2004 (for short, the previous

Original Application) praying for grant of Scale No. 12 or atleast Scale

No. 11 with retrospective effect as per the recommendation by the Pay

Commission. Vide order dated March 17, 2011 the said previous

Original Application was disposed of by the Tribunal, directing writ

petitioners to make representation with additional materials, if any, to

the Finance Department within a specific time and the same was in

turn directed to be disposed of in the light of the specific

recommendation of the successive Pay Commissions and to take a

decision regarding upgradation of pay structure of the writ petitioners

and also to intimate the decision to the writ petitioners. In terms of

the said direction issued by the Tribunal in the said previous OA the

writ petitioners had submitted their representations on May 6, 2011

and August 19, 2011. On June 29, 2011 the third respondent

communicated the decision taken by the second respondent,

wherefrom, it appeared that the successive Pay Commission had

recommended upgradation of pay scale of Research Assistant and at

the same time proposed that for the Research Assistant, B.Sc

(Honours), should be the minimum qualification and administrative

department was requested to amend the recruitment rules as per

recommendation of successive Pay Commission and it was further

observed that the post of River Research Assistants would be entitled

to the upgraded scale of pay who hold qualification of B.Sc (Honours).

However, there was no date mentioned wherefrom the River Research

Assistant would be entitled to the upgraded scale of pay.

5. By not indicating the date from which the River Research Assistants

would be entitled to get the upgraded scale of pay, confusion was

created, in as much as, the writ petitioners having B.Sc (Honours) on

the date of appointment or the date of joining were entitled to the

upgraded scale of pay i.e. either Scale No.11 or in Scale No. 12 in

terms of the recommendation of the 3rd Pay Commission, 4th Pay

Commission as well as in terms of the report of the expert committee

made from time to time but the writ petitioners had never been given

upgraded scale of pay i.e. either Scale No.11 or Scale No. 12 and on

the contrary the writ petitioners had been granted the Scale No.9.

Though the writ petitioners were entitled to be granted Scale No. 12.

6. Being aggrieved by the said decision dated June 29, 2011 and in view

of the fact that the writ petitioners were not granted the Scale No.12

in view of the Pay Commissions recommendations from time to time,

the writ petitioners filed the said Original Application inter alia

praying for the following reliefs:

"A. Direction be issued upon the respondent each one of them their servants agents and subordinates not to insist upon revision of recruitment rule for the posts of Research Assistant as a precondition for allowing the higher scale no. 12 in respect of the applicants herein who already possess the B.Sc.(Hons.) degree proposed for inclusion as minimum qualification in the revised recruitment rule and as recorded in paragraph two of the Finance (Audit) Department's Law Cell File No. FL/0/IN-71/2005 and communicated by the Deputy Secretary, Finance Department, Government of West Bengal, in his memo No.443.-F(Law)/I N-71/2005 A.T. dated 09.06.2011 and to upgrade the scale of Pay of Research Assistants the applicants herein to scale No.12 and also to award such upgraded revised pay scale to the applicants under the ROPA 1990 and 1998 and to extend all resultant benefits of such upgraded scale to the instant applicants, from the date of their respective joining in the aforesaid posts of Research Assistants along with all consequential fixations including all service benefits with arrears of dues accruing thereto.

B. Direction upon the respondents to certify and transmit all records relating to the subject matter to the Hon'ble West Bengal Administrative Tribunal for administering conscionable justice.

C. Any order/orders and/or direction which the Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case".

7. The said Original Application thereafter was disposed of by the

impugned order.

8. Mr. Partha Sarathi Bhattacharyya, learned Senior Counsel appearing

for the writ petitioners submitted that, the writ petitioners had

challenged the validity of the impugned order to the extent that the

date from which they are entitled to Scale No.12 had not been

decided. The writ petitioners are entitled to Scale No.12 from the date

of submission of report by the expert committee on November 28,

1991 and they are entitled to Scale No.12 from the date of joining and

not from any other date. It was submitted that, the promotees from

the Post of Research Assistant to the Post of Assistant Research

Officers being the first, third, fourth, fifth, sixth and eleventh writ

petitioners are also entitled to Scale No.12 from the date of their

joining. Accordingly they cannot be non-suited from the right to get

the Scale No.12 from the date of their joining. In respect of the said

promotee writ petitioners they would also be entitled to Scale No.12

from the date of joining till date when they were granted promotion.

9. Mr. Bhattacharyya further submitted that the Scale No.9 in terms of

3rd Pay Commission was to the tune of ₹1260-2660 and Scale No.9

according to 4th Pay Commission to the tune of ₹4000-8850 and Scale

No.12 according to 3rd Pay Commission was to the tune of ₹1500-

3410 and Scale No.12 according to 4th Pay Commission to the tune of

₹4800-10,925. The Scale No.9 according to 5th Pay Commission was

to the tune was ₹7100-37,600 and Scale No.12 according to 5th Pay

Commission was to the tune of ₹9000-40,500. It was then submitted

that, revised scale of pay to Scale No.12, which is the higher scale,

should be given to the writ petitioners from the dates of their

respective appointments this issue was not considered by the

Tribunal while passing the said impugned order and hence the

present writ petition.

10.Ms. Chaitali Bhattacharyya, learned Advocate appearing for the State

respondents submitted that, the expert committee in 1991 on

modernization of the RRI, West Bengal proposed Scale No.12 for the

Research Assistant after careful examination of the problem of

recruitment of maintaining high standard of academic qualification

for the Research Personnel. The 5th Pay Commission also in line with

the previous successive Pay Commissions suggested Scale No.12 to

the Research Assistant. B.Sc. (Honours) was fixed as the minimum

qualification for the Post of research Assistant in RRI. To attract the

proper qualified persons for the job, the state recommended pre-

revised Scale No. 12. The State further submitted that the 5th Pay

Commission as suggested was duly accepted by the State for the said

Post. However, the recommendations of the previous Pay

Commissions namely 3rd and 4th were not accepted by the State for

the same post. It was then submitted that, since the State did not

accept the Scale No.12, as recommended by the 3rd and 4th Pay

Commissions for the writ petitioners or the similarly placed persons,

the question of granting any payment in terms thereof to the writ

petitioners did not and cannot arise.

11. After hearing learned Counsels for the parties and on perusal of the

material before us, it appears that the facts are not disputed. It is true

that mere proposal of Pay Commission would not confer any right

unless the same is recognized and accepted by the State. From the

submissions made on behalf of the State and also upon careful

consideration of the material before this Court, it appears to this

Court that, the Scale No.12 as recommended by the 3rd and 4th Pay

Commissions was not accepted by the State for the cadre to which the

writ petitioners belong to. No material to the contrary could be shown

by the writ petitioners to controvert such contention of the State.

From the material available before this Court it is clear that the

recommendation of the 5th Pay Commission had been accepted and

acknowledged by the State and the State had agreed to grant Scale

No.12 in terms of 5th Pay Commission to the cadre to which the writ

petitioners belong to. Thus, the writ petitioners cannot contend

anything to the contrary or otherwise.

12. In so far as the relief of the writ petitioners relating to the payment in

terms of Scale No.12 under the 5th Pay Commission, is concerned the

same has been granted by the Tribunal.

13. It is also worth mentioning here that from the materials before this

Court it appears that the writ petitioners claiming their upgradation

in the scale of pay to scale no.12 under ROPA Rules, 1990 and 1998

respectively w.e.f. from the respective dates of their joining on the post

of Research Assistant along with other consequential benefits with

arrears of pay and allowances applied before the Tribunal in the year

2004 by filing OA 1844 of 2004. This makes it clear that the said

previous Original Application of 2004 itself was a belated proceeding.

However, the same was disposed of by the Tribunal vide order dated

March 17, 2011 directing the Finance Secretary to consider the

representations of the writ petitioners and to take a decision

thereupon.

14. From a close scrutiny of the impugned order it appears that the

Tribunal has not committed any jurisdictional error in passing the

impugned order. The Tribunal had not observed anything which is

contrary to the records.

15. In view of our foregoing discussions and the reasons stated

hereinabove, this Court, is of the considered view, that the impugned

order should not be interfered with.

16. The writ petition being WPST 22 of 2014 stands dismissed.

17. There shall, however, be no order as to costs.

(Aniruddha Roy, J.)

I agree.

(Rajesh Bindal, J.)

Kolkata 13.04.2021 ................

P.A. (RM)