Sudhir Kumar Paul vs State Of West Bengal & Ors
2023 Latest Caselaw 1315 Cal

Item No.15
              IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE

                             HEARD ON: 22.02.2023

                           DELIVERED ON:22.02.2023

                                   CORAM:

            THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                             W.P.A. 20457 of 2019

                              Sudhir Kumar Paul.
                                       Vs.
                           State of West Bengal & Ors.


Appearance:-
Mr. Sahasrangshu Bhattacharjee,
Ms. Sayantanee Bhattacharjee                        .....    for the Petitioner.

Mr. Indranil Roy,
Mr. Subradal Choudhury,
Mr. Dipayan Choudhury             ......          for the respondent nos.2 and 3.


                                  JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. The writ petitioner after his retirement from service as an

employee of West Bengal Livestock Development Limited (for

short, "WBLDL") has filed this writ petition praying for release

of arrear salary for the period from August 1, 1986 to August 1,

2009.

2. The petitioner while working as a Junior Assistant under

WBLDL retired from service on superannuation with effect from

March 31, 2019. While he was in service, his pay was revised by

an order dated July 31, 2009 giving effect to ROPA, 1990 scale.

The petitioner claims that one Kumud Ranjan Chakraborty, who was

similarly situated to that of the petitioner and was appointed

more or less at the same point of time as that of the writ

petitioner was given the benefits of arrrear salary as per ROPA

1990 whereas the petitioner is being deprived from the benefits

of the said arrear salary.

3. Mr. Bhattacharjee, learned counsel representing the

petitioner, submits that a coordinate Bench of this Hon'ble

Court by an order dated December 7, 2015 (Kumud Ranjan

Chakraborty - Vs. - Managing Director, West Bengal Dairy &

Poultry Development Corporation Ltd. & Ors.) directed the

respondents to pay the arrear salary to said Kumud Ranjan

Chakraborty pursuant to the revision of the pay scale as per

ROPA, 1990.

4. Mr. Roy, learned counsel representing the respondent nos.2

and 3 submits that West Bengal Diary & Poultry Development

Corporation Limited stood merged with WBLDL with effect from

April 1, 2018. He further submits that since Kumud Ranjan

Chakraborty retired on October, 2008 through inadvertence the

effect of ROPA, 1990 could not be extended to Mr. Chakraborty

initially but subsequently pursuant to an order passed by this

Court, such benefit was extended. He submits that since Kumud

Ranjan Chakraborty and the present writ petitioner stand on

completely different footing, therefore, the writ petitioner is

not entitled to be treated equally with that of Mr. Chakraborty.

He further submits that the benefits of ROPA, 1990 was extended

to the petitioner by virtue of an order passed on July 31, 2009

and the petitioner having accepted the said order, cannot be

allowed to take a different stand more than 10 years from the

date of issuance of such order. He draws attention of the Court

to the first representation made by the petitioner dated August

9, 2019, which is annexed at page 16 of the writ petition to

support such contention. He further submits that during his

service tenure, several orders were passed extending various

benefits to the petitioner and that the petitioner accepted all

such benefits without raising any protest against the decision

of the authority not to pay the arrears as contained in the

order dated July 31, 2009.

5. Mr. Roy submitted that after going through the records and

taking necessary instructions from the authority, he found that

there is no necessity for filing any supplementary affidavit as

directed by the order dated December 8, 2022. He further

submits that the entire case of the respondents have been fully

disclosed in the said affidavit and no further fact are required

to be disclosed. However, he sought leave of this Court to

refer to an order no.285 dated July 16, 2014, a copy of which

has also been served upon Mr. Bhattacharjee, learned counsel

representing the petitioner, in course of hearing of this writ

petition. Such document is taken on record. Mr. Bhattacharjee

after looking at the said document submits that he could deal

with the said document in course of hearing of this writ

petition.

6. Heard the learned advocates for the parties and perused the

materials placed.

7. Record reveals that increment as per ROPA, 1990 scale with

effect from August 1, 1986 was extended to the petitioner by an

order dated July 31, 2009. It was specifically recorded in the

said order that the same was issued in supersession of all

previous orders issued in the matter including grant of annual

increment to the incumbent. The last paragraph of the said

order is of some relevance for which the same is extracted

hereinbelow:-

"It is further ordered that this order shall be effected from 01/06.2009 & no arrear payment on this account shall be made due to precarious financial position of the Corporation for the present."

8. From the aforesaid paragraph, it is evident that the

authority clarified its stand to the petitioner that increment

as per the ROPA, 1990 scale was extended to the petitioner on a

condition that no arrear payment on such account shall be made.

The petitioner duly accepted the said order and enjoyed the

benefits in terms of the said order dated July 31, 2009 during

his entire service tenure. It is not open to the petitioner at

such a belated stage, i.e. after his retirement to turn around

and contend that he is entitled to arrear payment on account of

such pay revision. It is not in dispute that the petitioner

also enjoyed further benefits extended from time to time by the

authority to the petitioner without making any protest.

9. It is not in dispute that Kumud Ranjan Chakraborty retired

prior to the passing of the order dated July 31, 2009 by virtue

of which the benefit of ROPA, 1990 scale was extended to the

petitioner. For such reason, the authority took a decision to

re-fix the pay of Sri Chakraborty with effect from August 1,

1986. However, the authority at that point of time, did not re-

fix the salary and did not pay the differential amount to Mr.

Chakraborty, which prompted him to approach this Hon'ble Court

by filing a writ petition being WP No.24824(W) of 2015. The

coordinate Bench after going through the decision of the

Managing Director dated May 19, 2015 was pleased not to accept

the contention of the authority that such fixation of pay scale

was notional and directed the respondents to pay the arrear

salary to Mr. Chakraborty. It is not the case of the writ

petitioner that the pay of Mr. Chakraborty was re-fixed in terms

of ROPA, 1990 during his service tenure or that there was any

condition imposed upon Sri Chakraborty that he will not be

entitled to any arrear payment pursuant to such re-fixation.

10. Therefore, this Court is of the considered view that the

writ petitioner does not stand on the same footing with that of

Sri since Kumud Ranjan Chakraborty as contended by Mr.

Bhattacharjee, learned Advocate for the petitioner.

11. For the reasons as aforesaid, this Court holds that the

petitioner having accepted the order dated July 31, 2009 and

after enjoying the benefits under the said order cannot

challenge the same at such a belated stage.

12. For such reason, the writ petition stands dismissed.

13. There shall be no order as to costs.

14. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)