Shri Binod Chandra Jena vs Indian Institute Of Technology
2023 Latest Caselaw 2079 Cal

29.03.2023
    ap
    07


                                 WPA 11951 of 2018

                             Shri Binod Chandra Jena
                                        Vs.
                           Indian Institute of Technology,
                           Kharagpur (IIT Kharagpur) & Ors.

                                 Mr. Ujjal Roy
                                 Mr. Arpa Chakraborty
                                               ... For the petitioner.

                                 Mr. R.N. Majumder
                                 Mr. S.M. Obaidullah
                                               ... For IIT.


                   In this writ petition, the petitioner has challenged

             an order dated June 12, 2018 issued by the Registrar of

             Indian Institute of Technology at Kharagpur (in short,

             "the Institute").    The said order has been passed in

             purported compliance of the judgment and order dated

             January 15, 2018 passed by a Coordinate Bench of this

             Court in W.P. 31221 (W) of 1997, which was filed at the

             instance of the petitioner in the earlier round of

             litigation.

                   This case has a chequered history. The petitioner

             has been consistently pressing his claim for a higher

             scale of pay on his appointment as a regular employee

             under the Institute on December 17, 1990 to the post of

             Attendant.

                   Initially, the petitioner was appointed for a project

             under the Institute. Consequent upon the completion
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of the project, the petitioner along with other employees

was   terminated   from       service.   The   terminated

employees of the project moved before this Court and

this Court passed an order directing the Institute to

consider the prayer of their re-employment in the

Institute.

      The said project employees were thereafter given

fresh appointments.

      Thereafter, again a Division Bench of this Court

directed the continuation of their service and also

accorded pay protection to the employees.            The

Institute, thereafter, issued appointment letters to said

project employees and also paid the arrear salary for

the period during which they were unemployed, i.e.

from the date of termination to the date of fresh

appointment.

      The petitioner also, like the said employees, was

inducted in the regular service of the Institute on

December 17, 1990.

      It should be noted that in the project, the

petitioner had been appointed as "Caretaker, Animal &

Milk Production" with a basic pay of Rs. 416/- in the

pay scale of Rs.380/- - Rs.640/- and upon his

induction as a regular employee of the Institution, he

was given the pay scale of Rs. 750/- - Rs. 940/-. The

petitioner, thereafter, approached this Court by filing a
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writ petition, W.P. 20087 (W) of 2007 alleging that he

had not been given the same benefits following the

order of this Court as had been given to other project

employees.

      The said writ petition was disposed of on July 11,

2013 by a Coordinate Bench. The operative portion of

the said order is quoted below: -

             "Heard the learned Counsel appearing for

       the parties.      It appears that in case of some

       employees         the         concerned          respondents

reappointed them, paid their arrear salaries and

gave them continuity of service and also gave

them pay protection but in the instant case of the

writ petitioners they have denied pay protection.

"In my view, the actions of the respondents

are arbitrary and illegal as well as

discriminatory. Therefore, the respondents

should be directed to give similar benefits i.e. pay

protection in favour of the writ petitioner.

However, in the facts and circumstances of this

case direct the respondents to give notional

benefit to pay protection till before January, 2007

which would be calculated and/or taken note of

at the time of fixing the retiral dues of the writ

petitioner and the writ petitioner would be given

monetary benefit from January, 2007 onwards"

In compliance with the said order, the case of the

petitioner was considered by the Institute and the

Institute by an order dated April 16, 2015 passed the

following order:

"After termination of JBMF project Shri Binod Chandra Jena and Nine others joined the Institute posts of Attendant/Mali/Cleaner on 17.12.1990. Later they were also paid arrears of salaries during the period of unemployment from date of termination of project service to date of fresh appointment in the Institute as per the order of the Hon'ble High Court dated 25th April, 1986 passed in C.O. No.6294 (W) of 1986 (Binod Chandra Jena & Ors -Vs- IIT, Kharagpur & Ors.), thereby regularizing the period in between. At the time of joining the Institute posts of Attendant/Mali /Cleaner in pay scale of Rs.750-940/- all of them had drawn their pay in the same scale of Rs.750- 940/- in the JBMF Project and during the interim period except Shri Jena, who was drawing a pay of Rs.1640/- in the pay scale of Rs.1350-2200 in JBMF Project as Care-taker.

The Institute service profile of Shri Jana was as under:

1) Joined the post of Attendant (Scale Rs.750-940) : 17.12.1990

2) Promotion as Attendant (SS) by antedated his selection under R&CDS by counting project service (Rs.800-1150) : 01.01.1991

3) Revision of scale under 5th CPC (Rs.2650-4000) : 01.01.1996

4) Promotion as Sr. Attendant under RCPS (Rs.3050-4590) : 01.01.2003

5) Revision of scale under 6th CPC ((PB-1, GP 1900) : 01.01.2006

6) Appointed as Jr. Technician (PB-1, GP 2000) : 09.05.2007

"As per the Order dated 11th July 2013 passed by the Hon'ble High Court at Calcutta in W.P. No.20087 (W) of 2007, notional benefit of pay protection till before January, 2007 with financial benefit from 1st January, 2007 onwards with reference to the pay drawn in JBMF project service were accorded Shri Jena and other as per O.O. No.Estt./648/2013 dated 28th November, 2013.

"Therefore, the claim of Shri Binod Chandra Jena for refixation of his pay in the scale of Rs.380-640/- and granting the benefit of last pay drawn by him i.e. Rs.1640/- is not sustainable."

The said order was again challenged by the

petitioner by filing a writ petition, W.P. 31221 (W) of

2017. A Coordinate Bench of this Court disposed of the

said writ petition on January 15, 2018 with the

following directions: -

"When the petitioner had joined the post of Attendant he did so in the scale of Rs.750-940/-. It is an admitted position that petitioner was given last pay by back wages in the scale of Rs.380- 640/-, which stood at the pay scale of rs.1350- 2200/- as on 17th December, 1990. The direction made in order dated 11th July, 2013 was that pay protection should be given to the petitioner notionally till before January, 2007 and thereafter by monetary benefit. This means that though the petitioner actually drew pay in a lesser pay scale attached to the post he was appointed in on 17th December, 1990 and continued thereafter but for the purpose of calculation of his retiral benefits, the

same had to be calculated giving him pay protection as in the scale of Rs.380-640/- which stood at Rs.1350-2200/- as aforesaid on December, 1990. This notional pay protection was to be given effect as such up to 31st December, 2006. On and from 1st January, 2007 taking into consideration the pay as protected, the retiral dues must be calculated on the basis of notional pay protection for calculation thereafter on the basis thereof for actual payment. This does not appear to have been done by the Registrar of the Institute.

"For the reasons aforesaid, the impugned order is set aside. The said authority being the respondent no.2 will revisit the matter in the light of the observations made above and make appropriate order within a period of four weeks from the date of communication of this order."

In terms of the said order, the case of the

petitioner was again considered and the order

impugned dated June 12, 2018, as noted above, was

issued. The relevant part of the order impugned is

quoted below: -

"Shri Binod Chandra Jena had accepted and joined the post of Attendant (carrying a Pay Scale of Rs.750-940) in the Institute service on 17.12.1990 which was offered to him based on his qualifications.

"Further, based on the Order of the Hon'ble High Court, Kolkata dated 11.07.2013 Shri Jena was given pay protection in the scale of pay in which he is appointed (i.e. Rs.750-940) by placing him in the

maximum of the scale. As each post in this Institute carries a pre-defined pay scale and grant of higher scale of Rs.1350-2200/- in a lower post of Attendant is not admissible. The drop in emoluments is also compensated by grant of Personal Pay which was absolved in future increments keeping in view of the rule of pay protection as per DoPT norms.

"Hence, Shri Jena is informed that the pay protection given to him at the maximum of the Pay Scale for the post of Attendant, in which he was appointed, is in order."

Mr. Ujjal Roy, learned advocate appearing for the

petitioner submits that the Institute, in the name of pay

protection, only protected his gross salary in the pay

scale of Rs. 750/- 940/- "by grant of Personal Pay".

The order dated January 15, 2018 makes it very clear

that petitioner's pay is to be protected by granting him

the corresponding pay scale of Rs. 380/- - 640/-, i.e.

Rs. 1350/- - Rs. 2220/- in terms of 5th Pay Commission

Pay Scale.

Mr. Majumder, learned advocate appearing on

behalf of the Institute submits that the petitioner was

given a fresh appointment under the Institute on

December 17, 1990 to the post of Attendant. The

petitioner cannot claim any higher scale of pay than the

pay scale attached to the post. The petitioner had

accepted the said appointment and the Institute had

also protected the gross pay of the petitioner by

providing Personal Pay. Thus, it is contended that

there has been no violation of the order passed by this

Court as the petitioner is not entitled to a higher scale

of pay.

I am of the view that the order impugned in the

writ petition cannot be sustained as it is in the teeth of

the order dated January 15, 2018. The said order has

already been quoted above. The said order makes it

absolutely clear it is not the gross pay of the petitioner

that was directed to be protected, rather, the pay of the

petitioner was to be protected by granting him the scale

of pay corresponding to the scale of pay, which the

petitioner had been enjoying as the project employee.

To make the position clear, it is to be noted that the

petitioner had been enjoying the pay scale of Rs. 380/-

- 640/- before his termination of service in the project.

This pay scale was revised in the 4th Pay Commission to

a corresponding pay scale of Rs. 1350/- - 2220/-.

Therefore, in terms of the order dated January 15, 2018

there cannot be any doubt that the Institute should

have notionally fixed the pay scale of the petitioner as

Rs. 1350/- - 2220/- from December 17, 1990 and

revised his salary and pension accordingly. The

petitioner is entitled to arrears from January 2007.

I am of the view that the Institute without

challenging the said order could not have declined to

comply with the same; and should not have merely

provided him with gross pay protection granting him

some "Personal Pay".

Accordingly, this Court directs the Indian

Institute of Technology, Kharagpur to notionally fix the

salary of the petitioner in the scale of Rs. 1350/- -

2220/- as on December 17, 1990 and work out his

revised salary and retiral dues. The petitioner should

be given the arrears from January 2007.

Accordingly, the impugned order is set aside.

WPA 11951 of 2018 is allowed.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties upon compliance

with the requisite formalities.

(Kausik Chanda, J.)