Pankaj Kar Chaudhuri & Others vs The Kolkata Municipal Corporation & ...
2025 Latest Caselaw 957 Cal/2

17. Respondent No. 9, although, was inducted into service

much prior to the appellants i.e. in 1973 and he was promoted

as standard clerk in 1978 but in 1983, Respondent No. 9

competed for welfare services and was selected. He was posted

as Welfare Officer at a higher pay. Later on, the post of Welfare

Officer was abolished and Respondent No. 9 was

accommodated in the cadre of Assistant Manager in the year

1996. The record goes to show that while the appellants were

promoted to the post of Assistant Manager in due course,

Respondent No. 9 was accommodated in such cadre as

Assistant Manager (Welfare Service).

18. Consequently, the pay packet of Respondent No. 9 was

higher than that of the appellants. Such facts indicate that

Respondent No. 9 was accommodated in the cadre of Assistant

Manager from a different source than that of the appellants.

Although, the appellants and Respondent No. 9 were

officiating in the same cadre of assistant manager,

nevertheless, their pay was fixed in accordance with the extant

rules governing the field commensurate to the pay they were

receiving before their induction in the promoted cadre.

19. Naturally, Respondent No. 9 was getting a higher pay in

his previous cadre i.e. welfare officer as compared to the pay

the appellants were receiving before their promotion to the

cadre of Assistant Manager. It also transpires from the

materials placed on record that after their promotion to the

post of Assistant Manager, the appellants were enjoying Pay

Band 4 (₹ 9000 - 40,500 with grade pay of ₹ 4800) whereas

Respondent No. 9, owing to the source of his appointment,

was granted pay band 4A (₹ 15,600 - 4200 with grade pay of ₹

6600). For such reason, basic pay of Respondent No. 9 was

fixed much higher than the pay of the appellants. Although, at

some point of time pay of Respondent No. 9 may have gone at

par with some of the appellants but owing to different scales of

pay, grade pay, increment and other parameters, such

respondent was found to be getting higher salary than that of

the appellants.

20. It has been contended on behalf of the appellants that

since the appellants and Respondent No. 9 were promoted to

the same posts of Assistant Manager and Deputy manager and

the respondent was much junior to the appellants, he could

not have been granted higher pay. It cannot be ignored that

the appellants and Respondent No. 9 came to hold the post of

Assistant Manager and Deputy Manager from different

sources. Their pay in the promotional posts was fixed in

accordance with the extant rules commensurate to their pay in

the previous post. Reliance was placed on DMC (P)'s Circular

dated April 24, 2010 dealing with clarification on pay fixation.

The said circular is reproduced here as follows:

D.M.C.(P)'s Circular NO. 07/ VIII of 2010-11 Date: 24/04/2010

Sub : Clarification on pay-fixation of departmental employees in cases of promotions / appointments to higher posts.

It is clarified that the pay of (1) the qualified departmental candidates to the post of Jr.Asstt., Driver, Teacher etc. and (2) promotees to higher posts shall be fixed in the following manner :-

i) If it is seen that the pay of the departmental employee after fixation is less than the minimum entry pay (part E of CMFA's Circular No.23 of 2008-

09 dt.07.03.09) of the higher post as applicable to the direct recruit candidates to the post to which appointment is given, the pay of the employee shall

be fixed in such minimum entry pay of such higher post(s).

ii) If it is seen that the pay of the departmental employees after fixation is higher than the minimum entry pay of the higher post to which appointment is given, the pay of the employee shall be fixed in the same stage in the pay scale of the newly appointed post. If there is no such stage the excess amount shall be absorbed in next/ subsequent increments.

iii) The concerned employee may at his/ her option retain his/ her old pay scale until the date on which he/ she has earned his/ her next or any subsequent increments on the old scale of pay. The option shall be exercised within 30 days from the date of issue of the order for appointment to the higher post. The option once exercised is final.

iv) It has been decided that an undertaking from the concerned employee is to be obtained before giving effect of fixation of pay as stated in (i) above. A pro- forma for undertaking is given overleaf.

v) The aforesaid clarification shall take effect from 01.01.2006 and arrear payment shall be admissible.

This is issued as clarification to Personnel Deptt's Circular No.2 of 1997-98 dated 07.04.1997. This Circular is issued with the approval of the Municipal Commissioner.

Sd/-

(A. Bandyopadhyay) O.S.D. & D.M.C (Personnel)

21. Clause (ii) of the aforesaid circular clarified as to how the

pay of an employee would be fixed on his promotion. That is

how the pay of Respondent No. 9 was fixed on his promotion

to the post of Assistant Manager and Deputy Manager. We are

also not unmindful of the fact that owing to his previous post

as Welfare Officer in the welfare service, Respondent No. 9 was

enjoying the pay scale of 4A whereas, the appellants were

receiving their pay in pay scale 4. The two scales carried

different grade pay and quantum of increment might as well

be different.

22. The appellants placed reliance on Regulation 34A of the

corporation of Calcutta Service Regulation which provides

that, if an officer on his promotion to a higher post draws pay

at a higher rate than his senior officer due to fixation of his pay

in the higher post under the normal rules, or due to revision of

pay scales, the pay of the officer senior to him shall be fixed at

the same stage and from the same date the 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 re-

fixation of pay subject to the condition that both the senior and

junior officer belong to the same cadre and the pay scale of the

post in which they have been promoted are also identical. The

aforesaid regulation also clarifies that the benefits of this

Regulation shall not be admissible in the case where senior

officer exercise his option to retain unrevised 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 of

his junior.

23. In the facts of the present case, the appellants claim to

be senior than Respondent No.9, though, both of them

belonged to different cadres and came from different sources.

Moreover, Respondent No.9 was enjoying higher pay, even in

the previous post of Assistant Manager, at least from 1996 and

possibly as the Welfare Officer as well. Respondent No.9 was

inducted in the post of Welfare Officer after qualifying an

examination for such post. Owing to his special posting as

welfare officer, on absorption in the cadre of Assistant

Manager, his pay was fixed at was fixed at ₹. 31380/- whereas

pay of the Appellant Nos. 1 and 3 was fixed at ₹. 26090/-

respectively and that of Appellant No.2 was fixed at ₹. 26670/-

No objection whatsoever was ever raised by the appellants, at

least since 1996, when he was absorbed into the cadre of

Assistant Manager. Therefore, the clarification appended to

Regulation 34A itself, disentitles the appellants from claiming

pay protection on the grounds set forth in the writ petition.

24. As noted above, the appellants have sought for pay

protection as against Respondent No.9. The appellants

superannuated from service with last pay of ₹. 26090/-, ₹.

27470/- and ₹. 26880/- respectively. On the other hand at the

time of his superannuation, Respondent No.9 was drawing a

pay of ₹. 33300/-. The appellants superannuated in June,

2012 and August, 2012 whereas, Respondent No.9.

superannuated at the end of June, 2013. This must have

entailed an additional increment to Respondent No.9.

Therefore, higher last pay of Respondent No.9 was also on

account of his longer service for at least, one additional year.

25. The writ petition filed by the appellants was dismissed on

another ground of stale claim. The cause of action for the writ

petition arose on August 14, 1996 whereas the appellant filed

the writ petition in 2017. Therefore, according to the

impugned order, the appellants approached the court with

much delay. Not only that, they went on receiving their pay

without any objection or protest, since then.

26. In Ramchandra Shankar Deodhar (Supra), the Hon'ble

Supreme Court held that,

"10. The first preliminary objection raised on behalf of the respondents......................................................... ......

Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse

relief solely on the jejune ground of laches, delay or the like."

27. Similarly, in Haryana State Electricity Board (Supra),

the Punjab and Haryana High Court's decision that the case

with regard to confirmation where the affected person has

been filing representations could not be considered to be case

where relief could be denied on the ground of latches and

delay, was upheld by the Hon'ble Supreme Court.

28. In P.L. Shah (Supra), the Hon'ble Supreme Court

observed in the following terms. That's to say:

"7. In the circumstances, the Tribunal was not right in rejecting the application solely on the ground that the order reducing the subsistence allowance having been passed on 6-5-1982 the Tribunal could not entertain an application for directing the Government to revise the order dated 6-5-1982 even in respect of any period within three years from the date on which the Tribunal commenced to exercise its powers having due regard to the date of the application also since we feel that the cause of action in respect of such prayer arises every month in which the subsistence allowance at the reduced rate is paid. We therefore set aside the order of the Tribunal and remand the case to it to dispose of the application

made by the appellant on merits. We make an order accordingly."

29. In the case at hand, the cause of action first arose in

1996. The appellants went on receiving their pay which was

less than Respondent No.9 since 1996. The appellants then

did not raise any objection to such fixation. They first raised

the issue with the authorities when they superannuated in

2012 which was of course, disposed in 2017. It is true, lesser

or erroneous fixation of pay, if at all erroneous, is causing

injustice to the appellant from month to month but there is no

explanation offered for not taking up the issue at the very

outset when it occurred in 1996. Such conduct on the part of

the appellants is not only infested with delay but also invites

the principle of acquiescence and tacit acceptance as well.

30. In K. S. Jagannathan (Supra), the Hon'ble Supreme

Court observed that,

"20.There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government

or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."

31. Similarly, in the case of Secretary, Cannanore District

Muslim Educational Association (Supra), on the question of

jurisdiction of the High Court, the Hon'ble Supreme Court

noted that,

48.This Court has also taken a very broad view of the writ of Mandamus in several decisions. In the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another - (AIR 1987 SC 537), a three-Judge Bench of this Court referred to Halsbury's Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of Mandamus :

"..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual."(See para 19, page 546 of the report)

49.In paragraph 20, in the same page of the report, this Court further held :..........................

"...and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."

32. There is no doubt that the High Court has the

jurisdiction and power to issue directions in appropriate cases

of injustice and to pass an order or give directions which the

Government or the public authority should have passed or

given had it properly and lawfully exercised its discretion.

33. In R. Swaminathan (Supra), in a situation identical to

the facts of the present case, the Hon'ble Supreme Court noted

that,

"7. For the fixation of pay on promotion, therefore, one has to first look at the pay being drawn by the promotee in the lower post. This pay in the lower post must be increased by one increment in that pay scale. His initial pay in the time-scale of the higher post is fixed at the stage next above this notional pay arrived at in the lower post.

8. The fixation of this pay in the higher post is, however, subject to the proviso. If the person so promoted has earlier officiated in that higher post or substantively held that higher post for short or long duration, then, (1) his initial pay which is fixed under Rule 22(I)(a)(1) shall not be less than the last pay which he drew when he last held the higher post. (2) The period during which he drew that pay on such

last and any previous occasions shall count for increments in the time-scale of the pay for the higher post. For example, if the promotee had previously, on various occasions, officiated in that higher post for different periods, and if the sum total of periods for which he so officiated is more than 12 months, he would be entitled to an increment in that higher pay scale. His initial pay, therefore, on his regular promotion will be fixed taking into account not merely his entitlement on the basis of his notional pay in the pay scale of the lower post, but also taking into account the last pay drawn by him while he was officiating in the higher post and also counting the previous periods during which he so officiated for his increment in the higher pay scale. The Department has also, in this connection, drawn our attention to Fundamental Rule 26 which, inter alia, provides as follows:

"FR 26. (a) All duty in a post on a time-scale counts for increments in that time-scale:

Provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale, shall be added to the normal date of increment."

9. We are, however, in the present case, concerned basically with Fundamental Rule 22(I)(a)(1) and the proviso to Fundamental Rule 22 because, in all these appeals, the junior employees who have got higher pay on promotion than their seniors, had officiated in the promotional post for different periods on account of local ad hoc promotions granted to them. This is because the Department of Telecommunications is divided into a number of circles within the country. The regular promotions from the junior posts in question to the higher posts are on the basis of all- India seniority. The Heads of Circles have, however, been delegated powers for making local officiating arrangements based on Circle seniority to the higher posts in question against short-term vacancies up to 120 days in the event of the regular panelled officers not being available in that Circle. This period of 120 days was subsequently revised to 180 days. Under this provision for local officiation, the seniormost official in the Circle is allowed to hold the charge of the higher post for a limited duration. This is purely out of administrative considerations and is resorted to in order to tide over the exigencies of work. This practice, we are informed, has been followed in all Circles in the Department of Telecommunications since 1970. This is because, at times it is not

possible to fill up all the vacancies in a particular Circle for various reasons such as non-joining by a particular person, chain promotions or short-term vacancies arising on account of leave etc. It is submitted before us by the Department that it is not always possible to convene meetings of the departmental promotion committee for filling up all the posts which are only available for short periods on all-India basis because of administrative problems. To fill up this gap, the Government has issued instructions from time to time to allow local officiating arrangements in the interest of work. The Department has also pointed out that all the aggrieved employees in these appeals have availed of such officiating promotions as and when such occasion arose in their Circle and they were eligible. The juniors, therefore, in each of these cases who have received a higher pay on their regular promotion than the seniors, have received this higher pay on account of the application of the proviso to Fundamental Rule 22."

34. In view of the aforementioned facts, the Hon'ble Supreme

Court, in the said case, held thus,

"13. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay

drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22(I)(a)(1)."

35. We have noted hereinbefore that since the appellants and

Respondent No.9 were inducted into the post of Assistant

Manager from two different sources i.e. on regular promotion

from the feeder posts and that from Welfare Officer, they could

not have been treated at par for the purpose of fixation of their

pay. Such view was laid down by the Supreme Court in the

case of O.P. Saxena (Supra). The Supreme Court in the said

Case observed that,

"21. Apart from the fact that the application of the respondent before the Central Administrative Tribunal which was filed in July 1991 was highly belated, the position in this case is no different from that of Union of India v. O.P. Saxena. In this case also the respondent and Shri Sood were appointed to the stationary post from two different sources. The respondent was Driver Grade-C when he was so appointed while Shri Sood was appointed to the stationary post from the post of Driver Grade-A. Therefore, for the reasons contained in the judgment

in CA No. 8852 of 1996 the order of the Tribunal has to be set aside."

36. In the case of Manish Gupta (Supra), in view of the

provisions of Rule 55 (4) of the West Bengal Service Rules it

was held by the Hon'ble Supreme Court that,

"we cannot say that there is no merit in the submission of Shri. Sanghi that in view of the proviso to Rule 55(4) the respondent cannot claim the fixation of his basic pay on the same level as the basic pay drawn by Hrishikesh Roy. In our view the appellants could reasonably proceed on the basis that in view of the proviso contained in Rule 55(4) of the Rules the pay of the respondent cannot be fixed at the same level as that the Hrishikesh Roy and, therefore, in fixing the basic pay of the respondent it cannot be said that the appellants had wilfully and deliberately disobeyed the directions given by the Appellate Bench in its order dated September 20, 1989."

37. As regards the 'principle of equal pay for equal work', the

Hon'ble Supreme Court, in the case of G. Sreenivasa Rao

(Supra) laid down that,

"14. We do not agree with the High Court/Tribunal. Doctrine of "equal pay for equal work" cannot be put in a strait-jacket. Although the doctrine finds its place

in the Directive Principles but this Court, in various judgments, has authoritatively pronounced that right to "equal pay for equal work" is an accompaniment of equality clause enshrined in Articles 14 and 16 of the Constitution of India. Nevertheless the abstract doctrine of "equal pay for equal work" cannot be read in Article 14. Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible.

15. "Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for

experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal."

38. Thus, in the facts and circumstances of the present case,

it transpires that the appellants and Respondent No.9 came to

be appointed as Assistant Manager from different sources. It is

also evident that Respondent No. 9 was drawing more salary

than that of the appellants even in post prior to his promotion

as Deputy Manager which ultimately resulted in fixation of

higher pay in such post in comparison to the appellants.

Moreover, Respondent No.9 worked for one additional year

before his superannuation. Such action on the part of the

authorities does not seem to violate any of the Rules,

Regulations and Circulars with regard to fixation, at any

stretch of imagination.

39. Therefore, in the light of discussions made herein, we

find no infirmity in the findings arrived at by learned Single

Judge and no reason to interfere with the impugned judgment

and order. The same is hereby affirmed.

40. Accordingly, the instant appeal being APO No. 36 of 2024

is hereby dismissed without any order as to costs and thus,

disposed of.

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

for, be supplied to the parties on priority basis upon

compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

42. I agree.

[DEBANGSU BASAK, J.]