- (1.) These appeals are directed against judgment dated 28.8.2003 of the Division Bench of the Calcutta High Court whereby the appeals filed by the parties questioning the order passed by the learned Single Judge were disposed of and the direction issued for giving effect to the option exercised by the Appellant on 24.9.1985 for the posts of Conservancy Sub-Overseer and Conservancy Overseer of the Calcutta Municipal Corporation (for short, 'the Corporation"') was set aside. The Appellant, who is now represented by his legal representatives, joined service in 1971 as Road Sarkar in the Conservancy Department of South Suburban Municipality. In 1973, he was transferred to the post of Tax Collecting Sarkar in the Collection Department. After five years, he was brought back to the Conservancy Department and was posted as Conservancy Assistant Inspector. Till 1981, the pay-scales prescribed for the posts of Tax Collecting Sarkar and Conservancy Assistant Inspector were identical. By virtue of the Revision of Pay-Scales and Allowances Rules, 1981 (for short, 'the Rules'), this parity was disturbed and a lower pay-scale was prescribed for the post of Conservancy Assistant Inspector. South Suburban Municipality gave an opportunity to the Appellant to exercise option for the pay-scale of Rs. 300-685 w.e.f. 1.4.1981. However, before a decision could be taken on his option, South Suburban Municipality merged with the Corporation. Garden Reach and Jadavpur Municipalities were also merged with the Corporation. The staff of three Municipalities was proposed to be absorbed on the terms and conditions specified in Circular No. 31 dated 29.6.1985, the relevant portions of which are extracted below: "THE CALCUTTA MUNICIPAL CORPORATION FINANCE & ACCOUNTS DEPARTMENT Dated 29th June, 1985 CIRCULAR No. 31 of 1995-86 The issues relating to (I) bringing the officers and employees of Jadavpur, Issues No. 1 To bring the officers and employees of Jadavpur, Garden Reach and South Suburban Units of C.M.C. under the service conditions and also other benefits as are enjoyed by the employees of C.M.C. No. 2: To determine the comparable posts under C.M.C. and to place the employees of three units in the Corporation pay-scales. Garden Reach and South Suburban Units of Calcutta Municipal Corporation under the Service condition and also other benefits as are enjoyed by the employees of C.M.C. and (2) determination of comparable posts & Pay-Scales under C.M.C. and placement of the employees of three Units in the Corporation pay-scales were under active consideration of the authorities for some time past. The Administrator, the Calcutta Municipal Corporation, has been pleased on 28.06.1985 to pass the following orders on the Issues stated below: Orders (i) That all regular officers and employees including labour staff of the three Units (erstwhile Municipalities) who were in service of the municipalities on 03.01.84 and appointed thereafter under the Units and are continuing till date, be brought under the Identical service condition and also other benefits namely Leave Regulation, Group Insurance, House Building Advance etc. as are enjoyed by the employees of the Calcutta Municipal Corporation in different categories with effect from 1st July, 1985 subject to their exercising Individual option in the prescribed from to come under similar service conditions, (ii) As regards pensionary benefits to the employees of the three Units, the order of the Administrator dt. 18.5.85 may remain in force. That all the officers and the employees including labour staff of the three Units viz Jadavpur, Garden Reach and South Suburban(erstwhile Municipalities) who were in service of the Municipalities on 03.1.84 and also those who have been appointed thereafter in the pay-scales of the Units and are continuing in service bill date be placed in the comparable posts & Pay scales under C.M.C. as indicated by designations and Pay-scales under Annexure-A, B & C respectively for Jadavpur, South Suburban and Garden Reach units with effect from 1st day of July, 1985 subject to, exercising option by Individual employee to come under the recommand designations and pay-scales shown in the Annexure-A.B & +C Date of Option The last date of forwarding individual option in the prescribed form is fixed upto 31st July, 1985. Annexure-D (Option Form) Employees failing to exercise option within target date will be deem to have opted for continuing in existing pay-scale and designation and service conditions of the erstwhile Municipality. Option shall be simultaneous and from same date in respect of service conditions and pay-Scale both and not in parts. 2. Fixation of pay in the comparable posts and pay-scales of C.M.C. (i) While placing the officers and employees under the comparable designations and pay-scale (as per Annexure A, B & C) they may be allowed. One increment in the former pay-scale or in other words in their exist pay-scale and then their basic pay be fitted in the next stage of the recommended pay-scale where such-pay-scale is higher than the pay-scale currently enjoyed. ii) In the process of fixation, where the grant of one increment in the former pay-scale fix in a stage of the recommended pay-scale, their basic pay may be fixed at the next stage of the commended higher pay-scale. iii) In case of employees enjoying special Pay, such Special pay, first of all, be merged with the basic pay of the existing pay-scale and thereafter his pay be fixed at the next stage of the existing pay-scale and subsequently, his pay be fitted in the recommended higher pay-scale, in the manner as under 3(i)(ii) above. iv) Where by grant of one increment in the former pay-scale, the employee falls short of initial pay of the recommended pay-scale of such employees wilt be fitted at the initial of the recommended pay-scale. v) Where the existing pay-scale and the recommended pay-scale of the officers & the employees are identical irrespective of the fact of any change in designation the basic pay of such employees be advanced one stage upward in such pay-scale. In all cases as mentioned in (i) to (v) above, the subsequent of Annual Increment will be 1ST DAY of JULY, each year. 4. xxx xxx xxx 5. Distribution of certain posts in different pay-scales in parity with C.M.C. (i) xxx xxx xxx ii) Posts of Bailiff: The Posts of Bailiff should be distributed in three pay-scales namely: in the ratio of 50:25:25 respectively. Such placement shall take place under a Common Gradation List for the Unit as a whole. Proviso: Action on the recommendation at 5(i)& (ii) above only be taken after completion of option for the recommended pay-scales and designations in the posts of Junior Assistant and Bailiff through specific proposals.
(2.) The Appellant exercised option for absorption in the Conservancy Department. The option of the Appellant was considered by the Joint Municipal Commissioner, who submitted the following proposal: In pursuance of the order dated 3.5.1994 of the Mpl. Commissioner relevant option papers as stated at (2) prepage have been obtained from the Borough. These papers are flagged "A", "B" and "C" in the linked file. The option form at flag 'A' relates to the option exercised by Sri Banerjee with effect from 1.4.1981. It bears the signature of the Head of Office/Department dated 3.1.84. Here he has opted for the scale of Rs. 380-685/- which is the corresponding scale for the post of Tax Collecting Sarkar. This scale at the relevant point of time was higher than that of the Conservancy Inspector (Rs. 245-455/-). This was before merger with the CMC. The option form as Flag B relates to the option for coming under CMC pay scales and service conditions. Here Sri Banerjee has opted by the designation of Sub-Overseer under the Conservancy Deptt. w.e.f. 4.1.84 (i.e. the date of merger with CMC). The option form was signed by Sri Banerjee on 24.9.85, and accepted by the Officer-in-charge of S.S. Unit option could be exercised upto 31st October 1985 as per Circular (35) on 20.5.96. As the CMC authorities allowed the employees of the added area to exercise fresh option at the time of merger so may take into account this option arising 'B' for this purpose. This post of Sub-Overseer (4.1.84) in the pay scale of Rs. 360-816/- was subsequently upgraded to the post of Conservancy Overseer in the scale of Rs. 380-910/- Vide Circular No. 42 of 1985-86 dt. 6.9.85 of the C.M.F.A. The option form at Flat 'C' cannot be taken into consideration as it is almost blank. Therefore, it the option at the time of merger is considered Sri Banerjee's posting should be considered as Sub-Overseer (Conservancy) w.e.f. 4.1.84 and as Conservancy Overseer w.e.f. 6.9.85. Submitted for favour of orders. Sd/- Jt. Municipal Commissioner.
(3.) However, no order was passed by the competent authority on the recommendation of the Joint Municipal Commissioner. The Appellant filed Writ Petition No. 4919/1998 for implementation of the proposal contained in the note of the Joint Municipal Commissioner. The same was disposed of by the learned Single Judge vide order dated 30.3.1998 and a direction was given to the Commissioner of the Corporation to hear the Appellant and pass a reasoned order.;