Bhaskar Bhattacharya, J. - (1.) By this writ application, some of the employees of M/s. Durgapur Chemicals Ltd. (hereinafter referred to as 'D.C.L') have prayed for direction upon the respondents to revoke the decision taken by them regarding degradation of the petitioners from L-3 and L-2 grades to L- I grade and to grant and pay the benefit of L-3 and L-2 grades to the petitioners concerned as they enjoyed prior to introduction of recommendation by Fourth Pay Commission.
(2.) The case made out by the petitioners may be summarised thus:- (a) The petitioner nos. 1, 6, 7, 8, 10, 16, 17, 24, 25 and 26 were appointed as Ashman (LI Grade) in the pay scale of Rs. 288- 400/- on 4th August, 1983. The petitioner nos. 2, 4,5, 12, 15, 18 and 20 were appointed as Coalman (L-1 Grade) on 3rd September, 1983 in the Scale of Pay of Rs. 288-400/- and the petitioners no. 3, 9, 11, 12, 13, 14, 19, 21, 22, and 23 were appointed as Fireman Boiler (L-1 Grade) on 4th August, 1983 in the scale of pay of Rs. 288-400/. All the petitioners are skilled and all of them have passed Second Class Boiler Attendant Certificate of competency under West Bengal Boiler Attendant Rules, 1956 prior to joining in their respective services. (b) The Management of D.C.L entered into a settlement with the C.I.T.U Employees Union regarding promotion policy of the Firemen, Ashmen and Coalmen holding L-1 & L-2 Grades and such agreement was arrived at on May 22, 1992 in the Chamber of Managing Director of D.C.L. The signatories on behalf of the management were Personnel Manager, D.C.L, Officer-on- Special Duty (Personnel), D.C.L, Assistant Manager (Personnel). D.C.L and on behalf of the Union, the representatives were Shri S. Nandy, Vice-President. Shri B. Sanyal, Joint Secretary, Shri P. Banerjee, Assistant Secretary, Shri K. Banerjee, Assistant Secretary and Shri A.K. Pandith, Ex- Member. According to the said agreement as mentioned in paragraph 12 of the writ application, Firemen (L-1 Grade) who possess Boiler Competency Attendant Certificate, 2nd Class, would be upgraded to L-2 Grade w.e.f. Ist June, 1992 through interview and the persons who did not possess such certificate for the time being, would also be called for interview for up gradation as and when they would produce the required certificate. It was further stipulated that Firemen (L-2 Grade) would be placed to 1.3 Grade and would be eligible as skilled Fireman from 1st September, 1992 subject to qualifying in the interview at that point of time. (c) Pursuant to such agreement, the petitioners were called for interview and after such assessment through interview held on June 11, 1992 the petitioner Nos. 9, 13, 14, 19, 21 and 24 were upgraded as Fireman (L-2 Grade) w.e.f. Ist June, 1992 in the scale of pay of Rs. 300-460/-. Similarly, petitioner Nos. 3, 11, 22 and 23 were upgraded as Fireman (L-2 Grade) through interview held on 7th June, 1992 and thereafter the petitioner Nos. 3, 9, 11, 13, 14, 19, 21, 22, 23 and 24 were upgraded to the post of Fireman (L-3 Grade) through departmental interview in the scale of pay of Rs. 1040-1920/- as would be reflected from Annexure 'P-8' of the writ application. The petitioner Nos. 1, 2, 4, 5, 6, 7,8, 10, 12 15, 16, 17, 18, 20, 25 and 26 were upgraded to L-2 level and designated as Assistant to Fireman in the scale of pay of Rs. 820-1357/- w.e.f. 20th August, 1993. Such up gradation was done according to the decision taken in 355th Meeting of the Board of Directors held on 20th August, 1993. Subsequently, the petitioner Nos. 26 and 16 upon successful performance in the interview were upgraded to the post of Fireman (L-3 Grade) in the scale of pay of Rs. 1040-1920/- w.e.f. 1st November, 1993 and June 18, 1997 respectively. (d) The Fourth Pay Commission in its report has recommended revised pay scale only for the post of Firemen but not for Ashmen or Coalmen and the recommended scale is Rs. 3350-6325/- and it was also mentioned in the remarks column that for direct recruits the required qualification should be School Final Certificate with 2nd Class Boiler Attendant Certificate and two years experience. But there is no recommendation for the existing employees holding the posts of L-1, L-2 or L-3 grades on the basis of promotion. (e) The D.C.L thereafter published its Revision of Pay and Allowances Regulations, 2001 whereby implementing the recommendation of the Fourth Pay Commission it has incorporated a second scale of pay of Rs. 2,600-4,175/- to the petitioners which is equivalent to that of Peon/Shramik/Canteen Worker/Sweeper etc. The D.C.L also lowered down the scale of pay of the petitioners w.e.f. March, 2001 without any prior intimation. By this writ application, the writ petitioners have challenged the aforesaid decision on the ground that if the D.C.L is really obliged to implement the recommendation of the Fourth Pay Commission then they are also bound to strictly adhere to the scale of pay mentioned by the Commission for the skilled employees i.e. Rs. 3,350-6,325/- and as the petitioners are skilled and all have Second Class Boiler Attendant Certificate and experience they are also entitled to the same scale of pay. According to the petitioners, for direct recruits, the D.C.L has introduced the qualification of School Final, but the petitioners are not direct recruits being promotees to those posts and are continuing for years together. It is further contended that the contention of D.C.L that there was no grade like L-1, L-2 and L-3 is incorrect inasmuch as it is evident from the book containing orders, circulars, Rules and Government directions relating to D.C.L Employees that the employees of D.C.L were categorised as L-1, L-2, L-3, L-4 and L-5 Grades even prior to recommendation of Fourth Pay Commission. The petitioners thus prayed for setting aside the orders impugned.
(3.) This application is opposed by D.C.L by filing affidavit-in- opposition and its defences can be summarised thus: (a) The writ application is not maintainable in view of the fact that each employee had given declaration of option and in the option there is a promise to refund any amount which may be drawn by him in excess of what is admissible on account of erroneous fixation of his pay in the revised scale of pay. (b) The irregularity is from the root in the appointment letters. In the appointment letter as Fireman there is reference to L-1 but in the reports of Second Pay Commission or Third Pay Commission, there was no category of L-1 or L-2. In the booklet reference has of course been made to L-1, L-2 and L-3 category at different pages but the said booklet is not used because the same is not up to date and there are mistakes. (c) The allegation contained in paragraph 12 of the writ application is without any basis in view of the fact that up gradation was illegal and nullity in eye of law for the reason that there was no L-1, L-2 or L-3 grade either under Second Pay Commission or 3rd Pay Commission's report. Moreover, it is incumbent on the part of the authorities to obtain prior approval of the Government before creation of those posts which are totally absent in the instant case. Lastly, as per recommendation of the Pay Commission, there was no scope of any up gradation. (d) There was no upgraded scale for Fireman under Third Pay Commission's report and, as such, up gradation was irregular moreover, there was no L-2 category in the report of Third Pay Commission and at the same time, no approval of the Government was obtained before such up gradation. Similarly, up gradation by order dated 27th July, 1992 was totally irregular because as per recommendation of the Third Pay Commission there was no L-1 and L-2 category nor was there any scope of up gradation over and above, no prior approval of the Government was obtained before passing of the order of up gradation. (e) For the same reason, order dated 20th April, 1993 directing the up gradation was totally irregular and contrary to the recommendation of Third Pay Commission. There was no scale of Fireman of Rs. 830-1356/- and, as such, there was no scope of up gradation. Further, there was no provision for up gradation of Fireman in the Third Pay Commission's report. Over and above, no prior approval of Government was obtained. (f) The order dated 8th February, 1994 as mentioned in page 51 of the writ application was another clear example of irregularity inasmuch as per recommendation of the Third Pay Commission there .vas no post of Assistant Fireman and as such, designation was given to a nonexistence post and the up gradation was totally imaginary. Moreover, in the absence of existence of post, there could not be any scale of Rs. 830-1357/-. Prior approval of the Government was also not obtained. (g) The order dated 4th October, 1996 mentioned in page 53 of the writ application was also illegal as there was no post of Assistant to the Fireman and as such, no question of promotion as Fireman arose secondly there was no scale of Rs. 1040-1920/- in respect of Fireman and the actual scale was Rs. 800-1265/-. In addition to that, no prior approval of the Government was obtained. (h) The order dated July 21, 1988 mentioned in page 55 of the writ application relating to Sri Sanatan Pal was also irregular because there was no post of Assistant to Fireman secondly there was no L-2 category as per recommendation of Second Pay Commission or Third Pay Commission. Thirdly, there was no L-3 grade at all in respect of Fireman and at the same time no approval of the Government was obtained. (i) There is requirement of prior approval of the Government and any act contrary to the direction of governor as per Article 177 of the Articles of Association is ultra vires. (j) The respondent further relied upon order No. 4236(32-F) dated 3rd May, 1974, order no. 8178 (44-F) dated 19th July, 1984, order no. 8494 (48-F) dated 26th August, 1996 and order no.3024 (48-F) dated 25th March, 1987 which go to show that order of the Governor as communicated by letter dated 18th August, 1992 strictly prohibited creation of any new post or up gradation of existing post or filling up of post of all categories without prior approval of the Government. (k) The whole act of up gradation and promotion to non-existent posts and grant of scale to non-existent posts were irregular and without any prior approval of the Government and, as such, those have been rectified as per recommendation of Fourth Pay Commission. (1) As regards framing of second scale of pay in respect of Fireman, as per recommendation of the Fourth Pay Commission, the scale of pay of Rs. 3,350-6,325/- has been allowed only to direct recruit of Fireman with requisite qualification. The Commission's report is silent about the revised pay scale of the existing incumbents of the posts who do not have the requisite qualification. The government, however, while allowing revised scales of pay of different posts have decided that the existing incumbents of the post of Fireman without the requisite qualification be allowed the corresponding scale of pay of Rs. 2,600-4,175/-. It is open to the appropriate Government to modify the recommendations of the Pay Commission and in the instant case appropriate Government has correctly formulated another scale in respect of Fireman who did not satisfy the norms specified for scale of Rs. 3,350-6,325/- The State of West Bengal has not filed any affidavit-in- opposition but Mr. Mukhopadhay, the learned counsel appearing for the State has adopted the stand taken by D.C.L and has placed the written instruction of his client indicating that the Finance Department while allowing revised pay scales of different posts decided that the existing incumbents of 'Fireman' without the requisite qualification should be allowed the revised scale of Rs. 2,600-4,175/- corresponding to the unrevised scale of Rs. 800-1,265/-. No further reason has been assigned disclosing the basis of such scale.;