HARISH T ANDON, J. - (1.) THE legal point evoked from the respective stands of the parties to this writ petition is whether the petitioner, who was appointed to the post of a Fitter Mechanic on November 20, 1980 after undergoing the process of selection providing minimum qualification as School Final or equivalent, is entitled to a revised scale of pay under West Bengal Services (Revision of Pay and Allowances) Rules 1981 of Rs.300 -685, which is applicable where the minimum educational qualification for recruitment is school final pass or at a lower scale of pay of Rs.280 -670 as the minimum educational qualification for recruitment to the post of a Fitter Mechanic is up to Class -VIII in terms of Notification No. 918 -Estb (Cell -II)/ 10R -4/83 dated June 14, 1985.
(2.) THE facts in this case are more or less admitted. The Executive Engineer (Agri -Mechanical) Midnapore by his office Memo No. 2267 dated June 18, 1979 asked the names of the eligible candidates to the post of Fitter Mechanic from the Kharagpur Employment Exchange. The said office memo prescribed the minimum educational qualification as School Final or equivalent; Junior Engineering Diploma from I.T.I. with at least one year experience in fitting shop. After having emerged successful in the said recruitment process, the petitioner was appointed to the said post and joined the service with effect from November 20, 1980. Admittedly, there were no notified recruitment rules for the above post. The recruitment rules framed at that point of time was sent to the government for approval, which was kept under consideration and did not receive the final approval and/or confirmation. The service record would reveal that the petitioner was given the scale of pay admissible to Fitter Mechanic as per the relevant rules. Subsequently the West Bengal Services (Revision of Pay and Allowances) Rules 1981 (herein after referred to as ROPA Rules, 1981) was notified, under Memo No. 5691 dated July 28, 1981 in the Official Gazette on July 31, 1985 with retrospective effect from 1st April, 1981. Under the said rules, the revised scale of pay admissible to the post of Fitter Mechanic was fixed at Rs.300 -685, if School Final pass is a minimum educational qualification for recruitment and in other case at Rs.280 -370. The petitioner was given the revised scale of pay, as the minimum educational qualification for recruitment was School Final pass. The petitioner was allowed to receive the revised scale of pay under ROPA 1981 of Rs.300 -685 till February 15, 1983. By Memo No. 131/3 dated February 15, 1983, the Assistant Engineer (Agri -Mechanical) Midnapore (West) Sub -Division cancelled the revised scale of pay of Rs.300 -685 and brought the petitioner to such category of scale of pay admissible to the post of the petitioner where the minimum educational qualification is not School Final pass. The petitioner challenged the said order before this Court in C.O. No. 4118 (w) of 1983 which came to be disposed of on May 10, 1983 with the following directions: " Having heard the Ld. Advs, appearing for the parties I dispose of these two writ applications directing the Government of West Bengal to decide upon the question as to the pay fixation of the petitioners concerned within three months from date. The petitioners will be at liberty to receive their salaries which stands now reduced pending such decision without prejudice to their rights and contentions. I also make it clear that these applications are being disposed of without prejudice to the rights and contentions of the petitioners to challenge the decision to be so taken if it is found to be adverse to their interest. Ld. Adv. for the State will communicate this order."
(3.) IN compliance of the said direction, the Deputy Secretary, Government of West Bengal, disallowed the benefit of scale of pay Rs. 300 -685 to the petitioner as the recruitment rules are not finalised and notified for the post of Mechanic and Fitter Mechanic. The petitioner further challenged the said order in C.R. No. 1905 (W ) of 1985 before this Court. W hile issuing Rule, this Court passed an interim order directing the respondents to pay the petitioner salary in the scale of pay of Rs.300 -685 with effect from April 1, 1981 till the disposal of the Rule and in the event the writ petition fails, the petitioner would refund the excess amount paid in terms of the said interim order by allowing deduction from the salary in easy installments. The said writ petition was subsequently transferred to the West Bengal Administrative Tribunal and have been finally decided in the impugned order. The Tribunal dismissed the writ petition basically on the ground that at the time of initiating the recruitment process, there was no recruitment rules prescribed for such post and if, subsequently, the recruitment rules is prescribed and provides the minimum qualification below School Final pass, the petitioner cannot stand to any benefit, even if, there was a prescription of minimum educational qualification as School Final pass.;