STATE OF WEST BENGAL Vs. BIJON KUMAR KAR
LAWS(CAL)-1996-2-42
HIGH COURT OF CALCUTTA
Decided on February 08,1996

STATE OF WEST BENGAL Appellant
VERSUS
Bijon Kumar Kar Respondents

JUDGEMENT

Satyabrata Sinha, J. - (1.)This appeal arises out of a judgment and order passed by M.N. Roy, J. (as His Lordship then was) dated 20th June, 1990 in C.O. No. 8258 (W) of 189, whereby and whereunder the writ application filed by the writ petitioner-respondent was allowed. The basic fact of the matter is not in dispute. The petitioner was appointed as Supervisor Grade II in Wireless Operator Group. The writ petitioner-respondent was promoted to the post of Supervisor Grade I on 16.7.73. In terms of ROPA Rules, 1980 the scale of pay of Supervisor Grade II and Supervisor Grade I was revised to Rs. 300.00 to Rs. 600.00. However, so far as the Special Pay of Grade II is concerned, the same was Rs. 20.00, whereas the Special pay in respect of Grade I was Rs. 50.00. The petitioner-respondent's pay was fixed upon his promotion in the following manner:-
Rs. 600 SG Scale, Rs. 20.00 Technical pay of Supervisor Technical Group Rs. 620.00 and Rs. 20.00 one increment for promotion of SR. Technical I : Rs. 640.00. Despite the same the said order was recalled. In similar situation Anil Kumar Sen, J. in C.R 752 (W) of 1971, by a judgment and order dated 5th Oct., 1972 gave his finding as regards the interpretation of special pay vis-a-vis the Supervisor Grade II and Grade I employees. The matter came up before this Court again twice and by an order dated 6th Oct., 1988 made in C.O. 9043 (W) of 1988 Mahitosh Majumdar, J., specifically directed the authorities concerned to decide the matter in issue after issuing a show cause notice to the writ-petitioner-respondent and also directed them as regards financial benefits given to the writ petitioner-respondent on provisional basis. In the meantime, the writ petitioner-respondent retired. By an order dated 31st May, 1988 and by another order dated 2nd Dec., 1988, it was held that for the purpose of computation of his pay, the special pay granted to the petitioner as Supervisor Grade II could not be counted. The said order is contained in annexure 'P' to the writ application. The petitioner-respondent thereafter filed the writ application in question. The learned Trial Judge allowed the writ application. The learned Trial Judge held as follows:-

"Mrs. Mondal appearing for the answering respondents, of course, claimed after placing his client's affidavit-in-opposition that special pay cannot be added or taken into consideration in the matter of pay fixation and in terms of the order, as made by Mahitosh Majumdar, J., notice was given to the writ-petitioner, he was heard and thereafter, the order was passed and as such it cannot be said that the order, as made by the learned Judge, has not been followed or complied with. It was Mr. Mondal's short and specific submission that the writ petitioner is not entitled to the benefits as prayed for and the circulars, as mentioned earlier or the observations, as mentioned in Annexure B would not be applicable in this case.

After hearing the learned Advocates and considering their submissions, I do not agree with the submissions, as made Mr. Mondal and I feel that the writ petitioner was entitled to and he will be entitled to the due and necessary benefits of Annexure B and the Accountant General's observations."

When this Court pointed out that the judgment under appeal does not contain any reason, the learned counsel for the parties submitted that this Court may decide the matter on merits. Clause 12 of the ROPA Rules, 1970, reads thus:-

"12. Some of the existing special pays have been merged in the revised scales of pay of the posts. In such cases, the words 'Special Pay merged in Pay' have been inserted in the 2nd column of Part 'B' of Schedule I to the West Bengal Services (Revision of Pay and Allowance) Rules, 1970. Others most of which have been included in Schedule I of the said rules, are being reviewed by the Finance Department in consultation, with the departments concerned. Pending issue of separate orders concerning these special pays, all holders of posts to which these special pays are now attached, shall continue to draw them at the existing rates in addition to their pay in the revised scales of pay."

It is not in dispute that the matter relating to payment of salary is governed by the West Bengal Service Rules Part I. Rule 5(28) defines pay as meaning:-

"28. Pay means the amount drawn monthly by a Government employee as -

(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in cadre; and

(ii) special pay and personal pay; and

(iii) any other emoluments which may be specially classed as pay by Government."

Special pay has been defined in Rule 5(33) which reads thus:-

"33. Special pay means an addition, of the nature of pay, to the emoluments of a post or of a Government employee granted in consideration of-

(a) the specially arduous nature of the duties; or

(b) a specific addition to the work or responsibility; or

(c) the unhealthiness of the locality in which the work is performed."

The question which arises for consideration is as to whether keeping in view the fact that the writ petitioner-respondent at the relevant time had reached the maximum scale, for the purpose of calculating his pay as Supervisor Grade I, Rs. 600.00 would be taken to be his pay or Rs. 620.00 i.e., including the special pay.

(2.)Mr. Basu, learned Senior Counsel appearing on behalf of the respondent, contends that admittedly on promotion the promotee is entitled to get one increment and in that view of the matter for the purpose of consideration of an increment, his initial pay as Supervisor Grade I should be Rs. 640.00. It appears that this Court in a writ petition has considered that the post of Supervisor Grade I will be superior to post of Supervisor Grade II in respect of condition of service and prospect of promotion to higher rank, as appears from the letter of the Accountant General of Bengal dated 9.1.81. The said authority, therefore, sought for clarification from the State Government, but the Finance Department of the State Government in terms of its letter dated 27th April, 1982, inter alia, held that :
"So it is obvious that on assumption of higher responsibilities in the posts of Grade X Wireless Supervisor under Home Police Department would get higher rate of technical pay and in that event the technical pay (classed as special pay) drawn in the lower post Grade II would not be taken into account for fixation of pay."

(3.)In terms of Rule 13 of the ROPA Rules, 1980 fixation of pay on promotion was to be done at the stage next above the pay nationally arrived at by increasing his pay in the lower post by one increment. Thus evidently, the State itself has used the word 'Pay' and not 'Basic' pay. If the expression 'Pay' is to be considered for the purpose of fixation of pay on promotion, there cannot be any doubt that the special pay being included in the definition of pay under the West Bengal Service Rules Part I which has been framed, under proviso appended to Art. 309 of the Constitution of India would include the special pay. It, however, appears that the State also later on inserted Rule 42-A in the service rules in between the period Oct. 1, 1986 and Oct. 15, 1987, which also speaks of pay and not basic pay. In the instant cas, the scale of pay of both the Supervisor Grade I and Supervisor Grade II being same, in our opinion, for the purpose of fixing his pay on promotion, the technical pay or special pay should also be taken into consideration as the same formed part of his pay, particularly, in view of the fact that both the posts carry the same scale of pay namely Rs. 300.00 to Rs. 600.00.
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