Khwaja Mohammad Yousuf, J. - (1.) The petitioner has moved the writ Court against the order of rejection dated 22nd July, 1988 issued by the Respondent No. 2 and also claiming a pay scale of Rs. 600-1600/- on the basis of Circular No. 35 of 1985-86 dated 7th August, 1985 with effect from 4th January, 1984. The case of the petitioner, in short, is that in July, 1971 he was appointed an Assessment-in-Charge under the Garden Reach Municipality at a scale of Rs. 130-240/-. In 1979 he was transferred to the post of Education-in-Charge with the existing pay and allowances of an Assessment-in-Charge. By virtue of the Calcutta Municipal Corporation Act, 1980, the Garden Reach Municipality along with other Municipalities merged with the Calcutta Municipal Corporation(hereinafter referred to as "the C.M.C.") and the employees of different Municipalities enjoyed comparable service benefits and a scale of pay with that of the employees of the C.M.C. Since the merger of the Garden Reach Municipality, Jadavpur Municipality and South Sub-urban Municipality the employees of all the said three Municipalities have been treated as the employees of the C.M.C. and have been enjoying the service benefits and a scale of pay and designations. The Controller of Municipal Finance and Accounts, the Respondent No.3 issued a Circular No.35 of 1985-86 on 7th August,1985 drawing the attention of all concerned to the order of Administrator dated 28th June, 1985 as contained in Finance and Accounts Department Circular No. 31 of1985-1986 dated 29th June, 1985 bringing the officers of Jadavpur, Garden Reach and South Suburban Units under the service conditions and benefits as are enjoyed by the employees of the C.M.C. and determination of comparable positions and pay scales under the C.M.C. and placement of the employees of the three Units in the Corporation pay scales, etc. The aforesaid Circular regarding service benefits to the employees of the three Municipalities was given effect from 4th January, 1984 which is the date of merger. On this very date the petitioner was holding the post of Education Officer in the Calcutta Municipal Corporation, Garden Reach Unit, and this post is identical with the post of Education Officer under the C.M.C. but inspite of circular No.35 of 1985-1986 the respondents did not pay the petitioner this scale of Rs. 660-1600/-which is the scale of Education Officer of the C.M.C. and the petitioner was whimsically granted a scale of pay of Rs. 500-1360/- below' the scale of Education Officer. The petitioner made a representation before the Respondent No .2 the Municipal Commissioner in December, 1986 to remove the anomaly in pay scale of the petitioner and the said representation was recommended by the Deputy Personnel (Divn.III-C) but to no effect. Again on 14th January, 1987 he made a fresh representation and the said Deputy Personnel Officer made and endorsement recommending his case but Respondent No.3 the Controller of Finance and Accounts rejected the representation without any reason by simply stating that as the Pay Commissioner has been set up the claim of the petitioner cannot be accepted to at this stage. Again on 1st February, 1988 another representation was made which was endorsed by Respondent No.4, the Deputy Municipal Commissioner. It is the case of the petitioner that the Chief Municipal Architect and Town Planner who was then controlling the Education Department also recommended the case of the petitioner by Memo dated 5th July 1988. All the representations were turned down by the authorities concerned on 22nd July, 1988 on the flimsy ground of the new Pay Commission. The petitioner submits that the Corporation authorities are making discrimination among the employees of the same Unit and the order rejecting various representations are mala fide and liable to be quashed.
(2.) The Respondent Nos. 2 to 5 by Affidavit-in-Opposition strongly contested the claim of the petitioner. It is stated that the employees of the three Municipalities which merged with the C.M.C. have not been enjoying the service benefits and a scale of pay at par in all cases with that of the employees of the Corporation at different identical positions designations. It would appear from Annexure A-2 of the Circular No.35 that the Education-in-charge of the erstwhile Municipalities were given the comparable post of Education Officer (Unit) with the pay scale of Rs. 610-1270/- which was subsequently modified as Rs. 500-1360/- on approval by the then Administrator. It is also denied that on the date of the merger the petitioner was holding the post of Education Officer which is the identical post of Education Officer under C.M.C. It is the further case of the respondents that the petitioner was given the comparable post of Education Officer (Unit) in terms of the said circular and it cannot be said that the petitioner is holding the same status and position as that of the Education Officer of the C.M.C. It is made clear in the Affidavit that the petitioner, in fact, is holding the post of Education Officer (Unit) which is subordinate to the post of Education Officer of the Corporation and as such the Education Officer(Unit) is not entitled to enjoy the status and the pay scale of Education Officer of the Corporation. It is not the fact that all the employees of the Garden Reach Unit of the Corporation have been enjoying the identical pay scale and service with the employees of the Calcutta Municipal Corporation except the petitioner. By virtue of section 17 of the Calcutta Municipal Corporation Act, 1980, the head of the Primary Education Service has been designated as Education Officer (Unit) with a pay scale of Rs.500-1360/-as such it is submitted that the petitioner has no claim to ask for the pay scale for the Education Officer of C.M.C.
(3.) Mr. Basu the learned Advocate appearing for the petitioner submitted that on 4th January, 1984 when the erstwhile Garden Reach Municipality and the two other Municipalities have been merged with the C.M.C. then the pursuant to the said merger the function and functionaries of all the three Municipalities became the function and functionaries of the C.M.C. By virtue of Circular No.35 of 1985-1986 dated 7th August, 1985 issued by the Finance and Accounts Department of the C.M.C. all officers and employees of those three Municipalities became the officers and employees of the Corporation and the service conditions including the pay scale and other benefits of the employees of the three Municipalities became equal and identical in a comparable post. In this connection he referred to paragraph 3 of the said Circular. It was further contended by him that Education Officer (Unit) is the feeder post to the promotional post of Senior Eduction Officer. Mr. Basu submitted that none of the three Education Officers of the C.M.C. have been occupying the post through Municipal Service Commission. He further argued that even supposing that by virtue of a particular circular all the employees drawing at above Rs.470/- per month should be recruited through the Municipal Service Commission, then even the said circular is not applicable to all the employees and officers of the three amalgamated Units. In this connection he submitted that some of the Clerks(Junior Assistants) of the three Municipalities do not possess requisite qualification for the posts which is Madyamika Second Division but because of the amalgamation they are enjoying the status and pay scale of Clerks (Junior Assistants) of the C.M.C. He further submitted that both the Education Officer of the Unit and the C.M.C. are the feeder post of Senior Education Officer and the Senior Education Officer is the head of all the Education Officers irrespective of nits in the C.M.C. It is contended that the Deputy Assessor, Deputy Collector, Municipal Accountant (Unit) and others working under the Garden Reach Unit have been enjoying equal status and pay scale with those of their counter parts of the C.M.C.. Mr. Basu submitted that in the circumstances it is quite unjustified that the Education Officer of the C.M.C. should get Rs. 660-1600/- and the Education Officer of Unit which is a post similar and identical to the post of Education Officer of the C.M.C. should receive the scale of Rs. 500-1360/-; Mr. Basu submitted that the action of the respondents are quite arbitrary, discriminatory , illegal and contrary to the Circular No.35 of 1985-1986 and stands totally against the principle of natural justice and equity.;