Full Judgment Text
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PETITIONER:
CALCUTTA MUNICIPAL CORPORATION & ANR.
Vs.
RESPONDENT:
SUJIT BARAN MUKHERJEE & ORS. ETC.
DATE OF JUDGMENT: 14/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
THE 14TH DAY OF FEBRUARY 1997
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice S. Saghir Ahmad
Tapas Ray, Sr.Adv., Gaurav Jain and Ms. Abha Jain, Advs.,
with him for the appellants.
B.K.Ghosh, Adv. (Ms.Sarla Chandra) Adv. (NP), For the
Respondents
O R D E R
The following Order of the Court was delivered :
Baran Mukherjee and others and one Shankar Bose, all
were initially appointed as Junior Copyists on May 12, 1969.
Their inter se seniority was determined on the basis of
their respective date of birth. Subsequently, Shankar Bose
was transferred to the Secretariat Department whereat he had
to discharge arduous duty for which he was paid special pay
of Rs. 50/- per month. Consequent upon revision of the pay
scales effected in 1981, the pay of the respondents and
others came to be revised. The special pay paid to shankar
Bose got merged with his pay in the revised pay scales.
Consequently, he started drawing higher pay than Tapan Paul,
Sujit Baran Mukherjee and others. Tapan Paul and others
filed writ petition in the High Court seeking upgradation of
their scale of pay so as to be on par with that of Shankar
Bose. The writ petition was allowed by the High Court and
the Corporation was directed to step up the pay of Tapan
Paul and others so as to be on par with that of Shankar
Bose. Subsequently, a petition for contempt was filed by
Tapan Paul and others for non-compliance of the directions
issued by the High Court. The appellants filed an
application for clarification. In the meanwhile, an order
had come to be passed at the instance of Sujit Barah
Mukherjee and others on April.
WITH
CIVIL APPEAL NOS. 1550-1552 OF 1997
(Arising out of SLP (C) Nos. 14836 & 14582/94)
O R D E R
Leave granted. We have heard learned counsel on both
sides.
These appeals by special leave arise from the impugned
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order, made on February 2, 1993 by the Calcutta High Court
followed by contempt petition, clarification petition etc.
of Calcutta High Court.
The admitted position is that the respondents, viz.,
Tapan Kumar Paul and others, Sujit 23, 1993; when it was
realised that Regulation 34-A of a the Culcutta Municipal
Corporation Regulations (for short, the ’Regulations’) did
not apply to stepping up of the scale of pay, the order
passed for stepping up of their scale of pay of T.K. Paul
and others was withdrawn which also came to be challenged.
The order dismissing the contempt petition was passed,
directions to keep that amount in account pending writ
petition filed by the Sujit Mukherjee and others were issued
and consequential application for clarification came to be
dismissed in the impugned orders. Thus, these appeals by
special leave.
It is not in dispute that Shankar Bose was given a
special pay; in other words, overtime pay for doing work
outside the normal duties at a sum of Rs. 50/- per month and
after the revision of the pay scales, the special pay of Rs.
50/- came to be merged in his pay. Nonetheless, it must be
treated to be a special pay given to him since he had the
onerous duty to be discharge outside the normal duty
assigned to the post. The question is: whether Tapan Paul,
Sujit Baran Mukherjee and others who came to be appointed on
the same day are entitled to have their pay scales stepped
up so as to be on par wit shankar Bose? It is contended for
the respondents that when such a relief was granted and was
allowed to become final, it would not be open to the
respondents to withdraw the same. We find no force in the
contention.
Retulation 34-A postulates thus:
"If an employee on his promotion to
a higher post draws pay at a higher
rate than his senior employee due
to fixation of his pay in the
higher post under the normal rules,
of due to revision of pay scales,
the pay of the employee senior to
him shall be fixed at the same
stage and from the same date his
junior draws the higher rate of pay
irrespective of by the senor
employee belong to the same cadre
and sem pay scale of the post in
which they have been promoted are
also identical.
The benefit of this Regulation
shall not be admissible in case
where junior employee exercise his
option to retain unrevised scale to
pay."
A reading thereof would clearly indicate that the
principal of stepping up of the pay would arise only when a
junior employee, on his promotion, is drawing higher pay
than his seniors; in that case, they would be entitled to
the stepping up the pay so as to be on par wit him on the
principle that the persons who are similarly situated and
are drawing the same scale of pay and pare doing the same
duty and being seniors to the persons drawing higher pay,
are entitled to have their pay stepped up but that principle
is inapplicable to the situation, as in the present case,
where a junior person on transfer to a different place is
being paid extra payment by way or special pay or overtime
pay, whatsoever the nomenclature be and could be treated to
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be a special pay since he has a discharge the duty outside
his normal duty or due to special circumstances. Such a
fortuitous circumstance would not be a ground for other
seniors to claim party of pay bay stepping up of their scale
of pay. If the connection is given acceptance, the extra
salary would become payble to persons who do not take pains
and do the normal work while staying in a convenient
post/place with indolence whras the person who undertakes
special responsibility or puts up hard work would be put on
par; and stepping up of pay would be a permium on laziness
and indolence. It should be deleterious to augmentation of
efficiency n service or dedication to duty. Under those
circumstances, we think that the statutory principle of
stepping up of the pay so as to be on par with junior would
be not on rational principal. when all of them discharge the
same duties and are under the same responsibility and not in
different circumstances and it the juniors draw higher pay
on promotion, the seniors who do not get the oportunity
would be entitled to parity of pay with their juniors.
Learned counsel for the respondents, however, contends
that withdrawal is without notice and , therefore, it is
violative of principle of natural justice. We find no force
in the abstract contention. It is not well settled legal
position and needs no reiteration. However, on the facts of
this case, we do not find any reason to set aside that order
for the reasons that they have not withdrawn any amount paid
to them pursuant to the legal order passed in favour of the
respondents. All that they have done is that they have
revised the pay scales only after realising the mistake.
It is next contended that the respondents are
discriminated since Sujit Baran Mukherjee and others are
entitled to get higher pay. In view of the principle stated
above, there is no question of any discrimination of others
since they are not entitled to they parity wit Shankar Bose.
Under those circumstances, the appeal are allowed. The
orders of the High Court are set aside. No costs.