In WPA 9168 OF 2021- CALC HC- Calcutta High Court allows higher pay scale & differential retrial benefits to Accountant appointed in school for handicapped in 1999 after his retirement, vis-a-vis equality clause of Article 14 since case of parity in pay scale was established
Justice Rabindranath Samanta [06-06-2023]

Read Order: Promit Kumar Choudhury v. State of West Bengal

Simran Singh

New Delhi, June 8, 2023- The Calcutta High Court has allowed the writ petition of an accountant in The Calcutta Deaf and Dumb School since 18-01-1999 who had sought higher pay scale which was rejected by the Director of Mass Education Extension, West Bengal (Director of MEE). The Bench set aside the impugned order passed by the Director of MEE and directed to re-fix the scale of pay of the petitioner at Rs. 1260-2610/- (unrevised) with effect from the date of his joining on 18-01-1999 and further re-fix his scale of pay at Rs. 4000-8850/- under West Bengal Services (Revision of Pay and Allowance) Rules, 1998[1]  (WBS-ROPA Rules) ROPA, within six (06) weeks from the date. After re-fixation of the scales of pay, the respondents were further directed to release the arrear pay to the petitioner, commensurate with his pay on re-fixation of the scales of pay with effect from 03.02.2017 also within six (06) weeks.

The Single-Judge Bench of Justice Rabindranath Samanta added that since the petitioner had retired from service, the respondents would issue revised pension payment order to him commensurate with his aforesaid re-fixed scale of pay immediately after re-fixation of his scale of pay and pay the differential retrial benefits to the petitioner on modified or revised Pension Payment Order (P.P.O) within (4) weeks from the date of issue of such P.P.O.

In the matter at hand, the petitioner had filed a representation before the Director of MEE seeking the scale of pay of Rs. 1260-2610/- (unrevised) corresponding to revised scale of pay of Rs. 4000-8850/-. Upon not receiving response to the representation made by him, he filed a writ petition which was disposed of by this Court directing the Director of MEE to decide his representation by a reasoned order, but the same was rejected by an order dated 27-02-2021 communicated vide memo dated 16-03-2021 without any reasonable classification.

The Petitioner was an accountant in ‘The Calcutta Deaf and Dumb School’ since 18-01-1999, however long after his his appointment, the petitioner came to know that in other similarly sponsored institutions under the Mass Education Extension Directorate, Government of West Bengal, the  incumbents holding the post of Accountants were fetching higher scale of pay of Rs. 4000-8850/-.

It was averred by the petitioner that the Directorate of MEE had made recommendation to the Department of Mass Education, Government of West Bengal that the incumbents holding the post of Head Clerk- cum-Cashier, Head Clerk-cum-Accountant in the sponsored handicapped institutions should be granted the scale of pay of Rs. 4000-8850/-. vide an office note dated 23-07-2001 and 13-04-2004 and vide memo dated 06-09-2005.

The Bench stated that the the petitioner had unequivocally showed and established that the post of Accountant held by him had the similarity or identity with the posts as above of the Sponsored Handicapped Educational Institutions under the control of the Directorate of MEE as well as the Mass Education Department, Government of West Bengal.

The Bench stated that the petitioner stood on the same footing as other accountants of Handicapped schools who were allowed a higher pay scale after succeeding in the petitions filed by them in the High Court. Thus, relying upon a catena of cases wherein it was held that once case for parity in pay scale was established, based on constitutional principles emanating from the equality clause incorporated in Article 14 of the Constitution of India, the decision of the State Government as reflected in the said memorandum dated 30-03-1999 could not survive and would amount to perpetuating an unconstitutional act. Thus, in such a scenario the reason assigned in the impugned order by the Director of MEE that he was not authorised to pass any order allowing higher scale of pay to the petitioner was not acceptable since such reasons affront the doctrine of equality under Article 14 of the Constitution.

In view thereof, the impugned order passed by the the Director of MEE communicated vide memo dated 16-03-2021 was vitiated with illegality and the order was liable to be set aside and the petitioner was entitled to get pay as per the pay scale of Rs. 1260-2610/- (unrevised) instead of the scale of Pay of Rs.1040 -1920/-. After the WBS-ROPA Rules came into force, he was entitled to get his pay re-fixed at the scale of pay of Rs. 4000-8850/-.

The Bench while dealing with the question as to recovery of arrear pay, the Supreme Court in the case of Union of India v. Tarsem Singh had held that insofar as the consequential relief of recovery of arrears for a past period was concerned, the principles relating to recurring/successive wrongs would apply. As a consequence, the High Courts would restrict the consequential relief relating to arrears normally to a period of 3 years prior to the date of filing of the writ petition. The petitioner was entitled to get arrear pay commensurate with his pay on re-fixation of pay with effect from 03.02.2020.