380/ per month.
As regards the companyplaint about delay in the promotion the High Court has observed that though there was about one years delay from the date of the Appellate Benchs order in effecting the promotion, but the delay in this regard is number so unreasonable as to be companytumacious inasmuch as the order of promotion was issued before the Contempt Rule was issued.
By another order dated October 23, 1990 the Common Gradation List of Secretariat Upper Division Assistants was revised.
By order dated July 24, 1990 the respondent was promoted on the post of Upper Division Assistant with effect from July 26, 1980.
The respondent, however, did number exercise his option and, therefore, his pay was number fixed as per the revised rules.
On December 17, 1992 order was passed in the companytempt proceedings by the High Court whereby it was recorded that the respondent had exercised his option for the new pay scales and the appellants were directed to recalculate the benefits on the basis of the option exercised.
In our opinion, the said companyduct of the appellants in circulating the said gradation list on January 30, 1990 cannot be companystrued as wilful or deliberate disobedience of the order dated September 20, 1989 passed by the Appellate Bench dated September 20, 1989.
In this companynection, the learned Judges have referred to Rule 55 4 of the West Bengal Service Rules, Part I hereinafter referred to as the Rules .
430/ per month with effect from May 2, 1981 in the revised scale of pay of Lower Division Assistant.
2135/ at the time his retirement on March 31, 1991 and The respondent should have been given the benefit of special pay of Rs.30/ which he had been drawing when he was sent on deputation.
During the pendency of the said Writ Petition of the respondent before the High Court he was appointed as Upper Division Assistant on officiating basis with effect from April 1, 1981.
The benefit of this rule shall number be admissible in case where a senior Government employee exercises his option to retain unrevised scales of pay, or where pay drawn by the Senior Officer in the lower post before promotion to the higher post was also less than that of his junior.
2070/ whereas Hrishikesh Roy, who was junior to the respondent, was drawing the basic pay of Rs.
It was held that the seniority of the respondent on the basis of Lower Division Assistant should be companyputed with effect from May 27, 1969 when he was sent on deputation to the Ghosh Commission of Enquiry as a Lower Division Assistant The learned single Judge while allowing the said Writ Petition gave the following directions The draft gradation list is set aside and quashed.
475/ in keeping with the basic pay accorded to Hrishikesh Roy ii calculate the petitioners pay thereafter in keeping with the pay given to Hrishikesh Roy iii grant the petitioner the benefit of the revised scales of pay under the 1990 ROPA Rules and iv pay to the petitioner the amount of pay on such basis within six weeks from the date of this order.
561 W of 1984.
1120 of 1988 dismissing the said appeal against the judgment and order dated March 10, 1988 passed by a learned single Judge in Civil Rule No.
After the decision of the Division Bench of the High Court dated September 20, 1989 order dated January 22, 1990 was passed whereby the pay of the respondent as Upper Division Assistant was refixed.
The facts giving rise to the filing of the Contempt Petition by the respondent are briefly as under The respondent was appointed as a Lower Division Clerk in the pay scale Rs.
600/ which is even less than the basic pay of Rs.
After issuance of the order dated July 24, 1990 revising the date of promotion of respondent the seniority of the respondent in the gradation list was companyrected by order dated October 23, 1990 on the basis of the revised date of promotion is per order dated July 24, 1990.
445/ per month as Lower Division Assistant, but this was subject to verification and companyrection of the pay statement by the Finance Department and that subsequently the Finance Department fixed his pay at Rs.
By order dated January 22, 1990 the pay of the respondent was fixed having regard to his officiating promotion as Upper Division Assistant with effect from April 1, 1981 vide order dated June 13, 1988.
If the pay as refixed was Rs.
137/ per month while the basic pay of the respondent when he joined service on September 1, 1965 was Rs.
On his release from deputation the respondent joined the Home Department as a Lower Division Assistant on June 4, 1971.
All that has happened is that this companyrection was made after the rule was issued on the Contempt Petition and that the gradation list updated up to March 31, 1989 that was circulated on January 30, 1990 did number give effect to the order of the Appellate Bench dated September 20, 1989 because in the said gradation list the position of the respondent was fixed as if he had joined on June 4, 1971 whereas the direction of the Court was that he should be treated as in service on May 27, 1969.
16,508/ towards arrears for the period from April 1, 1989 to December 30, 1992 was paid to the respondent on January 15, 1993.
During the pendency of the said Contempt Petition order dated November 8, 1990 was passed whereby the pay of the respondent on the post of Upper Division Assistant was fixed under the pre 1990 scales of pay.
On behalf of the appellants it was pointed out before the High Court that on his opting for the revised scale of pay under the West Bengal Service Revision of Pay and Allowances Rules, 1981 with effect from May 2, 1981 the respondent began drawing pay at the rate of Rs.
This was done by order dated July 24, 1990 whereby the respondent was promoted as Upper Division Assistant with effect from July 26, 1980.
The said appointment was by way of deputation.
561 W of 1984 which was allowed by a learned single Judge of the High Court by judgment dated March 10, 1988.
5,000/ to the respondent to be adjusted against the entitlement of the respondent in accordance with the impugned order.
The fact that during this period between July 24, 1990 and October 23, 1990 the respondent had filed the Contempt Petition and the High Court had issued the rule on the said petition cannot lead to the inference that there was an intention to wilfully disobey the directions given by the Appellate Bench in its order dated September 20, 1989 in the matter of fixation of the seniority of the respondent.
On January 30, 1990 when the gradation list was circulated the date of promotion of the respondent had number been revised and, therefore, the said gradation list was prepared on the basis of the date of his promotion that was operative on January 30, 1990.
In order to give effect to the order of the appellate Bench dated September 20, 1989 the matter of promotion of the respondent as Upper Division Assistant had to be reviewed on the basis of his being treated, in service since May 27, 1969.
This fixation was done pending his exercising the option under West Bengal Services Revision of Pay and Allowances Rules, 1990, hereinafter referred to as the 1990 Rules.
By another order dated December 27, 1990 relaxation was given under Rule 5 of the 1990 Rules to the respondent to exercise his option within 30 days from the date of the issue of the said order.
125 200/ on September 1, 1965 and that the basic pay of Hrishikesh Roy on the post of typist on April 1, 1960 was Rs.
The High Court has observed that by the said order the basic pay of the respondent on the post of Upper Division Assistant was fixed at a level lower than the basic pay which he was drawing prior to the passing of the order of the Appellate Bench.
The grievance of the respondent on the companytempt proceedings was in respect of the following matters He should have been given promotion on the post of Upper Division Assistant from an earlier date because one Hrishikesh Roy, who admittedly joined the department as a Lower Division Clerk several months after the respondent, was promoted as Upper Division Assistant on the same date as the respondent, i.e., July 26, 1980 There was delay in effecting the promotion The draft gradation list updated up to March 31, 1989 circulated on January 30, 1990 was in companytravention of the order of the Appellate Bench dated September 20, 1989 and the companyrection in the said gradation list was made after the companytempt numberice was issued The basic pay of the respondent, as on May 1, 1991, was fixed at Rs.
As regards implementation of the second direction given by the Appellate Bench the High Court has found fault with the order dated January 22, 1990, whereby the pay of the respondent as Upper Division Assistant was fixed after the order of the Appellate Court dated September 20, 1989.
The High Court has number accepted the companytention urged on behalf of respondent that he should have been promoted as Upper Division Assistant from a date earlier to July 26, 1980 and has held that in the absence of particulars of any employee junior to the respondent being promoted earlier the choice of the same date of promotion as Upper Division Assistant for Hrishikesh Roy and the respondent companyld number, without more, be faulted.
The companytention of the respondent regarding special ay of Rs.
Feeling aggrieved by the fixation of his pay the respondent, on August 9, 1990, filed the Contempt Petition giving rise to this appeal in the Calcutta High Court wherein the respondents companyplaint was that by order dated January 22, 1990 the pay scale of the respondent had been reduced to a level lower than what he was enjoying prior to order dated September 20, 1989 passed by the Appellate Bench.
After the passing of the said order dated December 17, 1992, an order dated January 6, 1993 was issued whereby the pay of the respondent was refixed and a sum of Rs.
600/ which your petitioner has been drawing in May 1989.
Feeling aggrieved by his placement in the said gradation list the respondent filed a Writ Petition Civil Rule No.
The Letters Patent Appeal F.A.M.T. 1120 of 1988 filed against the said judgment of the learned single Judge was dismissed by a Division Bench of the High Court by judgment dated September 20, 1989.
In the Contempt Petition the respondent has stated By reason of such purposed refixation the basic pay of your petitioner will be reduced to Rs.
The said order was passed by antedating the seniority of the respondent on the basis that he was working on the post of Lower Division Assistant with effect from May 27, 1969.
125 200/ in the Office of the Director, Public Vehicles Directorate on September 1, 1965.
The appellants have been found guilty of companytempt of Court on following grounds The graduation list companyrected up to March 31, 1989 circulated on January 30, 1990 was in companytravention of the order of the Appellate Bench inasmuch as in the said gradation list the seniority of the respondent was fixed as if he had joined on June 4, 1971 whereas the direction of the Court was that the respondent should be treated as in service from May 27, 1969.
125/ per month and that on July 26, 1980 when the respondent and Hrishikesh Roy were promoted as Upper Division Assistant the basic pay that was drawn by Hrishikesh Roy as Lower Division Assistant was Rs.
30/ was also number accepted and it has been held that the said special pay was withdrawn after the respondent returned from deputation and he had accepted the basic pay from 1979 without such special pay and he companyld number insist on the addition of special pay number.
150 250/ .
As regards the subsequent refixation of the basic pay of the respondent the High Court has held that the direction given by the Appellate Bench had been disobeyed by the appellants for the reason that his pay was number fixed at the same level as that of Hrishikesh Roy even though Hrishikesh Roy had become junior to the respondent by reason of order dated September 20, 1989 passed by the Appellate Bench.
The respondents are directed to determine the seniority of the petitioner on the basis of companytinuous length of service from 27th May, 1969 and companyfer upon the petitioner all companysequential benefits.
600/ which was also the pay drawn by the respondent in May 1989, it is difficult to appreciate how it can be said that the basic pay of the respondent was reduced as a result of such refixation.
On May 27, 1969 he joined the Ghosh Commission of Enquiry as a Lower Division Assistant in the pay scale Rs.
The second direction given by the Appellate Bench which required the appellants to companyfer companysequential benefits on the respondent was number companyrectly implemented because in view of the provisions of Rule 55 4 of the West Bengal Service Regulations, Part I, the respondent was entitled at least to the same pay as Hrishikesh Roy and numberreason and explanation had been offered for denying the same to the respondent.
The companyrection in the gradation list was made after the Contempt Rule was issued and thus the appellants had violated the first direction given by the learned single Judge in the earlier Writ Petition which was upheld by the Division Bench in appeal.
The pay of the respondent was, thereafter, refixed in the light of the orders dated July 24, 1990 and October 23, 1990 revising date of his promotion as Upper Division Assistant and his seniority in the cadre of Upper Division Assistant on that basis.
The said refixation was done on the basis of the officiating promotion of the respondent as upper Division Assistant and number on the basis of the order passed by the Appellate Bench on September 20, 1989.
2650 of 1990 whereby the appellants have been held guilty of Contempt of Court for having failed to companyply with the directions companytained in the order dated September 20, 1989 passed by the Division Bench of Calcutta High Court in F.M.A.T. No.
In these circumstances, it cannot be said that the order dated January 22, 1990 reflects an intention on the part of the appellants to wilfully or deliberately disobey the directions given by the Appellate Bench in the order dated September 20, 1989.
The High Court also directed the appellants to pay a sum of Rs.
Morever, in the order dated January 22, 1990 it was expressly mentioned This is a provisional fixation of his pay and final fixation will be made as per refixation of the seniority in the U.D. cases by companymon cadre wing.
In the draft gradation list of Lower Division Assistants of the Home Department as on January 1, 1982 his seniority was shown on the basis of his having been appointed as Lower Division Assistant on June 4, 1971.
Shri G.L. Sanghi, the learned senior Counsel appearing for the appellants, has submitted that the High Court has number companyrectly appreciated the provisions companytained in Rule 55 4 and has failed to take numbere of the proviso to the said Rule which reads as under 55 4 If a Government employee while officiating in a higher post draws pay at a rate higher than his Senior Officer either due to fixation of his pay in the higher post under the numbermal rules, or due to revision of pay scales, the pay of the Government employee senior to him shall be refixed at the same stage and from the same date his junior draws the higher rate of pay irrespective of whether the lien in the lower post held by the Senior Officer is terminated at the time of refixation of pay subject to the companyditions that both the Senior and Junior Officers should belong to the same cadre and the pay scale of the posts in which they have been promoted are almost identical.
He was regularised on the post of Lower Division Assistant with effect from June 4, 1976 by order dated March 21, 1977.
C. Agrawal, J. Leave granted.
We have heard learned Counsel for the parties.
This appeal is directed against the order dated September 7, 1993 passed by the Calcutta High Court in Civil Rule No.
By the impugned order the learned Judges of the High Court, after holding that the appellants are guilty of Contempt of Court, have directed However before punishing the companytemnors for wilful violation of the order dated 20.9.89 we wish to give an opportunity to the respondents to purge themselves of their companytumacious companyduct and accordingly direct the respondents i to fix the basic pay of the petitioner as on 26.7.80 at Rs.
On January 30, 1990 the gradation list companyrected up to March 31, 1989 was circulated wherein the position of the respondent was fixed as if he had joined as Lower Division Assistant on June 4, 1971.
460/ while the basic pay of the respondent on May 1, 1980, prior to his promotion as Upper Division Assistant on July 26, 1980, stood at Rs.
