Calcutta High CourtSwapan Kumar Sardar & Ors vs State Of West Bengal & Ors on 28 June, 2013Author:Sambuddha ChakrabartiBench:Sambuddha ChakrabartiIN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                                    ORIGINAL SIDE

Present:
The Hon'ble Justice Sambuddha Chakrabarti


                           W. P. No. 842 of 2011

                      Swapan Kumar Sardar & Ors.
                                 Versus
                       State of West Bengal & Ors.


For the petitioners         :       Sardar Amjad Ali, Sr. Advocate
                                    Mrs. Suchitra Roy, Advocate
                                    Mr. Masum Ali Sardar, Advocate

For the KMDA Authorities    :       Mr. Partha Sarathi Basu, Advocate
                                    Mr. Satyajit Talukdar, Advocate


Heard on                        :    29.01.2013, 19.02.2013 and 26.02.2013

Judgement on                    :    28.06.2013



The Court : The subject-matter of challenge in the present writ

petition is an order, dated January 11, 2011, passed by the

Principal Secretary, Finance Department, Government of West

Bengal in compliance of the orders passed by a learned single

judge of this court in two writ petitions.
      The     petitioners    are   all    employees    of   the   Kolkata

Metropolitan Development Authority (KMDA, for short).


     The petitioners have prayed for similar benefits of Modified

Career Advancement Scheme (Scheme, for short) which was

issued under the Government of West Bengal's Memo, dated

March 13, 2001, for the employees of the Government of West

Bengal. Such benefit has not been extended to the employees of

statutory bodies or corporations. By the order impugned the

Principal Secretary had rejected the prayer of the writ petitioners

for extension of the benefit of the said Scheme to them.


     The petitioners had earlier filed two writ petitions which

were disposed of by a learned single judge of this court by a

common judgement and order, dated February 24, 2010. The

learned single judge held that it was necessary to consider the

grievances    of   the     petitioners    afresh.    The   respondents,particularly the Principal Secretary, Finance Department and the

Secretary, Urban Development Department were directed to

consider the writ petitions as representations. His Lordship was

inter alia pleased to direct the respondents to take an
 appropriate decision after giving the petitioners on opportunity of

being heard within a period of three months.Pursuant to said direction the order impugned was passed

by the Principal Secretary, Finance Department.The petitioners have challenged the said order on various

grounds. According to them the learned single judge in the

earlier writ petitions had observed that the respondents

authorities failed to establish why the benefits of the Scheme

could not be given to the employees of the KMDA when KMDA

authorities had agreed to implement the Scheme out of their

funds.The further point of attack is that the earlier judgement

had considered the submissions of the parties that the benefit of

the Scheme introduced pursuant to the recommendation of the

Fourth   Pay   Commission     were   extended    by   the   finance

department; but no recommendation was made in respect of the

employees of the KMDA. It appears from the order impugned

that the respondents had granted the benefits of the Scheme to

the West Bengal Board of Secondary Education or the West
 Bengal Higher Secondary Council as a special case and since it

has been given to different statutory bodies the same benefit

should be extended to the petitioners as well.The contention of the respondents KMDA authorities is

that the Career Advancement Scheme (CAS, for short) was

allowed to the employees of the KMDA in the ratio of 10 years

and 20 years respectively upon the recommendation of the Third

Pay   Commission.      The   Fourth     Pay      Commission   had

recommended CAS benefits in the ratio of 8 years, 16 years and

25 years for the direct employees of the state government only.

But this was not recommended for the employees of the KMDA.According to the respondents the KMDA is under a legal

obligation underSection 139of the Town and Country (Planning

and Development) Act, 1979 (the Act, for short) to strictly adhere

to the directives of the state government inasmuch as unless the

state government directs the CAS benefits to be extended to the

employees of the KMDA, it could not on its own take any step.

Since the entire authority to make recommendation is in the

domain of the Pay Commission and since the Pay Commission
 has refused to grant the benefit to the employees of the KMDA

the respondents cannot grant it.In reply the petitioners have maintained that there were

several statutory authorities whose employees were enjoying the

benefit of the Scheme at par with the state government. Denying

the stand of the respondents authorities that in the absence of

any concurrence from the Fourth Pay Commission KMDA by

itself could not grant the benefit of the Scheme to its employees

the petitioners alleged that in the 117th Board Meeting of the

authority a resolution was adopted by the KMDA that financial

benefits would be given to their employees either with the

approval of the KMDA itself or by the approval of the state

government.The     order   impugned   merely   records   that   different

authorities have different rules. The government cannot bear the

burden of the additional expenditure and the petitioners' prayer

was, therefore, dismissed. Apart from this it is not clear from the

order impugned the specific ground on which it has been

dismissed.Mr. Amjad Ali, the learned Senior Counsel appearing for

the petitioners has challenged the stand of the respondents that

it cannot take shelter behindSection 139of the Act in view of

the fact that making a financial benefit does not require framing

of any regulation.The learned single judge of this court while disposing of the

earlier two writ petitions had clearly directed the authorities,

particularly the Principal Secretary to the Finance Department

and the Secretary, Urban Development Department, Government

of West Bengal to consider the writ petitions as representations

and to take appropriate decision in respect thereof after giving

the representatives of the writ petitioners an opportunity of being

heard in the light of the observations made in the said order. The

order impugned, however, was passed by the Finance Secretary

alone. It does not appear from the order impugned if the

Secretary, Urban Development Department had any role to play

at all. Thus the order was not passed according to the directives

given by this court. On this ground alone the order impugned is

not sustainable.It is found that the respondents' submissions centers

round the refusal of the Pay Commission to extend the benefit of

the Scheme to the employees of the KMDA and the responsibility

for the same has been placed at the doors of the employees of

the KMDA as their inability to convince the Pay Commission. In

support of their case the respondents have relied on the case of

Secretary to Government and Others -Vs.- C. Muthu, reported in

(2001) 10 SCC 545 for a proposition that in granting relief while

applying the principle of 'equal pay for equal work' the court or

tribunal should be very circumspect and until and unless it is

established that the two posts are almost similar in all aspects

the court or tribunal should not venture to grant the reliefs

sought for.But the court should not go into the question of pay

fixation. In the case of Dy. Director General of Geological Survey

of India and Another -Vs.- R. Yadaiah and Others, reported in

(2001) 10 SCC 563 the Supreme Court held that ordinarily

courts should not go into the question of fitment of officers in a

particular group and the matter should be left to the discretion

and expertise of special commissions like pay commission. This
 judgement was cited before the learned single bench also in

connection with the disposal of the earlier two writ petitions. The

court observed that undoubtedly the court has its inherent

limitations and Pay Commission is a specialized body and the

court cannot always be expected to have the wisdom to deal with

all the aspects relating to a market economy. That is why the

court had directed the matter to be decided by the two

secretaries of the two departments involved in the matter.In the case of S. C. Chandra and Others -Vs.- State of

Jharkhand and Others, reported in 2007(8) SCC 279 it has been

decided that the fixation of pay scale is a delicate mechanism

which   requires   various   considerations   including   financial

capacity, responsibility, educational qualifications, mode of

appointment etc. and it has a cascading effect. The respondents

have relied on this judgement also in support of their

contentions that even if the employees of two groups are doing

identical works they cannot be granted equal pay if there is no

complete and wholesale identity. For example, a daily rated

employee may be doing the same work as a regular employee yet

he cannot be granted the same pay scale. In Union of India and
 Others -Vs.- Hiranmoy Sen and Others, reported in 2008(1) SCC

630 the Supreme Court relying on the case of S. C. Chandra

(Supra) held that if the two posts have been carrying the same

pay scales merely because the scale of pay in respect of one post

has been increased by itself cannot result in the increase in the

pay scale of the other post to the same level.It is thus very clear that the court cannot take upon itself

the responsibility of extending the benefit of the Scheme to the

petitioners. The factors to be taken into consideration, as in the

case of pay fixation so also in deciding the question of extending

the benefit of the Scheme, are varied and complex and depend

upon a host of factors. About three decades ago the Supreme

Court in the case of Delhi Veterinary Association and Others -Vs.-

Union of India and Others, reported in AIR 1984 SC 1221,

approached the matter both from the employers' and employees'

points of view. With the change of categories the requisite factors

also change. In Marathwada Agricultural University and Others -

Vs.- Marathwada Krishi Vidyapith, MSKS and Others, reported in

(2007) 8 SCC 497, again the various factors to be taken into

consideration were indicated. There are so many factors like
 method of recruitment, the fitment of employees in a certain

cadre, avenues of promotion, horizental and relativities with

similar jobs, hierarchical arrangements, employers' capacity to

pay, etc. (Secretary, Finance Department and Others -Vs.- West

Bengal Registration Service Association and Others, reported in

AIR 1992 SC 1203). That is precisely why these are known as

executive actions.It has already been noted that the order impugned in the

writ petition cannot stand. And the court also cannot take upon

itself the task in hand.I set aside the order impugned in this writ petition. But in

view of what has been discussed above the matter is sent back to

The Principal Secretary, Department of Finance and the

Principal Secretary, Urban Development Department for a fresh

consideration of the petitioners' case. They are to treat this writ

petition as a representation and dispose of the same by a

reasoned order after giving the petitioners a fresh opportunity of

being heard within a period of six weeks from the date of the

communication of the order. The authorities shall communicate

the decision within a week thereafter.The writ petition is disposed of.There shall, however, no order as to costs.Urgent photostat certified copy of this order, if applied for,

be supplied to the parties subject to compliance with all requisite

formalities.(SAMBUDDHA CHAKRABARTI, J.)




S. Banerjee