Calcutta High Court (Appellete Side)(Jagadish Chandra Basu & Ors vs State Of West Bengal & Ors.) on 8 December, 2011Author:Ashim Kumar BanerjeeBench:Ashim Kumar Banerjee1




8.12.2011
sl.no.3
                      WPST 301 of 2010

        (Jagadish Chandra Basu & Ors. -vs- state of West Bengal & Ors.)


        Mr. Kashi Kanta Moitra
        Mr. Arup Kumar Lahiri
        Mr. Debasis Sur...for the petitioners

        Ms. Chaitali Bhattacharya ...for the respondentsThere was protracted litigation on the issue of appropriate pay

        fixation for the Fishery Extension Officers in view of amalgamation of

        posts. The issue was set at rest by this court in FMA 165 of 1992,

        when the Division Bench resolved the controversy by delivering a

        judgment and order dated February 27, 2000. The Division Bench

        observed as follows:"So the ratio emerges as a result of discussion that whenever

        such integration of the cadres takes place and the question arises

        about according seniority between those two merged cadres arises

        than the factors like the mode of recruitment, the higher responsibility

        discharged by the incumbents, their pay scales etc. should be kept in

        mind.    It is more than apparent that the Fishery Extension Officers

        who are discharging higher responsibilities getting higher pay scale

        cannot be made to be placed in a junior position than that of Assistant

        fishery Officer who carried a lower pay scale though their pay scale

        was subsequently also equated in 1971.         When the cadres were

        merged in 1983 they cannot claim seniority over the Fishery Extension

        Officers who had a longer period of service in higher pay scale over

        those employees who were appointed prior to 1971."2The State filed a Special Leave Petition, that was dismissed by

the Apex Court vide order dated July 17, 2000 appearing at page 60

of the paper book. Despite dismissal of the Special Leave Petition,

the State failed to comply with the direction of this court.       The

petitioners were compelled to initiate contempt proceeding. Before

the Contempt Court the contemnor being the Officers of the Fishery

Department, filed an affidavit appearing in pages 70 to 78 of the

paper book.     From the affidavit it appears that the Fishery

Department wanted to comply with the direction of this court. They

forwarded appropriate proposal for extension of the benefit to the

petitioners by creating eighty-seven supernumerary posts.          The

Finance Department however, did not agree with such suggestion

and turned down the proposal. Since there was no direct mandate,

the Contempt Court asked the authority to take final decision and

dispose of the contempt proceeding. The authority however, did not

extend the 'actual benefit' to the petitioners that resulted in another

set of litigation before the Tribunal. The Tribunal vide judgment and

order dated April 13, 2010 in OA 2281 of 2006 appearing at pages

90-95 of the paper book, dismissed the said application by observing

that the petitioners were not able to give a single instance that the

Fishery Extension Officers prior to October 1, 1971 had not been

made senior to the Assistant fishery Officers.      Promotion of the

erstwhile Assistant Fishery Officers to the post of District Fishery

Officers or Assistant Director of Fisheries prior to the date of the

judgment of the Hon'ble Court was held to be valid. The Tribunal

observed that there was no clarification made by the petitioners, as3to   why    creation   of   supernumerary   posts   was   necessary   to

accommodate them in the higher post.Being aggrieved, the petitioners approached us by filing the

instant application.We have heard Mr. Kashi Kanta Moitra, learned Senior

Counsel appearing for the petitioners and Ms. Chaitali Bhattacharya,

learned Counsel appearing for the State.Mr. Moitra has tried to contend that definite assertion on the

part of the Division Bench even at the stage of contempt would

obligate the State to extend the actual benefit to the petitioners. Mr.

Moitra has placed strenuous reliance on the observations of the

Division Bench, while disposing of the contempt proceeding to the

following extent:"Under these circumstances, the authorities concerned are

directed to expedite the matter so that the persons who have been

promoted in terms of the order of the court are given the actual benefit

thereof."Mr. Moitra contends that the decision of the State particularly

through the Finance Department was nothing but an attempt to

rendering the order of this court nugatory.Opposing the application, Ms. Chaitali Bhattacharya however,

contends that the earlier proceeding on the selfsame issue reached

finality at the Apex Court level.    There was no scope for further

litigation before the Tribunal and the Tribunal very rightly rejected

the same.     Ms. Bhattacharya has made her submission on being

instructed by the District Fishery Officer Sudhir Kumar Saha, who is

present in court.4We have considered the rival contentions.               In our view, the

Division Bench decision in the earlier litigation reached finality,

when the Apex Court dismissed the Special Leave Petition. Hence,

the State is bound to act upon the same. At the same time, we do

not find any direct mandate for giving appropriate promotion to the

petitioners, as contained in the said Division Bench order. In this

regard we may rely upon the affidavit of the contemnor, particularly

paragraph 6 thereof, wherein the contemnor stated as follows:"It is further stated herein that as the Commission refused to

accord concurrence, the matter was referred to the Finance (Audit)

Department,   Group-P     (Service)    with   the    request     to   create    87

superannumery posts of Assistant Director of Fisheries and 78

superannumery posts for District Fishery Officers for giving effect of

such   promotion   for   strict   compliance       but   the   Finance     (audit)

Department turned down the proposal for creation of superanumery

post as aforesaid vide their order bearing U/O No. 234 Gr-P (Service)

dated 17th January 2003 but the Finance Department only agreed to

release   pensionary     benefits     to   those    ad-hoc     promotees       who

retired/died taking their last pay of scale drawn had they been

promoted against such posts which was sought to be created as

superannumery posts. Accordingly necessary orders were passed to

that effect vide order No. 208-Fish dated 28th January 2003."From the said averments we find that the Fishery Department

was sympathetic to the petitioners and they referred the matter that

was turned down by the Finance Department.                        The Finance

Department did not agree for creation of supernumerary posts;

however, agreed to give notional benefit and in fact, granted notional5benefit to those similarly circumstanced employees, who joined prior

to October 1, 1971. We find no reason, why the present batch of

petitioners would not be extended identical benefit.Mr. Moitra on instruction contends that in those past cases

appropriate pay fixation was done to calculate the pensionary

benefit. Such process must be undertaken in the instant case.We    thus   observe    that   the   petitioners   being   similarly

circumstanced should be extended identical benefit, as their

predecessors got, having joined prior to October 1, 1971.          Those

employees retired and/or died on or before January 27, 2003, as we

find from paragraph 4(f) of the affidavit of the contemnor referred to

above.The controversy was pending for long. We would expect the

State to act at the earliest opportunity and extend the identical

benefit to the petitioners.We abundantly make it clear that the petitioners would be

entitled to notional benefit, which their predecessors got having

joined prior to October 1, 1971 and retired and/or died on or before

January 27, 2003. After calculation of such notional benefit, their

pension would be revised and the differential amount would be paid

to them at the earliest.We also direct the State to pay interest @ 9% per annum, in

case the aforesaid benefit is not extended to them within three

months from the date of communication of this order.With these directions and observations WPST 301 of 2010 is

disposed of.There would be, however no order as to costs.6Urgent Photostat certified copy of this order, if applied for, be

given to the parties on priority basis.(Ashim Kumar Banerjee,J.)



                          (Shukla Kabir (Sinha),J.)