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Calcutta Metropolitan Development Authority Vs. Shri Dilip Kumar Banerjee & Ors [1997] INSC 474 (29 April 1997)

S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JU D G ME N T M. JAGANNADHA RAO, J.

This appeal has beenpreferred by the Calcutta Metropolitan Development Authority (hereinafter called the `CMDA' ) against the judgmentof the DivisionBench of the Calcutta High Court in AppealFrom Original Order No.1164 of 1988 dated 22.12.1992. Dismissing the appeal the learned Judges confirmed the judgmentof thelearnedsingle Judge dated 13th March, 1987 in Civil Order No, 466(w) of 1985.

The learned single Judge cameto theconclusion that the writ petitioners who were working as Programme Officers under the CMDA and weregiven the scaleof Rs. 470-1230were entitled to the scaleof Rs.660-1600. The said scale was directed to begiven with effect fromthe respective dates of promotion of the writ petitioners. It was also heldthat they would be entitled to 50% of the arrears onthe basis of such fixation.In this appealfiled by the CMDA, thesaid view of the Calcutta High Court is challenged on the ground that the Programme Officers workingunder the CMDAwere permitted to draw the scale ofa Section officer namely Rs. 470-1230 and there was no resolution ofthe CMDA permitting them todraw the scale of Rs. 660-1600.It is also contended for the CMDA that thelearned SingleJudge as well as the Division Bench were notright in holding that the concession of thelearnedcounsel for the CMDA was to the effectthat the Writ petitioners were entitled to the scale of Rs.660- 1600.

Learned counsel for the appellant-CMDA referred to us, among others, the following facts and resolutions of the CMDA:

The CMDAwas created by the CalcuttaMetropolitan Development Authority Act, 1970 which Act was replacedby a subsequent, Act of 1972 (Act 12 of 1972). The CMDA provides for the establishment of the statutory authority for the formulation and execution of plans for development of the Calcutta Metropolitan area,for the co-ordination and supervision ofthe execution of such plans and for matters connected therewith or incidental thereto. The terms & conditions of the service of the writ petitioners under the CMDA are governed be the CMDA (Service) Regulations1975 framed by the CMDA. The writ petitioners wereappointed as Samaj Sevaks/Sevikas and Junior SamajSevaks/Sevikas.When the writ petition was filed the petitioners were working as programme officers. Inthe writ petition, they claimed the scale of Rs. 660-1600 instead of Rs. 470-1230 which theCMDA gave them. We shall refer to the relevant resolutions of the CMDA chronologically in thisbehalf. The agenda for the 74th meeting ofthe CMDA proposed the creationof posts for implementation of the S.S.B. Programme under C.U.D.P.-III with World Bank Aid. For theimplementation of thesaid programme, as suggested by the World Bank, itwas proposed to Sanction new postswith new scales of Pay. The entire area of operation wasto be groupedinto six zones . The staffing pattern of theZonal officer was to comprise of six zonal officerswith the scaleof payof Rs. 660-1600, two programme officers with scale of SectionOfficer, 16 planning assistants/programme assistants withscale of pay of Rs.425-1050. so far as zonal officers were concerned, they were to befilled,as the posts were new, on deputation from Junior WBCS Officers. Sofar as the two posts of programme officers wereconcerned, theywere tobe filled by promotion of the existing planning assistants serving in the unit. It may here be noted that the revised scale of pay of SectionOfficers was Rs. 470-1230. On the basis of thesaid agenda,the 74th meeting of the CMDAtook place on15th December, 1982 and the resolution passed at thesaid meeting disclosed in para-22 that theauthority had approved the proposal for creation of posts for implementation of the S.S.E Programme Under CUDP-III subject to the amendment that the postsin thesubordinate offices (Zonal officers) would be filled up only after the scheme IDA-II was negotiated successfully withthe World Bank. Initially Sanction of two postsof programme officers was granted by the order dated 15th January,1983 byCMDA. The agenda for the 76th meeting of the CMDA was then prepared and it shows that thenumberof posts of programme officerswere increased from 2 to 23 and the scale ofpay wasshown as Rs.

470-1230 whilethe scale of pay of the six zonal officers was shown as Rs. 660-1000. The supplementary agenda consisted of four Annexures Ito IV. Annexure-I dealtwith the set up, Annexure-II with the scaleof pay,Annexure-III with the sanctioned strength of the staff proposed to be sanctioned while Annexure-IV contained with the financial statement. Theagenda also stated that the approval of the CMDA to the administrative set up and the other annexures pertaining thereto wassolicited. The76th meeting of the board of CMDAtook place on 23rd, March, 1983. Para 7.1 of the resolution at their meeting stated that theCMDA approved the administrative set up proposed in the agenda with details noted in AnnexuresI to IVto the supplementary agenda and that the authority had decided topay thepay- scales of the posts only after the Finance Secretary had considered them. Separate approval was given to the supplementary agenda at this 76th meeting on 23.3.1983.

After referring to the AnnexuresI to IV of the supplementary agenda, the resolution mentioned that there were 23posts of programme officers in the scale of Rs.470- 1230. Pursuantto the resolution No.7 on supplementary agenda,the CMDA stated on 7.4.84 that the said resolution was being sentto Finance Secretary for obtaining his views on thescales of pay proposed for the two categories of posts. The financial implications in respect of the 23 posts of programme officers inthe scale of pay of Rs.470- 1230 were also communicated. On 25.5.1983the Finance Department accepted the abovepatternof pay-scales except in regard to the special pay recommended by the CMDA to the officers at various levels. As regards the pay-scales it was stated that theFinanceDepartment had no objection inasmuch as they were in accordance with the pattern of pay-scales prescribed in the West BengalServices (Revision of Pay & Allowances) Rules, 1981(hereinafter called theROPA Rules).

Thereafter, theCMDA passed final orders on 26th March,1984 for creation of 21 posts of programme officersin the scale of Rs. 470-1230.

Itis thecase of the writ petitionersin thewrit petition that they are entitled to the pay scales of Rs. 660-1600. Theyrely upon an earlier resolution of theCMDA dated 13.12.1981 by which theCMDA acceptedin principle the "adoption"of the West Bengal Services (Revision of pay & Allowances) Rules, 1981 (the ROPA Rules). The above resolution of the CMDA dated 13.12.1981 requires that the pay-scales of CMDA beaccordingly revised in line with the West Bengal services (Revision of pay& Allowances) Rules, 1981, applicable to West Bengal government employees and also that the revisedpay-scales should be deemed tohave come into force from 1.4.1981. Relying on thesaid resolution of the CMDA dated13.12.1981 the petitioners contendthat the pay scale of programme officers in the West Bengal GovernmentService (whichwas governed by the said Ropa Rules) isRs. 660-1600 and, therefore, the petitioners who are also programme officers inthe CMDA are entitled to the same pay scales of Rs. 660-1600. On the other hand, itis contended for the appellant-CMDA that the posts of programme officers inthe State government are not comparable to the corresponding posts of programme officers in the CMDA and, therefore, thepetitioners arenot entitled to theScale of Rs. 660-1600. The learned single Judge, however, came to the conclusion that in view of the budget estimate appended to the supplementary agendafor the76th meetingof theCMDA wherein the average monthly pay was taken as Rs. 1931 for programme officers,it must be presumed that the CMDA accepted the scale ofRs. 660-1600 inasmuch as the same average of Rs. 1931 per month was computed forthe Zonal officers whose pay-scale was admittedly Rs.660-1600. Thelearned Single Judgealso referred to an admission made by the learned counsel for the CMDA Mr. Bagchibefore him to the following effect:

"It is contended by Mr. Bagchi that the Recruitment Rules havenot been framed and accordingly the programme officersare notentitled tothe scale even if such so was approved. It is howeveradmitted that the pay scale of Rs.660-1600 was adopted by the CMDAbut the approval of the state government was not obtained." The learned singleJudge then referred to a note in the office file which raised an objection to the grant of scale of Rs. 660-1600to the programme officers of the CMDA on the ground that ifsuch ascale was given to the programme officers, thentheir scale would be equivalentto the scale of their controlling officers, namely, the Zonal officers.

The learned single Judge thenproceeded on the basisthat CMDA had admittedly approved the scale of Rs.660-1600 for programme officers in the CMDAand that the office note put up thereafter could not affect the position. learned Judge noted that thecorresponding posts of programme officers in government wereentitled to thescale of Rs. 660-1600 as per the ROPA Rules,1981 and that in view of the CMDA resolution dated 13.12.1981 already referred to wherein theCMDA adopted the scales of the corresponding posts in the government, theprogramme officers of the CMDA were entitled to thescale of Rs. 660-1600. The learned single Judge, therefore, allowed theWrit petition and granted 50% of the back wages w.e.f. the respective dates of theirpromotion.

The appeal preferred by the CMDA beforethe Division Bench, againstthe above saidjudgment, was dismissed. The learnedJudgesreferred again to the admission of the counselbefore them to the following effect:

"It appears that CMDA approved the pay scale of Rs. 660-1600. for the programme officersand prepared its supplementary budget. Accordingly, the petitioners claim that since CMDA has approvedthe scale, their pay scaleshould be Rs. 660-1600.

This ought to have been granted to them. TheCMDA has submitted that this suggested scale was to be approved by theStatesof West Bengal. Since that has not been done , the scale cannot be implemented or that the petitioners cannot claim the same scale." The learned Judges then stated that they hadgone throughthe material on record and had found that inasmuch as theCMDA itself had proposed the pay scale of Rs.660- 1600 to programme officers, the learned single Judge was right in directing the CMDA to grantthe same. Theyheld that there wasno question ofapproval of thescale by the State by Government because the state was also a party to the proceedings at thevariousmeetings of theCMDA and the state had not disclosed why such a pay scale should not be granted. In theresult the appeal was dismissed.

Inthis appeal, it is contended by the learned counsel for the appellant that the assumption made by the learned Single Judge as well as by theDivision Bench that theCMDA approved the scale of Rs. 660-1600 for programme officers of the CMDA was factuallyincorrect and that in fact there was no such resolution. He, further contended that if infact any such concession wasmade bythe counsel forthe CMDA who appeared before the learned Single Judge or by the other counselwho appeared before the Division Bench, then the said concession couldnot be relied upon by thewrit petitioners unless there was proof that there was in fact a resolutions tothat effect. Learned counsel referred to the variousresolutions ofthe CMDA made from time to time and pointedout that the CMDA merely approved the scaleof a Section Officer i.e.Rs. 470-1230 to be paid to the programme officers and that there was no resolution approving the pay scale of Rs.660-1600. It may be that the scale of Rs. 660-1600was being paid to programme officers workingin thegovernment because they are governed by the ROPA Rules but counsel contended that the duties and functions of the programme officers in CMDAare nowhere comparable to the duties and functions of the programme officers working in government service. It was pointed out that in the relevant AnnexuresI to IVto the supplementary agenda of the 76th meeting held on 23rd March, 1983 by the CMDA, the scale that was approved inAnnexure-II was the scale of Rs. 470-1230but that whilethe budget estimates were being preparedas per Annexure-IV of thesaid supplementary agenda, the multiplicand showing the average monthlypay ofprogramme officers waswronglycomputed Rs.

1931 which was, in fact, the multiplicand applicable to the scale of Zonal officers of Rs. 660-1600. The relevant multiplicand applicable for the scaleof Rs.470-1230 was far less than Rs. 1931per month. It was argued that basing on a mistake in the computation of the budget as shown in Annexure-IV tothe agenda, the writ petitioners could not claim the scale of Rs.660-1600. One has to goby Annexure- II which dealtwith the Scales of pay as approved by the CMDA and said Annexure referredto the pay scale of Rs.470- 1230 asapplicable to programmeofficers.

Onthe other hand,learnedcounselfor respondents(the writ petitioners ) contended that when the learned single Judge as well as theDivision Bench recorded that the counselfor the CMDAhad made a concession that the scale of Rs.660-1600 was approved for programme officers, it was not open to theCMDA to file an appealand contest thesaid admission recorded in the judgments. The proper remedy for the appellant was to file a review application before the learnedSingleJudge or the Division Bench inasmuch asthis is a dispute as to what bad happened in the court. The proper remedy was not to file an appealin thiscourt but to file a review application in the High Court. Learned counsel for the respondent also submitted thatthe budget estimates adopted an average of Rs.1931 per month which was applicable to the scale of Rs.660-1600 and when the budget estimate was so prepared and submittedby the CMDA, itmust be taken that the CMDA had approved the scale of Rs.660- 1600 for programme officers. He alsosubmitted thatCMDA being an autonomous statutory authority, there was no question of its seeking the approval ofthe Finance department of the State Government.The money for the projectwas being given by the World Bank andthere was no need toseek governmentsanction. He also submitted that the FinanceSecretary was presentat themeetingof the CMDA.

Learnedcounsel for the respondents-writ petitionersalso relied upon the ROPA Rules and the resolution of theCMDA dated 13.12.1981 and contended that once theCMDA had, by virtue of a resolution, decided to adopt the corresponding scales available for similar posts in the State government, then the scaleof paymentioned in the said ROPA Rules for programme officers namely Rs.660-1600 was automatically attracted to the posts of programme officers inthe CMDA.

Learned counsel for the appellant as well as for the respondents submitted before us, on8.4.1997, that the observations of the learned Single Judge and Division Bench recording an admissionor concession of the counsel for the CMDA may be setaside and that the matter may be remitted to the Division bench ofthe Calcutta High Court for a fresh disposal of the issues involved in the case. In view of this submission made by the counsel on both sides, it has not become necessary for this court to go into the merits of the case. We have already extracted therelevant portions of the admission or concession made by the counsel for the CMDA before the learned singleJudge and the Division Bench of the High Court. We, therefore, set aside theobservations of thelearnedSingle Judge aswell asthe Division Bench, in regard to the said admission orconcession and the consequential inferences drawntherefrom which resulted in the grant of the scale of Rs. 660-1600 to these programme officers. The matter is remitted to the Division Bench of the Calcutta High Court for disposalon the merits of the disputeon thebasis that there is no concession of the counselfor the CMDA in regard to the existence of an approval by the CMDA of thescale of Rs.660-1600 to programme officers. Pending disposal of the matter before the Division Bench, there shall be stay of grant of the government scale of pay to programme officersin the CMDA.

Appeal allowed accordingly, as stated above.

Inview of the fact that the dispute is an old one, it would be appropriate if the appeal isdisposed of expeditiously by the Division Bench, preferably withinfour months.We should notbe understood as having expressed anything on the merits of thedisputebetweenthe parties.

There shall be no orderas to costs.

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