Municipal Corporation & ANR Vs. Sujit Baran Mukherjee & Ors  INSC
168 (14 February 1997)
RAMASWAMY, S. SAGHIR AHMAD
14TH DAY OF FEBRUARY 1997 Present:
Mr. Justice K. Ramaswamy Hon'ble Mr. Justice S. Saghir Ahmad Tapas Ray, Sr.Adv.,
Gaurav Jain and Ms. Abha Jain, Advs., with him for the appellants.B.K.Ghosh,
Adv. (Ms.Sarla Chandra) Adv. (NP), For the Respondents
O R D E
Order of the Court was delivered :Baran Mukherjee
and others and one Shankar Bose, all were initially appointed as Junior
Copyists on May 12,
inter se seniority was determined on the basis of their respective date of
birth. Subsequently, Shankar Bose was transferred to the Secretariat Department
whereat he had to discharge arduous duty for which he was paid special pay of Rs.
50/- per month. Consequent upon revision of the pay scales effected in 1981,
the pay of the respondents and others came to be revised. The special pay paid
to shankar Bose got merged with his pay in the revised pay scales.
he started drawing higher pay than Tapan Paul, Sujit Baran Mukherjee and
others. Tapan Paul and others filed writ petition in the High Court seeking upgradation
of their scale of pay so as to be on par with that of Shankar Bose. The writ
petition was allowed by the High Court and the Corporation was directed to step
up the pay of Tapan Paul and others so as to be on par with that of Shankar
Bose. Subsequently, a petition for contempt was filed by Tapan Paul and others
for non-compliance of the directions issued by the High Court. The appellants
filed an application for clarification. In the meanwhile, an order had come to
be passed at the instance of Sujit Barah Mukherjee and others on April.
APPEAL NOS. 1550-1552 OF 1997 (Arising out of SLP (C) Nos. 14836 &
14582/94) O R D E R Leave granted. We have heard learned counsel on both sides.
appeals by special leave arise from the impugned order, made on February 2, 1993 by the Calcutta High Court followed
by contempt petition, clarification petition etc.
of Calcutta High Court.
admitted position is that the respondents, viz., Tapan Kumar Paul and others, Sujit
23, 1993; when it was realised that Regulation 34-A of a the Culcutta Municipal
Corporation Regulations (for short, the 'Regulations') did not apply to
stepping up of the scale of pay, the order passed for stepping up of their
scale of pay of T.K. Paul and others was withdrawn which also came to be
order dismissing the contempt petition was passed, directions to keep that
amount in account pending writ petition filed by the Sujit Mukherjee and others
were issued and consequential application for clarification came to be
dismissed in the impugned orders. Thus, these appeals by special leave.
not in dispute that Shankar Bose was given a special pay; in other words,
overtime pay for doing work outside the normal duties at a sum of Rs. 50/- per
month and after the revision of the pay scales, the special pay of Rs. 50/-
came to be merged in his pay. Nonetheless, it must be treated to be a special
pay given to him since he had the onerous duty to be discharge outside the
normal duty assigned to the post. The question is: whether Tapan Paul, Sujit Baran
Mukherjee and others who came to be appointed on the same day are entitled to
have their pay scales stepped up so as to be on par wit shankar Bose? It is
contended for the respondents that when such a relief was granted and was
allowed to become final, it would not be open to the respondents to withdraw
the same. We find no force in the contention.
34-A postulates thus:
an employee on his promotion to a higher post draws pay at a higher rate than
his senior employee due to fixation of his pay in the higher post under the normal
rules, of due to revision of pay scales, the pay of the employee senior to him
shall be fixed at the same stage and from the same date his junior draws the
higher rate of pay irrespective of by the senor employee belong to the same
cadre and sem pay scale of the post in which they have been promoted are also
benefit of this Regulation shall not be admissible in case where junior employee
exercise his option to retain unrevised scale to pay." A reading thereof
would clearly indicate that the principal of stepping up of the pay would arise
only when a junior employee, on his promotion, is drawing higher pay than his
seniors; in that case, they would be entitled to the stepping up the pay so as
to be on par wit him on the principle that the persons who are similarly
situated and are drawing the same scale of pay and pare doing the same duty and
being seniors to the persons drawing higher pay, are entitled to have their pay
stepped up but that principle is inapplicable to the situation, as in the
present case, where a junior person on transfer to a different place is being
paid extra payment by way or special pay or overtime pay, whatsoever the
nomenclature be and could be treated to be a special pay since he has a
discharge the duty outside his normal duty or due to special circumstances.
Such a fortuitous circumstance would not be a ground for other seniors to claim
party of pay bay stepping up of their scale of pay. If the connection is given
acceptance, the extra salary would become payble to persons who do not take
pains and do the normal work while staying in a convenient post/place with
indolence whras the person who undertakes special responsibility or puts up
hard work would be put on par; and stepping up of pay would be a permium on
laziness and indolence. It should be deleterious to augmentation of efficiency
n service or dedication to duty. Under those circumstances, we think that the
statutory principle of stepping up of the pay so as to be on par with junior
would be not on rational principal. when all of them discharge the same duties
and are under the same responsibility and not in different circumstances and it
the juniors draw higher pay on promotion, the seniors who do not get the oportunity
would be entitled to parity of pay with their juniors.
counsel for the respondents, however, contends that withdrawal is without
notice and , therefore, it is violative of principle of natural justice. We
find no force in the abstract contention. It is not well settled legal position
and needs no reiteration. However, on the facts of this case, we do not find
any reason to set aside that order for the reasons that they have not withdrawn
any amount paid to them pursuant to the legal order passed in favour of the
respondents. All that they have done is that they have revised the pay scales
only after realising the mistake.
next contended that the respondents are discriminated since Sujit Baran Mukherjee
and others are entitled to get higher pay. In view of the principle stated
above, there is no question of any discrimination of others since they are not
entitled to they parity wit Shankar Bose.
those circumstances, the appeal are allowed. The orders of the High Court are
set aside. No costs.