# 13 (ADDL.) S.C.R. 1077 STATE OF WEST BENGAL AND ORS v. DEBASISH MUKHERJEE AND ORS

- **Citation:** [2011] 13 S.C.R. 1077
- **Court:** Supreme Court of India
- **Decided:** 2011-09-14
- **Case number:** Civil Appeal No. 3480 of 2005
- **Bench:** R.V. Raveendran, Markandey Katju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-addl-s-c-r-1077-state-of-west-bengal-and-ors-v-debasish-mukherjee-and-ors-27250
- **Pages:** 38

## Headnote

West Bengal Service Rules (Part I):
A
B
r.55(4) - Applicability of - Appointment of an employee c
'D' as a Section Writer/Typist in the Original Side of the
Calcutta High Court on 19.3.1964 - Promoted as Typist,
Grade I with effect from 2.4.1981 - On 9.9.1985, he was
selected to ihe post of Lower Division Assistant (LOA) - On
1.4.1989, he was awarded the second higher scale under the
D
20 years Career Advancement Benefit Scheme - Claim by
employees in the cadre of LOA and senior to 'D' for re-fixation
of pay at par with the pay of 'D' ul r.55(4) or under any other
service law principle - Entitlement - Held: 'D' was given a
higher pay for wholly erroneous reasons - He was promoted
E
to the post of Typist, Grade I although he was not confirmed
in the lower post at that time - 'D' was appointed as LOA as a
direct recruit on 9.9.1985 and, therefore, he was not entitled
to the benefit of second higher scale with effect from 1. 4. 1989,
as that benefit was available only at the end of 20 years
service under the career advancement scheme - If these two
F
benefits erroneously given were deleted, there would be no
ground for the seniors to claim any benefit on the basis of
parity of pay- Moreover, the post of LOA was neither a higher
nor a promotional post, therefore, r.55(4) was inapplicable -
The fact that a mistake was committed in the case of 'D' by G
extending the benefit under Career Advancement Scheme
cannot be a ground to direct perpetuation of mistake by
directing similar benefit to other senior employees -
Moreover, the fact that a single employee ('D') was wrongly
1077
H
1078 SUPREME COURT REPORTS [2011.] 13 (ADDL.) S.C.R.
A given some benefit was certainly not an exceptional
circumstance so as to invoke applicability of r.49 - Therefore,
neither under r.55(4) nor under the general principles of
service jurisprudence, the seniors were entitled to claim
benefit of re-fixation of their pay at par with the pay of their
B junior 'D' - Service Law - Pay fixation - Claim for re-fixation
of pay - Tenability.
Constitution of India, 1950: Article 14 - Held: Guarantee
of equality before Jaw is a positive concept and cannot be
enforced in a negative manner - If an illegality or an
C irregularity has been committed in favour of any individual or
group of Individuals, others cannot invoke the jurisdiction of
Courts and Tribunals to require the State to commit the same
irregularity or illegality in their favour on the. reasoning that
they have been denied the benefits which have been illegally
D or arbitrarily extended to others - Service Law.
One 'D' was appointed as a Section Writer/Typist in
the Original Side of the Calcutta High Court on 19.3.1964.
He was· brought under the regular establishment on
E 1.9.1979 and was allowed the pay-scale of Rs.230-425
under the West Bengal Services Revision of Pay and
Allowances Rules, 1970 (WB (ROPA) Rules, 1970). The
said pay-scale was subsequently revised as Rs.300-685/
- with effect from 1.4.1981 under the WB (ROPA) Rules,
F 1981. He wai; promoted as Typist, Grade I in the scale of
Rs.380-910/-with effect from 2.4.1981. He appeared in the
selection examination for the post of Lower Division
Assistant and was selected and appointed on 9.9.1985.
On such appointment his pay was fixed as Rs.550 in the
G scale of Rs.300-685/-,. taking into account his last pay
drawn in the former Grade-I Post. On exercising option
under the W.B. ROPA Rules, 1990, his pay scale was
revised and re-fixed with effect from 1.8.1986. On
1.4.1989, he was awarded the second higher scale under
the 20 years Career Advancement Benefit Scheme.
H
STATE OF WEST 13ENGAL AND ORS. v. DEBASISH1079
MUKHERJEE AND ORS.
The State Government held that the Career A
Advancement benefits granted to 18 employees including
that of 'D' were in order. Immediately thereafter, fifty
employees (senior to 'D') including respondents 1 to 5,
made representation to the Chief Justice, stating that
since the State Government had found the pay fixation
B
o

## Text

_Characters 0–39,443 of 74,807. This is a partial read: ask again with offset=39443 for what follows._

[2011] 13 (ADDL.) S.C.R. 1077
STATE OF WEST BENGAL AND ORS.
v.
DEBASISH MUKHERJEE AND ORS.
(Civil Appeal No. 3480 of 2005)
SEPTEMBER 14, 2011
[R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.]
West Bengal Service Rules (Part I):
A
B
r.55(4) - Applicability of - Appointment of an employee c
'D' as a Section Writer/Typist in the Original Side of the
Calcutta High Court on 19.3.1964 - Promoted as Typist,
Grade I with effect from 2.4.1981 - On 9.9.1985, he was
selected to ihe post of Lower Division Assistant (LOA) - On
1.4.1989, he was awarded the second higher scale under the
D
20 years Career Advancement Benefit Scheme - Claim by
employees in the cadre of LOA and senior to 'D' for re-fixation
of pay at par with the pay of 'D' ul r.55(4) or under any other
service law principle - Entitlement - Held: 'D' was given a
higher pay for wholly erroneous reasons - He was promoted
E
to the post of Typist, Grade I although he was not confirmed
in the lower post at that time - 'D' was appointed as LOA as a
direct recruit on 9.9.1985 and, therefore, he was not entitled
to the benefit of second higher scale with effect from 1. 4. 1989,
as that benefit was available only at the end of 20 years
service under the career advancement scheme - If these two
F
benefits erroneously given were deleted, there would be no
ground for the seniors to claim any benefit on the basis of
parity of pay- Moreover, the post of LOA was neither a higher
nor a promotional post, therefore, r.55(4) was inapplicable -
The fact that a mistake was committed in the case of 'D' by G
extending the benefit under Career Advancement Scheme
cannot be a ground to direct perpetuation of mistake by
directing similar benefit to other senior employees -
Moreover, the fact that a single employee ('D') was wrongly
1077
H
1078 SUPREME COURT REPORTS [2011.] 13 (ADDL.) S.C.R.
A given some benefit was certainly not an exceptional
circumstance so as to invoke applicability of r.49 - Therefore,
neither under r.55(4) nor under the general principles of
service jurisprudence, the seniors were entitled to claim
benefit of re-fixation of their pay at par with the pay of their
B junior 'D' - Service Law - Pay fixation - Claim for re-fixation
of pay - Tenability.
Constitution of India, 1950: Article 14 - Held: Guarantee
of equality before Jaw is a positive concept and cannot be
enforced in a negative manner - If an illegality or an
C irregularity has been committed in favour of any individual or
group of Individuals, others cannot invoke the jurisdiction of
Courts and Tribunals to require the State to commit the same
irregularity or illegality in their favour on the. reasoning that
they have been denied the benefits which have been illegally
D or arbitrarily extended to others - Service Law.
One 'D' was appointed as a Section Writer/Typist in
the Original Side of the Calcutta High Court on 19.3.1964.
He was· brought under the regular establishment on
E 1.9.1979 and was allowed the pay-scale of Rs.230-425
under the West Bengal Services Revision of Pay and
Allowances Rules, 1970 (WB (ROPA) Rules, 1970). The
said pay-scale was subsequently revised as Rs.300-685/
- with effect from 1.4.1981 under the WB (ROPA) Rules,
F 1981. He wai; promoted as Typist, Grade I in the scale of
Rs.380-910/-with effect from 2.4.1981. He appeared in the
selection examination for the post of Lower Division
Assistant and was selected and appointed on 9.9.1985.
On such appointment his pay was fixed as Rs.550 in the
G scale of Rs.300-685/-,. taking into account his last pay
drawn in the former Grade-I Post. On exercising option
under the W.B. ROPA Rules, 1990, his pay scale was
revised and re-fixed with effect from 1.8.1986. On
1.4.1989, he was awarded the second higher scale under
the 20 years Career Advancement Benefit Scheme.
H
STATE OF WEST 13ENGAL AND ORS. v. DEBASISH1079
MUKHERJEE AND ORS.
The State Government held that the Career A
Advancement benefits granted to 18 employees including
that of 'D' were in order. Immediately thereafter, fifty
employees (senior to 'D') including respondents 1 to 5,
made representation to the Chief Justice, stating that
since the State Government had found the pay fixation
B
of 'D' to be in order and therefore, their pay may also be
re-fixed to be at par with the pay of their junior - 'D' by
relaxing Rule 55('4) of WBSR. Meanwhile 'D' retired from
service. The office of the Accountant General returned
the pension file of 'D' to the High Court twice to review c
the pay fixation of 'D' on the ground that awarding of
second higher grade directly on 1.4.1989 was not in order
and that career advancement benefit could be awarded
to him only by reckoning the service from 9.9.1985.
The representation by respondents 1 to 5 and 45
D
other senior employees, was referred to a Three.Judge
Special Comn:iittee and the said Committee submitted a
report recommending that the said senior employees may
be given the pay protection by stepping up their pay, so
that their pay is not less than that of 'D'. However, when
E
the memos from Accountant General's Office (stating that
the grant of career advancement benefit to 'D' was not
in order) was brought to their notice, the Special
Committee
gave
modified
report whereby it
recommended that the memorialists be given the same
F
benefit as was accorded to 'D', in keeping with the
principle of pay protection so that their pay is equivalent
to that of 'D' in relation to his appointment as Lower
Division Assistant on 9.9.1985. On 13.2.2003, the Chief
Justice of the High Court extended the benefit of pay G
protection to the 50 senior employees (including
respondents 1 to 5).
The State Government by its letter addressed to the
High Court, traced the career and emoluments of 'D' from
1964 and pointed out that 'D' was not entitled to Grade I
H
1080 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A promotion of Section Writer (Typist) in the scale of
Rs.380-910 under the ROPA Rules, 1981 with effect from
2.4.1981 as he had not been confirmed in that post at that
time. The State Government further pointed out as 'D' was
appointed as Lower Division Assistant as a direct recruit
B in the scale of Rs.300-685/-, with effect from 9.9.1985, he
was not entitled to the second higher scale under the
career advancement scheme with effect from 1.4.1989. In
view of it, the High Court corrected the service book of
'D' by giving him the benefit of Grade I promotion of.
c Section Writer (Typist) with effect from 1.8.1982 instead
of 2.4.1981. The High Court also sent a letter to the office
of the Accountant General admitting the said mistake and
confirming the correction in regard to grant of Grade I
promotion to 'D'. The Calcutta Pay & Accounts Office
0 requested the High Court to resubmit the bills which
provided for a higher pay to the 50 employees after
obtaining the clarification of the state government,
regarding applicability of Rule 55(4) and the consent of
the Governor. On 7.5.2003, the Government requested the
High Court to review the entire matter in view of the fact
E that fixation of pay of 'D' at various stages was erroneous
and required rectification.
Respondents 1 to 5 approached the High Court and
sought a declaration that they were entitled to pay
F protection as per orders of Chief Justice in the post of
Lower Division Assistant, on and from 9.9.1985 in order
to bring their pay at par with that of 'D', who was their
junior. Similar writ petitions were filed by other employees
senior to 'D' and by the State Government. The Single
G Judge inter alia held Rule 55(4) was inapplicable as the
two conditions for applicability of the said Rule were
admittedly absent. As it was also admitt~d that 'D' was
wrongly given the benefits and 'D' did not challenge the
correction of his pay and direction for recovery of the
H amount paid in excess, it followed that 'D' was not
STATE OF WEST BENGAL AND ORS. v. DEBASISH1081
MUKHERJEE AND ORS.
entitled to the benefits wrongly given and consequently,
A
respondents 1 to 5 and other senior employees were not
entitled to stepping up of their pay with reference to the
pay of 'D'. The Division Bench of the High Court allowed
the appeal.
In the instant appeal, the questions which arose for
B
consideration were: (i) Whether the respondents
(employees senior to 'D') were entitled to re-fixation of
their pay at par with the pay of their junior namely 'D',
under Rule 55(4) of the WBSR (Part I) or under any other
service law principle; (ii) If the relief granted to the C
respondents (employees senior to 'D') could not be
supported with reference to Rule 55(4), whether it could
be inferred that the order of the Chief Justice permitting
the pay of the said senior employees to be brought at par
with the pay of 'D', was passed in exceptional D
circumstances under Rule 49 of WBSR (Part I); and iii)
Whether the order of Chief Justice dated 13.2.2003 is not
justifiable ?
Disposing of the appeals, the Court
E
HELD:
Re : Question m :
1.1. A careful reading of Rule 55(4) of the West Bengal
Service Rules - Part I showed that two conditions have
F
to be fulfilled for attracting the benefit under the said rule.
The first is that the junior employee as also the senior
employees must be promotees. Secondly, they must
come from the same cadre having the same scale of pay
in their feeder post. Neither of the said conditions was
G
fulfilled in the instant case. In fact, this finding was
rendered by the Single Judge and was affirmed by the
Division Bench. There is no reason to interfere with the
said concurrent finding that Rule 55(4) is inapplicable.
[Para 16] [110-G-H; 1101-A·D]
H
1082 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A
State of Andhra Pradesh vs. G. Sreenivasa Rao (1989)
B
2 SCC 290:1989 (1) SCR 1000; Chandigarh Administration
vs. Naurang Singh(1997) 4 SCC 177: 1997 (2) SCR 965;
Union of India vs. R. Swaminathan (1997) 7 SCC 690: 1997
(4) Suppl. SCR 94 - relied on.
1.2. 'D' was given a higher pay for wholly erroneous
reasons. Firstly he was given Grade I promotion of
Section Writer (Typist) in the scale of Rs.380-910 under
the ROPA Rules, 1981 with effect from 2.4.1981 even
though he was not confirmed in the lower post at that
C time. Secondly, even though 'D' was appointed as Lower
Division Assistant as a direct recruit in the scale of Rs.300685 with effect from 9.9.1985, he was given the benefit of
second higher scale under the Career Advancement
Scheme, with effect from 1.4.1989, by taking note of his
D previous service. 'D' voluntarily chose to appear for
selection as a Lower Division Assistant which carried a
lesser pay scale when compared to the pay scale to
which he was entitled as a Grade-I Typist, obviously
because of better future prospects available to Lower
E Division Assistants. Having been appointed as a Lower
Division Assistant on 9.9.1985, he was not entitled to the
benefit of second higher scale with effect from 1.4.1989,
as that benefit was available only at the end of 20 years
service under the career advancement scheme. If these
F two benefits erroneously given were deleted, there would
be no ground for the seniors to claim any benefit on the
basis of parity of pay. Even otherwise, as 'D' was getting
a higher pay in view of the earlier promotion as Section
Writer/Typist, when he was selected and appointed as
G Lower Division Assistant, he was given pay pro,tection
and thus became entitled to a higher pay than what he
would have normally received. His case was completely
different from the case of his seniors and his seniors
could not therefore claim parity in pay and stepping up
H of pay to match the pay of 'D'. Therefore, the Single Judge
STATE OF WEST BENGAL AND ORS. v. DEBASISH1083
MUKHERJEE AND ORS.
and the Division Bench rightly held even that Rule 55(4)
A
was inapplicable. The fact that a mistake was committed
in the case of 'D' by extending the benefit of second
higher scale under Career Advancement Scheme cannot
be a ground for the Chief Justice to direct perpetuation
of the mistake by directing similar benefit to other senior B
employees. Further, in view of his previous service
between 1964 and 1985 and in view of the fact he was
getting a higher pay (in a higher pay scale) when he was
appointed thereby entitling him to benefit of pay
protection, his seniors who were not in a comparable c
position were not entitled to seek higher pay with
reference to the pay of 'D'. [Para 20] [1105-C-H; 1106-AD]
1.3. It is now well settled that guarantee of equality
before law is a positive concept and cannot be enforced
D
in a negative manner. If an illegality or an irregularity has
been committed in favour of any individual or group of
individuals, others cannot invoke the jurisdiction of
Courts and Tribunals to require the state to commit the
same irregularity or illegality in their favour on the
E
reasoning that they have been denied the benefits which
have been illegally or arbitrarily extended to others.
Neither under Rule 55(4) of WBSR nor under the general
principles of service jurisprudence, the seniors were
entitled to claim benefit of re-fixation of their pay at par
F
with the pay of their junior 'D'. [para 21] [1106-E-F; 1107F]
Gursharan Singh vs. New Delhi Municipal Administration
1996 (2)SCC 459: 1996 (1) SCR 1154; Union of India vs.
Kirloskar Pneumatics Ltd. 1996 (4) SCC 433: 1996 (2)
G
Suppl. SCR 204; Union of India vs. International Trading Co.
2003 (5) SCC 437: 2003 (1) Suppl. SCR 55; State of Bihar
vs. Kameshwar Prasad Singh 2000 (9) SCC 94: 2000 (3)
SCR 764; Chandigarh Administration vs. Jagjit Singh 1995
(1) sec 745: 1995 (1) SCR 126 - relied on.
H
1084 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.
A Re : Question (ii) :
2.1. The representation given by the senior
employees was for re-fixing their pay at par with the pay
of 'D' by relaxing Rule 55(4) of WBSR. The basis of their
8 claim was Rule 55(4) and they sought relief by relaxing
the said rule. The first report of the Special Committee
dated 2.12.1998 considered the claim of senior
employees under Rule 55(4) and categorically held that
. the said rule was inapplicable to their claim. The
C subsequent reports of the Committee dated 27.11.2002
and 20.1.2003 held that the employees who were senior
to 'D', could not get a lesser pay than 'D', in keeping with
the principle of Rule, 55(4) and recommended grant of
relief accordingly. The Registrar (Original Side), High
Court put up a note placing the report of the Special
D Committee dated 20.1.2003 and sought approval of the
said recommendation of the Special Committee for the
senior employees being granted relief by way of pay
protection by stepping up their pay at par with that of 'D'.
The Chief Justice concurred with the said proposal,
E without noting any other reason and thus, the Chief
Justice merely accepted the reasons assigned by the
Special Committee in their recommendation dated
20.1.2003. Even in their writ petitions, the senior
employees made the claim only based on Rule 55(4).
F Neither the claim of the senior employees, nor the report
of the Special Committee nor the order of the Chief
Justice at any point of time, in any document, refer to any
exceptional circumstances· warranting the grant of
increments prematurely to the employees senior to 'D' by
G stepping up their pay at par with the pay of 'D'. Rule 49
of WBSR was neither relied upon nor referred to by the
senior employees in their representation, or by the
Special Committee in their recommendations or bt the
Chief Justice in "his order. Nor did the 11enior employees
H who were the writ petitioners, rely upon or refer to Rule
STATE OF WEST BENGAL AND ORS. v. DEBASISH1085
MUKHERJEE AND ORS.
49 in the writ petition, as the source of power for the
A
order dated 13.2.2003. In these circumstances, it is not .
understandable how the Division Bench of the High
Court, having held in the impugned order that Rule 55(4)
was inapplicable, could justify the order of the Chief
Justice with reference to Rule 49. [Para 22] [1107-G-H;
B
1108-A-F]
2.2. Rule 49 of WBSR (Part I) relates to premature
increments and reads thus : "Save in exceptional
circumstances and under specific orders of government,
C
no government employee on a time scale of pay may be
granted a premature increment in that time scale". The
proviso to Rule 23 of the Calcutta High Court Service
Rules, 1960, no doubt, provides that "the power
exercisable under the West Bengal Service Rules by the
Governor of the State shall be exercised by the Chief D
Justice" in regard to the members of High Court service.
If Rule 49 had to be invoked, exceptional circumstances
should have existed and should have been referred to in
the recommendation by the Special Committee or in the
order of the Chief Justice. The assumption made by the
E
Division Bench that when an order of the Chief Justice
granting relief cannot be justified with reference to any
Rule or legal principle, it should be inferred that the order
was made in exceptional circumstances, is erroneous and
cannot be accepted. A provision for granting higher pay
F
by way of premature increment in exceptional
circumstances, cannot be used to give relief to a large
number of employees, without the existence of any
exceptional circumstances. The fact that a single
employee ('D') was wrongly given some benefit is G
certainly r:ot an exceptional circumstance to perpetuate
the mistake in the case of all his seniors. [Para 23] [1108G-H; 1109-A-D]
H
1086 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A Re : Question (iii)
3.1. In a democracy, governed by rule of law, where
arbitrariness in any form is eschewed, no government or
authority has the right to do whatever it pleases. Where
8 rule of law prevails, there is nothing like unfettered
discretion or unaccountable action. Even prerogative
power is subject to judicial review, but to a limited extent
The extent, depth and intensity of judicial review may
depend upon the subject matter of judicial review. An
C order of the Chief Justice granting certain relief to High
Court employees whose service conditions are governed
by Rules is justiciable. [Para 25] [1109-H; 1110-A-C]
D
B.P. Singha/ vs. Union of India 2010 (6) SCC 331relied on.
3.2. In exercise of the powers conferred by Article 229
of the Constitution of India, the Chief Justice of the High
Court of Calcutta, with the approval of the Governor of
the State of West Bengal, so far as the rules relate to
E salaries, allowances, leave and pensions, made the
Calcutta High Court Service Rules, 1960, with respect to
the appointment of persons to, and the conditions of
service of persons serving on, the staff attached to the
High Court. While the Chief Justice has the power to
amend the Rules, he does not have the power to ignore
F the Rules. Reading together the two provisos to Rule
40(2) of the Allahabad High court Officers and Staff
(Conditions of Service and Conduct) Rules, 1976, this
Court held that it was apparent that the rules and orders
referred to therein were the rules and orders of a general
G nature and not orders made in individual cases; that
insofar as officers and servants of the High Court were
concerned, it was enough that the Chief Justice
exercised the powers conferred upon the Governor under
such rules and orders of the government and no further
H approval by the Governor was required. Even in Rule 41,
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1087
MUKHERJEE AND ORS.
the reference was to the making of general orders and
A
not the orders in individual cases. The order of th·e Chief
Justice granting premature increments did not therefore
require the approval of the Governor. As the Chief Justice
had the power to create posts in the High Court, it was
the C'1ief Justice who could grant premature increments
B
under Rule 27 of the Financial Handbook, to the officers
and servants of the High Court, and even if it was to be
assumed that advance increments under Rule 27 could
be granted by the Governor, the Chief.Justice would
exercise Governor's power by virtue of second proviso c
to Rule 40(2) of the 1976 Rules. It is, therefore, clear that
the Chief Justice has the power and authority to grant
premature Increments in exceptional circumstances. But
the Chief Justice cannot grant such relief in an irrational
or arbitrary manner. If the Rules provide that premature 0
increments could
be
granted in
exceptional
circumstances, there should be a reference to the
existence of exceptional circumstances and application
of mind to those exceptional circumstances. When
neither the recommendation considered by the Chief
Justice nor the order of the Chief Justice referred to any
E
exceptional circumstances and did. not even refer to the
Rule relating to grant of relief in exceptional
circumstances, the question of assuming exceptional
circumstances does not arise. The order dated 13.2.2003
is justiciable. In view of that, none of the seniors was
F
entitled to any relief with reference to the pay of their
junior 'O'. [Para 26, 28, 30] [1110-0, q-H; 1111-G; 1112-F- ·
H; 1113-A-B; 1114-0-F]
M. Gurumoorthy vs. Accountant-General, Assam and G
Nagaland 1971(2) sec 137: 1971 (O) Suppl. SCR 420;
State of UP vs. C. L. Agrawal
(1997) 5 SCC 1: 1997 (1)
Suppl. SCR 1; High Court of Judicature for Rajasthan vs.
Ramesh Chand Paliwal (1998) 3 SCC 72: 1998 (1) SCR 961
- relied on.
H
A
B
c
D
E
F
1088 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R,
Case Law Reference:
1989 (1) SCR 1000
relied on
Para 16
1997 (2) SCR 965
relied on
Para 18
1997 (4) Suppl. SCR 94 relied on
Para 19
1996 (1) SCR 1154
relied on
Para 21
1996 (2) Suppl. SCR 204 relied on
Para 21
2003 (1) Suppl. SCR 55 relied on
Para 21
2000 (3) SCR 764
relied on
Para 21
1995 (1) SCR 126
relied on
Para 21
2010 (6) sec 331
relied on
Para 25
1971 (0) Suppl. SCR 420 relied on
Para 27
1997 (1) Suppl. SCR 1
relied on
Para 28
1998 (1) SCR 961
relied on
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3480 of 2005.
From fhe Judgment & Order dated 20.1.2005 of the High
Court at Calcutta in A.P.O. No. 689 of 2003.
WITH
C.A. No. 3481, 3482, 3483, 3484, 3485, 3486, 3650 & 3609
of 2005.
K.K. Venugopal, Tarun Kr. Ray, Tara Chandra Sharma,
G Neelam Sharma, Shyam Mohan Sharma for the Appellants.
'
'
Jaideep Gupta, Bhaskar P. Gupta, Soumya Chekraborty,
. Kunal Chatterjee, Rajdeep Chowdhury, Indra Sewhney, Shruti
Chaudhary, Jayasree Singh, Swati Sinha (for Fox Manda! &
H Co.) Sarla Chandra for the Respondent.
STATE OF WEST BENGAL AND ORS. v. DEBASISH1089
MUKHERJEE AND ORS.
The Judgment of the Court was delivered by
A
R.V. RAVEENDRAN, J. 1. All these appeals question the
common order dated 20.1.2005 of the Calcutta High Court
allowing a batch of appeals by the employees of the High Court.
The facts are similar and for convenience, we will refer to the
B
facts from C.A. No.3480/2005.
2. One Gopniath Dey (for short 'Dey') was appointed as a
Section Writer/Typist in the Original Side of the Calcutta High
Court on 19.3.1964. He was brought under the regular
establishment on 1.9.1979 and was allowed the pay-scale of -C
Rs. 230-425 under the West Bengal Services Revision of Pay
and Allowances Rules, 1970 (for short 'WB (ROPA) Rules,
1970). The said pay-scale was subsequently revised as Rs.
300-685/-with effect from 1.4.1981 and under the WB (ROPA)
Rules, 1981. He was granted a promotion as Typist, Grade I
D
in the scale of Rs. 380-910/- with effect from 2.4.1981. He
appeared in the selection examination for the post of Lower
Division Assistant and was selected and appointed on
9.9.1985. On such appointment his pay was fixed as Rs. 550
in the scale of Rs. 300-685/-, taking into account his last pay
E
drawn in the former Grade-I Post. On exercising option under
the W.B. ROPA Rules, 1990, his pay scale was revised and
re-fixed with effect from 1.8.1986. On 1.4.1989, he was awarded
the second higher scale under the 20 years Career
Advancement Benefit Scheme.
F
3. Sixty three employees who were senior to Gopinath Dey
in the cadre of Lower Division Assistants, working in the
Original Side of the High Court, submitted a representation to
the Chief Justice on 27.6.1997 requesting that by relaxing Rule
55(4) of West Bengal Service Rules - Part I (for short 'WBSR')
G
their pay be stepped up and re-fixed on par with the pay of their
junior Gopinath Dey. The Chief Justice referred the.
representation to a Special Committee of three Judges and the
said Committee submitted a report dated 2.12.1998
H
1090 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.
A recommending rejection of the representation with the following
observations :
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D
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"In our opinion Gopinath Dey has been given certain
benefits to which he was not entitled to in law. We are of
the view, the Rule 55(4) ofWBSR Part-I cannot be said to
have any application whatsoever in this case.
It appears to us that Sri Gopinath Dey was granted undue
benefits. The whole fact was not placed before us as to
how he .could be granted such benefits to which he was
not entitled. If an illegality has been committed in the case
of one employee, it is well settled in law, that on the basis
of such illegality another person cannot claim the same
benefit. Illegality is incurable as has been held in AIR 1974
SC 2177 and AIR 1995 SC 705.
Furthermore, Article 14 of the Constitution of India contains
a positive concept. Reference may be made in this
connection the decision reported in 1996 (2) sec 459.
See also 1998 Lab & l.C 180 and 1998 Lab & l.C 1976.
In view of the decisions, illegality cannot be directed to be
perpetuated. This illegal benefits granted to Sri Gopinath
Dey, if any, cannot be extended to memorialists."
(Emphasis supplied)
F
4. Some time thereafter, the Dy. Secretary, Government
of West Bengal, Judicial Department, by memo dated
5.12.2000 returned the Service Books of 18 employees
(including that of Gopinath Dey) stating that the Career
Advancement benefits granted·to all of them were in order.
G Taking a cue therefrom, immediately thereafter, fifty employees
(senior to Dey) including respondents 1 to 5, made another
representation dated 10.1.2001 to the Chief Justice, stating that
though seniors to Gopinath Dey, ttiey were getting a lesser pay
than Gopinath Dey, that by memo dated 5.12.2000, the state
~ government had found the pay fixation of Gopinath Dey to be
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1091
MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
in order and therefore, their pay may be re-fixed to be at par
A
with the pay of their junior - Gopinath Dey, by relaxing Rule 55(4)
ofWBSR.
5. In the meanwhile, Gopinath Dey retired from service in
the year 2001. When his service book was forwarded to the
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Accountant General, West Bengal, for processing his
pensionary claim, the office of the Accountant General returned
the pension file to the High Court twice under cover of memo
dated 21.12.2001 and again on 9.5.2002 to review the pay
fixation of Gopinath Dey on the ground that awarding of second
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higher grade directly on 1.4.1989 was not in order and that
career advancement benefit could be awarded to him only by
reckoning the service from 9.9.1985.
6. The representation dated 10.1.2001 given by
respondents 1 to 5 and 45 other senior employees, was also
D
referred to a Three-Judge Special Committee and the said
Committee submitted a report dated 27 .11.2002
recommending that the said senior employees may be given
the pay protection by stepping up their pay, so that their pay is
not less than that of Gopinath Dey. The Special Committee held
E
that the report dated 2.12.1998 of the earlier Special
Committee was no longer effective, on the following reasoning
"We find that the Special Committee of the three Judges
in their report dated 2.12.19g8 proceeded on the opinion
F
that Sri Gopinath Dey was given the benefit to which he
was not entitled in law and Rule 55(4) of the WBSR Part-
! cannot be said to have any application whatsoever in this
case.
But now it has been held that allowing the Career
Advancement Benefit to Sri Gopinath Dey is in order and
this has neither challenged in any proceeding nor set aside
by any appropriate forum. In such circumstances, we are
G
of the opinion that observations of the earlier Special
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•.
1092 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R
A
Committee of three Judges has lost its force as it
preceded on an opinion about the irregularity in granting
such benefit to Sri Gopinath Dey but presently, the same
having been found to be in order, we fell that the present
fifty memorialists are also entitled to pay protection so that
B
they are not to get a pay lesser than Sri Gopinath Dey who
is admittedly much junior to all the present memorialists."
7. The Special Committee was thus clearly of the view that
if the fixation of pay of Gopinath Dey was erroneous or illegal,
the memorialists would not be entitled to stepping up of pay to
C be on par with Gopinath Dey, but if the grant of Career
Advancement benefit to Gopinath Dey was legal and valid, his
seniors in the cadre would be entitled to stepping up of their
pay so that their pay will not be less than that of Gopinath Dey.
However, when the memos dated 21.12.2001 and 9.5.2002
D from Accountant General's Office (stating that the grant of
career advancement benefit to Dey was not in order) was
brought to their notice, the Three-Judge Special Committee
gave a further report dated 20.1.2003, modifying its earlier
report dated 27 .11.2002 by recommending that the
E memorialists be given the same benefit as was accorded to
Dey, in keeping with the principle of pay protection so that their
pay is equivalent to th-at of Dey in relation to his appointment
as Lower Division Assistant on 9.9.1985. We extract below the
reason assigned for such recommendation :
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"Admittedly, all the memorialists are senior to Dey but
were receiving lesser pay that Dey and even if Dey's
service. as Lower Division Assistant from 9.9.1985, it is
to be taken into consideration for the purpose of grant of
benefit of Career Advancement Scheme the memorialists
would also be entitled to the same benefit taking the date
of consideration in their case also from 9.9.1985.
Whatever be the method of calculation as far as the
fixation of Dey's pay is concerned, the memorialist, who
are all senior to him in the same cadre, cannot get a lesser
STATE OF WEST BENGAL AND ORS. v. DEBASISH1093
MUKHERJEE AND ORS. [R.V. RAVEENDRA!'.J, J.]
pay than Dey in keeping with the principle of Rule 55(4)
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of the West Bengal Service Rules-Part-I."
8. The Registrar (Original Side), High Court, placed the
said report dated 20.1.2003 before the learned Chief Justice,
with the following submission note : "I further submit before your
B
Lordship for the reasons aforesaid, if your Lordship approved
the recommendations of the Hon'ble Judges Committee for the
said 50 memorialists be allowed and pay protection be given
effect as per recommendations with intimation to the
.Government." On the said note, the Chief Justice made an order C
"Please do the needful" on 13.2.2003, thereby directing that the
50 memorialists be given pay protection as per the
recommendation of the Special Committee in its report dated
20.1.2003.
9. The Registrar (Original Side) of the High Court issued
D
the following note of acceptance dated 4.3.2003 extending the
benefit of pay protection to the 50 senior employees (including
respondents 1 to 5) :
"In approving the recommendation of the Hon'ble Judges' · E
Committee on the memorial of fifty employees, the Hon'ble
The Chief Justice in exercise of powers conferred under
Clause 2 of Article 229 of the Constitution of India has been
pleased to allow under order dated 13.2.2003 the following
fifty employees who are seniors to Sri Gopi Nath Dey, the
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same benefit as given to Sri Gopi Nath Dey in keeping
with the principle of pay protection under Rule 55(4) of the
WBSR, Part-I so that their pay is equivalent to that of Sri
Gopinath Dey in relation to his appointment as Lower
Division Assistant on and from 9.9.1985."
F
The State Government by its letter dated 7.3.2003 addressed
to the High Court, traced the career and emoluments of
Gopinath Dey from 1964 and pointed out that Dey was not
entitled to Grade I prol)1otion of Section Writer (Typist) in the
scale of' 380-910 under the ROPA Rules, 1981 with effect from
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1094 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C,R.
A 2.4.1981 as he had not been confirmed in that post at that time.
The state government further pointed out as Dey was appointed
as Lower Division Assistant as a direct recruit in the scale of '
300-685/-, with effect from 9.9.1985, he was not entitled to the
second higher scale under the career advancement scheme
B with effect from 1.4.1989. In view of it, the High Court corrected
the service book of Gopinath Dey by giving him the benefit of
Grade I promotion of Section Writer (Typist) with effect from
1.8.1982 instead of 2.4.1981. The High Court also sent a letter
dated 9.4.2003 to the office of the Accountant General
c admitting the said mistake and confirming the correction in
regard to grant of Grade I promotion to Gopinath Dey. In the
said letter, the Registrar (Original Side) High Court also
admitted that extension of twenty years Career Advancement
Scheme Benefit to Dey, with effect from 1.4.1989 was a mistake
D and the order granting such benefit was cancelled and the
service book of Dey had been correct.
10. When the pay bills of the 50 senior employees who
were given the pay protection by increasing their pay at par with
that of Gopinath Dey, were sent to the Calcutta Pay & Accounts
E Office-II, they were returned with a Return Memo dated
21.4.2003 stating that before allowing any benefit relating to
salary, allowances, leave and pension to the employees of the
High Court, the prior approval of the Governor of the State was
required. The High Court immediately sent a reply dated
F 24.4.2003 stating that the Chief. Justice is empowered to
dispense with or relax the requirement of all or any of the rules
to such extent and subject to such conditions as he may
consider necessary, for dealing with the employees of the High
Court in a just and equitable manner. The Calcutta Pay &
G Accounts Office-II again returned the pay bills with a Return
Memo dated 29.4.2003 stating that it had no authority to pay
the bill amounts without the directions from the State
Government. By another Return Memo dated 6.5.2003, the
Calcutta Pay & Accounts Office requested the High Court to
H resubmit the bills which provided for a higher pay to the 50
STATE OF WEST BENGAL AND ORS. v. DEBASISH1095
MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
employees after obtaining the clarification of the state
A
government, regarding applicability of Rule 55(4) and the.
consent of the Governor. On 7.5.2003, the Government
requested the High Court to review the entire matter in view of
the fact that fixation of pay of Gopinath Dey at various stages
was erroneous and required rectification.
B
11. At this juncture, respondents 1 to 5 approached the
High Court and sought a declaration that they were entitled to
pay protection as per orders of Chief Justice dated 13.2.2003
in the post of Lower Division Assistant, on and from 9.9.1985
C
in order to bring their pay at par with that of Gopinath Dey, who
was their junior. They also sought cancellation of the return
memo dated 21.4.2003, 29.4.2003 and 6.5.2003 of the
Calcutta Pay & Accounts Office. Similar writ petitions were filed
by other employees senior to Gopinath Dey. The West Bengal
Government also filed writ petitions challenging the report of the
D
Judges Committee dated 20.1.2003, order of the Chief Justice
dated 13.2.2003 and the consequential orders dated 4.3.2003
issued by the High Court, extending the stepping up benefit to
the senior employees.
E
12. The six writ petitions filed by the employees and three
petitions filed by the state government were heard and
disposed of by a learned Single Judge by a common order
dated 17.11.2003. The learned Single Judge inter alia held Rule
55(4) was inapplicable as the two conditions for applicability
F
of the .said Rule were admittedly absent. As it was also
admitted that Dey was wrongly given the benefits and Dey has
not challenged the correction of his pay and direction for
recovery of the amount paid in excess, it followed that Dey was
not entitled to the benefits wrongly given and consequently,
G
respondents 1 to 5 and other senior employees were not
entitled to stepping up of their pay with reference to the pay of
Dey. He dismissed the writ petitions by the employees and
allowed the writ petitions by the state government and directed
that any excess amount paid to the senior employees by
H
1096 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.
A stepping up their pay, should be recovered from them.
13. Feeling aggrieved, the employees filed appeals and
those appeals were allowed by a Division Bench of the High
Court by a common order dated 20.2.2005. The Division Bench
B held:
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"(a) The Chief Justice had made the Calcutta High Court
Rules, 1960 with the approval of the Governor of the State
in so far as the rules relate to salaries, allowances, leave
or pension. Once rules had been framed by the Chief
Justice and were approved by the Governor in relation to
financial matters, so long as there is no legislation by the
State Legislature, action taken under the powers conferred
by the rules cannot be questioned, when such powers
exercised by the Chief Justice stood on equal footing to
that of Governor.
(b) The state government could not raise any objection to
the recommendation for fixation of salary, sanction of
creation of posts or grant of increase in case of disparity
in exceptional circumstances, particularly when it is aimed
at the ameliorating the service conditions of the employees
of the High Court. Such action of the Chief Justice, when
exercised bona fide and when within the scope of the
powers conferred on him, cannot be questioned by the
executive or even by the court.
(c) The post of LOA is neither a higher nor a promotional
post. Rule 55(4) would therefore not be applicable.
Gopinath Dey was holding an ex cadre post which was not
one of the sources of recruitment to the post of Lower
Division Assistant. The post held by Gopinath Dey was not
a feeder post for the post LDA. The post of LOA was not
a promotional post. The post of LDA was the bottom post
in the cadre in which the recruitment was made. Therefore,
none of the factors, in which higher pay could be justified
with reference to the pay of a junior, were satisfied.
STATE OF WEST BENGAL AND ORS. v. DEBASISH1097
MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.)
(d) The moment Goplnath Dey entered the post of LDA A
through direct recruitment, he acquired the lien of that post.
He could not hold the lien of another cadre when he came
through direct recruitment to the cadre of LOA. On his
substantive appointment to the permanent post of LOA, his
lien in the substantive ex cadre post held· permanently
B
stood terminated. Thus Gopinath Dey could not claim any
benefit on account of his length of service by reason of any
lien. Unless lien was available to him, he could not claim
fixation of pay at a higher stage than those of his seniors.
(e) Once the state government claim that the pay of C
Gopinath Dey was correctly fixed, it cannot contend that
the senior employees cannot claim parity on the basis of
a wrong fixation of pay of Gopinath.