IMPORTANT POINTS
1. Principle of ‘equal pay for equal work’ and stepping up of pay would not apply where higher scale was granted to some persons by an evident mistake.
2. 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 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.

Headnote:Service Law- West Bengal Services Revision of Pay and Allowances Rules, 1970- Rule 55(4) -WB (ROPA) Rules, 1981-One ‘Dey’ appointed as a Section Writer/Typist in the Original Side of High Court was brought under the regular establishment and was allowed the pay-scale of ‘ 230-425 under ‘WB (ROPA) Rules, 1970-The said pay-scale was subsequently revised as ‘ 300-685/-under the WB (ROPA) Rules, 1981- He was granted a promotion as Typist, Grade I in the scale of ‘ 380-910/- - He appeared in the selection examination for the post of Lower Division Assistant and was selected and appointed - On such appointment his pay was fixed as ‘ 550 in the scale of ‘ 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 - On 1.4.1989, he was awarded the second higher scale under the 20 years Career Advancement Benefit Scheme- Sixty three employees , senior to Dey in the cadre of Lower Division Assistants, working in the Original Side of the High Court, submitted a representation to Chief Justice requesting that by relaxing Rule 55(4) of ‘WBSR’ their pay be stepped up and re-fixed on par with the pay of their junior Dey- Whether respondents employees senior to Dey were entitled to re-fixation of their pay at par with pay of their junior Dey, under Rule 55(4) of the WBSR (Part I) -Held on a careful reading of Rule 55(4), it is evident that two conditions would have to be fulfilled for attracting the benefit under the said rule first being that junior employee as also senior employees must be promotes- Apart from that , they must come from the same cadre having the same scale of pay in their feeder post-However neither of said conditions was fulfilled in this case-Hence none of the seniors was entitled to any relief with reference to the pay of their junior Dey- No reason to interfere with said concurrent finding that Rule 55(4) was inapplicable-Appeals allowed (Para 16)
        Service Law- West Bengal Services Revision of Pay and Allowances Rules, 1970- Rule 55(4) -WB (ROPA) Rules, 1981-Whether respondents employees senior to Dey were entitled to re-fixation of their pay at par with pay of their junior Dey, under any service law principle-Held principle of ‘equal pay for equal work’ and stepping up of pay would not apply where higher scale was granted to some persons by an evident mistake-Instantly Dey was given a higher pay for wholly erroneous reasons- Firstly he was given Grade I promotion of Section Writer (Typist) in the scale of 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 time- Secondly, even though 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 given the benefit of second higher scale under the Career Advancement Scheme, with effect from 1.4.1989, by taking note of his previous service- Dey 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 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 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 Dey was getting a higher pay in view of the earlier promotion as Section Writer/Typist, when he was selected and appointed as Lower Division Assistant, he was given pay protection 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 of pay to match the pay of Dey- (Para 20)
        Equality before Law-It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced 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 reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others (Para 21)
        Service Law- West Bengal Services Revision of Pay and Allowances Rules, 1970- Rules 49,55(4) -WB (ROPA) Rules, 1981-) If the relief granted to respondents (employees senior to Dey) 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 Dey, was passed in exceptional circumstances under Rule 49 of WBSR (Part I)- A provision for granting higher pay 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 (Dey) was wrongly given some benefit is certainly not an exceptional circumstance to perpetuate the mistake in the case of all his seniors- The division bench not referred to any other exceptional circumstances- The logic of the division bench that the very fact that Special Committee has made a recommendation and the very fact that Chief Justice had accepted the recommendation and made an order granting relief, are indications of exceptional circumstances, held to be preposterous, irrational and arbitrary- The finding of division bench that exceptional circumstances existed for stepping up the pay of large number of employees and therefore, source of power for the order of the Chief Justice, was Rule 49 of WBSR held erroneous , improper and unsustainable (Paras 23, 24)
        Service Law- West Bengal Services Revision of Pay and Allowances Rules, 1970- Rules 49,55(4) -WB (ROPA) Rules, 1981- Order of the Chief Justice permitting the pay of the senior employees to be brought at par with the pay of Dey- Finding of the division bench that the order of the Chief Justice is not justiciable and the state government cannot challenge it in a court of law -Whether the order of Chief Justice is not justiciable-Held 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 rule of law prevails, there is nothing like unfettered discretion or unaccountable action- Even prerogative power is subject to judicial review, but to a very limited extent- The extent, depth and intensity of judicial review may depend upon the subject matter of judicial review - The fact that in regard to certain types of action or orders of Chief Justice, the scope of judicial review may be very narrow and limited is different from saying that an order of the Chief Justice granting certain relief to High Court employees whose service conditions are governed by Rules, is not justiciable- Such orders are justiciable.- 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 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 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 of Chief Justice held justiciable. (Paras 25, 30)
       Facts of the Case :
        One ‘Dey’ appointed as a Section Writer/Typist in the Original Side of High Court was brought under the regular establishment and was allowed the pay-scale of ‘ 230-425 under ‘WB (ROPA) Rules, 1970 herein in the instant case.The said pay-scale was subsequently revised as ‘ 300-685/-under the WB (ROPA) Rules, 1981. He was granted a promotion as Typist, Grade I in the scale of ‘ 380-910/- . He appeared in the selection examination for the post of Lower Division Assistant and was selected and appointed. On such appointment his pay was fixed as ‘ 550 in the scale of ‘ 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 . On 1.4.1989, he was awarded the second higher scale under the 20 years Career Advancement Benefit Scheme. Sixty three employees , senior to Dey in the cadre of Lower Division Assistants, working in the Original Side of the High Court, submitted a representation to Chief Justice requesting that by relaxing Rule 55(4) of ‘WBSR’ their pay be stepped up and re-fixed on par with the pay of their junior Dey.
        B. Issue in consideration Whether respondents employees senior to Dey were entitled to re-fixation of their pay at par with pay of their junior Dey, under Rule 55(4) of the WBSR (Part I)
       Findings of the Court :
        On a careful reading of Rule 55(4), it is evident that two conditions would have to be fulfilled for attracting the benefit under the said rule first Being that junior employee as also senior employees must be promotes. Apart from that , they must come from the same cadre having the same scale of pay in their feeder post.However Neither of said conditions was fulfilled in this case. Hence none of the seniors was entitled to any relief with reference to the pay of their junior Dey. No reason to interfere with said concurrent finding that Rule 55(4) was inapplicable. Appeals were allowed.

JUDGMENT

R.V. Raveendran, J.

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 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 ‘ 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 ‘ 300-685/- with effect from 1.4.1981 and under the WB (ROPA) Rules, 1981. He was granted a promotion as Typist, Grade I in the scale of ‘ 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 ‘ 550 in the scale of ‘ 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.

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’) 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 recommending rejection of the representation with the following observations :

“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) of WBSR 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) SCC 459. See also 1998 Lab & I.C 180 and 1998 Lab & I.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)

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. 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, they 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 in order and therefore, their pay may be re-fixed to be at par with the pay of their junior - Gopinath Dey, by relaxing Rule 55(4) of WBSR.

5. In the meanwhile, Gopinath Dey retired from service in the year 2001. When his service book was forwarded to the Accountant General, West Bengal, for processing his pensionary claim, t

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2011 Supreme(SC) 908

Cases Referred (12)