The Special Pay granted to the Pharmacists with Diploma in Pharmacy was not a Special Pay under Rule 5(33) but rather a Qualification Pay or Personal Pay under Rule 5(28) considering their additional qualification.

ASHIM KUMAR BANERJEE, J.

Respondents above named, fifty-one in number were working as Pharmacist under the Health Department of the State. They were all having diploma in Pharmacy from recognized Institute. The dispute arose as to whether the Pharmacists having appropriate diploma from recognised Institute could be given a better pay scale than their colleagues having no diploma in Pharmacy. The issue stood resolved when the Government issued a notification dated April 25, 1977 extending the benefit of Special Pay of rupees thirty to the diploma holder Pharmacists by such benefit. The Pharmacists having diploma was granted a Special Pay of rupees thirty. Such circular was issued to resolve a controversy between the Pharmacists holding diploma and the Pharmacist without holding diploma that resulted in litigation. The Government rejected the claim of the diploma holders for a separate scale and satisfied them with a Special Pay of rupees thirty. Accordingly, the issue stood resolved for the time being.

2. In 1981, the State by introduction of ROPA 1981 abolished all Special Pay that gave rise to another unrest. The diploma holders approached the Court through C.R. No.1725(W) of 1955 in C.O. No.10802(W) of 1984. The learned single Judge vide order dated July 20, 1989 directed the State to extend benefit of scale of Rs.360-815/- for the diploma holders with effect from January 1, 1986. The corresponding scale on the basis of the third Pay Commission Report was also asked to be extended to them for the subsequent period. The Assistant Secretary, Health Department accordingly issued a circular dated July 28, 1992 observing that all Pharmacists of Grade-III and Grade-II having diploma would be placed in a single scale of Rs.360-815/- with their existing post and to be treated as a dying cadre. It was also observed that the Special Pay enjoyed by the diploma Pharmacist would not be merged at the time of fixation under ROPA 1981 and would continue as Special Pay separately. The diploma Pharmacists were given two additional benefits. Their initial start would be at Rs.360/- in the basic scale of Rs.300-685/- and would continue to get Special Pay separately at the rate of Rs.30/-. Subsequently ROPA 1990 came into force, so was ROPA 1998. However, Special Pay continued to remain. While implementing ROPA 1998 the Finance Department issued a circular dated November 2, 1998 to the effect that the Special Pay drawn by a government employee under Rule5(33) for specific additional work or for other any specific reason would not be counted for the purpose of fixation of their pay. To remove any confusion the Department issued a clarification on August 5, 1999 appearing at page 59 of the petition. On a combined reading of the said two circulars we would find that the employees getting Special Pay as per Rule 5(33) would not be entitled to have that merged for the purpose of fixation of pay, however would continue to get such Special Pay as additional remuneration and such additional remuneration would come under Rule 5(28). Such circular, in our view, was in the line of the earlier circular dated July 28, 1992. By the clarificatory circular through the Director, Health Service, such Special Pay admissible to the Pharmacists holding diploma in Pharmacy, was directed not be considered as pay and, therefore, could not be doubled to Rs.60/- from Rs.30/- under ROPA 1990 and the excess amount was directed to be recovered from them. By way of further clarification, it was made clear that such Special Pay could not be merged with unrevised pay, to be considered as an additional remuneration.

3. In this backdrop, the respondents approached the Tribunal by filing O.A. No.1335 of 2001 challenging the order dated November 2, 1998 and August 5, 1999 and consequential relief therefor. The Tribunal, vide judgment and order dated February 26, 2009, decided the issue.

4. On the question of recovery of the excess amount, the Tribunal very rightly held that