Point of Law: Service - Rectification of erroneous fixation of pay’ - in the garb of rectification, the formula adopted for making the said calculation cannot be changed – Petitioner entitled for dues -

JUDGMENT :

Amrita Sinha, J.

1. The petitioner is aggrieved by the Office Order nos. 205/2015 dated 28th April, 2015 and 264/2015 dated 27th May, 2015, both issued by the Director (HR), West Bengal State Electricity Transmission Company Limited, herein after referred to as ‘WBSETCL’ for the sake of brevity.

2. The petitioner is also aggrieved by the communication dated 2nd January, 2015 whereby the scale of pay of the petitioner has been refixed and revised.

3. The brief facts of the case are as follows:

The petitioner was serving as Company Secretary in the West Bengal State Seed Corporation Limited, herein after referred to as WBSSCL’ for the sake of brevity. He was paid in the unrevised scale of pay and he was a member of the Contributory Provident Fund. His unrevised scale of pay was Rs.10,000/- to Rs.15,525/-.

An advertisement was published in the daily newspaper on 22nd May, 2007 inviting applications from Indian nationals for filling up the post of Company Secretary in the unrevised scale of pay of Rs.16,400/- to Rs. 20,450/- only and other admissible allowances of the WBSETCL. The said advertisement clearly mentioned that candidates working with government/semi-government public sector undertakings should send their applications through proper channel or otherwise submit ‘no objection certificate’ from their employer at the time of interview.

The petitioner expressed his intention to join WBSETCL. A no objection certificate was issued in his favour by his erstwhile employer WBSSCL. The petitioner was requested to attend the interview and on being successful he was appointed in the post of Company Secretary under the regular establishment of WBSETCL in the scale of pay of Rs.16,400/- to Rs. 20,450/- with initial grade pay of Rs.16,400/-.

The petitioner was released from the service of WBSSCL on 1st October, 2007 and on the self-same date he joined the office of WBSETCL.

The petitioner retired from service upon attaining his normal age of superannuation on 30th April, 2014.

4. The petitioner’s grievance is that his retiral dues were not paid in accordance with the West Bengal State Electricity Board Employees’ (Death-cum-Retirement Benefits) Regulations, 1985 hereinafter referred to as the DCRB Regulations, 1985 introduced on 4th May, 1985.

5. By notification No. 315-PO/O/C-IV/2E-01/2007 dated 2nd June, 2008 published in the Kolkata Gazette, Extraordinary on 14th July, 2008 it was notified that the Governor was pleased to approve the provisions of the DCRB Regulations, 1985 to apply mutatis mutandis to the employees and pensioners (including family pensioners) of WBSETCL for pension including family pension and gratuity benefits. The benefits shall apply to the employees, who have joined WBSETCL on or after 4th May, 1985 and to those who have exercised option for such benefits with retrospective effect from 1st April, 1981.

6. The petitioner applied for coming under the purview of Rule 7(1) of DCRB Regulations, 1985. In the aforesaid application the petitioner specifically mentioned his date of joining in WBSETCL and the date of release from his ex-employer WBSSCL. The period of service rendered by him under his ex-employer in regular establishment before his absorption in the WBSETCL was also clearly mentioned. The petitioner requested for counting his previous service rendered under his ex-employer as qualifying period for grant of pensionary benefits.

7. By a communication dated 4th November, 2008 the petitioner was intimated by the Director (HR), WBSETCL that his past service under WBSSCL for the period 25th January, 1999 to 30th September, 2007 followed by absorption in regular establishment in WBSETCL with effect from 1st October, 2007 will be counted as qualifying service period towards pensionary benefits under Regulation 7(i) of DCRB Regulations, 1985, since adopted by WBSETCL, however, subject to deposition of terminal benefits; i.e. employer’s share of CPF contribution and gratuity from the previous employer together with i