Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3480 OF 2005

State of West Bengal & Ors.

… Appellants

Vs.

Debasish Mukherjee & Ors.

… Respondents

With

Civil Appeal No.3481 of 2005

Civil Appeal No.3482 of 2005

Civil Appeal No.3483 of 2005

Civil Appeal No.3484 of 2005

Civil Appeal No.3485 of 2005

Civil Appeal No.3486 of 2005

Civil Appeal No.3650 of 2005

Civil Appeal No.3609 of 2005

J U D G M E N T

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.

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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

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(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

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