-D I IN THE HIGH COURT OF SIKKIM AT GANGTOI( (WRIT ] uRlsDlonoN) Writ Petition {C) No. 9 of 2009 Smt. Indira Pillai @ Sharma, Legal Officer, Scheduled Caste, Scheduled Tribe and Other Backward classes Development Corporation Ltd. (SABCCO), Sonam Tshering Marg, P.O. Gangtok, East Sikkim - Versus - 1 PETITIONEFl The BoaF`d of Direct:ors, represented by and through its Managing Director, SABCCO, Sonam Tshering Marg, P.O. Gangtok, East Sikkim. 2. The Managing Director, Scheduled Caste, Scheduled Tribe and Other Backward Classes Development Corporation Ltd. (SABCCO), Sonam Tshering Marg, P.O. Gangtok, East Sikkim. Scheduled Caste, Scheduled Tribe and Other Backward Classes Development Corporation Ltd., represented by and through its Managing Director, Sonam Tshering Marg, P.O. Gangtok, East Sikkim. 4. Shri Binod Ghatani, Assistant Manager, Scheduled Castes, Scheduled Tribes & O.B.C. Dev. Corporation Ltd„ Sonam Tshering Marg, P.O. Gangtok, East Sikkim. 5. Shri Arun Gurung, Assistant Manager, Scheduled Castes, Scheduled Tribes & O.B.C. Dev. Corporation Ltd., Sonam Tshering Marg, P.O. Gangtok, East Sikkim. `` tit -D Shri Durga Mangar, Assistant Manager, Scheduled Castes, Scheduled Tribes & O.B.C. Dev. Corporation Ltd., Sonam Tshering Marg, P.O. \Gangtok, East Sjkkim. 2 •7. Shri Kishore shrestha, Assistant Manager, Scheduled Castes, Scheduled Tribes & O.B.C. Dev. Corporation Ltd., Sonam Tshering Marg, P.O. Gangtok, East Sikkim. ... RESPONDENTS. For the petitioner : Mr. A. Moulik, Senior Advocate with Mr. N. G. Sherpa, Advocate. FortheRespondents = Mr. J. a. Pradhan, Additional Advocate General with Mr. Santosh K. Chettri, Asstt. Govt. Advocate. BEFORE : HON'BLE MR. JUSTICE BARIN GHOSH, CHIEF JUSTICE. Last Date of Hearing: 29.06.2010. Dalte Of Judgment: 08.07.2010. JUDGMENT Ghosh, CJ. Respondent no. 3 is a Government company within the meaning of the Companies Act, 1956 and is an authority within the meaning of Article 12 of the Constitution of India. Petitioner and private respondents are employees of respondent no. 3. On 19th May, 2001, private respondents were appointed as Field Officers; whereas on lst october, 2001, petitioner was appointed as Legal Officer. The i= scale of pay of Field Officers and of Legal Officer was Rs.5500-175- 9000. Petitioner, as contended by her, accepted the appointment without pre].udice to the pay scale. `' tEl.I -® 2. By a letter dated 17th February, 2004, petitioner represented to respondent no. 2 to the effect that the pay scale of other officers and staff of respondent no. 3 is in conformity with I:he officers and other employees of the Government but for the post of Legal Officer equal and equitable pay scale has not been allowed despite repeated requests. Similar representations were made rely petitioner on lst July, 2004 and 30th September, 2004. In her representation dated 5th December, 2005 made to respondent no. 2, petitioner represented that the pay scale of Law Officer is Rs.9000- 300-13800. She made a further representation dated 28th August, 2006. As st:ated in paragraph 6(g) of the counter affidavit filed bK respondent no. 2, the said representations of petitioner for rect:ificat:ion/correction of her pay scale in conformity with the post Of Law Officer of certain other institutions, were put up to the Board, but due to some reasons or other, the same got deferred. On 21st June, 2006, respondents no. 5, 6 and 7 made a joint representation to the Hon'ble Chief Minister, Government of Sikkim with a request to promote them to the post of Assistant Manager. On llth October, 2006, respondent no. 4 made a representation to respondent no. 2 for promotion to the post of Assistant Manager followed by a representation to the Hon'ble Chief Minister dated 19th October, 2006, making a similar reqiiest` Ultimate_ly, in the Agenda fQ`r 21St Board \ meet:ing of respondent no. 3 to be held on5;h January, 2007, the \ follow!!]g{:::oAgendas,amongstothers,we+LeincluSd\;i_~_ - T2 ` `+ \`1 ®JT :i "Up-gradation of the Post of Field Officers to the Post of Assistant Managers. - In order to enhance the performance of the Corporation it has been felt necessary to, upgrade the post of Field Offic:ers to Assistant Ivlanagers ?rd t-hareby giving them more responsibility and also maki.ng them accountable for the duties they perform. The need to have Assistant Managers is of vital importance to the Corporation because there is a dearth of oxpcers. ip tpe Co;poration to handle important day to day work and also Pe res-ponsible and accountable for the same. Earlier the various profect works were handled by respective Protect Managers, where as, at present there is only one Project Manager to look after the entire profect and a_dministratien work: It would only burden the Corporation if new recruits are appointed hence in the interest of the Corpo[?tion it would be advisable to up-grade the post of Field Officers to Assistant Managers on seniority, merit and need basis. Upgradation of the Post of Legal Officer to Assistant Manager (Legal) - Smt. Indiara Pillai has made sEveral requests that she may be allowed to draw the Pay Scale that is in conformity with the post held. She was appointed to the post of Legal Officer but given the Pay Scale of Rs.5500- 175-9000 whereas the Post of Legal Officer elsewhere carries the higher pay scale. She is a graduate with Honors in Economics with an additional qualification of LLB and had c:ompleted one year training in Advocacy and thereafter practiced in the Court of Law before joining SABCCO. She has already completed more than four years in the present scale and taking into consideration her qualification and experience her request may be kindly considered by the Board.„ 4 Decisions on the said two Agendas taken at the 21St Boa(d meeting of respondent no. 3 held on 5th January, 2007 are as follows:` "GTu°rup:ag:e%ur;F£::g3fflff=Eg=rhrianKgsh3rherishB#a6Eahtr:nfrua£ Assistant Managers on probation for six months. To correct the scale of Legal Officer and place her for six months on probation." 4. By four several Office Orders all dated 21St February, 2007, the afore mentioned decision of the Board of respondent no. 3 pertaining to private respondents, was given effect:, the texts whereof are identical and reproduced below in relation to respondent no. 4: - \, +,I t' "In accordance with the approval of 2Ist Board of Directors Meel:ing held on gh January 2007, the lvlanagement is pleased to place Shri Binod Ghatani as Assistant Mer|agEr- IV SABCCO in the next higher pay scale of Rs.7000-225- 11500. He shall be on probation for 6 (six) months. Confirmation of his promotion to the post will be subject to the satisfactory performance. This order is superset all other previous office orders." 5 By an Office Order also dated 21St February, 2007, the said decision of the Board pertaining to petitioner was implemented. The text of the said Office Order is as follows: - "In accordance with the approval of 2IS' Board of Directors Meeting held on 5h January 2007, the Management is pleased to correct the pay scale of Smt. Indira Pillai as Legal Officer SABCCO and placed in the pay scale of Rs.7000-225-11500. She shall be on probation for 6 (sl.x) months. Confirmation of his correction of scale is subject to the sat:isfacto ry perferma nce. This order is superset all other previous office orders." Subsequent to issuance of the said Office Orders, pet:itioner as well as private respondents started drawing salaries jn the pay scale of Rs.7000-225-11500. In the writ petition, petitioner is claiming that since the Board of Directors of respondent no. 3 has corrected the pay scale of pet:itioner, the correction should be reflected from the date of commitment of the mistake, i.e., the date, petitioner was appointed as Legal Officer on lst October, 2001. In the counter affidavit, respondent no. 2 has contended that t:he Board of Directors of respondent no. 3 never directed to provide petitioner any arrears, increment or seniority. In other words, it is the contention of respondent no. 2 that the correction of pay scale of petitioner should be deemed to be prospective. In the counter affidavit filed by the said ' .-,T .© 6 respondent, it has also been contended that private respondents were appointed prior to petitioner in the same scale of pay and, accordingly, they should be deemed to be senior to petitioner and if retrospective correction is effected, the same will also alter the seniority vis-a-vis petitioner and private respondents. Private respondents in their joint representation dated 14th October, 2008 made out to respondent no. 2 that if the request of petitioner is adhered to, similar rectificat:ion to their scale of pay should also be effected. 7- Learned counsel, appearing in support of writ petition, submitted that in Police Department of the Government of Sikkirh, Legal Assistants were entitled to the pay scale of Rs.1820-3200, which, on being revised, stands at Rs.7000-225-11500 and similarly, the scale of pay of Legal Officer in the State Bank of Sikkim is Rs.7000-225-11500. It was contended, to which there appears to be no dispute, that respondent no. 3 has not yet framed any Service Rule. It was also contended that in such view of the matter, respondent no. 3, being an extended arm of the Government, should, in the absence of rules to that effect, be deemed to have adopted the applicable Government Rules and in terms thereof, the scale of pay of Legal Officer of respondent no.. 3 cannot be anything but Rs.7000-225- 11500 and as such, petitioner should be deemed to have been given a wrong pay scale at the time of her appointment by mistake, which has since been corrected and, accordingly, respondent no. 3 should be directed to pay up and clear the arrears due to petitioner on that • account. `, =r? -.r} 8` In the writ petition, it that inasmuch as, on considera respondents have been given o petitioner has also served respond is also entitled t:o a promotion a 7 also the contention of petitioner of 7 years of service, private promotion, taking int:o account no. 3 for a period of 7 years, she accordingly, the said respondent should be directed to consider grani|of a promotion to petitioner. With the writ petition, documents, which are not being|i Assistant in the Police Department 225-11500 and at t:he same time, Sikkim is also entitled to the same contention of petitioner in the writ pay for equal work done. In othe petitioner has brought o`n record disputed, suggesting that Legal s entitled to pay scale of Rs.7000- Legal Officer in the St:ate Bank of cale of pay. However, it is not the etition that she is entitled to equal words, petitioner has not brought on record relevant factors to asceifain whether the job responsibility, I qualification and accountability bf Legal ASsistant in the Police I Department of the Government ari[ of Legal Officer of State Bank of ::kink:mt,I::;mt:::et°,sthn°osed,:fp:::at'jitffi,Cnerth°:raegsepn°dnadennott:°f.o:.th:t::s: Board meeting of respondent no. post of Legal Officer elsewhe accordingly, the decision on the scale of Legal Officer. Therefore, situation that the scale of pay of L incorrect, the same was corrected. corrected, should the correction mistake? In the common parlan the instant case, it appears that it was categorically indicat:ed that carries higher pay scale and id agenda was to correct the pay it appears that, being alive of the I igal Officer of respondent no. 3 was I The question is, when a mistake is t:reated to have obliterated the to correct is to remove error. In error was removed by correction. „E -® E=l] fi 8 Since the word ``correct" is a verb, it should denote removal of the error when the action of correction is taken and accordingly, in the common parlance, it is prospective, i.e. from the date of correction. However, the word ``correct" also denotes an action of making a thing accurate, appropriate, confirming to accepted standards. In the circumstances, correction of pay scale of petitioner may be prospective or may not be and in absence of a clear indication by the Board of respondent no. 3, I cannot find any fault on the part of respondent no. 2 in proceeding on the basis that the correction was prospective, particularly when the correct:ion was accompanied by a direction to place petitioner on probation for 6 months. Fact remains that when petitioner was appointed, she was appointed as Legal Officer and it was indicated that she shall be on probation for an initial period of one year. On 3rd October, 2002, it was held out to pet:itioner that she has successfully completed probation period and accordingly, she was regularised as Legal Officer. It is unknown in service law jurisprudence that when scale of pay of an officer is alt:ered t:o his/her benefit, he or she earns the rigor of a further probation. In the circumstances, I think, respondent no. 3 and its Board of Directors should, within a period of 3 months from today, express their mind relating to correction affect:ed to the pay scale of petitioner and in particular, whether the same was intended to make the pay scale of Legal Officer of respondent no. 3 appropriate and confirming to accepted standards and, accordingly, from the date of her appointment as Legal Officer or it was only a correction of a mistake and, accordingly, the correction shall take effect from the date of it:s Correction with reasons in support thereof. 10. From the pleadings of the part:ies, it is clear that job responsibility of private respondents, their qualifications and accountability are quite different from the job responsibility, qualification and accountability of petitioner. They cannot be compared. Accordingly, there is no scope of proceeding on the basis that either petitioner is senior or private respondents are senior. The fact, however, remains that private respondents joined respondent no. 3 prior to the petitioner joining respondent no. 3 and at the same time, the corrected pay scale of petitioner is equal to t:he pay scale of private respondents upon upgrading them to or upon placing or promoting them as Ass.istant Managers. To the counter affidavit filed by r.espondent no. 2, an organisational structure of respondent no. 3 as on 21st November, 2001 has been furnished, wherefrom it appears that Field Officers and Legal Officer were considered t:o hold posts at the same level. With the said affidavit the latest organisational structure of respondent no. 3 has also been furnished. There it has been shown that Field Officers, on being promoted, would become Assistant Managers, whereas the post of Legal Officer is equal to the post of Assistant Managers. The said state of affair also clearly demonstrates t:hat the posts of Field Officers and the post of Legal Officer have been treated separately all throughout by respondent no. 3 and, accordingly, there cannot be any comparable seniority in between Field Officers and Legal Officer. 11. It appears to me that becguse private respondents joined respondent no. 3 as Field Officers prior to petitioner I.oining respondent no. 3 as Legal Officer in the same scale of pay, while correcting the I iB' :c) pin/ 10 mistake in the scale of pay of Legal Officer, private respondents were also given the benefit of the corrected scale of pay of Legal Officer, however, by upgrading or promoting them to the posts of Assistant Managers, without making any effort to ascertain whether, in fact, they are eligible to be promoted to the posts of Assist:ant Managers. In other words, while lifting the private respondents from t:he posts of Field Officers to t.he posts of Assistant Managers, no effort was made to ascertain whether private respondents or any of them deserved the upliftment. In the circumstances, as it appears to me, only on the consideration that private respondents joined respondent no. 3 before petitioner, they were also given the same pay scale given to petitioner upon correction but since there was no scope of correct:ion of the pay scale of Field Officers, private respondents were shown to have been promoted to the post:s of Assistant Managers. They, thus, got an undue advantage, which, in result, has opened the door for petitioner to seek a promotion. The basic reason for the faux pas is non-creation of cadre rules by respondent no. 3. In order to stop repetition of the matt:er dealt with herein, I direct respondent no. 3 to create cadre rules as quickly as possible, but not later than 3 months from today. 12. With the direction as above, the writ petition is disposed of.