State Of West Bengal & Ors vs Kamal Sengupta & Anr

(iii) In the affidavit filed by him in support of the writ petition, Narayan Chandra Ghosh (respondent no.2 herein) referred to the factum of sanction of Pay Scale Nos.17, 18 and 19 to members of the service 4 under ROPA 1981, recommendations made by the Third Pay Commission, the Scheme and averred that they have been subjected to hostile discrimination in the matter of grant of Scale Nos.19 and

(v) On establishment of the Tribunal, the writ petition was transferred to it and was registered as Transferred Application No.826 of 1996. By an order dated 25.2.1997, the Tribunal dismissed the same. It held that the pay structure has been worked out by the Third Pay Commission after proper job evaluation of different services and posts; that there cannot be any equality among the members of different services; that the State Government was free to frame appropriate scheme for grant of higher pay scales to the members of some services who did not have adequate promotional opportunities and that in the absence of any evidence of parity, a mandatory direction cannot be issued for grant of higher pay scales to the applicants.

(x) After dismissal of the Special Leave Petition, the respondents filed R.A. No.26 of 1998 for review of order dated 25.2.1997 by asserting that they were stagnating in the same scale of pay since 1982 and the non-applicants arbitrarily denied them benefit of the higher scales which were given to the members of other services. The respondents pleaded that in view of the recommendations made by Secretary of Food and Supplies Department, which are binding on the State Government, they are entitled to Scale Nos.19 12 and 21. In support of this plea, the respondents relied on order dated 25.3.1998 passed in O.A. No.148 of 1997 Joydeb Biswas and others vs. State of West Bengal and others. The precise grounds on which review was sought by the respondents are reproduced below:-

[Emphasis added]

28. The principles which can be culled out from the above noted judgments are :

Govt. has also decided to fill up some of the posts of the District Magistrates by W.B.C.S. (Ex) Officers. Detailed Govt. order in this respect will be issued later on.

ii) One additional post of Special Commissioner, Commercial Taxes in the Scale No.21 is created and such post is to be filled up by selection from amongst the Additional Commissioners who have put in a total service of thirty years since entry into West Bengal Commercial Tax Service including six years in Scale No.19 are also created for West Bengal Commercial Tax Service and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075-F dated 21.6.90.

iii) Fifty-five additional posts in Scale No.19 in West Bengal Health Service are created and the eligibility condition for Scale No.19 will be the same as stated in Govt. order No.6075- F dated 21.6.90.

iv) Ten posts in Scale No.19 in West Bengal E.S.I. Medical Service are created and the eligibility condition for Scale No.19 will be total service of 20 years on revised Scales No.16, 17 & 18 and their unrevised counterparts and three years in Scale No.18.

v) The additional posts in Scale No.19 are created for West Bengal Secretariat Service and the eligibility conditions for these two posts will remain the same as at present.

vii) The number of posts in the basic grade in various State Services as mentioned above will stand reduced by the equivalent number of posts created in Scale Nos.19 and 21.

34. There is another reason for our conclusion that the Tribunal was not entitled to rely on the order passed in Joydeb Biswas's case for the purpose of reviewing order dated 25.2.1997. Undisputedly, that order is under challenge in the writ petitions filed before the High Court of Calcutta. Therefore, even though prima facie we are inclined to agree with learned senior counsel for the appellants that mere recommendations of the Secretary of the Administrative Department or for that reason any other authority, are not binding on the Government - Union of India vs. Arun Jyoti Kundu and others (supra), we do not consider it necessary to finally pronounce on this issue, because it will prejudice adjudication of the matter pending before the High Court.

36. For the reasons mentioned above, we hold that the Tribunal committed a jurisdictional error by entertaining and allowing the review application filed by the respondents and the direction given by it for extending the benefit of Scale Nos.19 and 21 to them is legally unsustainable.

42. In the result, the appeal is allowed. The order of the High Court as also the one passed by the Tribunal in R.A. No.26 of 1998 are set aside. The parties are left to bear their own costs.

(B.N. Agrawal) .........................J. (G.S. Singhvi) New Delhi June 16, 2008