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PETITIONER: CALCUTTA METROPOLITAN DEVELOPMENT  AUTHORITY

       Vs.

RESPONDENT: SHRI DILIP KUMAR BANERJEE & ORS.

DATE OF JUDGMENT:       29/04/1997

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:       JU D G ME N T M. JAGANNADHA RAO, J.      This  appeal   has beenpreferred  by  the  Calcutta Metropolitan Development  Authority (hereinafter  called the ‘CMDA’ )  against the  judgmentof the DivisionBench of the Calcutta High  Court in AppealFrom Original Order No.1164 of 1988 dated 22.12.1992. Dismissing the appeal the learned Judges confirmed  the judgmentof thelearnedsingle Judge dated 13th  March, 1987 in Civil  Order No, 466(w) of 1985. The learned  single Judge  cameto  theconclusion  that the writ petitioners  who were  working  as Programme  Officers under the CMDA and weregiven the scaleof Rs. 470-1230were entitled to  the scaleof Rs.660-1600. The said scale was directed to  begiven  with effect fromthe respective dates of promotion  of the writ petitioners. It was also heldthat they would be entitled to 50% of the arrears onthe basis of such fixation.In this appealfiled  by the CMDA, thesaid view of the Calcutta High Court is challenged on the ground that the   Programme  Officers workingunder the  CMDAwere permitted to  draw the scale ofa Section officer namely Rs. 470-1230 and there was no resolution ofthe CMDA  permitting them todraw the scale of Rs. 660-1600.It is also contended for the CMDA that  thelearned SingleJudge as well as the Division Bench were notright in holding that the concession of thelearnedcounsel for the CMDA was to the effectthat the Writ  petitioners were entitled to the scale of Rs.660- 1600.      Learned counsel  for the appellant-CMDA referred to us, among others,  the following  facts and resolutions of the CMDA:      The CMDAwas  created by the  CalcuttaMetropolitan Development Authority  Act, 1970 which Act was replacedby a subsequent, Act of 1972 (Act 12 of 1972). The CMDA provides for the establishment of  the statutory  authority for the formulation and execution of  plans for  development of the Calcutta  Metropolitan area,for  the  co-ordination and supervision ofthe execution  of such plans and for matters connected therewith  or incidental  thereto.  The  terms  & conditions of  the service of the writ petitioners under the CMDA are  governed be  the CMDA (Service) Regulations1975

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framed by  the CMDA.  The writ petitioners wereappointed as Samaj Sevaks/Sevikas  and Junior  SamajSevaks/Sevikas.When the writ  petition was filed the petitioners were working as programme officers.  Inthe  writ petition, they claimed the scale of Rs. 660-1600 instead of Rs. 470-1230 which theCMDA gave them. We shall refer to the relevant resolutions of the CMDA   chronologically in  thisbehalf. The agenda  for the 74th meeting ofthe CMDA  proposed the creationof posts for implementation of  the S.S.B.  Programme under C.U.D.P.-III with World  Bank Aid.  For theimplementation of  thesaid programme, as  suggested by  the World Bank, itwas proposed to Sanction  new postswith new  scales of  Pay. The entire area of operation wasto be  groupedinto six zones . The staffing pattern of theZonal officer was to comprise of six zonal officerswith the  scaleof  payof Rs. 660-1600, two programme  officers   with  scale  of  SectionOfficer,  16 planning assistants/programme  assistants withscale of pay of Rs.425-1050. so  far as  zonal officers were concerned, they were to befilled,as the posts were new, on deputation from Junior  WBCS Officers.  Sofar  as the  two  posts  of programme officers wereconcerned, theywere tobe filled by promotion of the existing planning assistants serving in the unit. It  may here be noted that the revised scale of pay of SectionOfficers  was Rs. 470-1230. On the basis of thesaid agenda,the  74th meeting  of the  CMDAtook  place on15th December, 1982 and the resolution passed at thesaid meeting disclosed in  para-22 that  theauthority  had approved the proposal for  creation of  posts for  implementation of the S.S.E Programme Under CUDP-III  subject  to the  amendment that the  postsin  thesubordinate offices (Zonal officers) would be  filled up  only  after  the  scheme  IDA-II was negotiated  successfully  withthe  World  Bank.  Initially Sanction of  two postsof programme officers was granted by the order  dated 15th  January,1983 byCMDA. The agenda for the 76th  meeting of  the CMDA was  then prepared   and it shows that  thenumberof posts  of programme officerswere increased from 2 to 23 and the scale ofpay wasshown as Rs. 470-1230 whilethe scale  of pay  of the six zonal officers was  shown   as Rs.   660-1000.  The  supplementary  agenda consisted of  four Annexures  Ito IV. Annexure-I dealtwith the set up, Annexure-II with the scaleof pay,Annexure-III with the  sanctioned strength  of the  staff proposed  to be sanctioned while  Annexure-IV contained with the  financial statement. Theagenda also  stated that the approval of the CMDA to the administrative  set up  and the other annexures pertaining thereto  wassolicited.  The76th  meeting of the board of  CMDAtook place on 23rd, March, 1983. Para 7.1 of the  resolution at  their  meeting  stated  that  theCMDA approved the  administrative set  up proposed  in the agenda with details noted in AnnexuresI to IVto the supplementary agenda and  that the   authority had decided topay thepay- scales of  the posts  only after  the Finance Secretary had considered  them.   Separate  approval was  given  to the supplementary agenda  at this  76th  meeting  on  23.3.1983. After  referring   to  the   AnnexuresI  to  IV    of the supplementary agenda,  the resolution  mentioned that  there were 23posts of programme officers in the scale of Rs.470- 1230. Pursuantto  the resolution  No.7  on  supplementary agenda,the  CMDA  stated on 7.4.84 that the said resolution was being  sentto Finance Secretary for obtaining his views on thescales of pay proposed for  the two categories of posts. The  financial implications   in respect of  the  23 posts of  programme officers inthe scale of pay of Rs.470- 1230  were  also  communicated. On  25.5.1983the  Finance Department accepted  the abovepatternof pay-scales except

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in regard  to the special pay recommended by the CMDA to the officers at various levels. As regards the pay-scales it was stated that theFinanceDepartment had no objection inasmuch as they were in  accordance with  the pattern of pay-scales prescribed in  the West BengalServices  (Revision of Pay & Allowances) Rules, 1981(hereinafter called theROPA Rules). Thereafter, theCMDA passed final orders on 26th March,1984 for creation  of 21 posts of programme officersin the scale of Rs. 470-1230.      Itis  thecase  of the  writ petitionersin thewrit petition that  they are entitled to  the pay  scales of Rs. 660-1600. Theyrely upon  an earlier resolution of theCMDA dated 13.12.1981  by which  theCMDA   acceptedin principle the "adoption"of the West Bengal Services (Revision of pay & Allowances)  Rules,  1981  (the  ROPA Rules).  The  above resolution of  the CMDA dated 13.12.1981  requires that the pay-scales of  CMDA  beaccordingly revised in line with the West Bengal  services (Revision of pay& Allowances) Rules, 1981, applicable  to West  Bengal government  employees and also that  the revisedpay-scales should  be deemed tohave come  into   force  from   1.4.1981.  Relying  on  thesaid resolution of  the CMDA dated13.12.1981  the petitioners contendthat  the pay  scale of programme   officers in the West Bengal  GovernmentService (whichwas  governed by the said  Ropa  Rules)  isRs.  660-1600  and,  therefore, the petitioners who are also programme officers inthe CMDA are entitled to  the same  pay scales  of Rs.  660-1600. On the other hand,  itis contended for the appellant-CMDA that the posts of  programme officers inthe State government are not comparable to  the corresponding posts of programme officers in the CMDA and, therefore, thepetitioners arenot entitled to theScale of  Rs. 660-1600. The learned  single  Judge, however, came  to the  conclusion that in view of the budget estimate appended  to the  supplementary agendafor the76th meetingof  theCMDA  wherein the  average monthly  pay was taken as  Rs.  1931  for  programme  officers,it  must  be presumed that  the CMDA accepted the  scale ofRs. 660-1600 inasmuch as  the same  average of  Rs. 1931  per  month was computed  forthe  Zonal   officers  whose  pay-scale was admittedly Rs.660-1600.  Thelearned Single Judgealso referred to an admission made by the learned counsel for the CMDA Mr. Bagchibefore him to the following effect:      "It is contended by Mr. Bagchi that      the Recruitment Rules havenot been      framed    and    accordingly    the      programme officersare notentitled      tothe  scale even if such  so was      approved. It  is  howeveradmitted      that the  pay scale of Rs.660-1600      was adopted  by the  CMDAbut  the      approval of  the  state  government      was not obtained."      The learned singleJudge then referred to a note in the office file  which raised an objection to the grant of scale of Rs. 660-1600to the programme officers of the CMDA on the ground that  ifsuch  ascale  was given  to  the  programme officers, thentheir scale would be equivalentto the scale of their  controlling officers, namely, the Zonal officers. The learned  single Judge  thenproceeded  on the basisthat CMDA had  admittedly approved  the scale of Rs.660-1600 for programme officers  in the CMDAand that the office note put up thereafter  could not  affect the position. learned Judge noted that  thecorresponding posts of programme officers in government wereentitled to thescale of Rs. 660-1600 as per the ROPA Rules,1981 and that in view of the CMDA resolution

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dated  13.12.1981  already  referred  to  wherein  theCMDA adopted the  scales  of  the  corresponding  posts  in the government, theprogramme officers of the CMDA were entitled to thescale of  Rs. 660-1600. The learned  single  Judge, therefore, allowed  theWrit petition and granted 50% of the back wages w.e.f. the respective dates of theirpromotion.      The appeal preferred by  the CMDA beforethe Division Bench, againstthe above  saidjudgment, was dismissed. The learnedJudgesreferred   again to  the  admission  of the counselbefore them to the following   effect:      "It appears that CMDA  approved the      pay scale of Rs. 660-1600. for the      programme officersand prepared its      supplementary budget.  Accordingly,      the petitioners  claim  that  since      CMDA has  approvedthe scale, their      pay scaleshould be  Rs. 660-1600.      This ought to have been granted to      them. TheCMDA has  submitted that      this  suggested  scale  was  to  be      approved  by  theStatesof  West      Bengal. Since  that  has  not  been      done  ,   the   scale   cannot   be      implemented or that the petitioners      cannot claim the same scale."      The learned  Judges then  stated  that  they  hadgone throughthe  material on  record and had found that inasmuch as theCMDA itself  had proposed  the pay scale of Rs.660- 1600 to programme officers,  the learned  single Judge was right in  directing the CMDA to  grantthe  same. Theyheld that there  wasno  question ofapproval of thescale by the State by  Government because  the state was also a party to the proceedings at thevariousmeetings of theCMDA and the state had  not disclosed  why such a pay scale should not be granted. In theresult the appeal was dismissed.      Inthis  appeal, it is contended by the learned counsel for the appellant that the assumption made by the learned Single Judge  as well as by theDivision Bench that theCMDA approved the scale of Rs. 660-1600 for programme officers of the CMDA  was factuallyincorrect and that in fact there was no such resolution. He,  further contended  that if infact any such concession wasmade bythe counsel forthe CMDA who appeared before the learned  Single Judge  or by  the other counselwho  appeared before  the Division  Bench, then the said concession couldnot  be relied upon  by  thewrit petitioners unless  there was proof that there was in fact a resolutions tothat effect. Learned counsel referred to the variousresolutions  ofthe  CMDA made from time to time and pointedout  that the  CMDA   merely approved the scaleof a Section Officer  i.e.Rs.  470-1230  to  be  paid  to the programme  officers   and  that  there was  no  resolution approving the  pay scale of Rs.660-1600. It may be that the scale of  Rs. 660-1600was being paid to programme officers workingin  thegovernment  because they are governed by the ROPA  Rules  but  counsel  contended  that  the duties and functions of  the programme  officers in  CMDAare  nowhere comparable to  the duties  and functions  of  the  programme officers working  in government service. It was pointed out that in the relevant AnnexuresI to IVto the supplementary agenda of  the 76th  meeting held on 23rd March, 1983 by the CMDA, the  scale that  was approved  inAnnexure-II  was the scale of  Rs. 470-1230but that  whilethe budget estimates were  being   preparedas   per  Annexure-IV  of  thesaid supplementary agenda,  the multiplicand showing the average monthlypay  ofprogramme  officers waswronglycomputed Rs.

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1931 which  was, in fact, the multiplicand applicable to the scale of  Zonal officers  of  Rs.  660-1600.  The  relevant multiplicand applicable for the  scaleof  Rs.470-1230 was far less  than Rs. 1931per month. It was argued that basing on a  mistake in  the computation  of the budget as shown in Annexure-IV tothe agenda,  the writ  petitioners could not claim the  scale of Rs.660-1600. One has to goby Annexure- II which  dealtwith  the Scales  of pay  as approved by the CMDA and said Annexure referredto the pay scale of Rs.470- 1230 asapplicable to programmeofficers.      Onthe other hand,learnedcounselfor respondents(the writ petitioners  ) contended  that when  the learned single Judge as  well as  theDivision  Bench recorded  that the counselfor  the CMDAhad made a concession that the scale of Rs.660-1600 was approved for programme officers, it was not open to theCMDA to file an appealand contest thesaid admission recorded  in the  judgments. The proper remedy for the appellant  was to  file a  review application before the learnedSingleJudge or the Division Bench inasmuch asthis is a  dispute as  to what  bad happened in the court. The proper remedy was not to file an appealin thiscourt but to file a review application in the High Court. Learned counsel for the respondent also submitted thatthe budget estimates adopted an   average  of  Rs.1931  per  month  which was applicable to  the scale of Rs.660-1600 and when the budget estimate was  so prepared and submittedby the CMDA, itmust be taken  that the  CMDA had  approved the scale of Rs.660- 1600 for  programme officers.  He alsosubmitted thatCMDA being  an  autonomous  statutory  authority,  there  was  no question  of   its  seeking  the  approval  ofthe  Finance department of  the  State  Government.The  money  for the projectwas  being given  by the World Bank andthere was no need toseek governmentsanction. He also submitted that the FinanceSecretary  was presentat themeetingof the CMDA. Learnedcounsel for the  respondents-writ petitionersalso relied upon  the ROPA  Rules and  the resolution of theCMDA dated 13.12.1981  and contended that once  theCMDA had, by virtue of  a resolution,  decided to adopt the corresponding scales available  for similar posts in the State government, then the  scaleof  paymentioned in the said ROPA Rules for programme officers  namely Rs.660-1600  was  automatically attracted to the posts of programme officers inthe CMDA.      Learned counsel  for the  appellant as  well as for the respondents submitted  before  us,  on8.4.1997,  that the observations of the learned Single Judge and Division Bench recording an  admissionor concession of the counsel for the CMDA may be setaside and that the matter may be remitted to the Division  bench ofthe Calcutta  High Court for a fresh disposal of  the issues involved in  the case. In view of this submission made by  the counsel  on both sides, it has not become necessary for this court to go into the merits of the case. We have already extracted therelevant portions of the admission  or concession  made by  the counsel  for the CMDA  before the learned singleJudge and the Division Bench of the High Court. We, therefore, set aside theobservations of thelearnedSingle Judge aswell asthe Division  Bench, in regard  to the  said admission  orconcession  and the consequential inferences  drawntherefrom  which resulted in the grant  of the  scale of  Rs. 660-1600 to these programme officers. The  matter is  remitted to  the Division Bench of the Calcutta  High Court  for disposalon the merits of the disputeon  thebasis  that there  is no  concession of the counselfor  the CMDA  in regard  to  the  existence  of  an approval by  the CMDA  of  thescale  of  Rs.660-1600  to programme officers.  Pending disposal  of the  matter before

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the Division  Bench, there  shall be  stay of  grant of the government scale  of pay  to programme officersin the CMDA. Appeal allowed accordingly, as stated above.      Inview  of the fact that the dispute is an old one, it would  be   appropriate if   the  appeal   isdisposed  of expeditiously  by the Division Bench, preferably withinfour months.We  should notbe understood  as  having  expressed anything on  the merits of thedisputebetweenthe parties. There shall be no orderas to costs.