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PETITIONER: CALCUTTA MUNICIPAL CORPORATION & ANR.

       Vs.

RESPONDENT: SUJIT BARAN MUKHERJEE & ORS. ETC.

DATE OF JUDGMENT:       14/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                THE 14TH DAY OF FEBRUARY 1997 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice S. Saghir Ahmad Tapas Ray,  Sr.Adv., Gaurav  Jain and  Ms. Abha Jain, Advs., with him for the appellants. B.K.Ghosh,  Adv.  (Ms.Sarla  Chandra)  Adv.  (NP),  For  the Respondents                          O R D E R      The following Order of the Court was delivered :      Baran Mukherjee  and others  and one  Shankar Bose, all were initially appointed as Junior Copyists on May 12, 1969. Their inter  se seniority  was determined  on the  basis  of their respective  date of  birth. Subsequently, Shankar Bose was transferred to the Secretariat Department whereat he had to discharge  arduous duty for which he was paid special pay of Rs.  50/- per  month. Consequent upon revision of the pay scales effected  in 1981,  the pay  of the  respondents  and others came  to be  revised. The special pay paid to shankar Bose got  merged with  his pay  in the  revised pay  scales. Consequently, he started drawing higher pay than Tapan Paul, Sujit Baran  Mukherjee and  others. Tapan  Paul  and  others filed writ petition in the High Court seeking upgradation of their scale  of pay  so as to be on par with that of Shankar Bose. The  writ petition  was allowed  by the High Court and the Corporation  was directed  to step  up the  pay of Tapan Paul and  others so  as to  be on  par with  that of Shankar Bose. Subsequently,  a petition  for contempt  was filed  by Tapan Paul  and others  for non-compliance of the directions issued  by   the  High   Court.  The   appellants  filed  an application for  clarification. In  the meanwhile,  an order had come  to be  passed at  the instance  of  Sujit    Barah Mukherjee and others on April.                             WITH             CIVIL APPEAL NOS. 1550-1552 OF 1997        (Arising out of SLP (C) Nos. 14836 & 14582/94)                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      These appeals  by special leave arise from the impugned

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order, made  on February  2, 1993 by the Calcutta High Court followed by  contempt petition,  clarification petition etc. of Calcutta High Court.      The admitted  position is  that the  respondents, viz., Tapan Kumar  Paul and  others, Sujit   23, 1993; when it was realised that  Regulation 34-A  of a  the Culcutta Municipal Corporation Regulations  (for short,  the ’Regulations’) did not apply  to stepping  up of  the scale  of pay,  the order passed for  stepping up  of their  scale of pay of T.K. Paul and others  was withdrawn  which also came to be challenged. The order  dismissing  the  contempt  petition  was  passed, directions to  keep that  amount  in  account  pending  writ petition filed by the Sujit Mukherjee and others were issued and consequential  application for  clarification came to be dismissed in  the impugned  orders. Thus,  these appeals  by special leave.      It is  not in  dispute that  Shankar Bose  was given  a special pay;  in other  words, overtime  pay for  doing work outside the normal duties at a sum of Rs. 50/- per month and after the revision of the pay scales, the special pay of Rs. 50/- came  to be  merged in his pay. Nonetheless, it must be treated to  be a  special pay  given to him since he had the onerous  duty  to  be  discharge  outside  the  normal  duty assigned to  the post.  The question is: whether Tapan Paul, Sujit Baran Mukherjee and others who came to be appointed on the same  day are  entitled to have their pay scales stepped up so  as to be on par wit shankar Bose? It is contended for the respondents  that when such a relief was granted and was allowed to  become final,  it  would  not  be  open  to  the respondents to  withdraw the  same. We  find no force in the contention.      Retulation 34-A postulates thus:      "If an employee on his promotion to      a higher post draws pay at a higher      rate than  his senior  employee due      to  fixation  of  his  pay  in  the      higher post under the normal rules,      of due  to revision  of pay scales,      the pay  of the  employee senior to      him shall  be  fixed  at  the  same      stage and  from the  same date  his      junior draws the higher rate of pay      irrespective  of   by   the   senor      employee belong  to the  same cadre      and sem  pay scale  of the  post in      which   they have been promoted are      also identical.      The  benefit   of  this  Regulation      shall not  be  admissible  in  case      where junior  employee exercise his      option to retain unrevised scale to      pay."      A reading  thereof  would  clearly  indicate  that  the principal of  stepping up of the pay would arise only when a junior employee,  on his  promotion, is  drawing higher  pay than his  seniors; in  that case,  they would be entitled to the stepping  up the  pay so  as to be on par wit him on the principle that  the persons  who are  similarly situated and are drawing  the same  scale of  pay and pare doing the same duty and  being seniors  to the  persons drawing higher pay, are entitled to have their pay stepped up but that principle is inapplicable  to the  situation, as  in the present case, where a  junior person  on transfer  to a different place is being paid  extra payment  by way or special pay or overtime pay, whatsoever  the nomenclature be and could be treated to

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be a  special pay  since he has a discharge the duty outside his normal  duty or  due to  special circumstances.  Such  a fortuitous circumstance  would not  be a  ground  for  other seniors to claim party of pay bay stepping up of their scale of pay.  If the  connection is  given acceptance,  the extra salary would  become payble to persons who do not take pains and do   the  normal work  while  staying  in  a  convenient post/place with  indolence whras  the person  who undertakes special responsibility  or puts up hard work would be put on par; and  stepping up  of pay would be a permium on laziness and indolence.  It should  be deleterious to augmentation of efficiency n  service or  dedication to  duty.  Under  those circumstances, we  think that  the  statutory  principle  of stepping up  of the pay so as to be on par with junior would be not on rational principal. when all of them discharge the same duties and are under the same responsibility and not in different circumstances  and it  the juniors draw higher pay on promotion,  the seniors  who do  not get  the  oportunity would be entitled to parity of pay with their juniors.      Learned counsel  for the respondents, however, contends that withdrawal  is without  notice and  , therefore,  it is violative of  principle of natural justice. We find no force in the  abstract contention.  It is  not well  settled legal position and  needs no reiteration. However, on the facts of this case, we do not find any reason to set aside that order for the reasons that they have not withdrawn any amount paid to them  pursuant to the legal order passed in favour of the respondents. All  that they  have done  is  that  they  have revised the pay scales only after realising the mistake.      It  is   next  contended   that  the   respondents  are discriminated since  Sujit Baran  Mukherjee and  others  are entitled to  get higher pay. In view of the principle stated above, there  is no question of any discrimination of others since they are not entitled to they parity wit Shankar Bose.      Under those  circumstances, the appeal are allowed. The orders of the High Court are set aside. No costs.