Asish Taru Ghosh vs State of West Bengal

Arun Kumar Mitra, J.—The challenge in this writ petition is the alleged reduction of pay by a Government notification in respect of the pay of Librarians of different rural Libraries designated as Library Assistants in respect of District/Sub-Divisional Libraries.

According to the Petitioners they were provisionally engaged as Librarians of different rural Libraries in the pay scale of Rs. 300-685 which was subsequently revised under Ropa 81, Ropa 90 and also under Ropa 98. The Petitioners were appointed on different dates and initially were posted in different places. A statement showing their initial postings has been made annexure ''PI''.

The Petitioners further stated in the writ petition that they were appointed as Library Assistants in respect of District/Sub-Divisional Libraries and perormed their duties as Librarians of rural Libraries at the pay scale of Library Assistants of District/Sub-Divisional Libraries and that of rural Libraries. According to the Petitioners the prescribed qualification was Matriculation or equivalent.

In the year 1967 the Deputy Secretary to the Govt, of West Bengal through his memo dated August 23, 1967 addressed to the Director of Public Instructions, West Bengal while prescribing revised pay scale for the staff of Government sponsored Libraries set down the following conditions:

''Revision of Pay and Allowances : Such existing staffs of the Government sponsored Library as do not possess qualifications both academic and training specified in the annexure in respect of corresponding posts, are permitted to continue to work in their respective posts on existing pay scale till they acquire the respective qualifications''. The Petitioners have made the said memo annexure ''P2'' to the writ petition.

Through another memo dated February 9, 1980 of Sri P.K. Kundu, Deputy Secretary to the Govt, of West Bengal, Education Department (Social Education Branch) addressed to the Director of Public Instructions, West Bengal, while inaugurating the procedures of establishment of Government sponsored Libraries and appointment of staff thereto stated inter alia that for the present appointment of staff will be given by the President of the Library Committee on the basis of selection of District Advisory Council of Social Education/Local Library Authority specifying certain existing service conditions, pay scales, allowances etc. as approved by the Director of Public Instructions, West Bengal as per proforma in Appendix-A.

It was further stipulated that if provisionally qualified candidates are not found from Government/public Library employees, the employment exchange may be requested to send the name of candidates having minimum academic qualifications for consideration of appointment. Such candidates, if selected and appointed, will have to undergo professional training as required for the respective posts within three years from the date of joining. Till his acquiring such professional qualifications he will not be eligible for annual increment in the pay scale which will be of appointment. The Petitioners annexed this memo dated February 9, 1980 as annexure ''P3'' to the writ petition.

The Petitioners alleged that in memo dated February 11, 1981 of Sri Rule Chowdhury, Deputy Secretary to the Govt, of West Bengal, Educational Department addressed to the Director of Public Instructions, West Bengal, it has been stipulated inter alia that for Librarians of rural Libraries/Primary Unit Libraries and for Library Assistants of Town and Sub-Divisional Libraries the candidates should have passed School Final and should have possessed certificate in Library Science. Certificate in Library Science means certificate obtined from any of the following institutions:

1) Bengal Library Association;

2) Training Centre attached to District Library, Ram Krishna Boys'' Home, Rahara;

3) Training Centre attached to Janata College, Kalimpong and;

4) Any other equivalent training centers recognised by the State Government.

It was further stipulated that appointments of staff in sponsored Libraries must be approved by the concerned District Advisory Council for Social Education. The copy of the said memo dated February 11, 1981 has been made annexure ''P4''.

The Petitioners further alleged in annexure-(ii) of memo No. 372 Edn. (b) dated July 31, 1981 of the Assistant Secretary, Education Department (Budget Branch), the pay scale of such categories of employees including Library Assistants has been prescribed and for Library Assistants three pay scales have been prescribed as furnished below:

Library Assistants :

i) For graduate with Diploma in Library Science - Rs. 425-895/-;

ii) For Matriculation with or without certificate in Library Science - Rs. 300-685/-;

iii) Other non-Matriculations - Rs. 260-337/-.

The copy of the memo dated July 31, 1981 has been made annexure ''P5'' to the writ petition.

The above referred memo, according to the Petitioners clearly states that both matriculate with certificate in Librarianship and matriculate without certificate in Librarianship got recruited as Library Assistants in Town/Sub-Divisional Libraries and as Librarians in rural Libraries.

The Petitioners alleged that in a Government order dated October 4/8, 1983 the Deputy Secretary, Education Department, Govt, of West Bengal informed the Director of Library Services, West Bengal that District Advisory Council of Social Education will continue in those Districts where local Library authorities have not yet been consulted till the formation of the local Library authorities and through another memo dated June 17, 1983 the Deputy Secretary, Education Department, Government of West Bengal informed the Director of Library Services, West Bengal in reply to his order No. 320/L.S. dated July 29, 1988 that the District Advisory Council for Social Education will cease to function from the date of the last meeting of the local Library authority of the District concerned or till August 16, 1983 whichever is earlier. Copies of the said order dated October 4, 1983 and June 17th have been made annexure ''P6'' collectively.

The Petitioners relied on the appointment letters and stated in the writ petition that it was not stipulated in the appointment letters (excepting three) that they would not get any incremental facilities and other facilities like career advancement etc. until they acquire the said training in Library Science.

The Petitioners also claimed that it was not open to them to undertake training in Library Science in their own effort and as per the procedure the names of the institutions where the Petitioners were to be deputed to undergo the said training were determined by the State Level Committee and thereafter by the District Social Education Officer, Murshidabad and that according to the Petitioners will be clear or evident from memo No. 914 R.L. of the District Social Education Officer, Murshidabad addressed to the Secretary, Atal Bihari Smriti Pathagar. The Petitioners have annexed a list or a statement showing the date of joining of the Petitioners, date of completion of training and dates from which their first increment was drawn and is annexed hereto and marked with the letter ''P7''.

The Petitioners further stated in the writ petition that service rules of the employees'' in the Government sponsored Libraries or other Libraries in West Bengal which has been framed in 1985 and in the service rules there is no whispering of non-grant of incremental benefits to the Library Assistants of Town/Sub-Division Libraries and Librarians of rural Libraries who don''t have certificate of training in Library Science. The Petitioners annexed the service rules to the writ petition as annexure ''P8''.

''P-9'' and ''P-10'' are the pay fixation statements of the Petitioner Nos. 1 to 61. Re-fixation under Ropa 1998 is there, according to the Petitioners and there also is no stipulation that incremental benefits will be held up unless the Library Assistants of town/Sub-Divisional Libraries and Librarians of rural Libraries obtain certificates of training in Library Science and accordingly the Petitioners were in the enjoyment of incremental benefit as well as career advancement benefit.

The whole case of the Petitioners has been concentrated in a particular point that withholding of incremental benefits for untrained Librarians of town/Sub-Divisional Libraries and/or non-grant of career advancement benefits to those Librarians are illegal and are not permissible under the law. In the instant case initially they were allowed but subsequently the necovery method by way of re-fixation of the pay scale was adopted and the challenge in the writ petition is the said illegal action of the Respondent authorities. The Petitioners pray for a writ in the nature of Mandamus for cancelling and/or withdrawing Order No. 1858-Edn.(MEE) dated December 18, 2001 and the Office memo No. 1303 (18)/L.S. dated October 15, 2001 and Memo No. 650/DLO-MSD dated June 26, 2002 wherein the basic pay of the Petitioners were reduced after deducting the increments received by them during their untrained period of service.

Affidavit-in-opposition has been filed by or on behalf of the State Respondents. Reply thereto has been submitted by the Petitioners.

In the affidavit-in-opposition the State Respondents denied the allegations made by the Petitioners and stated that the Petitioners'' pay have not been fixed rightly and if by mistake any increment is allowed, that mistake can be rectified by the Government subsequently. The State Respondents referred to the provisions of Library Manual also.

On behalf of both the parties written notes and submissions, apart from oral argument were made.

The Petitioners submitted that they duly got their annual increments and their pay scale were re-fixed after promulgation of Ropa 1990 and Ropa 1998 and the Petitioners continued to enjoy uninterruptedly the facilities of annual increments as well as career advancement benefits after completion of 10/20 years of satisfactory service.

The District Library Officer, Murshidabad, in compliance with the Circular issued by the Director of Library Services revised the pay of the Petitioners by deducting the increments they had received during their untrained period from their salaries with effect from the month of June 2002, payable in July 2002 and the Petitioners are challenging this action as alleged in this writ petition.

The Petitioners further submitted that in their appointment letters no condition was stipulated to the effect that they would not be entitled to draw any annual increment unless and until they obtain certificate in Library training course and also there is no mentioning of the said condition in the service rules of the Petitioners.

According to the Petitioners through appointment letters a contract has been entered into between the authority and the concerned employee at the threshold and thereafter it was turned into status which has to be honoured and no extraneous matter which does not appear in the said letter of appointment cannot have any effect on the service condition of the employee.

The Petitioners submitted that the career advancement benefits which were also extended to the Petitioners by the concerned authority after observing the extant rules and procedures and the authority has got no right to contend subsequently that granting of such increment and/or conferment of career advancement benefit as wrong or irregular.

It has further been submitted by the Petitioners that no scope is there for obtaining the said training out of their own volition unless deputed by the authority to undergo such training and therefore, the delay in receiving such training was not caused due to any lapse on the part of the Petitioners and they have been victimised for no fault of their own.

The Petitioners received training after being duly nominated by the appropriate authority for undergoing such training which clearly proves the fact that the Petitioners were not at all responsible for the delay in receiving said training in Library Science course and they cannot be victimised by way of non-granting of annual increments for which they have no fault of and the concerned authority is solely liable for the same.

The Petitioners submitted that in para. 9 of the affidavit-in-opposition the Respondents contended that neither the Petitioners applied to the appropriate authority for allowing them to acquire technical qualification in Library Science course at an early date nor they did allow any initiative of their own to educate themselves by obtaining such technical training from appopriate training centers and/or institutions but the said contention of the Respondents is wholly untenable because the Petitioners were never informed that they might approach the authority for receiving permission to acquire technical qualification at an early date or out of their own initiative and all Librarians of rural Libraries and Library Assistants of Sub-Divisional/District Libraries including the Petitioners were depend by the authority to undertake such training.

The Petitioners referred to G.O. No. 394-SE(B)/55-150/98 dated August 7, 2002 and submitted that all existing untrained secondary school teachers and those would be appointed on or after April 1981 would be allowed to draw annual increments in the revised scale of pay provided that the untrained teachers will have to get themselves trained within a maximum period of five years, failing which their increments will be stopped till they get themselves trained. But in the instant case the Respondents are taking a diametrically opposite course of action by stopping and/or deducting their incremental right from the very beginning of their service career till they get themselves trained and the allowing such increments only after obtaining the said technical qualification, thus depriving them of their legitimate annual increments inspite of rendering satisfactory service.

The Petitioners also referred to the their appointment letters and submitted that these are binding upon both the parties and the Respondent authorities cannot go beyond the appointment letters. It is further submitted that Respondent authorities cannot also deduct the benefit of career advancement scheme.

The learned Counsel for the Petitioners in his written argument referred to a decision reported in Karnataka State Coop. Apex Bank Ltd. v. Y.S. Shetty and Ors., (2000) 10 SCC 179 . The learned Counsel specifically referred to para. 6 of the said judgment and submitted that the Hon''ble Apex Court was pleased to hold that the terms and conditions of appointments are to be governed by appointment letters in the agreements entered into between the parties and not by any extraneous matter.

The learned Counsel then referred to another decision of the Hon''ble Apex Court reported in Shri Balbir Singh Vs. State of H.P. and Others, . The learned Counsel specifically laid stress on the observations made in para. 4 of this judgment which is quoted hereinbelow:

It is surprising to note that prior to the disposal of the writ petition filed by Shri Walia, the Appellant herein was reverted vide order dated 2.7.1988 allegedly on the ground that he had been promoted erroneously under a mistaken belief. The record reveals that the Respondent State had taken a conscious decision to promote the Appellant and was, therefore, not justified in reverting him allegedly on the ground of non-availability of reservation as per instructions of the Government. The Respondents cannot be permited to blow hot and cold in the same breath inasmuch as in the petition filed by Mr. Walia they justified the promotion of the Appelant by stating that he was deprived of his promotion erroneously and when the question of the promotion came, it took the same plea of erroneously promoting him under a mistaken belief. It is on record that till the promotion of the Appellant as Junior Engineer seven such posts had been filled up by promotion meant for various categories including Electrical Grade I from 10% promotion quota. He had been promoted upon his representation which was duly considered and appropriate orders passed in his favour. It is conceded before us that after his promotion the Appellant has continuously been holding the post of junior Engineer.

The learned Counsel submitted that in the instant case the Respondent are trying to impose the conditions which were not stipulated in the appointment letters issued to the Petitioners and therefore, those are invalid in law.

The learned Counsel further submitted that even assuming but not admitted that there is Government order to the effect that Library Assistant of the District/Sub-Divisional Libraries and/or Librarians will not be entitled to receive any annual increment until and unloess they acquire technical qualification by obtaining certificate in Library Science course, the said condition was not made applicable in case of the Petitioners by the Respondents by not mentioning the same in the appointment letters issued to the Petitioners. According to the learned Counsel this condition has been waived by the Respondents insofar as the Petitioners are concerned. The learned Counsel referred to Memo No. 20/IS/IF/Lib./93 dated January 10, 1996 from which it will be evident that the Director of Library Services, West Bengal allowed Shri Krishna Chandra Saha, Sri Golam Robban and Md. Jamaluddin, Librarians of Government-sponsored Libraries in Calcutta to draw annual increments inspite of not having received any training in Library Science and the Director of Library Services, West Bengal, in the said memo clearly stated that non-possession of technical qualification is not at all a bar for drawal of pay as per the provisions of Rules of Pay and Allowance 1981. In the written note on submissions a copy of the said memo has been annexed as annexure-''A'' therein. The learned Counsel submits that this is in clear violation of Article 14 of the Constitution of India.

The learned Counsel further submitted that no hearing was given to them and this denial of opportunity and the learned Counsel referred to the judgment of the Hon''ble Apex Court reported in S.L. Kapoor Vs. Jagmohan and Others, :

The learned Counsel then submitted that the Respondents have got no right to give retrospective effect to their arbitrary decision to make deduction from the pay of benefits received by them during their untrained period of service in view of the law laid by the Hon''ble Apex Court in the case of West Uttar Pradesh Sugar Mills Association and Others Vs. State of Uttar Pradesh and Others, reported in.

The learned Counsel submitted that their pay scales have been fixed and re-fixed in terms of Ropa and the Governmental authority has no right to go beyond the Ropa fixation.

The learned Counsel submits that rule will prevail over the Government Circular. The learned Counsel relied upon a decision reported in Ratan Kumar Tandon and others Vs. State of Uttar Pradesh, and another in 1986 (8) S.C.C. 692, p.5 : 1986 (8) S.C.C. 692.

The learned Counsel contradicted the averments made in para. 7 of the affidavit-in-opposition submitted by the Respondents and submitted that the contention of the Respondents made there in is absolutely untenable in view of the fact that if granting the same increment was due to inadvertence how is to possible that granting of said increments continued uninterruptedly for such a long period and if it is a fact that such granting of incremental benefits to the Petitioners was allegedly due to inadvertence and it was allegedly detected during 1988-89 then how can the Respondents explain the delay in taking decision after a long time by issuing the alleged Government order.

The learned Counsel submitted that the said affidavit-in-opposition is full of erroneous contentions and unwarranted, baseless and concocted allegations not sustainable in law or in the fact and circumstances of the instance case and is liable to be rejected.

The Petitioners reiterated their stand taken in the writ petition in the affidavit-in-reply. The learned Counsel for the Petitioners submitted that if the District Social Education Officer, Murshidabad in issuing appointment letters did not follow the proforma of the Government, still then there was no bar in appointing untrained persons as Librarians/Library Assistants of rural/District Libraries in terms of Memo dated July 31, 1981.

The learned Counsel in his written submission stated that the appointment letters were issued to the Petitioners by the Presidents of concerned rural Libraries and according to the Respondents they made deviations but the learned Counsel for the Petitioners submitted that same proforma appointment letters were issued to some persons namely Md. Hanif Sarkar, Petitioner No. 2, Prabhat Kumar Chatterjee, Petitioner No. 4, Sekhar Mondal, Petitioner No. 11, Kartick Chandra Sarkar, Petitioner No. 14, Kartick Chandra Kundu, Petitioner No. 22, Nitai Chandra Chandra, Petitioner No. 37 and Prosenjit Banerjee, Petitioner No. 59 and these appointment letters were issued by District Social Education Officer directly. The learned Counsel has annexed the appointment letters of the above named Petitioners which are collectively marked as letter ''B''.

The Director of Library Services in memo No. 96 L.S. dated February 7, 1995 intimated the District Library Officer, Murshidabad about the selection of four candidates to undergo training for six months as deputed candidates.

The Respondent No. 4 in the affidavit-in-opposition admitted that erroneously the proforma of appointment letter might not have been followed thoroughly by the then District Social Education Officer, Murshidabad.

The learned Counsel relied on the fixation of their pay-scales under Ropa 1981 and stated in his written submission that in the G.O. dated July 31, 1981 in the very beginning it is stated ''in finance department resolution No. 9716-F dated November 16, 1972 Government set up a Pay Commission with the terms of reference which included that the commission will also examine the structure of employment and condition of service of the;

(a) Teacher and non-teaching staff of Government aided Institution.

(x) Library Staff of the Govt-sponsored/aided Institution.

(a) Educational Institute

(b) District Library

(c) Sub Divisional/Town Library

(d) Rual/Area/Pray Unit Library

The learned Counsel referred to the Library Manual pages 224 containing pay-scale and 228 and 229

The learned Counsel submitted that in Note (3) it has been stated that ''in future there should not be any recruitment of Librarians/Deputy Librarian/Library Assistants without requisite technical qualification.

The learned Counsel also referred to the provisions of Ropa 1981 and several Government orders as enunciated in Library Manual pages 232, 237, 310 and 319.

The learned Counsel for the Petitioners then submitted that some Library Assistants like Kh. Fazle Hasib (Petitioner No. 19) was issued show cause for not obtaining training inspitwe of instructions given by the Government. A few other persons were also issued show cause.

The learned Counsel for the Petitioners submitted that from the above facts it would appear that the training was o be received by Librarians/Library Assistants only on deputation and not on their own initiative. From the said show cause it also appears that concerned employee was not deputed to receive training within three years from the date of his appointment and though show cause notice was issued to him/them but no steps were ultimately taken against them.

The learned Counsel for the Petitioners then submitted that the learned advocate appearing for the State, Respondents placed reliance on AIR 1981 S.C. p. 136 and it would be evident therefrom that opportunity of hearing ought to have been given to the Petitioners.

The learned Counsel for the Petitioners then referred to page 501 of the Public Library Manual - No. 10629 (W) of 1981 wherein Hon''ble Justice Ajit Kumar Sengupta (as his Lordship then was) was pleased to observe ''that even the Librarians of the High Court Library, which is one of the biggest law Library does not have the degree in Library Science. His Lordship was pleased to dispose of the Rule by an order the text of which has been quoted in the written submissions of the Petitioners and it is as follows:

The Petitioner shall be allowed to continue as the Librarian of the said Baligori Sadharan Pathagar. He will be entitled to his emoluments as fixed by the Administrator or the Managing Committee of the Library. He should be sent on deputation for obtaining certificate of Librarianship in any recognized Institution. The Petitioner shall be sponsored by the Administrator or the Managing committee for this purpose. The Petitioner shall be treated as on deputation during the period he will be attending the course for obtaining the Certificate of Librarianship. In the event, the Petitioner, fails to pass the examination, his deputation will stand cancelled and the Respondents will be entitled to appoint any qualified Librarian in his place. After completion of such training the Petitioner shall serve the Libraqry where he was working at least for 3 years. If he leavs before that, he will have to refund the proportionate emoluments received as may be fixed by the Administrator or the Managing committee as the case may be.

There will be no order as to costs.

This order of his Lordship govern the other rules being C.R. No. 19628 to 10631 (W) of 1981.

Let a plain copy of the judgment and order, countersigned by the Assistant Registrar (Court) be given to the Ld. Advocate for the Petitioner upon his undertaking to apply for a certified copy of the order and to put in necessary stamp or follow for the same.

The learned Counsel further submitted that there is no provision or scope for training out of volition as stated in para. 13 of the writ petition. It was not open to the Petitioners to undergo training in Library Science on their own. The learned Counsel for the Petitioners submitted that the names of the institutions where the Petitioners were to be deputed to undergo training were required to be approved by the State level committee and thereafter to be deputed by the District Social Education Officer and according to the learned Counsel for the Petitioners this fact had not been disputed or denied by the State Respondents in para. 5 in their affidavit-in-opposition.

The learned Counsel for the Petitioners in his written submission quoted a portion from memo No. 20 LSS dated January 10, 1996. The said quotation is as follows:

It has been state by concerned L.L.A. that non-possession of technical qualification is not a bar for drawal of yearly increment in the scale of pay as per provision of R.O.P.A. ''81 introduced under Government Order No. 372 Edn. (B) dated 31.7.1981.

The learned Counsel submitted that the other reasons referred to in the memo dated December 18, 2000 refers to a note of the Finance Department which too refers to those cases where in the appointment letters conditions were there to the effect that a candidate will be entitled to increment only when he did obtain the training. The learned Counsel submitted that insofar as the Petitioners are concerned there was no condition in the appointment letter for obtaining training before being deputed by the authorities for obtaining such training and that there was no condition that the Petitioners will not get the benefit of increment granted by the authorities.

The learned Counsel further submitted that in any view of the matter the Director of Library Services, West Bengal having not different with the decision of payment of increment to the Librarians during untrained period, the Respondents cannot make a departure in the case of the Petitioners in view of the law laid down by the Hon''ble Supreme Court in Abid Hussain and Others Vs. Union of India (UOI) and Others, . The learned Counsel quoted a portion and/or the text of the decision on the written submission which is as under:

It is not disputed that the Air-conditioned Coach In-Charges-Attendants are being paid overtime allowances for extra duty hours exceeding 96 hours in two weeks in the Western Railway, Central Railway and Eastern Railway. There is no justification for denying overtime allowances on the same basis to the Air-conditioned Coach In-Charges-Attendants in the Northern Railway. We accordingly direct the Union of India and the Railway Administration to pay with effect from July 1, 1984 the overtime allowances to the Air-conditioned Coach In-Chargis-Attendants working in the Northern Railway on the same basis on which the Air-Conditioned Coach in-Charges-Attendants in the other three Railways, referred to above, are paid. All arrears of such allowances upto date shall be paid as early as possible and in any event not later than four months from today. The benefit of this shall be extended to all such employees including those who have retired and those who have not joined as Petitioners herein.

The writ Petitioners are allowed. No costs.

''Petitioners allowed''.

The learned Counsel further submitted that District Social Education Officer and the District Library Officer, Murshidabad, in his memo No. 60/EW dated May 31, 1988 addressed to the Director of Library Services, West Bengal, wrote as follows:

Government of West Bengal

Office of the District Social Education Officer and District Library Officer, Murshidabad, Siksha Bhawan, P.O. Berhampore, Dist. Murshidabad

Memo No. 60/En.

Dated 31.5.1988

From : The District Social Education Officer,

and District Library Officer, Murshidabad.

To : The Director of Library Services,

West Bengal, Writers'' Buildings,

Calcutta-700 001

Ref. : His No. 272/(5)/L.S. dated 28.4.1988

Sub. : Training in Librarianship Certificate Course at Rahara Ramakrishna Mission Boys'' Home.

The undersigned has to state that the following 4 (Four) Librarians are not in position to undergo trainingt in the session June 1988 due to their inadvertance family position. They have applied for the same. The Librarians are:

Sri Dwijendranath Mondal, Dhusuripara Colony Rural Library.

Md. Abdul Hamid, Nabagram Sadharan Patha-gar.

Sri Pradip Chowdhury, Sagardighi Yuba Sammilani R. Library.

Sri Doman Ch. Saha, Saktipur Pratap Sangha R. Library.

On the other hand there are other untrained Librarians who are ready to undergo training. It is therefore, pro-posed that in place of the above 4(Four) Librarians the following 4 Librarians may be deputed to undergo training.

Md. Hanif Sarkar, Librarian, Gangadhari tarun Sangha R. Library.

Sri Sanjoy Kumar Raha, Library Asstt. Murshidabad District Library.

Sri Rasik Lal Das, Librarian, Kondalia Yuba Sangha Rule Library.

Sri Sekhar Mondal, Librarian, 22 Brothers R. Library, Islampur.

The proposal may please be approved and necessary order may please be made accordingly.

Sd/- llegible

District Social Education Officer and District Library Officer, Murshidabad

Memo No. 60(4)/L.S.

Dated 31.5.1988

Copy forwarded to Sri Hanif Sarkar, Sri Sanjoy Kr. Raha, Sri Rasiklal Das and Sri Sekhar Mondal for information and taking necessary action.

Sd/- lllegile,

District Social Education Officer and District Library Officer, Murshidabad

The learned Counsel then submitted that it is evident from the document being memo dated May 31, 1988 that the training was to be received only on deputation and not on the initiative of a candidate and that even after deputation if a candidate was unable to receive such training then the authorities condone the unintentional lapse and made alternative arrangement. The application of Doman Chandra Saha and the recommendation of the concerned authority will ex facie prove the submissions of the learned Counsel for the Petitioners and the learned Counsel in his written submissions has annexed the said recommendation and marked with letter ''I''.

Therefore, the points referred to in the contentions are as follows:

i) The appointment letters of the Petitioners do not contain that they will not be entitled to increment if they do not possess the Library Training certificates and the appointment letters are the contracts initially and thereafter it becomes status.

ii) In the case of grant of increment training is not a must.

iii) The service rules of the Petitioners stood amended and confirmed in the year 1985 and the pay scales of the Petitioners was fixed under Ropa ''81.

iv) After such a long period, reduction of pay of the Petitioners without any show cause or without any hearing violates the principles of natural justice and on that score the impugned order is liable to be set aside.

v) The Petitioners have been granted and/or allowed incremental benefits which can''t be taken away by he Government in such an arbitrary manner.

vi) The Petitioners are also entitled to career advancement benefit under the rules.

vii) The orders issued by the District Library Officer, Murshidabad is arbitrary and is violative of principles of natural justice, mala fide and as such illegal.

The learned Counsel for the State Respondents submitted that the proforma of appointment on which the Petitioners relied upon is not a valid and proper proforma. This was issued by the President of Library, he is an elected member and not a staff of the Government and as such if any promise is given buy him that is binding upon the Government, that cannot be a point for he doctrine of promisory estoppel. It does not confer any equity on the Petitioners also.

The learned Counsel for the State Respondents also submitted that non-possession of technical qualification i.e. Certificate of Library Science is a bar in granting incremental benefits.

The learned Counsel for the State also submitted that 55 Edn., S.E. was not properly placed before the Court by the learned Counsel for the Petitioners. That one of the Petitioners Mr. Fazle Hasib was requested by the Government to have training in the year 1989 but he failed to have such training and accordingly show cause notice was issued on him. Sri Mantu Bose, who is also a Petitioner was also served with show cause notice.

The learned Counsel further submitted that in case of Domon Chandra Saha, the Petitioner No. 47 it has been clearly stated in the sanctioned memo that untrained Librarians will get the initial scale till trained.

It has further been submitted that in case of Sri Somenath Chatterjee, one of the writ Petitioners, in the memo dated February 14, 1983 issued by the District Social Education Officer to the Secretary of the concerned Library thereby requesting him to arrange for issuance of an appointment letter in terms of the pro-forma as that was enclosed therewith to the incumbent concerned by the President of the Library Committee within seven days.

The learned Counsel for the State Respondents relied on the provisions enshrined in pages 208, 209-229, 316 and 195-201 of the Public Library Manual.

The learned Counsel for the State further submitted that principles of legitimate expectation have no application in respect of change of Government policy in the public interest. The learned Counsel for the State Respondents in this regard relied on a decision reported in Madras City Wine Merchants'' Association and Another Vs. State of T.N. and Another, and P.T.R. Exports (Madras) Pvt. Ltd. and others Vs. Union of India and others,

The learned Counsel submitted that in the decision reported in Assistant Excise Commissioner and Others Vs. Issac Peter and Others, there is an observation that legitimate expectation is not to modify contract.

The learned Counsel in support of his submissions relied on the following decisions:

Habeeb Khan and others Vs. Valasula Devi and others, Delhi Veterinary Association Vs. Union of India (UOI) and Others, and O.K. Udayasankaran and Others Vs. Union of India and Others,

The learned Counsel submitted that these decisions lay down the following principles:

a) The Pay Commissions are set up by the Central Govt and the State Govts, they are not Commissions under the Commission of Enquiry Act, 1952;

b) The fixation of pay-scales is essentially an executive function;

c) In Delhi Veterinary Association Vs. Union of India (UOI) and Others, the Hon''ble Apex Court has indicated certain basic principles to be followed in fixing pay-scales for various posts and cadres in the Government service.

d) In O.K. Udayasankaran and Others Vs. Union of India and Others, it has been observed that erroneous fixation can be corrected.

The learned Counsel further submitted that in the case of Gopalji Khanna Vs. Allahabad Bank and others, 8 it has been observed by the Hon''ble Apex Court that although regulations framed under statutory power cannot be equated with the statute, it is settled law that they have the force of law. The learned Counsel submitted that one Constitution Bench of the Supreme Court quoting Maxwell pointed out that such rules were for all purposes of construction or obligation to be treated exactly as if they were in the Act. They cannot be described as, or equated with administrative directions.

The learned Counsel then submitted that promise has been defined in Section 2(b) of the Indian Contract Act and Section 25 of the said Act observes as to what does create a promise.

The learned Counsel also observed that doctrine of promisory estoppel cannot be used to compel the public or the Governmental authority to carry out the promise which is contrary to law.

The learned Counsel submitted that it is a specific case of erroneous fixation. The learned Counsel also submitted that in absence of rules and policies it is the prerogative of the Government in the matter of granting appointment as has been observed by the Hon''ble apex Court in J.N. Benabalikar v. Municipal Corporation of Delhi AIR 1996 S.C. 326.

The learned Counsel also relied on the decision reported in re. : Dr. Sandhya Jain 1998 S.C.C. (8) 752 and submitted that when rule is silent administrative instructions will prevail.

The learned Counsel for the state then submitted that a mistake of the authorities cannot confer eligibility to an appointee. Hence, if due to mistake in filling of data in the Computer ineligible persons are selected and appointed to a reserved post, the authority concerned can terminate their services after issuing show cause notice and the learned Counsel relied on this observation which has been made by the Hon''ble Apex Court reported in Kishorilal Charmakar and Ors. v. District Education Officer and Anr. 1998 S.C.C. (9) 395.

The learned Counsel then submitted that in Samir Chakravorty''s case 2000 C.H.N. (2) 719 reported in Hon''ble Division Bench of this High Court presided over by Hon''ble Justice S.B. Sinha has observed in the manner as follows:

i) The law which emerges is that where the mistake is apparent or where even if the principles of natural jusice are complied with, the results would be no different, the aggrieved persons may not be heard but where there was a possibility that the same may be different, having regard to the inconsistent stand take by the State from time to time, in our opinion, an opportunity of hearing should be given.

ii) However, there cannot be any doubt whatsoever that in the event a genuine mistake has been committed which requires a rectification after giving an opportunity of hearing to the Petitioner, the same is permissible.

iii) Although in a different context in Kerr on Fraud and Mistake, it is stated;

Where by a common or mutual mistake a written instrument does not express the intention of the parties there is a possible case for rectification of a documents. Rectification is thus primarily a remedy for mistake rather than fraud, though in certain cases a ''fraudulent'' party may be confronted with the alternatives of rectification or cancellation. Rectification depends on evidence of intention; but in some cases other Courts can on the fact of a document tell there was a mistake and rectify the document on that evidence alone. This may be really only a matter of construction.

The learned Counsel then submitted that equal pay for equal work is not a fundamental right although it is a Constitutional goal as has been observed by the Hon''ble Apex Court in the decision reported in State of Haryana and Another Vs. Haryana Civil Secretariat Personal Staff Association,

Decision:

Heard the learned Counsel for the parties and considered their respective submissions both oral and written. There are some admitted facts in the instant case which need not be decided by me and which comes out of records such as the Petitioners were served with appointment letters and they have been serving as Library Assistants or Librarians in District and Sub-Divisional Towns and/or rural Libraries since 1976. It is also admitted that in the appointment letters issued by the President of the local Library authority nowhere it has been stated that the Petitioners will not be allowed increment if they don''t possess certificate of Library Science or Librarianship certificate. It is also admitted that a Committee has been formed under the statutory provisions and the President of the said Committee issues appointment letters. The said appointment letters are scrutinised by the Committee also. It is admitted that even if some of the persons on instructions from the Government also could not obtain the training certificate, show cause notices were issued on them but ultimately nothing was done. It is further admitted that the Petitioners were not given hearing or were not issued with show cause notice and thereafter on consideration of reply to show cause their pay or incremental benefits or the benefit under the career advancement scheme were curtailed.

It is also admitted that under 1981 Ropa the pay of the Petitioners were fixed and the Petitioners are guided under the service rules framed and amended in 1985. Taking the above position as granted, I am to consider the position of the impugned memo vis-a-vis the position of the Petitioners regarding grant of the benefit of two increments and/or the benefit of career advancement scheme.

Let me take up the submissions of the State Government first in this regard. It has been not disputed by the Government authority that appointments were made long back and the Petitioners crossed an era that he proforma of appointment is defective and the fixation of the Petitioners'' pay has been done by mistake. Obviously it is settled position of law that if there is mistake the government can correct this but it is also to be seen that whether the act committed or done is a mistake or fault there is difference between mistake and fault. The State Respondents have submitted that the initial mistake was made by the authority which issued the appointment letters by using wrong proforma.

It is also not disputed that service rules for the employees in the Government sponsored Public (other than Government) Libraries/aided Libraries in West Bengal, 1985 effective from July 1, 1985. As per the said service rule appointing authority has been defined in Ch. III. The appointing authority as defined is ''the Local Library Authority shall be the Appointing Authority in respect of appointments to an employee of a Library and the District Library Officer will issue Letter of appointments as Member-Secretary of the L.L.A.

Provided that the L.L.A. shall also be the Appointing Authority in respect of all appointments of employees made, prior to the issue of these Rules by the District Social Education Officers or by the President/Secretaries of the approved Managing Committees (including Ad-hoc Committee) and approved Administrators of the concerned Libraries, as the case may be''. From this definition it appears that the Appointing Authority has been prescribed in the statute and the appointments made in the case of the Petitioners were by the authorities prescribed in the statute. The Respondents authorities cannot submit that the appointment letters have been issued illegally. They have only submitted that the appointment letters are defective in respect of their proforma is concerned. It is also therefore, clear that there is a Committee or was a Committee to scrutinise the appointments. It therefore, can be safely said that the appointments made to the Petitioners or the appointment letters issued to the Petitioners are legal and vilid though it is not in accordance with the proforma but the proforma has been included or inserted in 1985 service rules but in 1976 there was a prescribed statutory proforma inasmuch as at that point of time there was no service rule at all. Therefore, the submissions of the State Respondents insofar as the mistake is concerned whether it was at all a mistake or not can''t be deduced from the facts-in-existence but it is a fact that the terms of appointment used in the appointment letters form a contract initially. The said contract is binding upon both the parties.

Now, if I look into the service rules in para. 14, pay and allowance has been described or defined which are as follows:

Pay and Allowance:

(a) Subject to exception specifically made in these rules, an employee shall begin to draw pay and allowances attached to his post with effect from the date on which he assumes duties of the post and shall cease to draw them as soon as he ceases to discharge these duties.

(b) An employee while on duty will draw the pay including Special pay, (if any) and other allowances as may be admissible at the time of appointment held by him.

(c) All employees will get pay in the time-scale of pay for the post in which he is appointed, as sanctioned and revised by Govt, from time to time.

(d) Ail employees will get different allowances as sanctioned and revised by the Govt, from time to time.

The State Respondents in their written submissions has stated that the memo dated January 10, 1996 was not clearly read over, explained or interpreted before the court. It is not stated or submitted by the State Respondents as to what is the misreading in the memo dated January 10, 1996 or what should be the proper interpretation of the said rule.

Insofar as fixation of pay, it has been submitted on behalf of the State Respondents that it is erroneous fixation but the fixation was made in 1981 Ropa, 1990 Ropa and all along the Petitioners were getting their scale of pay as fixed in both the Ropas and insofar as their training is concerned it appears that sometimes some Librarians were asked to go on training and when they express their inability then other persons were deputed which shows that it was within the knowledge of the State Government that the Petitioners and/or some persons were not in possession of the diplomas or certificates in Library Science or Librarianhip. Now, the Sate Respondents cannot say that they were not in knowledge of the facts and as such mistake was committed and in the year 2000 the Government authority came to knlw that there were mistake which need be corrected. The propositions which have been shown by the learned Counsel for the State Respondents are not disputed but those propositions are not relevant in the facts.

The learned Counsel for the State Respondents have submitted that in absence of rule and policy it is the prerogative of the Government in the matter of granting appointment. Nobody disputes if but it is not a case of granting appointment in absence of rule or policy. It is a fact that in such a case when the Petitioners were enjoying or have been enjoying such benefits, those have created a vested right in the Petitioners and before curtailing that vested right the Petitioners should have been given show cause.

The learned Counsel for the State Respondents referred to a decision of the Hon''ble Division Bench of this High Court presided over by Hon''ble Justice S.B. Sinha (as his Lordship then was) where it has been observed that show cause is not necessary when the result is same before the show cause or after the show cause. With respect I disagree with the submissions of the learned Counsel inasmuch as the proposition laid down by the Hon''ble Division Bench is settled or binding but the application of proposition is not correct here inasmuch as here the issuance of show cause or reply thereto could have yielded a different result, not the same result.

I have also considered the citations referred to by the learned Counsel for both the parties and on consideration of the citations referred to by both the learned Counsel for the Petitioners as well as the State I am of the view that in the instant case the impugned Order No. 1858-Edn. (MEE) dated December 18, 2001 and the Office Memo No. 1303(18)/L.S. dated October 15, 2001 and Memo No. 650/DLO-MSD dated June 26, 2002 are illegal and are liable to be set aside and I, therefore, issue a writ in the nature of Mandamus directing the Respondent authorities not to give any or any further effect to the said impugned order and memos and direct the authorities not to reduce the pay or not to deduct the increments and/or career advancement benefits given to the Petitioners and if deducted, to pay back the same to the Petitioners.

I, therefore, observe that in future if the Respondent authorities find there is bona fide or genuine mistake in any event then they must issue show cause notice and give opportunity of hearing.

The writ petition is thus disposed of with the above directions.

There will be no order as to costs.

Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.

Later on March 21, 2005:

The authorities are directed to pay back the amount as indicated above within a period of 4(four) weeks from the date of communication of this order.