Chittaranjan Talapatra vs The State of West Bengal

D. Basu, J.—This is a case of an employee who has been denied the full benefits of his service while on deputation to another department.

The Petitioner was holding the post of a lower division clerk at the scale of Rs. 35--Rs. 80, under the Jalpaiguri Collectorate, when in 1944 he was sent on deputation to the Civil Supplies Department. While on deputation, the Petitioner was promoted to the upper division at a scale of Rs. 80--Rs. 120. But when on April 7, 1963, the Petitioner was transferred to his parent department in the Collectorate of Jalpaiguri, he was placed in the lower division instead of the upper division in which he was acting in the department of his deputation. The Petitioner complained of this treatment and it resulted in an unfortunate and prolonged representation and correspondence, culminating in the impugned order of the Government of West Bengal (Respondent No. 1) at annex. A19 to the petition dated November 16, 1964.

By the impugned order, the Petitioner has been granted some of the benefits for which he had been urging but not all and that brings him to this Court. On principle, it has been accepted by the Government that the Petitioner should be recognised as an upper division clerk from the date when he would have been promoted on the basis of his seniority, had he remained in his parent department and his seniority in the cadre of upper division clerk has also been acknowledged on that basis.

But the Petitioner has been denied the advantages of the higher pay and the arrears of pay due on that basis, because he has so far been given the pay of a lower division clerk. In short, it is para. 2(iii) of the impugned order against which the Petitioner complains and it would be useful to reproduce it at once:

...The Governor has been pleased to accord sanction, as a special case, to the following....

(iii) refixation of his pay at Rs. 145 only p.m. in the unrevised scale of pay of Rs. 130-5-180 with effect from 10.4.53 in terms of Rule 49 of W.B.S.R. Pt. 1, the subsequent date of increment being fixed on 1.4.54, provided the provisions of Rule 48 of the W.B.S.R. Pt. I were complied with and no arrear adjustments prior to 1.8.59 should be allowed.

The Petitioner, firstly, relies on the Government''s own circular at annex. A6 dated March 2, 1945, according to which the employees on deputation should be considered for promotion to permanent vacancies occurring in the parent department. We need not dilate on this material because in a proceeding for mandamus no effect can be given to a non-statutory circular.

The Petitioner has, however, in his favour the statutory Rule in Rule 48(b) of the West Bengal Service Rules, Pt. I, the text of which is identical with that of Rule 50(b) of the Bombay Civil Service Rules, which has received the interpretation of the highest Tribunal of this land in State of Mysore Vs. M.H. Bellary, . Now Rule 48(b) of the W.B.S.R., Pt. I is as follows:

Service in another post, whether in a substantive or officiating capacity, service on deputation...count for increments in the time-scale applicable to the post on which the Government servant holds a lien....

Together with this, we should consider Rule 100(1) of the same Rules which is as follows:

A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.

This Rule 100 is referred to in the Circular at annex. A6 and, presumably by the impugned order, Government has sought to give the Petitioner the benefit of this Rule. But Government has refused to give the Petitioner the benefit of the higher pay with retrospective effect which would have accrued to the Petitioner if retrospective effect as regards pay had been given to the impugned order, The only provision on the basis of which the Respondents seek to justify this apparently illogical order is Rule 400 of the West Bengal Financial Rules:

Statutory rules have effect from the date on which they are passed and executive orders take effect from the date of the orders conveying the sanction.

In all cases these rules are subject to any special provisions as to the date of effect in the Rules, orders or sanctions themselves.

It has been argued on behalf of the Respondents that in view of the preceding Rule the impugned order sanctioning the promotion of the Petitioner to the upper division cannot be given effect to from any date prior to August 1, 1959. On the face of it, this argument is inconsistent, because the terminus in the Rule relied upon is the date of the sanction, which in the instant case is November 16, 1964 and not August 1, 1959, prior to which the claim for arrears of the increment has been withheld. Respondents have, therefore, to rely upon the second part of the preceding Rule, according to which the Government has the discretion to give effect from an earlier or later date than what is warranted by the first part of the preceding Rule. But the second part does not compel or empower the Government to choose an arbitrary date in contravention of what would follow from the other statutory Rules.

Let us, therefore, consider the position u/s 48(b) of the W.B.S.R. along with the interpretation given by the Supreme Court, in the case cited, to a comparable Rule. Incidentally it may be pointed out that had the attention of the Respondents and their legal advisers been drawn to this decision of the Supreme Court dated March 25, 1964, the attitude of the Respondents after the demand for justice or at least at the time of filing the affidavit-in-opposition to the Rule should have been otherwise, particularly, in view of the fact that the Supreme Court decision has been followed by this Court in the case of Basanta Kumar Ray v. State of West Bengal (1965) 69 C.W.N. 1053, even though it was not unfortunately brought to the notice of the Court in that case that the text of Rule 50(b) of the Bombay Rule was identical with the text of the West Bengal Rule 48(b). In a democratic country the Government has undoubtedly the responsibility to defend the public rights and the public revenues to the best of its ability, but at the same time such Government has no jurisdiction to spend a farthing of the people''s money for a fruitless litigation. For avoiding such a situation it is necessary for the Government to get apprised of the decisions of the highest Tribunals as they are pronounced, through its legal advisers and to implement them in issuing circulars, making amendments or otherwise as may be necessary.

Before coming to the interpretation given by the Supreme Court in the State of Mysore v. Bellary Supra we should notice the facts of that case:

B, an upper division clerk, was in 1943 transferred on deputation to the office of the Controller of Rationing to work as a senior assistant and, by successive promotions, he came to draw a pay of Rs. 460 in the grade of Rs. 300-Rs. 650. On the abolition of the Rationing Department in 1954, B was reverted to his parent department, but on such revision his pay was fixed at Rs. 120 only on the basis of his pay as upper division clerk.

B brought an application under Article 226 before the Bombay High Court alleging that during the period of his deputation, N, the man next below him in the parent department, had been promoted to the post of assistant secretary and that, had he not been sent on deputation, B would on reversion been posted as assistant secretary, with the emoluments applicable to that post. The Petitioner, accordingly, claimed the grade-pay of an assistant secretary and asked for a mandamus to direct the Government to place the Petitioner in the order of seniority just above N, the person below him who had been promoted as assistant secretary during the deputation of B. The Bombay High Court allowed the writ petition of B, and since B had retired on superannuation, in the meantime, the Court directed that B should get the same remuneration as he would have been entitled to if he had been promoted as assistant secretary on the date as AT was promoted. The appeal from this decision of the Bombay High Court was dismissed by the Supreme Court. The result of this dismissal, therefore, are:

(i) Service of an officer on deputation is to be treated as service in the parent department, so that all promotions and increments which should follow from such service in the department on deputation should come to the Petitioner in due course.

(ii) Rule 48(b), corresponding to Rule 50(b) of the Bombay Rules, which is known as the ''next-below rule'' implies that, on reversion, the deputed employee should get the post and pay enjoyed on the date of such reversion by the person who was next below him at the time of his departure on deputation.

(iii) As regards seniority, the deputed employee on his reversion should be placed just above the ''next-below employee''.

(iv) It would follow that the deputed employee should on his reversion also be entitled to the arrears of the balance of the higher pay had he been promoted to the higher post to which the ''next-below'' employee had been promoted during the period of his deputation.

We may now note the interpretation given by the Supreme Court on the relevant Rule (p. 871, ibid):

The service of an officer on deputation in another department is treated by the Rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b). So long, therefore, as the service of the employee in the new department is satisfactory service, and he is obtaining the increments and promotions in that department, it stands to reason that the satisfactory service, and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions which are open on seniority-cum-merit basis. What is indicated is precisely what is termed in official language the ''next-below rule'' under which an officer on deputation is given a paper-promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.

In this proceeding for mandamus, it is not necessary for the Court to determine the exact figure at which the pay of the Petitioner should be fixed. In the impugned order itself it is recited that the lower division clerk ''next below'' the Petitioner was promoted to the upper division and confirmed therein with effect from July 2, 1950, and the Petitioner has been given the benefit of being treated similarly with effect from July 2, 1950, with the consequential seniority, but he has been denied the benefit of increase of pay and the arrears due to him on that basis. On the principles already enunciated by me, there is no reason why the Petitioner shall not be entitled to have an adjustment of arrears of his pay at the increased rate, taking account of moneys already drawn by him; and his scale of pay, on reversion, should also be fixed on that basis.

The Rule is made absolute in the above terms with a cost of ten gold mohurs payable by Respondent No. 1.