Sri Tapan Kumar Pan and Others vs The State of West Bengal and Others

Aniruddha Bose, J.—The present writ application has been instituted by nine individuals, who are working at present in the posts of lower division clerks (excepting the petitioner No. 4 who is an upper division clerk) in the Uluberia Municipality constituted under the provisions of Bengal Municipal Act 1932. The petitioners were earlier working as Job Assistant/Secretaries of various gram panchayats in the district of Howrah. The Uluberia municipality was constituted in the year 1982 under the provisions of the Bengal Municipal Act, 1932 (1932 Act, in short). At that point of time the area comprised in the gram panchayats in which majority of the petitioners were serving was brought under the coverage of the Uluberia municipality. Subsequently, in the year 1993, another gram panchayat being Rameshwar Nagar was also brought within the jurisdiction of the Uluberia municipality.

After constitution of the Uluberia municipality, the gram panchayats the territories of which were brought under its jurisdiction ceased to exist or stood reduced in size to the extent the part of their territory came within the territory covered by the Uluberia municipality. As a consequence thereof, all the rights and liabilities as well as funds, properties and assets of these gram panchayats devolved on the Commissioners of the municipality in accordance with the provisions of the West Bengal Panchayat Act, 1973 (which statute I shall henceforth describe as the 1973 Act). All the employees of these gram panchayats, including the petitioners became the employees of the municipality.

At that point of time the scale of pay of those working in the posts of job assistant/secretaries in the gram panchayats were at par with the scale of pay of those working as lower division clerks in the municipality.

It appears that subsequent to the absorption of the petitioners in the municipality, the scale of pay for the posts of job assistant/secretaries and head clerks in the gram panchayats under the Department of Panchayat, Government of West Bengal has been substantially enhanced vis-a-vis the scale of pay for lower division clerks and upper division clerks in the municipalities.

In this writ petition, prayers of the petitioners are for bringing parity of their pay with those serving in the gram panchayats as job assistants/secretaries, or in the alternative their repatriation in the service of gram panchayats under the Department of Panchayat, Government of West Bengal.

The claim of the petitioners in the instant writ petition are founded mainly on two grounds. Firstly it is submitted that in the municipality, they are required to perform more onerous and voluminous jobs in comparison to those of job assistants/secretaries/head clerks in the gram panchayats. The second ground on which they have based their case is that in several other cases, similarly situated persons have been given similar benefits. The petitioners have referred to Dalkhola Municipality in the district of Uttar Dinajpur and Jalpaiguri municipality, in which some employees having originally engaged by the panchayats were permitted to go back to their original service in their respective panchayats. Similarly situated employees of Mahestala Municipality had applied before this Court by filing writ petition W.P. No. 3595(W) of 2005 Ashis Dey and Ors. v. The State of West Bengal and Ors. for reliefs of the same nature and an Hon''ble Single Judge of this Court has been pleased to dispose of the writ petition, extending similar benefits to the petitioners therein on the basis of certain concessions made by the State in course of hearing. The other instance where municipal employees absorbed from panchayats were extended such benefit, as referred to by the learned Counsel for the petitioners are the petitioners in the case of Manik Fulmali and Ors. v. The State of West Bengal and Ors. W.P. No. 18437(W) of 2003. In the latter decision, the applicants were originally the employees of two gram panchayats, Nalhati "A" and Nalhati "B", in the district of Birbhum. These applicants were absorbed in the Nalhati municipality under circumstances similar to the present case. This writ petition was disposed of by an Hon''ble Single Judge of this Court directing the authorities to consider the petition as a representation within a prescribed time frame. It appears that thereafter, the writ petitioners were given certain additional financial benefits beyond that they were entitled to as employees of the panchayat.

It has also been brought to my notice by the learned Counsel for the petitioners that the 1973 Act have been amended in the year 2004, and a new provision has been introduced in Sub-section (1) of Section 6 of the Act. Under the amended provisions, the employees of the gram panchayats sought to be absorbed in the service of a municipality have been provided with the option of remaining in the service of a panchayat.

Substantial reliance has been placed on the judgment of this Court in the case of Ashis Dey (supra) by Mr. Sanyal, learned Counsel appearing for the petitioners. I shall refer to the relevant passages from this judgment in the subsequent paragraphs. Both the state and the municipality have contested this writ petition by filing affidavits.

In the affidavit of the state, it has been pleaded that so far as the petitioners are concerned, the gram panchayats in which they were working have ceased to exist and these employees have been engaged in the municipality constituted incorporating within its territory the area of the concerned "grams". It has been contended that there is no possibility of giving them opportunity of exercising such option under these circumstances. As regards the amended provision of Section 6 of the 1973 Act, the case of the state is that such amendment is prospective in nature, and the petitioners cannot derive any benefit from the said provisions.

On the aspect of the petitioners'' claim that similar benefits have been extended to similarly situated persons in other municipalities, the State''s stand is reflected in the following statements made in paragraph 3 of their affidavit:

iii) Earlier in a writ petition filed by some ex-employees of Nalhati Municipality being W.P. No. 18437(W) of 2003 Manik Fulmali and Ors. v. State, the Hon''ble High Court passed an order dated 25th September, 2004, pursuant to which the Department of Municipal Affairs, gave certain benefits to the writ petitioners, such as CAS, leave encashment and commutation of pension as would have been admissible to them if they had continued as Panchayat employees as personal to them. A copy of the said departmental order is Annexure R-2.

iv) In 2005 the employees of Mahestala Municipality filed a writ petition bearing W.P. No. 3595(W)/2005 asking for an opportunity to exercise their option for joining a Gram Panchayat. In a judgment dated January 25, 2006, the Hon''ble Justice Asim Kr. Banerjee was pleased to record.... "I have observed herein that the writ petitioners were not entitled to the benefit as prayed for by them as the amendment was having a prospective effect. However, because of the concession made by the State I extend such benefit to the writ petitioners by allowing the writ petition...." A copy of the said judgment is Annexure R-3. It appears that the learned Advocate for the State had misunderstood the earlier order and erred in making the submissions as was made. However, consequential to a contempt proceeding the order aforesaid was complied with, a copy of the connected departmental order is Annexure R-4.

Learned Advocate for the state respondents have submitted that the decision of this Court in W.P. No. 3595 (W) of 2005 was delivered upon concession being made by the learned Advocate for the State and the same cannot be treated as a ratio or a precedent so far as the rights of the petitioners in the present writ application are concerned. In fact he has relied on this judgment, as there is observation in this judgment to the effect that the petitioners were not entitled to the reliefs as prayed for in that writ petition as the amendment of the 1973 Act was prospective in operation.

Learned Counsel appearing on behalf of the municipality submitted that so far as the petitioners are concerned, they are the employees of the municipality and are being paid their salaries and emoluments as per the Revision of Pay and Allowances Rule of 1998 (ROPA 1998). The municipality does not have any power or authority to revise the pay structure of their employees fixed by the State Government. He also submitted in course of hearing that in any event the municipality does not have sufficient funds to meet their demand for enhanced pay.

On behalf of the petitioners, strong reliance has been placed on the decision of the Hon''ble Supreme Court in the case of K.I. Shepherd v. Union of India AIR 1988 SCC 686 in support of their argument that in the event a person does not come to Court, he cannot be deprived of the benefits which are being granted to similarly situated persons by judicial decision. The other proposition of law on which argument has been advanced by the learned Counsel for the petitioners is that if one set of persons get relief from the Court on the basis of certain provisions of law, persons similarly situated must also be entitled to similar relief. The decision relied on for this proposition of law is the case of K. Prabhakara Rao Vs. Union of India (UOI) and Others, .

The other authorities cited by the petitioners is a judgment of the Hon''ble Supreme Court in the case of State of Karnataka and Others Vs. C. Lalitha, and a decision of an Hon''ble Single Judge of this Court in the case of Sristidhar Biswas and Anr. v. State of West Bengal and Ors. reported in 2001(1) CHN 524. In the case of State of Karnataka v. C. Lalitha it has been held:

Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently....

The state has resisted the prayers of the petitioners on two-fold submissions. Firstly, it has been contended that the petitioners have no vested legal right to the benefits of enhanced pay or repatriation to their original department. The right to remain in the service of the panchayats, if at all, could be traced to the amended provision of Sub-section (1) of Section 6 of the 1973 Act, but the said amendment came into effect in the year 2004 only, and was prospective in its operation. It was also the State''s case that the benefit conferred on the petitioners in the case of Ashis Dey and Ors. (supra) was by way of concession. In support of the argument that decision rendered on concession cannot constitute a binding precedent, the decision of the Hon''ble Supreme Court in the case of The Central Council for Research in Ayurveda and Siddha and Another Vs. Dr. K. Santhakumari, was cited.

It is in this factual and legal context I am to decide as to whether the petitioners have made out a case for enhanced pay or alternatively for repatriation to their original department. On the aspect of the petitioners'' plea for pay parity with those working in panchayats, I accept submission of the learned Counsel for the municipality that the scale of pay for employees of the municipalities having been statutorily fixed, the municipality cannot be compelled to revise the same. The principle of equal pay for equal work also cannot apply to the cases of the petitioners, as gram panchayats and municipalities are separate bodies, with the pay-scale of their employees being fixed separately. On facts also, no case has been made out in support of the petitioners'' case that their duties under the municipality are more onerous and burdensome when compared to the duties of job assistants and the likes serving individual gram panchayats.

It is the petitioners'' claim for repatriation which requires to be examined now. The petitioners'' case on this count is primarily based on the decision of this Court in the case of Ashis Dey (supra). In this case, it was held:

...The petitioners were transferred in December, 1993 when there was no curtailment of service benefits. Subsequent revision of pay of Panchayat employees in my view cannot give the petitioners new right to go back to the Panchayat Department in absence of any provision for option. The subsequent notification by amending Section 6(1) or 6(2) of the said Act of 1973 is of no consequence in the instant case.

His Lordship, however, was pleased to dispose of the writ petition, observing:

While my judgment was kept reserved Ms. Mutsuddi mentioned the matter on January 18, 2006 and expressed her inclination to make further submission in this regard. The matter was directed to appear as "To Be Mentioned" on the next date. Matter accordingly appeared on January 19, 2006 when Ms. Mutsuddi drew my attention to a Government order dated March 30, 2005 allowing identical benefits to the petitioners in W.P. No. 18437(W) of 2003 Manik Fulmali and Ors. v. The State of West Bengal and Ors. in terms of the order of this Court. Ms. Mutsuddi thereafter contended that since this State decided to extend such benefits to the employees of other municipality being similarly circumstanced the State hF V. ad no objection if such identical benefit was extended to the writ petitioners herein.

Mr. Chattopadhyay, learned Counsel appearing for the Municipality on the other hand contended that the extension of such benefit would amount to additional financial burden on the Municipality and the same could not be discharged by the municipality on absence of approval of Ministry of local Self Government of the State. I have earlier observed herein that the writ petitioners were not entitled to the benefit as prayed for by them as the amendment of the Act, 1973 was having a prospective effect. I however, because of the concession made by the State I extend such benefit to the writ petitioners by allowing the writ petition. The writ petition is accordingly allowed. The writ petitioners be extended such identical benefits as had been given to Kangsabanik and Pannalal as well as the writ petitioners in W.P. No. 18437 of 2003. In case the municipality is unable to take up additional financial burden they would be free to approach the State for repatriatior of the petitioners to Panchayat Department.

I accept submission made on behalf of the state respondents that a judgment delivered on concession does not constitute a binding precedent. The decision of the Hon''ble Supreme Court in the case of Central Council For Research in The Central Council for Research in Ayurveda and Siddha and Another Vs. Dr. K. Santhakumari, has been referred to in support of this submission. In this decision, it was, however, held by the Hon''ble Supreme Court that a wrong concession on question of law made by counsel is not binding on his client and such concession cannot constitute a just ground for a binding precedent.

In the case of Ashis Dey (supra), however, the concession made by the learned Counsel cannot be said to be a wrong concession. As it appears from Annexure "P2" to the writ petition (being a memorandum issued by the Department of Panchayats & Rural Development of Government of West Bengal), the state government has already implemented the order of His Lordship. The plea taken in the affidavit-in-opposition by the state respondents that the learned Advocate for the state had misunderstood the earlier order (i.e. the order in connection with W.P. No. 18347(W) of 2003) is not sustainable, having regard to the subsequent conduct of the state respondents in that matter. The defence of the respondents that the order was passed in case of the writ petitioners under the threat of contempt also does not have any strength in my opinion. If in a case, an order is passed by the Court on certain concession made by the authorities on the basis of an earlier order passed by the authorities themselves and later on the former order is implemented, in a subsequent proceeding it cannot be contended that the implementation of the judicial order was made under the threat of contempt. It does not appear that there was any appeal or application for review of the order passed by the Court in the case of Ashis Dey (supra). Thus the state authorities had accepted this order. In the present case, thus, it would not be open to the authorities to take a contrary stand on the ground that the judgment of this Court in the case of Ashis Dey (supra) was implemented under the threat of contempt. The concession made in that writ petition was not made by the learned Counsel acting independently, without any instruction of the State. In the case of Ashis Dey (supra), the learned Counsel conveyed to the Court that the State had no objection if the benefits which were extended to the petitioners in W.P. No. 18437(W) of 2003 were also extended to the petitioners in that case. This would be apparent from the submissions of the learned Counsel for the state recorded in the order of this Court in W.P. No. 3595(W) of 2005.

In W.P. No. 18437(W) of 2003, the writ petitioners were employees in two gram panchayats in the district of Birbhum, substantial area of which was incorporated in Nalhati Municipality. The petitioners raised objection against their absorption in the municipality and came up before this Court when their objections remained with the authorities without being considered. This writ petition was disposed of with a direction upon the authorities to treat the writ petition as a representation within certain time prescribed by the Court. Thereafter, the authorities conferred on them certain additional benefits similar to the enhanced financial benefits available to the employees of gram panchayats.

The decisions cited by the learned Counsel of the petitioners were sought to be distinguished by the learned Counsel for the respondents on the ground that relief was granted to the employees in none of these case upon determination of any right of such employees by way of adjudication in a Court of Law. Such right has not been established in any of the cases where benefits of repatriation or enhancement of scale of pay was granted to the employees who were sought to be absorbed in municipalities from erstwhile gram panchayats. The submission of the respondents is that in the cases of K. I. Shepherd and Ors. (supra), K. Pravakar Rao (supra) and Sristidhar Biswas and Anr. (supra), the rights of the petitioners were anchored in judicial pronouncements already establishing such rights. It was argued on behalf of the respondents that in the factual context of the present case, the rights of the petitioners to be repatriated to the panchayats or for enhanced financial benefits has not been established in its finality in any judicial pronouncement. On the other hand, in the case of Ashis Dey (supra), it has been held that there is no such vested right. It was accordingly contended the ratio of these authorities have no application in the present case.

I accept the argument advanced on behalf of the respondents that the right of repatriation of erstwhile employees of gram panchayats from their present employment in a municipality, to which they were subsequently absorbed has not been determined by any decision of this Court. But a case of discrimination has also been made out by the writ petitioners. Though in none of the instances to which I have referred to above it was held by any Court of Law that the employees having status similar to that of the petitioners had the right to be repatriated to their original department, the state itself has accepted their right for enhanced pay or repatriation. The decision of the State to accept the contention of some of the erstwhile employees of gram panchayats to remain in their parent department is reflected in the order passed on 15th September 2006 subsequent to the delivery of the judgment of this Court in the case of Ashis Dey (supra). A copy of this order has been made Annexure "R4" to the affidavit-inopposition of the State.

In the case of Manik Fulmali (supra) also the authorities sought to redress the grievance of similarly situated employees by enhancing their financial benefits. In two other municipalities the authorities have accepted the rights of their employees for repatriation to their original department. Moreover, after 2004, the right of gram panchayat employees to remain in service under the panchayat department has been recognised by making appropriate legislation. The rights of the petitioners thus are not sought to established in this writ petition on the basis of a stray case where a concession was made. It cannot also be contended that the right to be repatriated or absorbed in the parent department is contrary to any legal provision. The state itself has accepted this position in several cases to which reference has been made in the earlier part of this judgment.

The very fact that certain concessions have been made in a particular case may not create a vested legal right for another set of persons for getting the same benefits. Such concessions can be made to meet the exigencies of a given situation, in special circumstances. A concession can be made on misconstruction of law, of which no advantage can be taken in a subsequent dispute of similar nature. But extending certain concessions to one set of persons on the basis of a decision of the state and denying it to another set of persons identically situated, is ex-facie an act of discrimination, and can be justified only on the ground of special circumstances. A person may also be disentitled to get a benefit extended to another illegally, whatever be the circumstances warranting such illegal acts. But in the present case, the State has not come forward with any plea of special circumstances justifying the State''s decision as conveyed to the Court in the case of Ashis Dey (supra). It is also not the case of the State respondents that such decision was taken inadvertently. On the contrary, it appears to me that a conscious decision was taken in accommodating the petitioners in W.P. No. 3595(W) of 2005, on the ground that their position was similar to that of the petitioners in W.P. No. 18437(W) of 2003 Manik Fulmali and Ors. v. The State of West Bengal and Ors. It is on this very ground now the petitioners seek repatriation to their original department in this writ petition.

No cogent ground has been cited as to why in the case of the petitioners the State is taking a stand contrary to its earlier position. Under these circumstances, in my opinion if the petitioners are not permitted to be accommodated in their original department, being that of department of panchayat and Rural Development, or not given the benefits of enhanced financial benefits the same would constitute an act of hostile discrimination, and would be violative of Article 14 of the Constitution of India. The same would also be contrary to the mandate of the Hon''ble Supreme Court in the case of State of Karnataka v. C. Lalitha (supra). The relevant passage from this decision has been quoted in the earlier part of this judgment.

The only point which goes against the petitioners in this writ petition is their delay in approaching the Court. They filed the writ petition in the year 2007 seeking reversal of a situation which arose in the year 1982. But for this delay, I do not think they can be deprived of their rights. They should not, however, be permitted to make a windfall out of this situation.

Under these circumstances, I allow the writ petition, with a direction upon the respondents to absorb the petitioners to their original department in the posts they held at the time of convergence of respective gram panchayats in municipality, within the district where suitable vacancies exist. I decline to grant the prayer of enhanced scale of pay to the petitioners to make their pay-scale at par with the similarly placed employees of panchayat department because of specific submission of learned Counsel for the municipalities that they have no fund to meet such additional financial burden. It was also his submission that enhancement of scale of pay to the petitioners would result in disparity within the department itself and also entail breach of the pay-scale fixed by ROPA 1998.

This exercise however shall be done in a phased manner, on the basis of availability of the vacancy in the department of panchayat and rural development in the concerned district. For this purpose, a scheme may be formulated by the respondents to ensure that the functioning of the municipality is also not seriously prejudiced because of their absorption in the gram panchayats, resulting in mass exodus from the municipality. The entire exercise shall be completed within a period of eighteen months. The petitioners shall be granted the scale of pay and other benefits applicable to similarly situated employees of the department of panchayat and rural development from the day they assume charge in that department. The petitioners shall not be entitled to claim any past benefit on the strength of differential in the scale of pay in the respective departments.

There shall, however, be no order as to costs.