CALCUTTA MUNICIPAL CORPORATION AND ANR.versusSUJIT BARAN MUKHERJEE AND ORS. ETC.

A          CALCUITA MUNICIPAL CORPORATION AND ANR.
                                          v.
                SUJIT BARAN MUKHERJEE AND ORS. ETC.

                               FEBRUARY 14, 1997

B             [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

          Service Law :

          Calcutta Municipal Corporation Regulations :
c         Regulation 34-A-Stepping up of pay-Claim for-Junior Copyist in
   Calcutta Municipal Corporation-Transfe"ed in Secretariat Department--Al-
   lowed Rs. 50 per month as special pay towards discharging arduous duty-Pay
   scales revise~Special pay merged with pay in revised pay scales-Employee
 · started drawing higher pay than others-Other junior Copyists claiming to step
D up their pay-Held, though on revision of pay scales, special pay came to be
   merged in the pay, it must be treated to be a special pay given to the employee
   for onerous duty to be discharged outside normal duty assigned to the
   post-Such a f ortutious circumstance would not be a ground for other seniors
   to claim parity of pay by stepping up of their pay-Their claim cannot be
E sustained.
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1549 of



p
    1997 Etc.

         From the Judgment and Order dated 2.2.93 of the Calcutta High
    Court in A. No. 662/92 in Matter No. 5511of1987.

           Tapas Ray, Gaurav Jain and Ms. Abha Jain for the Appellants.
                                                                                     •
           B.K. Ghosh (Ms. Sarla Chandra) (NP), for the Respondents.

G          The following Order of the Court was delivered :

           Leave granted. We have heard learned counsel on both sides.

           These appeals by special leave arise from the impugned order, made
    on February 2, 1993 by the Calcutta High Court followed by contempt
H   petition, clarification petition etc. of Calcutta High Court.
                                            82
                  CALCUTIAMUN. CORPN. v. S.B. MUKHERJEE                        83

            The admitted position is that the respondents, viz., Tapan Kumar         A
     Paul and others, Sujit 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          B
     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, Bo'se 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
     petiti~n in the High Court seeking upgradation of their scale of pay so as      C
     to be on par with that of Shanhr 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 appel-       D
     !ant~ filed an application for clarification.. In the meanwhile, an order had
     come to be passed at the instance of Sujit Baran Mukherjee and others on
     April 23, 1993; when it was• realised that Regulation 34-A of the Calcutta
     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          E
     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.                                           F

            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 G
     discharged 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 with Shankar Bose? It is contended for the respondents
     that when such a relief was granted and was allowed to become final, it H
    84                    SUPREME COURT REPORTS                  (1997) 2 S.C.R.

A   would not be open to the respondents to withdraw the same. We find no
    force in the contention.

          Regulation 34-A postulates thus :

           . "It an employee on his promotion to a higher post draws pay at a
B            higher rate than his senior employee due o 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 whether the lien in the lower post held
             by the senior employee is terminated at the time of refixation of
c            pay subject to the conditions that both the senior and junior
             employee belong to the same cadre and same 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
D            junior employee exercises his option to retain unrevised scale to
             pay."

         A reading thereof would clearly indicate that the principle of step-
   ping up of the pay should arise only when a junior employee, on his
 · promotion, is drawing higher pay than his seniors; in that case, they would
E be entitled to the stepping up of the pay so as to be on par with him on
   the principle that the persons who are similarly situated and are drawing
   the same scale of pay and are 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,
F where;: a junior person on transfer to a different place is being paid extra
   payment by way of special pay or overtime pay, whatsoever the nomencla-
   ture be and would be treated to be a special pay since he has to 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
   parity of pay by stepping up of their scale of pay. If the contention is given
G acceptance, the extra salary would become payable to persons who do not
   take pains and do the normal work while staying in a convenient posUplace
   with indolence whereas the person who undertakes special responsibility
   or puts up hard work would be put on par; and stepping up of pay would
   be a premium on laziness and indolence. It would be deleterious to
H augmentation of efficiency in service or dedication to duty. Under those
             CAL.CUTIA MUN. CORPN. v. S.B. MUKHERJEE                     85

circumstances, we think that the statutory principle of stepping up of the     A
pay so as to be on par with the junior would be not on rational principle.
When all of them discharge the same duties and are under the same
responsibility and not in different circumstances and if the juniors draw
higher pay on promotion, the seniors who do not get the opportunity would
be entitled to parity of pay with their juniors.
                                                                               B
       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 now 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   C
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 onl1 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       D
of the principle stated above, there is no question of any discrimination of
others since they are not entitled to the parity with Shankar Bose.

     Under those circumstances, the appeals are allowed. The orders of
the High Court are set aside. No costs.
                                                                               E
R.P.                                                      Appeals allowed.