The Lt. Governor And ORS v. K.P.Ummer And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/39/2023 The Lieutenant Governor and others Vs.

B. Vijay Kumar Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the petitioners Ms. Anjili Nag ... for the respondent With WP.CT/38/2023 The Lieutenant Governor and others Vs.

K.P.Ummer and others Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the petitioners Mr. Arul Prasanth ... for the respondents September 22, 2023 [SR] Item No.4&30 Both the writ petitions are taken up together involving a common question of law.

The center of dispute relates to the refixation of a pay at par with the other similarly circumstanced persons. The petitioners were appointed on 14th June, 1988 on adhoc basis to the post of Veterinary Assistant Surgeon (Group B) at a basic pay of Rs.1640/- per month in the scale of pay of Rs.1640-60-2600-EB-75-2900 for a period of six months in the Animal Husbandry Department, Andaman and Nicobar Islands.

The petitioners continued to render such services uninterruptedly until the Administration decided to regularize their appointment/services, which, in fact, was done on 22nd July, 1998 on the basis of the recommendation of the Union Public Service Commission dated 4th May, 1998. The dispute arose on the basis of the impugned order dated 19th January, 2022 passed by the Administration refixing the pay of the applicants. The aforesaid order not only covered the petitioners but the similarly circumstanced persons. Some of whom challenged the said order before Tribunal in OA/353/2022 and OA/354/2022 and by a common order, the Tribunal quashed and set aside the decision of the Administration relating to refixation of the pay and directed the Administration to consider the date of appointment to be a date when the respective petitioners were appointed on adhoc basis.

The similar point arose in the instant matter when the Administration decided to give effect to the benefit of the scale of pay or a grade pay from the date of regularisation of their adhoc services and not from the date when they were appointed on adhoc basis.

A plea was sought to be taken by the Administration that, during an audit, it was pointed out by the auditor, that giving benefit of the said pay scale from the date when the person was appointed on adhoc basis is impermissible and on the basis of the recommendation thereof, the scale of pay

was revised by the Administration and the benefits attributable to the post was extended from the date of their regularisation.

In an identical case of Parimal Halder, the matter travelled to the Supreme Court. In the said case, the identical issue was raised when the Administration decided to refix the pay scale from the date of regularisation and not from the date of adhoc appointment.

The Apex Court in Special Leave Petition (Civil) No.31187 of 2013 decided on 13th January, 2015 held that the moment the petitioner was appointed on a pay scale and not on a fixed pay, there is no justification in the decision of the authority in revising the pay scale from the date of the regularisation and not from the date of an adhoc appointment in the following:- "On first blush, the determination rendered by the High Court seems to be accountable on account of the fact that pay fixation can only be claimed with effect from the date of regular appointment. We have however perused the order of adhoc appointment of the respondents, which clearly reveals, that they were appointed in the basic pay of Rs.5,000/- per month in the then pay scale of Rs.5000-150-8000.

Their order of regularsiation reveals, that they were regularized on the basic pay of Rs.5,500/- per month, by an order dated 11.7.2003, in the revised pay scale of Rs.5500-1759000. Since the appointment of the respondents from the very beginning was in a pay scale, and not on a fixed pay, we are of the view that the High Court was fully justified in allowing pay fixation to the respondents, with effect from the date of their appointment in the first instance on adhoc basis."

However, the learned counsel for the Administration intends to rely another judgment of the Supreme Court

rendered in North Delhi Municipal Corporation vs. Harleen Kaur and others reported in 2019 SCC OnLine SC 1907 wherein the contractual appointees working since 1997 - 1998 and on conversion of the posts, they were allowed to continue to render such services with a view to counter the outbreak of dengue.

The claim was made by the applicants therein that since the posts have been created, though by way of conversion, they are eligible to be regularized at the said posts and approached the Tribunal seeking a substantive order for regularization. Obviously the Tribunal declined to accede to such prayer taking into the judgment of the Supreme Court in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1.

The Apex Court did not interfere with the said order but was of the view that all consequential monetary benefits which is claimed by those appointees from the date of their initial appointment on adhoc basis should be extended from the date of the order of the Tribunal. It would be appear from the judgment that a plea of regularisation was gone into by the Supreme Court in view of the decision rendered in Uma Devi(3)(supra) but so far as a monetary benefit was concerned, the Apex Court found that it should be from the date of the order of the Tribunal and anterior thereto. The point involved in the said above noted judgment was different and not the one which is involved in this instant writ petition. The point which arose in the instant case is whether the fixation of pay can be revised by the

Administration to give effect from the date of regularisation or from the date of an initial appointment on adhoc basis. The Apex Court in the case of Parimal Halder as quoted above, was considering the aforesaid point and held that the moment the applicants are found to have been appointed on a pay scale and not on a fixed pay, revisitation and/or refixation of the scale of pay from the date of regularisation is untenable and therefore, we do not find any difficult in accepting the ratio laid down in the said judgment to have its applicability herein. Even the Tribunal has also relied upon by the said judgment of the Apex Court and extended the benefit which cannot be said to be infirmed and/or illegal or contrary to law.

Accordingly, the writ petition is dismissed. No order as to costs.

However, we appreciate the submission of the learned advocate for the respondents that because of the pendency of the instant writ petition, the time fixed therein has elapsed and it would be undue hardship on the administration, if such time period is not extended as the consequence for non-implemenation of the said order has a far reaching effect.

In view of the above, we, therefore, extend the time as granted by the trial Court by four months; save to the extent of enlargement of the period the other portion of the tribunal order is not interfered with.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )