STATE OF WEST BENGAL Vs. BIJON KUMAR KAR

JUDGEMENT

(1.) This appeal arises out of a judgment and order passed by M.N. Roy, J. (as His Lordship then was) dated 20th June, 1990 in C.O. No. 8258 (W) of 189, whereby and whereunder the writ application filed by the writ petitioner-respondent was allowed. The basic fact of the matter is not in dispute. The petitioner was appointed as Supervisor Grade II in Wireless Operator Group. The writ petitioner-respondent was promoted to the post of Supervisor Grade I on 16.7.73. In terms of ROPA Rules, 1980 the scale of pay of Supervisor Grade II and Supervisor Grade I was revised to Rs. 300.00 to Rs. 600.00. However, so far as the Special Pay of Grade II is concerned, the same was Rs. 20.00, whereas the Special pay in respect of Grade I was Rs. 50.00. The petitioner-respondent's pay was fixed upon his promotion in the following manner:-

(2.) Mr. Basu, learned Senior Counsel appearing on behalf of the respondent, contends that admittedly on promotion the promotee is entitled to get one increment and in that view of the matter for the purpose of consideration of an increment, his initial pay as Supervisor Grade I should be Rs. 640.00. It appears that this Court in a writ petition has considered that the post of Supervisor Grade I will be superior to post of Supervisor Grade II in respect of condition of service and prospect of promotion to higher rank, as appears from the letter of the Accountant General of Bengal dated 9.1.81. The said authority, therefore, sought for clarification from the State Government, but the Finance Department of the State Government in terms of its letter dated 27th April, 1982, inter alia, held that :

(3.) In terms of Rule 13 of the ROPA Rules, 1980 fixation of pay on promotion was to be done at the stage next above the pay nationally arrived at by increasing his pay in the lower post by one increment. Thus evidently, the State itself has used the word 'Pay' and not 'Basic' pay. If the expression 'Pay' is to be considered for the purpose of fixation of pay on promotion, there cannot be any doubt that the special pay being included in the definition of pay under the West Bengal Service Rules Part I which has been framed, under proviso appended to Art. 309 of the Constitution of India would include the special pay. It, however, appears that the State also later on inserted Rule 42-A in the service rules in between the period Oct. 1, 1986 and Oct. 15, 1987, which also speaks of pay and not basic pay. In the instant cas, the scale of pay of both the Supervisor Grade I and Supervisor Grade II being same, in our opinion, for the purpose of fixing his pay on promotion, the technical pay or special pay should also be taken into consideration as the same formed part of his pay, particularly, in view of the fact that both the posts carry the same scale of pay namely Rs. 300.00 to Rs. 600.00.