1. This is an appeal from an order of J. P. Hitter, J. dated the 22nd of April 1959 discharging a Rule issued under Article 226 of the Constitution.
2. The facts giving rise to this appeal are shortly as follows:
On 5th April, 1948 the appellant was employed as a Junior Accountant under the Assistant Regional Controller of Procurement at a monthly pay of Rs. 60/-. On 5th July, 1949 he was promoted to the rank of an Accountant and according to the appellant the scale of pay of the appellant was on the time scale basis of Rs. 80/- per month in the scale of Rs. 80-85-5/2-120. The details of the time scale of pay are given in paragraph 4 of the petition and the appellant alleges that he got his pay on the said scale up to 31st January, 1954; but he was informed by the Assistant Director of Procurement and supply (Personnel), Food and Supply Department, by a memorandum dated 30-1-54 that the appellant would get a fixed nay of Rs. 80/- instead of his salary of Rs. 120/-. The memorandum also contained a direction that the drawing of the increment by the Accountants in the scale of pay of Rs. 80-85-5/2-120 should be stopped immediately. It is said that by reason of the said order the appellant got a much lesser amount than he was entitled to on the original time scale basis and he suffered a total loss of about Rs. 552/- between the period of 1st February 1954 and 4th July 1956 and further loss would be sustained by him in future. The appellant thereupon made several appeals and representations to the authorities concerned between 16th February 1954 and 30th June 1956 challenging the legality of the order of reduction of the pay and stoppage of further increments and also complaining about the discrimination made between the post of Accountant and the Upper Division Clerks although they were initially treated as being in the same cadre and entitled to the same time scale of pay of Rs. 80-85-5/2-120 and although in or about September 1954 and thereafter hopes had been held out of recalling the order of reduction of pay, ultimately the appellant was informed that the order would stand. Thereafter the appellant moved this Court under Article 225 of the Constitution and a Rule Nisi was issued by Sinha J. on the 31st July 1956, This Rule finally came up for hearing before J. P. Mitter J. who by his judgment delivered on the 22nd April, 1959 discharged the Rule as already stated. It is against this order that the present appeal has been preferred.
3. In the affidavit-in-opposition which was filed in answer to the petition under Article 226 and which was affirmed by one Khagendra Bhusan Chandra, the Assistant Director of Procurement and Supply, it is stated that the Food Department which was a temporary department in which the appellant was employed was originally established on a fixed scale basis, but in 1946 by virtue of the Chief Minister's Department Establishment Memo No. 2062 dated 2-7-46 such temporary posts, which were created on a fixed pay basis, being equal to the minimum pay of a time scale were deemed to have been created on the time scale of corresponding permanent posts. As a result of this the pay of Upper Division Clerks in the Food Department which was originally created on a fixed pay of Rs. 80/- was deemed to have been created on a time scale of Rs. 80-85-5/2420 inasmuch as the fixed pay of such Clerks was equal to the minimum pay of the time scale of the permanent Upper Division posts in the district executive; but in the case of the Accountants their posts though created on a fixed pay of Rs. 80/- per month could not be deemed to be on a time scale as the pay of the Accountant was not equal to the minimum of a time (sic) of the corresponding permanent posts in the district executive. It is pointed out in the affidavit that prior to 1931 the time scale of pay of Accountants was Rs. 125-5-1/5/-but after 1931 it was Rs. 110-10/2-130-5/2-140-15/2-155; but in respect of the Upper Division Clerks the time scale prior to 1931 was Rs. 80-5-140, but after 1931 it was Rs. 80-85-5/2-120/-. It is also stated in this affidavit that it was due to some misconception on this point that increment was allowed to the appellant through a wrong interpretation of the Chief Minister's memo, but upon the mistake being discovered later on the appellant had to be informed in 1954 that his pay was fixed at Rs. 80/-and drawing of the increment in the scale of Rs. 80-85-5/2-120 should be stopped immediately. But thereafter on or about 30th June 1956 the Government of West Bengal issued a notification laying down certain rules regulating the pay of the staff. These rules were given effect to from 1st April 1956. Thereafter on 15th December 1953 the Government issued further notification in modification of the notification dated 30th June 1956 and laid down the time scale of the Accountants in the Procurement Branch in the district and Sub-Divisions beginning from Rs. 110-4-150 and the appellant was absorbed in this revised scale of Rs. 110-4-150/- with effect from 1st April 1956 and since then the appellant had been receiving the salary on the basis of the said time scale without making any grievance thereof. There is an explanation given in this affidavit as to why the word 'fixed' was not shown against the pay of the Accountant in annexure 'C' and 'C(1)' of the petition. In the affidavit-in-reply which was filed by the appellant and which was affirmed on the 3rd May 1957 the appellant has inter alia referred to certain instances to show that persons appointed originally as Accountants like him have been made Upper Division Clerks and are working as such on the time scale of pay. In this affidavit-in-reply it is also stated that the appellant never accepted the position that he was to get his pay according to the revised scale of Rs. 1104-150/- as suggested, by the respondents. His case is that he had never exercised the option of adopting this revised scale within the period laid down by the rules, but this scale was thrust upon him by the financial Adviser of the Food Department suo motu without consulting him and before the period for exercise of option had expired. Our attention Has been drawn by the learned Advocate for the appellant to the various annexures to the petition and the affidavits, but there is no document to show that the appellant had been accepting the pay in terms of the revised scale of Rs. 110-4-150/- under protest. There are also materials appearing from the affidavits to support the suggestion that the pay of the Accountant at the rate of Rs. 80/- per month could not be equated with the minimum salary of Accountants in the corresponding permanent posts and it was therefore on the basis of some misconception that the appellant was given his pay on the basis of the time seals of Rs. 80-85-5/2-120/-, but as soon as the mistake was discovered action was taken to reetify the mistake and to stop increment on the time scale basis. It is also to be noted that the respondents did not insist on the appellant refunding any excess amount that he had received due to the mistake of the Department responsible for making the payment of salary to the appellant and it was decided that the appellant would be allowed to retain the excess amount that was received by him during the period up to 31st January 1954. The learned Advocate for the appellant has drawn the attention of the Court to Article 309 of the Constitution of India which empowers the President of India and the Governor of a State to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the Union and of the State respectively and has argued that as no such rules appear to have been framed authorising deprivation of the time scale of pay which had been originally allowed to the appellant, the action of the respondents in this respect was entirely illegal and relief should therefore be given in this application under Article 226 of the Constitution. It is true no such rule has been brought to our notice but we fail to understand why the proper authorities could not make administrative orders for the purpose of regulating the conditions of service of employees of the department under their charge. It is quite clear that the order fixing the pay of the appellant and depriving him of the benefit of the time scale which had been granted to him under a misapprehension was as a result of an administrative determination and it is difficult to see why such administrative determination or order is not binding on the appellant, Sinha J. had occasion to deal with somewhat similar matter in Civil Revision Case No. 44 of 1959 (Nilambar Banerjee v. Secretary to the Commerce and Industries Department, judgment dated 18-7-1960 (Cal)) and pointed out that the petitioners before him who were compositors employed in the West Bengal Government Press, Alipore, and in the Governor's Press, Raj Bhavan, Calcutta and challenged the legality of revision of their scale of pay, had no legal right to a revision of their scale of pay. The learned Judge made the following observations:
'It is also argued that the petitioners have no legal right to a revised scale of pay and therefore an application does not lie in this jurisdiction. Several authorities have been cited before me on behalf of the petitioners laying down the principles governing the constitutional safeguard of discrimination. So far as this case is concerned I do not think that there is any difficulty in regard to the position in law. Firstly, the petitioners have no legal right to a revision of their scale of pay that is firstly the matter of contract and secondly it is subject to rules that may be framed from time to time and the main consideration is always that of an administrative efficiency. It is not for this Court to tell the Government what wages it is to pay to its employees. Next it is equally clear that Government is free to pay different cadres of its employees on different rates.'
4. We think that there is considerable force in these observations of the learned Judge. The order dated the 5/6th July 1949 promoting the petitioner to the post of Accountant, which is annexure 'A' to the petition, shows that the appellant was promoted on a purely temporary basis. He has not been able to produce any material before the Court to show that his right to get his pay as claimed by him rests on any valid or enforceable contract or he has any enforceable legal right in respect thereof.
5. But we feel constrained to say that the procedureadopted by the learned Judge at the hearing of the application under Article 226 before him has been Irregular in meextreme. The learned Judge in our opinion had no jurisdiction in calling Mr. Chanda, the person who has affirmedthe affidavit-in-opposition as witness and in asking himto explain the facts concerning the case without giving theappellant or his Advocate an opportunity to controvert thestatements made by him or an opportunity to cross-examinethe witness; and, had we not been satisfied on the materialsplaced before us that the appellant has no legitimate causefor grievance, we would have interfered with the order ofthe learned trial Judge on this ground of irregularity alone.The learned Advocate also drew our attention to a decisionof the Supreme Court reported in State of Bihar v. AbdulMajud, : (1954)IILLJ678SC but this decisionIn our view is not of any assistance to the appellant. Itwas also argued that the action of the Respondents in depriving the appellant of the time scale of pay and in stoppingall future increments amounted to reduction in rank and asno opportunity was given to him to show cause against thisaction proposed to be taken there was contravention of Article 311(2) of the Constitution and so the order complained orwas bad. But it is to be noted that in order that the provisions of Article 311 may be attracted the reduction has to beby way of imposition of penalty but where such reductionresults from a normal step taken in the course of officeadministration to rectify an error or a mistake and there is no penalty involved in the readjustment, there is no reduction in rank within the meaning of Article 311 of the Constitution and the procedure prescribed In Clause (2) of Article 311need not be followed. (See Parshotam Lal Dhingra v. unionof India, : (1958)ILLJ544SC . This disposesof ail the points raised in this appeal.
6. In the result this appeal must fail and it is accordingly dismissed. As regards costs we think that each party should bear his or its own costs of this appeal.
7. I agree.