• Non availability of promotional avenue

Dear All,
A group of employees was absorbed
1. Through same selection process ( Competitive exam)
2. Through same selection agency (Public Service Commission,W.B)
3. Having same minimum required educational qualifications fulfilled

in a certain post carrying (scale 12) under Govt of WB.

After completion of 06 years, as per provision, they became eligible for promotion to the posts of two different categories, both carrying scale no. 16.

Accordingly, some of them got promotion to the posts, say A (scale 16)
And
Some of them got promotion to the posts, say B (scale 16).

Note that both the promotions happened in the same process i.e. upon recommendation of PSC, WB.
Moreover, they have / had an average of 25 years of service left after receiving promotion .

After another 08 years, it is found that
Those who got promotion to post A got benefits of MCAS( modified career advancement scheme) scheme as per provision under ROPA(revesion of pay and allowance) 1998 AND ROPA 2009 after 8 years of their service in the new promotional post. 
Whereas, those who chose to get promotion in post B are found to be ineligible to get any benefit under the same scheme of MCAS by some arbitrary rules in ROPA 1998,2009 and 2019, even after completing 8,16 or 25 years of continuous service.
So, employees promoted to the posts B neither have any opportunity of advancement by functional promotion, nor have they got any financial benefit through MCAS like their other counterparts , although they came from same feeder post and absorbed in service through same process. 
We want to know whether such acts of denial to give financial benefit to a particular group of employees is considered as an arbitrary and / or illogical.
Thanks & regards,
m. ganguly
Asked 6 years ago in Constitutional Law

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20 Answers

Sir, this is totally illogical so go in Writ.

Koshal Kumar Vatsa
Advocate, Gurgaon
2282 Answers
3 Consultations

Since recruitment process, eligibility, date of appointment and from single recruitment are common for those appointed on scale A and B.  Daniel of MCAS to B category is arbitrary.

Hope selection of A and B is as per merit. Like those are above in merit list appointment on A post and similarly on post B who were below A candidates.

Even if this was done but work assignment is common and carries same responsibility than challenge the virus of rules in HC,  Confirm relief.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

Option means both post carries same kind responsibility and eligibility. Employees cannot be discriminated, no such authority vest with employer.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

Such discrimination will be considered as unfair if all the candidates who opted for B post were not informed that they will not get equal benefits with the candidates who chose A post.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Authority can seek opinion from the candidates for selecting the posts after clearly informing all of them the benefits including the upliftment opportunities which will be made available to them in due course.

 

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

You can challenge the same in writ petition

Prashant Nayak
Advocate, Mumbai
34522 Answers
249 Consultations

Yes they can. 

Prashant Nayak
Advocate, Mumbai
34522 Answers
249 Consultations

Having such discriminatory rule itself is arbitrary, prior knowledge makes no difference.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

The benefits not extended to other category of employees who fall on the same line may not be claimed as a right by the affected employees if there are no provisions in law for that even though a similar set of people but belong to a different category have been provided with the said privileges.

This however will not prevent the aggrieved employees from making any representation to the top management or subsequently to file a writ petition before high court seeking redressal of their grievances.

The affected employees may first make a representation in writing to the competent authority in this regard through proper channel.

If they do not get a fruitful result then are at liberty to knock the doors of court for remedy or relief.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

As per Government of West Bengal Finance Department Audit Branch Memorandum No. No. 6042-F(P2) Dated, 7th November, 2019.

Keeping in view such fact and the provisions laid down in Note-2 below Rule -11 of the WBS (ROPA) Rules, 2019, the undersigned is directed by order of the Governor to revise the existing career advancement scheme for State Govt. employees in the manner as indicated in the following paragraphs and the scheme so revised shall be effective in respect of an existing government employee notionaliy from a date on which he opts to come under the revised pay structure under the WBS (ROPA) Rules, 2019 and actually from 01.01.2020 and in respect of a new entrant who joined service on or after 01.01.2016, this scheme will be effective from the date of publication of the WBS (ROPA) Rules, 2019.

2. Subject to fulfilment of usual norms of promotion and also subject to the provisions as undernoted, a government employee directly appointed to a post borne in revised Level-1 to 15 in the Pay Matrix of the WBS (ROPA) Rules, 2019 or its corresponding pre-revised Pay Band and Grade Pay/ scales of pay under the previous WBS (ROPA) Rules, is entitled to move to the first, second and third higher Level in relation to the basic Level, as shown in the annexure to this Memo., on completion of continuous and satisfactory service of 8 (eight), 16 (sixteen) and 25 (twenty five) years respectively.

i) (a) A government employee, who has not got any promotion within 8 (eight) years of service, will move to the first higher Level from the date of completion of 8 years of service, (b) if such employee has got one or more promotion (s) (functional/ non-functional) below the second higher Level within 16 years of service, he will move to the second higher Level from the date of completion of 16 years of service and (c) if such an employee has got two or more promotions (functional/non-functional) below the third higher Level within 25 years of service, he will move to the third higher Level from the date of completion of 25 years of service.

In each of the above cases, the employee will get his pay fixed either from the date of entitlement or from the date of next increment as per his option.

(A) In case the employee opts to get his pay fixed from the date of entitlement, then on the date of entitlement one increment shall be added to the existing pay (in the lower Level) of the employee and he shall be placed at a Cell equal to the figure so arrived at in the higher Level to which he moves and if no such Cell is available in the higher Level, he shall be placed at the next higher Cell in that Level. His next increment will fall due on the 1st July on completion of at least six months service from the date of such fixation.

(B) In case the employee opts to get his pay fixed from the date of next increment, then on the date of entitlement, there will be no interim pay fixation and after allowing the normal annual increment on 1st July the procedure indicated at (A) above shall be followed.

ii) (a) A government employee, who has got only one promotion (functional/ non-functional) before completion of 16 years of service in a Level higher than the first higher Level, will not be allowed to move further higher Level except pay fixation benefit of one increment in the same Level from the date of completion of 16 years of service without having any scope of option and (b) likewise, a government employee, who has got only two benefits before completion of 25 years of service in the form of pay fixation in the same Level as at (a) above or promotion(s) (functional/ non-functional) – one of which in a Level higher than the second higher Level, will not be allowed to move further higher Level except pay fixation benefit of one increment in the same Level from the date of completion of 25 years of service without having any scope of option. In each of the cases mentioned herein, the employee will get next increment on next 1st July whether he completes six months service or not.

iii) A government employee, who, after availing 1st/ 2nd/ 3rd higher Level on completion of 8/ 16/ 25 years of service gets promotion (functional/ non-functional) in the same Level, will get pay fixation benefit of one increment in the same Level from the date of such promotion and he will get next increment on next 1st July whether he completes six months service or not.

iv) When a government employee is promoted to a post carrying lower Level than the Level he is holding due to non-functional movement, he shall be allowed to retain the higher Level in the promotion post as personal to him and his pay on promotion shall be fixed by allowing one increment from the date of such promotion and he will get next increment on next 1st July whether he completes six months service or not.

v) When the Level of a promotion post is same as that of the feeder post, it will be treated as the Level of the feeder post for the purpose of operation of the provisions of this Memo.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

In case the authority is rejecting  the request you may quote the rules and the memorandum referred in my previous post for relief and remedy after which you can always approach state Administrative tribunal for further reliefs.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

1.Without being explicitly informed by the Authority, how can the incumbents be expected to gather the said information?

 

 2. So, the said logic  does not have any legal leg to stand.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

The government will provide you the options.

It is for the incumbent to know about various provisions including the pros and cons of each options available before them before they are going for any suitable option that has been offered before them.

Ignorance of law is certainly not an excuse in any situation either here or anywhere.

The incumbent or the candidate is supposed to know the details because it is he the person who opted for this job, hence he should be fully aware of all such facilities and the rules in this regard.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

You are always having an option to represent to the top management venting out your grievances by such things which you consider as anomaly or injustice, hence you first exhaust the remedies available before you  and then you may plan to initiate steps to tackle this situation legally for relief and remedy through appropriate legal forum including high court if you dont get desired justice from the lower legal forums.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

If the same is available under the scheme of posts its our duty to get the same known to us. if not then you have every right to ask the same. If even after asking they dont give you information then they will be at fault

Prashant Nayak
Advocate, Mumbai
34522 Answers
249 Consultations

ex ignorantia legis neminem excusat maxim dose not apply to govt. rules. Further law enacted for society and provision to regulate service is different thing. 
And one should not raise this plea that you was unaware of such discriminatory rules.
As i have already informed you, there cannot be 2 set of rules for promotion to employees recruited in single process.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

And it is than onus was on employer to pre inform the employee about pros and cons with option.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

In my opinion, without knocking the doors of justice how can you conclude that you are not eligible for any relief.

Probably your case may be considered on humanitarian grounds too or on discretionary grounds if there is a flexibility in law especially when you convince your case through a proper representation.

You should not withdraw without making any attempt.

In any case you will not be losing anything if you are told that you are not eligible for the said privileges, you will be moving on with whatever decision that is informed to you, hence in my opinion, yo may make an attempt to know what you are eligible.

T Kalaiselvan
Advocate, Vellore
89989 Answers
2493 Consultations

you can point out a case of discrimination to same level of employees in getting benefits. Its an unreasonable classification

Prashant Nayak
Advocate, Mumbai
34522 Answers
249 Consultations

Post B employees are also entitled for same benefits which are provided to post B employees if they are not providing financial benefits equally then post B employees can file writ petition before High court and it can help you can get all the benefits as your counterparts.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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