Double act

I joined my present employment as head of the institution of the government of West Bengal-sponsored technical institution imparting training on ITI courses in February 2000. Prior to that I had worked in MAMC Ltd, Durgapur (a central PSU) and from there I had applied for my present post (advertised in a daily newspaper) through a proper channel and was selected. After receipt of my appointment letter I resigned from MAMC Limited and joined my present assignment after official release. Though my present assignment is one post junior to my earlier post in MAMC and knowing everything MAMC gave me a no objection certificate. After joining my present office I appealed for pay protection since I joined maintaining the norms of application through channels from the Government of India U/T to a government of West Bengal-sponsored institute. The governing body of my institute has also recommended in my favour on a number of occasions. But the concerned directorate is not allowing the benefit without citing any reason and I am suffering huge accumulated monetary losses w.e.f. February 2000. Am I being deprived because I have joined in a lower grade? Please advise if there is any legal remedy.

Name and address withheld

The expert: Protection of pay is usually granted when a person has been deputed on a special assignment or some other work from one department to another of the same government undertaking and particularly where there is no change in the rank or position by reason of such deputation. In your case, since it is a different organisation altogether and the change of job was by way of a conscious choice on your part, it is not clear as to the reason why a ‘no objection certificate’ was required from your erstwhile employer in relation to your new job. However, in order to ascertain whether you are entitled to protection of pay, you would have to examine the specific terms of your appointment with your new employer or any particular agreement which you may have entered with it. If there is such a term / clause in the appointment and the directorate is refusing to act on such, then you can file a writ under Article 226 of the Constitution of India in the appropriate high court challenging the arbitrary/ unreasonable action on the part of the concerned directorate. If there is no such term in your appointment, then you cannot claim pay protection as a legally enforceable right.

Same scale pay

I served as headmaster of an English -medium school (provincialised) for about nine years under the director of elementary education. In the year 1995, I was appointed the sub-inspector of schools under the same directorate and joined accordingly. As the scale of pay of both the posts are identical, I have been getting the same scale pay since the very beginning of my service. The date of annual increment is also the same. The department did not allow me to an increment in accordance with the provision in FR-22(C). It is learnt that there is a ruling of the Supreme Court which may allow me to get seniority from the date of joining in the services. Kindly advise.

Name and address withheld

The expert: The Supreme Court has held in recent decisions that the right to seniority is not a fundamental but merely a civil right. It has also been held by the apex court that there is no question of seniority being a vested right as the State can alter or deny such a right, even by way of retrospective effect, for public interest as it is essentially a matter of policy. Notably, under the Constitution, the governor of a state can, in its discretion, make rules regulating recruitment and the conditions of service until provision in that behalf is made by or under an Act of the legislature. Hence, the legislature or the governor of a state can bestow or divest a right of seniority. Although the Court had held in a decision of 1967 that it is the length of actual service that must be the determining factor in matters of promotion and seniority, the Court has subsequently been disinclined to tamper with accustomed practice based on certain rules, particularly when such interference would affect only a few. There are, however, some points you need to clarify first before proper advice can be given. What is ‘FR-22(C)’ and what is the provision it entails? You also need to be more specific as to the nature of your grievance against the department and whether it relates to increment or seniority or both.

When the third party has an upper hand

I had purchased a plot. Now a third person not related to me in any way has threatened to file a suit against me. The fact is that this man owes money from the seller and claims that he has paid advance for the plot, which I have purchased. Now what is my position in this case? Can he file such a case, in which event what am I to do? The seller and I are both tribals (scheduled tribe) and the third person is of general caste who lends money without any licence which I came to know now.

Name and address withheld

The expert: It is possible that the seller had taken a loan from the third party whereby the land in question had been mortgaged as security as it is not uncommon to use land, dwelling houses, etc. as security in pure loan transactions. Under the circumstances, you should enquire and ascertain from the seller as to the exact nature of transaction and whether the land had been kept as security. If it was a pure loan transaction, then the land can be sold to you after the third party’s unpaid dues have been cleared by the seller. If, on the other hand, the money had been paid to the seller towards purchase price for the land, then the third person will have a first charge on the land in relation to the amount paid and the land can only be transferred to you free of such charge. The third party also has the right to file a suit for specific performance against the seller and get an order from the court restraining the seller from transferring or alienating the land to you as long as his right of enforcing the first charge remains. However, for this, he would have to prove that the transaction related to the purchase price of the land in question and he will have to produce relevant papers, documents in relation to the same. The third party cannot institute proceedings against you, since from your query it appears that you are a bona fide purchaser for value and did not have notice of the said transaction between the seller and the third party at the time of purchasing the land. Lastly, there is no separate law for tribals/ scheduled tribes in the facts of the present case.