Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 3 Ors on 1 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010272312018
2025:GAU-AS:5806
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8563/2018
DIPU MONI KALITA
S/O LATE LALIT CH. KALITA, R/O- DIHING SATRA, P.O. AND P.S. NORTH
GUWAHATI, DISTRICT- KAMRUP(M), ASSAM, GUWAHATI-30.
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE LEGAL REMEMBRANCER AND SECRETARY TO
THE GOVT. OF ASSAM, JUDICIAL DEPTT., DISPUR, GUWAHATI-6.
2:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GUWAHATI-6.
3:THE SPECIAL JUDGE
CBI
ASSAM
ADDL. COURT NO. 2 CHANDMARI
GUWAHATI-3.
4:THE SPECIAL JUDGE
CBI
ASSAM
ADDL. COURT NO. 1 CHANDMARI
GUWAHATI-3
Advocate for the Petitioner : MR H DAS, MS. M PAUL,MR. R SARMAH,MR. B C DEKA,MS. U
HAZARIKA
Advocate for the Respondent : GA, ASSAM, MR H K DAS (SC, GAUHATI HIGH COURT),MR. S
C KEYAL
Page No.# 2/7
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocate for the petitioner(s) : Mr R Sarmah
Advocate for the respondent(s) : Mr T R Gogoi
Mr H K Das
Date of Hearing and Judgment : 01.05.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr R Sarmah, learned counsel appearing on behalf of the petitioner. Mr T R Gogoi, the learned counsel appears on behalf of the respondent No. 2. Mr H K Das, the learned Standing Counsel of the Gauhati High Court, appears on behalf of the respondent Nos. 3 and 4.
2. The petitioner has approached this Court, to challenge the order dated 11.09.2017, whereby the respondent No. 4, vide the said order have refused to grant him the annual increment, to which the petitioner claimed to be entitled to. The question, therefore, arises in the instant proceedings is, as to whether the respondent No. 4 was justified in rejecting the application filed by the petitioner on 27.04.2016, whereby the petitioner claimed annual increment w.e.f., 01.07.2013.
3. The facts involved in the instant case is on a very narrow compass. The petitioner, who was working as a Lower Division Assistant (for short, "LDA"), in the establishment of the District and Sessions Judge, Kokrajhar, was promoted to the post of Upper Division Assistant (for short, "UDA"), on 25.04.2013, and the petitioner thereupon, joined the post of the UDA, w.e.f. 02.05.2013. There is no denial to the fact that upon the petitioner joining the establishment on 02.05.2013, in the promotional post, he was Page No.# 3/7 allowed to draw the pay of the UDA, with the relevant pay band and grade pay. However, it is the case of the petitioner that the petitioner was not permitted to exercise the option at the time when he joined the post of the UDA to claim the benefits, in terms with Note-I of Rule 11 of the Assam Services (Revision of Pay) Rules, 2010 (for short, the Rules of 2010).
4. In view of the above facts, the question, therefore, arises, as to whether the petitioner herein, has been deprived of his rights by not allowing him to exercise the option in terms with Note-I of Rule 11 of the Rules of 2010, by the establishment of the Special Judge, CBI, Assam, Additional Court No. 2.
5. This Court finds it relevant to take note of that the petitioner had submitted a representation, raising the said issue on 27th of April, 2016, stating, inter alia, that the petitioner was not allowed to draw his increment when he was released from the said establishment, nor the petitioner was allowed to drawn the same after his joining in the present service.
6. The Court has also taken note of that after the filing of the writ petition, affidavits have been filed by the respondent Nos. 2 as well as by the respondent Nos. 3 and 4, explaining as to why the petitioner has not been granted the annual increment on 1 st of July, 2013. At Paragraph-12 of the affidavit filed by the respondent Nos. 3 and 4, it has been mentioned that Rule 11 (c), Note-II of the Rules of 2010, provides that one who gets promoted between 2nd of January and 30th of June of a particular year, shall get increment on the 1st of July of the next year (1st of July, 2014, in the case of the petitioner). It was mentioned that the petitioner, therefore, was ineligible to get the annual increment from July, 2013. Referring to Rule 11 Note-I, it was mentioned in the affidavit that in case, a Government employee opts to get his pay fixed from the date of the next increment, then on the date of the promotion, pay in the pay band shall to remain unchanged, but grade-pay of the higher post shall be granted. Further, re-fixation Page No.# 4/7 will be done on the date he gets his increment, i.e., on 1st day of July, next year, and if he is promoted between 2nd of January and 30th of June, it was also mentioned that on the said date, i.e., on 1st of July, he would be entitled to two increments, i.e., one annual increment and one promotional increment. The petitioner, however, did not opt to get his pay fixed as per the provisions of Rule-11. It was also mentioned that Note-I of Rule 11
(c) of the Rules of 2010, further provides that the option once exercised is final.
7. In the backdrop of the above pleadings, this Court has duly heard the learned counsels, appearing on behalf of the parties, and has duly perused Rule 11 of the Rules of 2010, as well as the impugned order dated 11.09.2017. For the purpose of deciding the dispute, it is relevant to take note of Rule 11 of the Rules of 2010, which is reproduced hereinbelow-
"11. Fixation of pay on promotion on or after 1 day of January, 2006- (1) In case of promotion from one post to a higher post on or after the 1st day of January, 2006, the fixation of pay of a Government employee shall be made in the following manner-
(a) one increment equal to three per centum (3%) of the sum of the existing pre-promotion pay in the Pay Band and the Grade Pay corresponding to the pre-
promotion post plus ad hoc fitment benefit, if any, shall be computed and rounded off to the next multiple of Rs. 10/-.
(b) In case of post to post promotion, revised pay in the Pay Band shall be fixed by adding the amount arrived at Clause (a) above to the existing pre- promotion pay of the employee in a Pay Band. He will also be given Grade Pay at enhanced rate as applicable to the promotion post.
(c) In case the promotion from one post to another involves movement from one Pay Band to a higher Pay Band then also fixation of pay consequent to promotion shall be done in the same manner as at (a) and (b) above.
Page No.# 5/7 However, if the revised pay so arrived at consequent to prom-otion becomes lower than the minimum of the higher Pay Band to which he has been promoted, then his pay shall be fixed at the minimum of the higher Pay Band. After such fixation he will automatically move to the higher Pay Band to which he is promoted and he will also draw Grade Pay as applicable to the post to which he has been promoted.
Note- I. In case the Government employee opts to get his pay fixed from his date of next increment, then, on the date of promotion, pay in the Pay Band shall continue to be unchanged, but Grade Pay of the higher post shall be granted. Further, re-fixation shall be done on the date of his next increment, i.e. Ist day of July. On that day, such a Government employee shall be granted two increments; one annual increment and the second on account of promotion. While computing these two increments, basic pay prior to the date of promotion and Grade Pay corresponding to such pay in the Pay Band shall be taken in account. After allowing such increments, Grade Pay of the higher post/scale shall be allowed.
II. In case the Government employee opts to get his pay fixed in the higher grade from the date of his promotion, he shall get his first increment in the higher grade on the next 1st July, if he was promoted between the period from 2 nd July to 1st January. However, if he was promoted between period commencing from the 2nd January and ending on the 30thof June of a particular year, he shall get his increment on the 1st July of the next year."
8. The above Rule is in relation to fixation of pay on promotion, on or after the 1 st day of January, 2006. In terms with Sub-Clause-(a) of Rule 11, there shall be one increment equal to three per centum of the sum of the existing pre-promotion pay in the pay band and the grade pay, corresponding to the pre-promotion post plus adhoc treatment benefit, if any, which shall be computed and rounded up to the next multiple of 10. In terms with Page No.# 6/7 Clause- (b), in case of promotion post, revised pay in the pay band shall be fixed by adding the amount arrived at Clause-(a) of Rule 11 to the existing pre-promotion pay of the employee in the pay band. It is also mandated that the Officer shall also be given grade pay at the enhanced rate, as applicable to the promotion post.
9. Clause-(c) of Rule 11 is of vital importance, which is in relation to a promotion from one post to another, involving movement from one pay band to the next higher pay band. It is stipulated that if the revised pay so arrived at, consequent to promotion becomes lower than the minimum of the higher pay band, to which, the Officer has been promoted, then his pay shall be fixed at the minimum of the higher pay band and after such fixation, the Officer would automatically move to the higher pay band, to which he is promoted, and he will also draw grade pay as applicable to the post, to which he has been promoted.
10. Note-I and Note-II, provide option to the Officer concerned. The option which is to be exercised by the Officer, in terms with Note-1 is on the date of his promotion, to the effect that he would claim re-fixation of his salary on the date of the next increment, i.e., 1st of July, and, if such option is exercised, the Government employee shall be granted two increments, one annual increment and the second on account of the promotion. However, these two increments would be computed on the basis of the basic pay prior to the date of promotion and the grade pay corresponding to such pay in the pay band, shall be taken into account. It is only after allowing such increment, grade pay of the higher post/scale shall be allowed.
11. In terms with Note-II, the Government employee can opt to get his pay fixed in the higher grade from the date of his promotion and he shall get his first increment in the higher grade on the next 1st July, if he was promoted between the period from 2 nd of July to 1st of January. However, if he was promoted between the period commencing 2 nd of January and ending on 30th of June, he shall get his increment on the 1 st of July of the Page No.# 7/7 next year.
12. In the instant case, it would be seen that the petitioner was promoted to the post of the UDA in the establishment of the respondent No. 3, on 25.04.2013, and he joined the post on 02.05.2013. Thereupon, the petitioner's pay was fixed in the higher grade of the UDA from the date of his promotion. The petitioner continued to avail the benefit of the said higher pay in the relevant pay band and grade pay, till he submitted his representation on 27.04.2016.
13. This Court has further taken note of that when the petitioner was promoted on 25.04.2013 or when the petitioner joined his service on 02.05.2013, in a higher grade, i.e., in the post of UDA, the petitioner never exercised the option, which he was required to exercise on the date of his promotion. This Court further takes note of that even when the petitioner received his first salary in the higher grade, then also the petitioner did not take any steps.
14. Considering the above, it is the opinion of this Court that the petitioner, after 3 (three) years, cannot by filing a representation, request for change in the said, as it would go against the very mandate of Rule-11 (c) as well as Note-I of the said Rules.
15. Considering the above, this Court finds no merit in the instant petition, for which the petition stands dismissed.
JUDGE Comparing Assistant