Page No.# 1/7 vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2078 Gua

                                                                 Page No.# 1/7

GAHC010077072021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/3061/2021

         MANJU RANI TALUKDAR AND ANR
         W/O KISHORI MOHAN BAYAN, R/O VILL-CHENGA, P.O.-CHENGA, P.S.-
         TARABARI, DIST-BARPETA, ASSAM, PIN-781305

         2: RATUL TALUKDAR
          S/O LATE HARKANTA TALUKDAR
          R/O VILL-CHENGA
          P.O.-CHENGA
          P.S.-TARABARI
          DIST-BARPETA
         ASSAM
          PIN-78130

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, EDUCATION DEPARTMENT (SECONDARY), DISPUR,
         GUWAHATI, ASSAM

         2:THE DIRECTOR OF SECONDARY EDUCATION
          KAHILIPARA
          GUWAHATI-19

         3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-6

         4:THE INSPECTOR OF SCHOOLS
          BARPETA DISTRICT CIRCLE
          BARPETA
          DIST-BARPETA
         ASSAM
                                                                                   Page No.# 2/7


            5:THE SCREENING COMMITTEE CONSTITUTED UNDER ASSURED
            CAREER PROGRESSION SCHEME
             2011
             REPRESENTED BY ITS CHAIRPERSON CUM INSPECTOR OF SCHOOLS
             BARPETA DISTRICT CIRCLE
             BARPETA
             DIST-BARPETA
            ASSA

Advocate for the Petitioner   : MR. J AHMED

Advocate for the Respondent : SC, SEC. EDU.




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                           ORDER

Date : 06-09-2021

Heard Mr. J Ahmed, learned counsel for the petitioners. Also heard Mr. R Mazumdar, learned counsel for the respondents no. 1, 2, 4 and 5 being the authorities under the Secondary Education Department, Government of Assam and Mr. B Gogoi, learned counsel for the respondent no. 3 being the authorities under the Finance Department, Government of Assam.

2. The two petitioners herein had participated in a selection process pursuant to an advertisement dated 03.09.1991 for appointment as Graduate Science Teachers, Assistant Teachers etc. In the circumstance, the petitioners have instituted this writ petition for (i) granting graduate scale of pay from their respective dates of joining along with all the consequential benefits such as re-fixation of pay and increment, payment of arrear due etc.; (ii) for a direction to the respondent authorities to grant the benefit of Assured Career Progression Scheme; (iii) for declaring that up-gradation of the petitioners from intermediate scale of pay to the graduate scale of pay was not a benefit under the scheme for Assured Career Progression.

3. Mr. J Ahmed, learned counsel for the petitioner makes a submission that the issue raised by the petitioners in the present writ petition had already been decided by Page No.# 3/7

the judgment dated 19.06.2018 in WP(C) 2397/2017. It is further stated that the service of the petitioner no. 2 was regularized on 16.06.1993.

4. The judgment dated 19.06.2018 in WP(C) 2397/2015 is extracted as below:

"Heard Mr. AD Choudhury, learned counsel for the petitioner and Mr. N Sarma, learned Standing Counsel for the Secondary Education Department and Mr. P Nayak, learned counsel for the respondent No.3.

2. The petitioner's case in brief is that in pursuant to an Advertisement dated 3.9.1991, the petitioners applied for the post of Graduate Science Teachers for Secondary Schools and Assistant Teacher for Secondary Schools, both having graduate scale of pay. Petitioner Nos.1 and 4 were appointed as Graduate Science teacher for Secondary School while the petitioner Nos.2, 3 and 5 were appointed as Assistant Teachers for Secondary Schools. However, in their appointment orders, the petitioners were given the intermediate scale of pay of Rs.1185- 2395/- per month. Thereafter, vide Notification dated 30.12.1993, all the existing posts of Assistant Teachers in intermediate scale of pay of Rs.1185-2395/- with graduate incumbents of provincialised High/Higher Secondary were upgraded to the post of Assistant Teacher in Graduate Scale of pay of Rs.1375-3375/-. The petitioners counsel submits that the petitioners have been given their rightful pay scale by way of Notification dated 30.12.1993, as had been specified in the Advertisement dated 3.9.1991. As the petitioners had not been promoted for 24 years, the petitioners are eligible to be given 2 financial upgradations as per benefit of the Assured Career Progression Scheme, hereinafter referred to as 'ACP Scheme'. The petitioners' counsel also submits that as per the order dated 12.11.2014 issued by the Secretary to the Govt. of Assam, Secondary Education Department, the petitioners were treated to be intermediate teachers who were upgraded to graduate teachers.

3. Counsel for the respondents submit that though the petitioners were entitled to be given their graduate scale of pay from their date of appointment as Graduate Science Teacher and Assistant Teacher for Secondary Schools, the appointment orders of the petitioners show that they had been given the Page No.# 4/7

intermediate scale of pay. This was not challenged by the petitioners at any point of time. They also submit that the pay scale of the petitioners were upgraded to the graduate scale of pay vide Notification dated 30.12.1993, which has also not been challenged by the petitioners. They submit that in view of the upgradation of the petitioners' scale vide Notification dated 30.12.1993, the same is upgradation of pay scale of the petitioners and accordingly, the petitioners are not entitled to the benefit of first financial upgradation under clause 16 of the ACP Scheme. They submit that the petitioners might be entitled for the 2nd financial upgradation as they have been in service for more than 24 years.

4. The respondents' counsel also submits that the order dated 12.11.2014 is not applicable to the petitioners, as the petitioners' pay scale had already been upgraded vide Notification dated 30.12.1993.

5. I have heard the counsels for the parties.

6. The advertisement dated 3.9.1991 states that the pay scale of Graduate Science Teacher and Assistant Teacher of Secondary Schools shall be Rs.1375- 3375/- per month. However, the appointment orders of the petitioners issued between 28.3.1992 and 29.9.1993 show that they had been given the pay scale of Rs.1185-2395/- per month, which is not in consonance with the pay scale given in the advertisement.

7. The Notification dated 30.12.1993 has upgraded the pay scale of the petitioners to Rs.1375-3375/- per month from the date of issue of the order. The question here is whether the upgradation of the petitioners' pay scale from intermediate pay scale to graduate pay scale vide Notification dated 30.12.1993 can be said to be an upgradation of the petitioners' post. Further, whether the upgradation of the pay scale of petitioners, by way of the Notification dated 30.12.1993, can be the basis for denying the petitioners 2 financial upgradations as claimed by the petitioners in pursuance to the ACP Scheme. In this respect, the Notification dated 30.12.1993 is reproduced below;

8. The clause 1(II) 3(XI), 4 (XII) and XVI are reproduced below;

"1. II. The benefit under the Scheme would be given twice in Page No.# 5/7

their entire service period-first one after completion of 10 years and second one after completion of 24 years of service if they do not get one regular promotion within first 10 years of regular service and two regular promotions within 24 years of regular service.

3. XI. The Scheme would be operational w.e.f. 01-01-2011. In other words, financial Upgradations as per the provisions of the ACP Scheme would be granted w.e.f. 01-01-2011.

4.XII. The 1st financial upgradation under the ACP Scheme shall be

allowed after 10 years of regular service and 2 nd financial upgradation shall be allowed after 24 years of regular service.

XVI. If any post has been upgraded once and the employee has received the financial benefit due to upgradation within 10 years of service or on the date of introduction of the Scheme i.e. 01-01-2011,

benefit of 1st financial upgradation under ACPS shall not be given to him. Similarly, if such post has been upgraded twice before completion of 24 years or on the date of introduction of the Scheme i.e. 01-01-2011, or the post is upgraded once after the employee has taken the benefit of

1st financial upgradation under ACPS but within 24 years of service, then

benefit of 2nd financial upgradation under ACPS shall not be given to him."

9. The advertisement dated 3.9.1991 has clearly spelt out the fact that the persons who were appointed to the posts, in which the petitioners have been appointed, would be given the salary of Rs.1375-3375/- per month. The respondents were thus bound by the norms and conditions laid down in the advertisement. There is nothing produced by the respondents to show that the said norms and conditions stipulated in the Advertisement dated 3.9.1991 had been changed at any time after issuance of the advertisement by the concerned authorities. Thus, just because the appointment orders of the petitioners as Assistant Teachers for Secondary Schools, did not carry the pay scale that they were entitled to as per the advertisement, does not mean that they can be Page No.# 6/7

denied the same. Pertinently, in pursuance to the Notification dated 30.12.1993, the petitioners' pay scale was upgraded from Rs.1185- 2395/- to Rs.1375- 3375/-, which was in consonance with the Advertisement dated 3.9.1991. In the considered view of this Court, the advertisement having already laid down the pay scale to be paid to the petitioners, the alleged upgradation of the petitioners' pay scale vide Notification dated 30.12.1993, which is in consonance with the advertised pay scale, is not a upgradation at all. It is only a correction of a mistake, as the petitioners were entitled to be given the pay scale of Rs.1375-3375/- per month at the time of their initial appointment. The actions of an employer bear public character and contain an element of public interest. Article 14 of the Constitution guarantees to all persons equality before law and equal protection of the law. The State has to act fairly and reasonably in the discharge of its function. Also, as the advertisement had laid down the terms and conditions to which the selected candidates would be governed by, the selection was accordingly done on the basis of the terms and conditions of the Advertisement dated 3.9.1991. Consequently, the selected persons were to be governed on the basis of the criteria laid down in the advertisement. The mistake made in the appointment letters of the petitioners, whether intentional or not, in giving a lower pay scale than what had been prescribed, does not confer any right upon the employer to give a pay scale, lower than the petitioners entitlement. In any event, a mistake can be corrected.

10. In this case, there is nothing to show that the petitioners were entitled to promotion one year after their appointment as Assistant Teachers. Accordingly, there was no occasion for their pay to be upgraded. The language in the Notification dated 30.12.1993 states that the pay scale of the Assistant Teachers would be upgraded. Thus, the language used in the notification cannot be construed to mean that the petitioners were promoted/upgraded. Also, it is an admitted fact that there is no rule or provision for promotion or upgradation of the petitioners' to a higher post. It was due to this very purpose that the ACP Scheme is applicable to the petitioners.

11. In view of the reasons stated above, this Court is of the view that the Page No.# 7/7

petitioners have been given their rightful pay scale vide the Notification dated 30.12.1993, which is in consonance with the criteria, terms and conditions laid down in the Advertisement dated 3.9.1991. Accordingly, this Court finds that as the petitioners have not been given any regular promotion/upgradation during their service career of more than 24 years, they are entitled to 2 financial upgradations as per the ACP Scheme, provided for in the Notification dated 25.5.2011. Consequently, this Court finds that the upgradation of the petitioners' intermediate scale of pay to the graduate scale of pay cannot be termed as a benefit under the ACP Scheme. The respondents are accordingly, directed to grant the petitioners 2 financial upgradations under the ACP Scheme and issue necessary orders for implementing the same within a period of 2 (two) months from the date of receipt of a certified copy of this order. The writ petition is accordingly disposed off."

5. Mr. R Mazumdar, learned counsel for the Secondary Education Department, Government of Assam upon verification has made a submission that the claim of the petitioner would in fact be covered by the judgment dated 19.06.2018 in WP(C) 2397/2015.

6. Accordingly, the reliefs granted in paragraph 11 of the judgment dated 19.06.2018 in WP(C) 2397/2015 be also granted to the present writ petitioners in this writ petition. The requirement be done within a period of three months from the date of receipt of certified copy of the order.

7. Writ petition stands allowed in the above terms.

JUDGE

Comparing Assistant