Gauhati High Court
Jatin Chandra Basumatari vs The State Of Assam And 4 Ors on 28 July, 2022
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GAHC010159262018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4924/2018
JATIN CHANDRA BASUMATARI
S/O PHUKAN CHANDRA BASUMATARI
R/O VILL- BAJRAJHAR
P.O. AND P.S. ROWTA CHARIALI
DIST. UDALGURI, BTAD, ASSAM, PIN - 784508.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT,
DISPUR, GUWAHATI - 781006.
2:THE COMMISSIONER AND SECRETARY
PHE DEPARTMENT
DISPUR
GUWAHATI - 781006.
3:THE CHIEF ENGINEER
PHE
ASSAM
HENGERABARI
GUWAHATI- 781036
4:THE ADDL. CHIEF ENGINEER
(PHE) NORTH ASSAM
ZONE
TEZPUR
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DIST. SONITPUR
ASSAM.
5:THE DEPUTY SECRETARY FINANCE (ESTT.A) DEPARTMENT
DISPUR
GUWAHATI-6
Advocate for the Petitioner : MR. S CHAUHAN
Advocate for the Respondent : SC, FINANCE DEPTT.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. S. Chauhan, Advocate.
For State respondent Nos.1 and 5 : Mr. R. Borpujari, standing counsel.
For respondent Nos.2 to 4 : Mr. R. Bora, standing counsel
Date of hearing : 06.06.2022
Date of judgment : 28.07.2022
JUDGMENT AND ORDER
(CAV)
Heard Mr. S. Chauhan, learned counsel for the petitioner. Also
heard Mr. R. Borpujari, learned standing counsel for the Finance Department,
representing respondent nos.1 and 5. Also heard Mr. R. Bora, learned counsel
appearing on behalf of Mr. P.N. Goswami, learned Standing counsel for the
Public Health Engineering Department, representing respondent nos.2 to 4.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner has claimed for the following reliefs:
(i) Restore the Order No.PHE/209/Estt./90/22649 dt. 18/08/1999 passed by Chief
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Engineer; PHE Deptt;
(ii) Set aside the order dt. PHED-227/98/41 dt. 23/11/2007 passed by the Finance
Department;
(iii) Set aside the Order No.PHE-209/Estt./98 dt. 07/06/2013 and dated 08/08/2013
passed by the Chief Engineer (PHE);
(iv) Set aside the Office Order No.05 dt. 03/07/2013; order No-18 dated 26/08/2013
passed by the Addl. Chief Engineer (PHE), Barak Valley Zone.
(v) Issue writ of Mandamus directing the respondents to refund the recovered
amount Rs.3,71,358/-;
(vi) Direct the respondents not to recovered Rs.3,71,358/- for gratuity and leave
encashment benefits of the petitioner;
(vii) Direct the respondents to give benefits of equalization of pay to the petitioner as
given to Smt. Lily Hrangkhal by virtue of judgment dt. 20/04/2015 passed in
WP(C) 597/2008 and by order dt. 25/07/2017 of Finance Department, order dt.
03/08/2017 by the PHE Department and/ or pass such other order(s) as Your
Lordships may deem fit and proper.
3. The case of the petitioner is that he belongs to Scheduled Tribes
(Plain) community. He was temporarily appointed as Work Charged Mohorrir
under Mangaldoi Public Health Engineering (PHE for short) Division vide order
dated 29.09.1981, issued by the Executive Engineer (PHE), Mangaldoi Division,
and his service was extended from time to time. Thereafter, by an order dated
05.03.1986, issued by the Chief Public Health Engineer, Assam, the petitioner
was appointed as Lower Division Assistant (LDA for short) on regular basis and
posted in the office of the Assistant Executive Engineer, PHE, Tangla Sub-
division, District Darrang. Thereafter, by an order dated 12.09.1990, issued by
the Superintending Engineer, PHE, he was promoted to the post of Upper
Division Assistant and posted in the office of the Additional Chief Engineer, PHE,
Hills Zone, Haflong where he joined on 23.10.1990.
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4. It is projected by the petitioner that one Jiban Chandra Nath,
who was general category candidate, was appointed as a Typist in the
establishment of the PHE Department. However, in the year 1981, the post of
Typist and the post of LDA were amalgamated and re-designated as Typist-cum-
LDA, and on 30.03.1998, he was promoted from the post of LDA to the post of
UDA. Likewise, one Smt. Lily Hrangkhal, who belonged to Scheduled Tribes
(Hills), was promoted to the post of UDA on 05.09.1991. Thus, as the petitioner
had joined as UDA on 23.10.1990 on promotion, the petitioner and Smt. Lily
Hrangkhal were both senior to the said Jiban Chandra Nath, who was drawing
higher scale of pay due to long service in the feeder post of Typist-cum-LDA and
as on 01.03.1998, after considering increments, his salary was fixed at
Rs.6,075/-.
5. It is projected that by virtue of 77 th amendment to the
Constitution of India, the Government was empowered to make provisions for
reservation in promotion vide Article 16 (4A). Thereafter, by 82 nd amendment to
the Constitution of India, Article 335 was amended. Thereafter, by 85 th
amendment to the Constitution of India, Article 16(4A) was amended.
Accordingly, the Government was empowered to make provisions for reservation
in matters of promotion, with consequential seniority.
6. Subsequently, by an order dated 18.08.1999, equalization of
pay at par with Jiban Chandra Nath, as well as consequential seniority was
given to the petitioner. Thereafter, the Govt. of Assam, Personnel (B)
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Department, vide office memorandum no. ABP.59/96/163 dated 12.03.2002,
which is extracted below:
"No. ABP.59/96/163 Dated Dispur, the 12th March, 2002
Office Memorandum
Subject: Fixation of Seniority of Reserved Candidates
vis-à-vis
General Candidates in Promotional Posts
Consequent upon the amendment of Article 16(4A) of the Constitution of
India by the Constitution (Eighty Fifth) Amendment Act 2001 it has been decided that
the following principle of fixation of seniority of reserved candidates vis-à-vis general
candidates in promotional posts shall be followed:-
Scheduled Castes/ Scheduled Tribes Government servants shall on their
promotion by virtue of rule of reservation/ roster be entitled to consequential
seniority also and the above decision shall be effective from 17th June, 1995.
On the basis of the revised seniority, consequential benefits like promotion,
pay, pension etc. shall be allowed to the concerned Scheduled Castes/ Scheduled
Tribes Government servants (without arrears by applying principle of no work no
pay). For this purpose, senior Scheduled Castes/ Scheduled Tribes Government
servants may be granted promotion with effect from the date of promotion of their
immediate junior General/ Other Backward Classes Government servants. Such
promotion of Scheduled Castes/ Scheduled Tribes Government servant may be given
with the approval of this appointing authority of the post to which the Government
servant is to be promoted at each level after following normal procedure of
Departmental Selection Committee and with the approval of Assam Public Service
Commission.
Except seniority, other consequential benefits like promotion, pay, etc.
(including retiral benefits in respect of those who have already retired), allowed to
General/ Other Backward Classes Government servant by virtue of implementation of
Office Memorandum No.ABP.59/96/17 dated 12.06.96 and/or in pursuance of the
direction of Assam Administrative Tribunal/ Court should be protected as personal to
them. The instructions contained in this Department's Office Memorandum
No.ABP.59/96/17 dated 12-6-96 stand withdrawn with effect from 12-6-96 itself and
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seniority of Government servant determined in the light of Office Memorandum dated
12-6-96 shall be revised as if that Office Memorandum was never issued.
sd/- illegible
(J.P. Saikia)
Commissioner & Secretary
to the Govt. of Assam,
Personnel Department"
7. However, it may be mentioned that the Under Secretary to the
Government of Assam, PHE Department, vide communication dated 23.11.2007,
had informed the Chief Engineer, PHE, Assam that the Finance Department did
not agree with the proposal for equalization of pay of Smt. Lily Hrangkhal and
Jiban Chandra Nath, which was made by the Chief Engineer, PHE vide letter no.
PHE-209/Esst/98/36570 dated 09.12.2004, and the same was regretted by the
Finance Department with the following views:
"Your endorsement above.
Finance Deptt's OM No. FEG.25/87/132 dated 10.09.1992 was issued for the
purpose of guiding the principles to be followed while disposing the cases of
equalization of pay of senior Govt. servants but not restoration of seniority. So, the
justification given by the PHE Deptt. is not agreeable to Finance Deptt. and hence
regretted."
8. Consequently, the Chief Engineer, PHE (P), Assam vide letter
under memo dated 07.06.2013, had cancelled the order dated 18.08.1999, by
which equalization of pay was granted to the petitioner and so his basic pay was
with effect from 01.10.1996 was fixed at Rs.4,480/-. Accordingly, the amount of
Rs.7,42,716/-, which was overdrawn by the petitioner, was ordered to be
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recovered in 48 installments. Similar cancellation was ordered in respect of Smt.
Lily Hrangkhal. However, she had challenged the same before this Court by filing
WP(C) 597/2008, and this Court by judgment and order dated 20.04.2015, had
allowed her consequential seniority and equalization of pay with that of Jiban
Chandra Nath. It is projected that the said judgment had attained finality.
Pursuant to the said judgment, the Finance (Estt-A) Department vide letter
under memo no. FEG.23/2015/260 dated 25.07.2017, informed the Secretary to
the Govt. of Assam, PHE Department regarding their concurrence towards the
pay equalization in respect of Smt. Lily Hrangkhal. Consequently, the Under
Secretary to the Govt. of Assam, Public Health Engineering Department vide
letter dated 03.08.2017, forwarded the Finance Department's letter dated
25.07.2017 to the Chief Engineer (PHE), Water, and requested the said authority
to take action. Accordingly, the Chief Engineer (PHE), Water, Assam vide letter
dated 24.10.2017, directed the Additional Chief Engineer (PHE) for taking
necessary action regarding stepping-up of pay of Smt. Lily Hrangkhal.
9. Thereafter, the petitioner had submitted his representations on
10.07.2013 and 24.10.2017 to the Chief Engineer, PHE through proper channel
for reconsidering his case. However, as on 31.10.2017, the date when the
petitioner had superannuated, the respondent authorities had only recovered a
sum of Rs.3,71,358/- from his monthly salary and the balance overdrawn
amount of Rs.3,71,358/- was ordered to be recovered from gratuity and leave
encashment benefit, and thus, the petitioner was not paid any gratuity and
leave encashment benefit.
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10. The learned counsel for the petitioner, by referring to the
hereinabove referred OM dated 12.03.2002 by which fixation of seniority of
reserved candidates vis-à-vis general candidates in promotional post was
challenged before this Court by filing a writ petition, being the case of
Bhogeswar Saikia & Ors. v. State of Assam & Ors., 2010 (3) GLT 377, which was
dismissed. The said judgment was put to challenge by way of an intra-court
appeal, which was filed with a delay of 279 days. However, the Division Bench
of this Court, by order dated 12.05.2017, had dismissed the application for
condonation of delay, being IA(C) 1081/2017. Consequently, WA under Sl. No.
270874 was also dismissed on ground of delay.
11. Accordingly, it was submitted that as the judgment dated
20.04.2015, passed by this Court in the case of Smt. Lily Hrangkhal [WP(C)
597/2008] had attained finality, the petitioner ought not to be denied similar
relief on the ground of parity.
12. Per contra, the learned standing counsel for the Finance
Department, by extensively referring to the affidavit-in-opposition filed for and
on behalf of the respondent no.5, has submitted that as per OM
No.FEG.25/87/132 dated 10.09.1997, equalization of pay and/or stepping-up of
pay of senior Government employee with that of his junior was admissible on
the following cases only, viz., (i) both the senior and junior Government
employees involved with the equalization/stepping-up of pay should be recruited
to the same cadre post initially and should be promoted from the same source;
and (ii) when disparity is attributable directly due to fixation of pay under FR-22
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(I)(a)(1) or under any other provision of the Fundamental Rules and Subsidiary
Rules ("FR & SR" for short).
13. It was also submitted that as per the said OM dated 10.09.1997,
when a junior Govt. servant is promoted to a higher post prior to his senior as
per special Rules/ orders, he cannot claim equalization of pay with his junior
who was in fact senior to him in the base post. In the said context it was
submitted that as per the records (i) the petitioner was initially appointed as
Work Charged Mohorrir by order dated 29.09.1981, and he was promoted to the
post of LDA by order dated 05.03.1986, but Sri Jiban Chandra Nath was initially
appointed to the post of Typist on 30.12.1978, and the said post was merged
with the post of LDA with a new nomenclature of Typist-cum-LDA w.e.f.
01.01.1981; and (ii) the petitioner was promoted to the post of UDA prior to the
promotion of Jiban Chandra Nath, who was his senior in the feeder cadre, i.e.
LDA and that the petitioner got promoted by virtue of reservation as per Assam
Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in services
and posts) Act, 1978 and Rules framed thereunder. Accordingly, it is submitted
that as per OM dated 10.09.1997 of the Finance Department, the claim of the
petitioner for equalization of pay was not tenable.
14. It was submitted that as per the OM dated 12.03.2002 of the
Government in the Personnel (B) Department, effective from 17.06.1995, the
Government servants belonging to Scheduled Castes and Scheduled Tribes
category, on their promotion by virtue of rule of reservation/ roster became
entitled to consequential seniority. It was further submitted that the said OM
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dated 12.03.2002 had no bearing on the OM dated 10.09.1997 of the
Government in the Finance Department. Moreover, it is submitted that on
promotion to the next higher post, promotional pay benefit is allowed to the
promoted Government servant by fixation of pay as per the provisions of FR-
22(I)(a)(1) upto 31.12.2005, and thereafter under the provisions of Assam
Services (Revision of Pay) Rules as notified from time to time read with FR-22(I)
(a)(1). Hence, it is submitted that equalization/stepping-up of pay of a senior
Government servant with that of his junior is considered, if found admissible as
per Finance Department's OM dated 10.09.1997 by invoking FR-27.
15. It was also submitted that the Chief Engineer, PHE had granted
equalization of pay to the petitioner without prior consultation and/or
concurrence of the Finance Department, which was highly irregular and illegal.
It was also submitted that as the judgment of this Court dated 20.04.2015 in
WP(C) 597/2008 - Smt. Lily Hrangkhal, had attained finality after the writ appeal
of the State was dismissed, the said writ petitioner, by alleging non-compliance
of the judgment dated 20.04.2015, had filed Cont. Cas (C) 39/2016. Hence, the
respondent authorities had no option but to comply with the judgment dated
20.04.2015 passed in WP(C) 597/2008, notwithstanding that as per Finance
Department's OM dated 10.09.1997, equalization of pay in respect of the said
Smt. Lily Hrangkhal was not admissible. Moreover, it was submitted that the
case of the petitioner is distinguishable on facts from the case of Smt. Lily
Hrangkhal because while the petitioner was initially appointed as a work-
charged Mohorrir, Smt. Lily Hrangkhal was initially appointed as LDA.
Accordingly, it is submitted that the present case is devoid of any merit and the
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same is liable to be dismissed.
16. In the case of Bhogeswar Saikia & Ors. (supra) , the legality and
validity of the OM dated 12.03.2002, issued by the Department of Personnel,
Govt. of Assam was upheld. Paragraph 37 and 43 to 45 are quoted below:-
"37. The aforesaid OM dated 12.6.96 was also issued by the Government of Assam
in the Department of Personnel pursuant to the decision of the Apex Court in
Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684, laying down
the principle relating to fixation of seniority of reserved candidates vis-a-vis
general candidates in promoted posts. Following the said decision, it was laid
down that while the rule of reservation shall be applied and the roster followed in
the matter of promotions, the candidates promoted earlier by virtue of rule of
reservation/roster shall not be entitled to seniority over his seniors in the feeder
category and that as and when a general candidate who was senior to him in the
feeder category is promoted, such general candidate will regain his seniority over
the reserved candidate, notwithstanding that he is promoted subsequent to the
reserved candidate. The principle of such seniority was made effective from
10.2.1995.
43. It is true that the recruitment Rules make provision for determination of
seniority, which is on the basis of merit position obtained in the select list.
However, it does not take care of the situation in which a reserved category
candidate gets accelerated promotion. The earlier position was that de hors the
provision in the recruitment Rules, a reserved category candidate along with his
accelerated promotion would also earn seniority. However, pursuant to the decision
of the Apex Court in Virpal Singh Chauhan (supra), it was provided that by the
aforesaid OM dated 12.6.96 that the erstwhile senior in the feeder cadre being
promoted to the higher post would regain his seniority over the reserved category
candidate, although they were promoted at earlier point of time by virtue of
reservation. This position has now been altered pursuant to the aforesaid
amendment of Article 16(4)(A) of the Constitution of India. As per the enabling
provision, the State has issued the OM dated 12.3.2002, in terms of which the
reserved category candidate on accelerated promotion would also get
consequential seniority and consequently catch-up formula as envisaged in Virpal
Singh Chauhan has been done away with.
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44. The whole controversy has arisen in view of the particular interpretation given
by the Petitioners that unless a law is framed, merely on the strength of an OM
like the one dated 12.3.2002 and/or without amending the recruitment rules or
making any provision to supplement the said rules, the reserved category
candidate cannot be given consequential seniority. Thus, the issue raised is on
technicalities.
45. Article 16(4)(A) enables the State to make provision for reservation with
consequential seniority. Such provision can be laid down by Office Memorandum as
has been done in the instant case. The whole emphasis of the Petitioners is on
"Law and Rules" and not on "Provisions". Once it is held that the State is
empowered to make a provision and the source of its power is traceable and
discernible, irrespective of the technicalities raised by the Petitioners, I am of the
considered opinion that the implementation of the decision of the State
Government to grant consequential seniority to the reserved category candidates
in the form of the impugned OM dated 12.3.2002, is sustainable in law."
17. Hence, from the above referred case citation, the learned
counsel for the petitioner has not been able to show that the said decision is an
authority on the point of equalization/stepping-up of pay, which would help the
petitioner in any manner to have his pay at par with the said Jiban Chandra
Nath. Although the petitioner and the said Jiban Chandra Nath were not
recruited in the same cadre post initially, but the said Jiban Chandra Nath was
initially appointed to the post of Typist by order dated 30.12.1978, which is
found mentioned in the judgment and order dated 20.04.2015 in WP(C)
597/2008, but in the provisional seniority list dated 10.09.2002 (Annexure-7),
the date of entry of Jiban Chandra Nath in Govt. service is noted as 02.11.1974.
The said post of "Typist" was merged with the post of "LDA" with effect from
01.01.1981 and given a new nomenclature of "Typist-cum- LDA". However, the
petitioner was appointed as "Work-charged Mohorrir" by order dated 29.09.1981
and that he was appointed as a regular LDA on 05.03.1986 and therefore, the
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petitioner is deemed to have joined Government service on and from
14.03.1986. From the feeder post of Typist-cum- LDA, the petitioner was
promoted to the higher post of UDA on 23.03.1990, which was prior to the date
when the said Jiban Chandra Nath was promoted from feeder post of LDA to the
post of UDA w.e.f. 30.03.1998. The comparative seniority position of (i) the
petitioner; (ii) Smti. Lily Hrangkhal; and (iii) Jiban Chandra Nath, in terms of the
provisional inter-se seniority list dated 10.09.2002 (Annexure-7) is as follows:
Sl. Name Category Date of Date of Date of Date of
No. ST(P)/ST( birth entry of entry to retd.
H)/SC/ Govt. the present
General service cadre
a. Jatin Basumatari S.T.(P) 20-10-57 14-03-86 23-10-90 31-10-15
(Petitioner)
b. Lily Hrangkhal S.T.(H) 19-03-67 30-03-87 05-09-91 31-03-25
c. Jiban Chandra General 01-03-53 02-11-74 30-03-98 28-02-11
Nath
18. From the above chart, it is observed that the said Jiban Chandra
Nath (General category) entered into Govt. service on 02.11.1974 and he
entered into the cadre of UDA on 30.03.1998. However, the petitioner, namely,
Jatin Basumatari [ST(P) category] had entered Govt. service on 14.03.1986, i.e.
approximately 11 (eleven) years - 4 (four) months after the said Jiban Chandra
Nath. However, being member of the reserved category, the petitioner had got
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accelerated promotion on 23.10.1990, compared to the said Jiban Chandra
Nath. Thus, on examining the date when the petitioner and the said Jiban
Chandra Nath had entered into Govt. service, the said Jiban Chandra Nath had
joined about 11 years-4 months prior to the petitioner. Hence, the petitioner
finds force in the submissions of the learned standing counsel for the Finance
Department that by passage of 11 year-4 month's time, it is quite possible that
the said Sri Jiban Chandra Nath may be drawing higher pay-scale than the
petitioner. Therefore, when because of longer duration of Government service in
the feeder post of LDA, the said Jiban Chandra Nath is drawing higher pay-
scale, the petitioner has not been able to make out a prima facie case for
equalization/stepping-up of his pay at par with Jiban Chandra Nath, who was
though his junior in the cadre of UDA, had joined Government service 11 year-
4 month prior to the petitioner. It is not the pleaded case of the petitioner that
despite the fact that the said Jiban Chandra Nath had joined Government
service on 02.11.1974, his pay should have been lower than that drawn by the
petitioner, who had entered Government service on 14.03.1986.
19. Thus, the Court finds force in the submissions made by the
learned standing counsel for the Revenue Department that from the materials
available on record, the petitioner has not been able to demonstrate that the
pay disparity, if any, between the petitioner and the said Jiban Chandra Nath
was attributed directly due to fixation of pay under FR-22 (I)(a)(1) or any other
provision of the FR and SR. Thus, the claim of the petitioner for equalization/
stepping-up of pay is in consonance with the OM No. FEG.25/87/ 132 dated
10.09.1997, issued by the Govt. of Assam, Finance (Establishment-A)
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Department.
20. As the learned counsel for the petitioner is claiming parity with
the case of Smt. Lily Hrangkhal, it is seen from the herein before referred chart
that the said Smti. Lily Hrangkhal [S.T.(H) category] had joined Govt. service on
30.03.1987, i.e. after the petitioner had entered Government service on
14.03.1986, and upon promotion, she had entered in the cadre of UDA on
05.09.1991, i.e. after the petitioner had entered into the cadre of UDA on
23.10.1990. However, in view of the judgment dated 20.04.2015 passed by this
Court in the case of WP(C) 597/2008 (Lily Hrangkhal v. State of Assam & Ors.) ,
she had got the benefit of equalization/stepping-up of pay. Paragraphs 4, 17
and 18 are quoted below:-
"4. One Shri Jiban Chandra Nath had entered service in the Public Health
Engineering Department as 'Typist' on 30.12.1978. Though the post of Typist and
the post of LDA belonged to different cadres, the two cadres were amalgamated in
the year 1981 and re-designated as 'LDA-cum-Typist'. Thus, Shri Jiban Chandra
Nath
became 'LDA-cum-Typist' on and from 1981. He was promoted to the post of UDA
with effect from 30.08.1998 after that of the petitioner, who, as noticed above,
was promoted on 5.9.1991.
17. Reverting back to the two objections raised by the Finance Department, the
first being that the petitioner and Shri Jiban Chandra Nath belong to two different
feeder cadres and, therefore, question of equalization or stepping-up of pay did
not arise and the second being that equalization of pay was not claimed by the
petitioner within one year of promotion, the said objections do not appear to be
tenable at all. In so far the first objection is concerned, though initially the
petitioner and Shri Jiban Chandra Nath were appointed in two different cadres of
LDA and Typist, later on, the two cadres were amalgamated into one cadre of
LDA-cum-Typist. Thereafter, Shri Jiban Chandra Nath was promoted from LDA-cum-
Typist to UDA. As already noticed, petitioner was promoted from LDA to UDA
earlier. In such circumstances, it cannot be said that the two of them belonged to
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two different feeder cadres. In so far the second objection is concerned, the
question of equalization of pay arose only on the promotion of Shri Jiban Chandra
Nath to the higher post of UDA. Petitioner being a reserved category candidate
was promoted earlier by applying the principle of accelerated promotion with
consequential seniority. Only when Shri Jiban Chandra Nath was promoted in the
year 1998 to the rank of UDA, the discrepancy in the pay between the two could
be noticed. It was at this stage that the petitioner moved the PHE Department for
equalization of the pay which was granted on 9.4.1999. Therefore, equalization of
pay was claimed by the petitioner within one year of promotion of Shri Jiban
Chandra Nath. Both the objections of the Finance Department, therefore, are
untenable and the view taken by the PHE Department based on the Office
Memorandum of the Personnel Department dated 12.03.2002 appears to be
correct.
18. Accordingly and in view of above, order dated 5.4.2005 cancelling the annual
increment granted to the petitioner with effect from 1.3.2005 is hereby set aside
and quashed. Petitioner would be entitled to equalization of paywith that of Shri
Jiban Chandra Nath in the rank of UDA w.e.f. the date of promotion of Shri Nath to
the rank of UDA in terms of the Office Memorandum of the Personnel Department
dated 12.03.2002."
21. From the above, in consonance with the entries made in the
provisional inter se seniority list dated 10.09.2002 (Annexure-7), the categorical
finding of this Court in the said judgment dated 20.04.2015 is that the Smti. Lily
Hrangkhal was promoted from LDA to UDA earlier to Shri Jiban Chandra Nath.
Accordingly, the categorical finding of the Court was to the effect that only when
the said Jiban Chandra Nath was promoted in the year 1998, the discrepancy in
the pay between the two was noted and that the said Smt. Lily Hrangkhal had
claimed equalization of pay within one year of promotion of Jiban Chandra Nath
and accordingly, both the objections of the Finance Department, as morefully
referred in the said judgment, and similar to the ones raised in this case, were
held to be untenable.
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22. Therefore, in light of the facts of the case of Smt. Lily Hrangkhal,
the present case has some similarity on facts. In the case of Smt. Lily
Hrangkhal, while the order of equalization of pay was granted by order dated
09.04.1999 (refer to para-17 of the herein before extracted judgment dated
20.04.2015), in the present case, the equalization of pay to the petitioner was
granted by order dated 18.08.1999.
23. Be that as it may, from the copy of the order bearing No. PHE-
209/Estt/98/22,649 dated 18.08.1999 (Annexure-6), issued by the Chief
Engineer (PHE), Assam, it is seen that the said authority had granted
equalization of pay both to the petitioner as well as Jiban Chandra Nath.
Therefore, if based on equalization of pay, ordered for Jiban Chandra Nath, the
said Smt. Lily Hrangkhal had got the benefit of equalisation/stepping-up of pay
vide judgment dated 20.04.2015 passed by this Court in the case of WP(C)
597/2008 (Lily Hrangkhal v. State of Assam & Ors.) , it would be travesty of
justice to deny the petitioner of similar benefit on the basis of parity. It is
reiterated at the cost of repetition that the State had assailed the said judgment
dated 20.04.2015 by filing a writ appeal, which was filed with a delay of 279
days, but by order dated 12.05.2017, the Division Bench of this Court had
dismissed IA(C) 1081/2017, which was filed for condonation of delay and
resultantly, WA under filing Sl. No. 270874 was also dismissed on ground of
delay. Therefore, the said judgment dated 20.04.2015 had attained finality and
the same was duly complied with.
24. Therefore, on claim of parity on the basis of the judgment dated
Page No.# 18/19
20.04.2015, passed by this Court in the case of WP(C) 597/2008 (Lily Hrangkhal
v. State of Assam & Ors.), the present writ petition stands allowed.
25. Accordingly, in view of above, the following reliefs are granted to
the petitioner, viz.,
a. The order no. PHED-227/98/41 dated 23.11.2007, passed by the
Finance Department, Government of Assam, impugned in this writ
petition is set aside and quashed;
b. The order no. PHE-209/Estt./98 dated 07.06.2013 (Annexure-10) and
order no. PHE-209/Estt/ 98/13453 (Annexure-14) dated 08.08.2013,
both passed by the Chief Engineer, PHE, Assam are set aside and
quashed;
c. The office order No. 05 dated 03.07.2013; order no. 18 dated
26.08.2013, both passed by the Addl. Chief Engineer (PHE), North
Assam Zone, Tezpur are set aside and quashed.
d. Resultantly, the respondents are jointly and severally directed to
restore the order no. PHE/ 209/Estt./98/22, 649 dated 18.08.1999,
passed by Chief Engineer, PHE, Assam, which shall be done within a
period of one month from the date when the certified copy of this
order is served on the Commissioner and Secretary to the Government
of Assam, Finance Department (respondent no.1) and/or any other
Head of the Department, by whatever post designated.
e. The respondents are jointly and severally directed to pass
appropriate order for refund of the recovered amount Rs.3,71,358/-
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(Rupees three lakh seventy one thousand three hundred fifty eight
only) to the petitioner, which shall be done within a period of one
month from the date when a copy of this order is served on the
respondents.
f. The respondents are further jointly and severally directed that the
sum of Rs.3,71,358/- (Rupees three lakh seventy one thousand three
hundred fifty eight only) already recovered from the petitioner from his
gratuity and leave encashment benefits on his superannuation on
31.10.2015, be restored back and/or paid to the petitioner within one
month from the date when a copy of this order is served on the
respondents.
26. Accordingly, the present writ petition stands allowed to the
extent as indicated above, with no order as to costs.
JUDGE
Comparing Assistant
