Page No.# 1/ vs The State Of Assam And 7 Ors
2025 Latest Caselaw 2162 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 7 Ors on 22 January, 2025

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GAHC010084072024




                                                         2025:GAU-AS:624

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

                       Case No. : WP(C)/2373/2024

         JAINAL UDDIN LASKAR
         S/O- LATE KHAIR UDDIN LASKAR,
         R/O- EAST GOVINDAPUR, PART III,
         P.O- EAST GOVINDAPUR, DIST- CACHAR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         HOME DEPARTMENT
         DISPUR, GUWAHATI- 781006.

         2:THE JOINT SECRETARY
         TO THE GOVT. OF ASSAM
          HOME AND POLITICAL DEPARTMENT
          DISPUR
          GUWAHATI- 781006.

         3:THE DIRECTOR GENERAL OF POLICE
         ASSAM
         ASSAM POLICE HEADQUARTER

         ULUBARI
         GUWAHATI- 781007
         ASSAM.

         4:THE INSPECTOR GENERAL OF POLICE

          ASSAM
          ASSAM POLICE HEADQUARTER

         ULUBARI
                                                                            Page No.# 2/10

             GUWAHATI- 781007
             ASSAM.

            5:THE SUPERINTENDENT OF POLICE
             KARIMGANJ
            ASSAM

            6:THE COMMISSIONER AND SECRETARY
            TO THE GOVT. OF ASSAM
             PENSION DEPARTMENT
             SACHIVALAYA

             DISPUR
             GUWAHATI-6.

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

            8:THE ACCOUNTS OFFICER
             O/O THE PRINCIPAL ACCOUNTANT (A AND E)
            ASSAM
             MAIDAMGAON
             BELTOLA
             GUWAHATI-2

Advocate for the Petitioner   : MR S BORTHAKUR, MS. P BORAH

Advocate for the Respondent : GA, ASSAM, SC, FINANCE

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral)

Date : 22.01.2025

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. C. K. S. Baruah, learned Government Advocate appearing for the State respondents.

2. The challenge in the present proceeding is to an Gratuity Payment Order Page No.# 3/10

(GPO) dated 08.07.2021, issued by the Office of the Principal Accountant General (A & E) Assam, wherein, recovery of Rs. 3,15,350/- (Rupees Three Lakhs Fifteen thousand Three hundred Fifty) was directed from the Death Cum Retirement Gratuity (DCRG) so authorized to the petitioner towards the over payment of pay and allowances to him during his service tenure.

3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under:-

The petitioner herein was recruited as a Constable in the Assam Police in the year 1982. The petitioner, at the time of his initial recruitment was a matriculate. The petitioner, thereafter, completed his Higher Secondary Examination in the year 1984. On acquiring the Higher Secondary qualification, the petitioner, w.e.f. 09.10.1985, was granted two advance increments for the Higher Secondary qualification so acquired by him. The advance increments as granted to the personnel of the Assam Police for acquiring higher qualification, came to be withdrawn vide a communication dated 03.07.2009. Being aggrieved, persons who were authorized with the said increments approached this Court by way of instituting WP(C)/5630/2010 assailing the same.

This Court, vide Judgment and Order dated 22.05.2018, was pleased to interfere with the said communication dated 03.07.2009. On the interference being so made, the police personnel who had approached this Court by way of instituting the said writ petition being WP(C) No. 5630/2010, were re-authorized the two advance increments by the respondent authorities vide an order dated 29.09.2018.

The petitioner herein, while working as a Sub-Inspector of Police (UB) in the establishment of the Superintendent of Police, Karimganj, retired from his services on reaching the age of superannuation w.e.f. 31.01.2010. The petitioner herein, in pursuance to his retirement from service, was authorized a provisional Page No.# 4/10

pension and was also paid a provisional DCRG. Thereafter, the pension and pensionary benefits of the petitioner came to be finalized and the Office of the Accountant General (A & E) Assam, vide the Pension Payment Order (PPO) No. 904411275781 dated 08.07.2021. The Office of the Accountant General (A & E) vide GPO No. 41227578121 dated 08.07.2021 also authorized to the petitioner his DCRG. While authorizing to the petitioner his DCRG, the said GPO mandated recovery of the provisional DCRG drawn by the petitioner along with an amount of Rs. 3,15,350/-, which was stipulated therein, to be mandated to be recovered on account of overdrawal of pay and allowances by the petitioner. The overdrawal of pay of Rs. 3,15,350/-, as mandated by the GPO dated 08.07.2021, was in connection with the advance increments drawn by the petitioner for the higher qualification acquired by him during his service tenure.

The petitioner, thereafter, approached the authority for refund of the amount so recovered from him towards the advance increment granted to him, however, the matter though processed, the same was not taken to its logical conclusions and the amount recovered not being refunded to the petitioner herein, he has instituted the present proceeding.

4. Mr. S. Borthakur, learned counsel for the petitioner by reiterating the facts as noticed herein above, has submitted that the recovery of pay and allowances drawn by the petitioner was not permissible in view of the fact that the petitioner was authorized the same, way back in the year 1985; and he has continued to draw the same. The said two advance increments having been granted to the petitioner by the respondent authorities and there being no misrepresentation made by the petitioner in this connection, the said amount was clearly not permissible to be withdrawn subsequently from his pension and pensionary benefits and that too after his superannuation.

5. Mr. Borthakur, learned counsel for the petitioner has further submitted that Page No.# 5/10

this Court, vide Judgment and Order dated 22.05.2018, passed in WP(C) No. 5630/2010 having held the withdrawal of the said two advance increments, authorized to police personnel on their acquiring higher qualifications during their service tenure, to be vitiated and unsustainable, and having quashed the Circular dated 03.07.2009; issued in this connection, it is contended that the said Judgment applies to the case of the petitioner. Accordingly, the two advance increments as authorized to the petitioner would not be permissible to be so recovered.

6. In the above premises, Mr. Borthakur, learned counsel for the petitioner has submitted that the respondent authorities be directed to refund to the petitioner, the amount of Rs. 3,15,350/-, recovered from his pension and pensionary benefits and further, to direct the respondent authorities to recalculate his pension and pensionary benefits by reckoning the said two advance increments.

7. Per contra, Mr. C. K. S. Baruah, learned counsel for the respondents, by referring to the affidavit filed in the matter by the Superintendent of Police, Karimganj, has submitted that while it is admitted that the petitioner was authorized two advance increments w.e.f. 09.10.1985, on the basis of his acquiring higher qualification in terms of the policy as invoked at the relevant point of time, the said two advance increments were subsequently withdrawn on a review thereof by the respondent authorities vide issuance of a Circular dated 03.07.2009. It is submitted that the petitioner being held to be not entitled to receive the two advance increments so authorized to him w.e.f. 1985, the Office of the Accountant General (A & E) Assam, had required the same to be so recovered from the pension and pensionary benefits authorized to the petitioner.

8. Mr. Baruah, learned counsel for the respondents, has further submitted that on a representation being made by the petitioner for refund of the amount so recovered from his pension and pensionary benefits, the matter was processed by Page No.# 6/10

the authorities, however, the same could not be taken to its logical conclusion and the petitioner, in the meanwhile, had approached this Court and the matter had become subjudiced.

9. I have heard the learned counsel appearing for the parties and perused the materials available on record.

10. The petitioner, who was a matriculate at the time of his initial recruitment into the police force of the State, after such recruitment, had acquired his Higher Secondary qualification in the year 1984. On such acquisition by the petitioner of a higher qualification, the respondent authorities in terms of a Circular dated 26.10.1978 proceeded to authorize to the petitioner two advance increments w.e.f. 09.10.1985. The respondent authorities, thereafter, vide Circular dated 03.07.2009, proceeded to withdraw the two advance increments, so authorized vide the Circular dated 26.10.1978 to the police personnel for acquisition of higher qualification during their service tenure. The said Circular dated 03.07.2009 was a subject matter of challenge before this Court in WP(C) No. 5630/2010. This Court, on examination of the matter was pleased vide Judgment and Order dated 22.05.2018 to allow the said writ petition by interfering with the said Circular dated 03.07.2009. This Court, vide the Judgment and Order dated 22.05.2018 had drawn the following conclusions:-

"5. While the ineligibility of the police personnel to receive advance increment is projected to be justified on account of the ROP Rules, 1983 and the ROP Rules, 1990, it can be seen from the respective Clause 7 and Clause 9 of both the ROP Rules that continuation of the advance increment for higher qualification for certain posts, is supported by the ROP Rules itself. The situation is no different under the ROP Rules, 1998 as Clause 9 of the later Rules also envisaged continuation of the advance increment. If such be the implications of the ROP Rules, the ineligibility of the police personnel to receive advance increment on the basis of the ROP Rules as projected by the Govt. counsel, cannot be supported from that perspective.

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6. That apart, while the averred stand of the respondent No.6 is that all police personnel are ineligible for advance increment because of the ROP Rules, the personnel in other police branches are not impacted by the circular dated 03.07.2009, whereas the same is sought to be arbitrarily enforced against the Special Branch Constables. Such discriminatory treatment by the State, cannot naturally be supported as the State is expected to be fair in their dealings.

7. The petitioners as can be seen, had no role in getting the advance increments, which was allowed by the authorities with due concurrence of the Finance Department and therefore the recovery of the alleged excess drawal from the innocent beneficiaries cannot now be supported, in the light of the ratio in Syed Abdul Qadir (supra) and Rafiq Masih (supra) cited by the petitioners' counsel.

8. The advance increment allowed w.e.f. 26.09.1973 and drawn by the petitioners either from the date of joining service or from the date of acquiring the requisite qualification have become part of the salary package for the petitioners and those have also been taken into account for determining the pension for some of the retired Special Branch Constables. In such circumstances, the State could not have ordered for recovery of the alleged excess drawal without affording hearing to the affected petitioners. Unfortunately no such opportunity was afforded before issuing the impugned circular dated 03.07.2009 (Annexure-3) and accordingly the same is declared to be vitiated and unsustainable.

9. It may not also be out of place to mention here that while the impugned decision is based upon the Home Department's circular of 03.07.1991 and the consequential circular of the Police Department issued on 20.07.1991, neither of these circulars have been produced by the Govt. advocates to justify the impugned decision. It may not therefore be appropriate for the Court to comment on these two circulars referred to in the impugned communication dated 03.07.2009 (Annexure-3). However since withdrawal of the increment benefit will impact the pay package for the Special Branch Constables, the same cannot be retrospectively enforced against those, who have drawn their emoluments on the basis of the advance increments allowed by the circular dated 26.10.1978 (Annexure-2). Hence the impugned decision dated 03.07.2009 (Annexure-3) stands quashed with all legal consequences."

11. This Court, vide the said Judgment and Order dated 22.05.2018, having Page No.# 8/10

interfered with the Circular dated 03.07.2009 the effect thereof would be that the earlier circular dated 26.10.1978, authorizing to the police personnel, two advance increments for acquisition of higher qualification during their service career would stand revived. Accordingly, the advance increments authorized to the petitioner would now be required to be continued to be so authorized to him till the date of his superannuation.

12. At this stage, it is to be noted that in pursuance to the said Judgment and Order dated 22.05.2018, passed by this Court in WP(C) No. 5630/2010, the respondent authorities vide order dated 29.09.2018, had re-authorized to the petitioners, in the said writ petition, the benefit of drawal of two advance increments. However, the said benefit was not extended to the petitioner herein, in view of the fact that he was not a petitioner in the proceedings of WP(C) No. 5630/2010.

13. This Court, having interfered with the Circular dated 03.07.2009 and it having been concluded herein above, that such interference would have the effect of revival of the earlier circular dated 26.10.1978, this Court is of the considered view that the petitioner herein, is mandated to be so continued to be authorized the two advance increments granted to him w.e.f. 09.10.1985 in terms of the Circular dated 26.10.1978.

14. This Court, having concluded herein above, that the petitioner was entitled to draw the two advance increment as authorized to him w.e.f. 09.10.1985, the recovery of the pay and allowances drawn by the petitioner on account of being authorized the said two advance increments would not call for any recovery. Accordingly, the recovery so made in this connection vide the GPO No. 41227578121 dated 08.07.2021 is clearly iniquitous. Accordingly, it is directed that the respondent authorities shall now refund to the petitioner the amount of Rs. 3,15,350/- so recovered from the petitioner towards the pay and allowances Page No.# 9/10

drawn by him on account of being authorized the said two advance increments. The amount of Rs. 3,15,350/- so recovered from his pension and pensionary benefits vide the GPO No. 41227578121 dated 08.07.2021 shall be refunded within a period of 2(two) months from the date of receipt of a certified copy of this order.

15. This Court herein above, having held that the petitioner was entitled to be authorized the two advance increments in terms of the Circular dated 26.10.1978, the respondent authorities would now examine as to whether the petitioner's pension and pensionary benefits would now call for a revision by reckoning that the petitioner was entitled to continue to draw the said two advance increments till the date of his superannuation.

16. The petitioner, in this connection, shall submit a representation before the Superintendent of Police, Karimganj, Assam, claiming for revision of his pension and pensionary benefits by reckoning the said 2(two) advance increments. The respondent authorities, on receipt of such representation from the petitioner shall process the same and after receiving due approval from the departmental authorities, forward the same to the Office of the Principal Accountant General (A & E), Assam, for revision of his pension and pensionary benefits in the event it is found that the same would mandate a revision by reckoning the two advance increments so permissible to be drawn by the petitioner. The said exercise shall be initiated and concluded by the respondent authorities, including the Principal Accountant General (A & E), Assam, within a period of 3(three) months from the date of submission of the representation by the petitioner herein.

17. In the event the revision is so mandated, the Principal Accountant General (A & E), Assam, shall issue a revised PPO and GPO to the petitioner in supersession to the PPO and GPO already issued to him and release to the petitioner the arrears of pension and pensionary benefits now becoming Page No.# 10/10

receivable by him, on account of the direction passed herein above.

18. With the above observations and directions, the writ petition stands disposed of.

JUDGE

Comparing Assistant