Sunita Patowary vs The State Of Assam And 4 Ors
2025 Latest Caselaw 1008 Gua

Gauhati High Court

Sunita Patowary vs The State Of Assam And 4 Ors on 14 July, 2025

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GAHC010268912022




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

                        Case No. : WP(C)/77/2023

         SUNITA PATOWARY
         W/O DAKHESWAR DEKA,
         R/O WARD NO-4, SARTHEBARI,
         P.O- SARTHEBARI,
         DIST- BARPET, PIN-781307



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION DEPARTMENT
         DISPUR, GHY-06. ASSAM

         2:THE DIRECTOR OF SECONDARY EDUCATION
          KAHILIPARA
          GUWAHATI-19

         3:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GHY-06.

         4:THE INSPECTOR OF SCHOOLS
          BARPETA DISTRICT CIRCLE
          DIST- BARPETA
         ASSAM

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

Advocate for the Petitioner   : MR. D CHOUDHURY,

Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE,GA, ASSAM




                                  BEFORE
                 HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

                                      JUDGMENT

Date : Date: 14.07.2025

Heard Mr. B. Choudhury, learned counsel for the petitioner. Also heard Mr. D. Mushahary, learned Standing Counsel, Secondary Education Department representing the respondent no. 1, 2, 4 & 5 as well as Mr. A. Chaliha, learned Standing Counsel, Finance Department representing the respondent no. 3.

2. The petitioner, by way of instituting the present proceeding has raised a grievance with regard to the denial of the benefits flowing to her in terms of the Assured Career Progression Scheme (ACPS), notified vide Notification dated 25.05.2011. The petitioner has prayed for grant of two financial up-gradation benefits under the ACP Scheme as well

as a 3rd financial up-gradation benefit under the Modified Assured Career Progression Scheme (MACPS), notified vide the Notification dated 06.07.2017.

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

In pursuance to an advertisement dated 03.09.1991, inviting applications from eligible candidates, amongst others, for the post of Graduate Science Teacher, Assistant Teacher (Science), and Hindi Teacher etc., the petitioner, being eligible, submitted her candidature for the post of Assistant Teacher (Science). The petitioner appeared in the Page No.# 3/11

selection process so conducted in pursuance to the said advertisement dated 03.09.1991. The petitioner was selected for appointment against the advertised post of Assistant Teacher. It is to be noted that in the advertisement, the scale of pay authorized to the post of Assistant Teacher was Rs. 1375-3375/- per month.

Basing on the selection of the petitioner, the Inspector of Schools, Barpeta District Circle, vide order dated 28.03.1992, appointed the petitioner as Assistant Teacher (Science). In the said order of appointment, the scale of pay authorized to the petitioner was reflected as Rs. 1185-2395/-. The said scale of pay is the scale of pay authorized to a person holding a post in the Intermediate Scale of Pay. The petitioner joined her services on 01.04.1992. It is to be noted that the scale of pay authorized to the petitioner was upgraded to that of the Graduate Scale of Pay w.e.f. 30.12.1993.

The respondent authorities, thereafter, vide a notification dated 25.05.2011 had notified the ACP Scheme. In terms of the said scheme, 2(two) financial up-gradation benefits were made available to employees who had not been promoted during their

service career. The 1st financial up-gradation benefit was to be so granted on completion

of 10 years of service and the 2 nd one after completion of 21 years of service, in the event, the employee concerned did not get one regular promotion within the first 10 years of service or, of two regular promotions within 24 years of regular service. The financial up- gradation benefits flowing from the said scheme was to be so granted w.e.f. 01.01.2011.

The petitioner having joined her services on 01.04.1992 was in terms of the APC

Scheme, became entitled to the 1 st financial up-gradation benefit w.e.f. 01.04.2002, however, the same was not granted to the petitioner. The reason assigned for not granting the said benefit to the petitioner was that her services were upgraded from the Intermediate Scale of Pay to that of the Graduate Scale of Pay in pursuance to a notification dated 30.12.1993, which was deemed to a promotion. Thereafter, the respondent authorities notified the MACP Scheme, vide notification dated 06.07.2017 and in terms of the said scheme, the financial up-gradation benefits were available to the employees on completion of 10, 20, 30 years of regular service; in the event, such Page No.# 4/11

employee had not got one regular promotion within the 1 st 10 years or two regular promotions/ACPS benefit within 20 years or, three promotions/ACPS benefit within 30 years of regular service.

In terms of the said scheme, the respondent authorities extended to the petitioner financial up-gradation benefits w.e.f. 01.01.2017 i.e., on completion of 20 years of service.

However, the petitioner being denied the 1 st financial up-gradation benefit on completion

of 10 years in terms of the notification dated 25.05.2011; and further denial of the 2 nd financial up-gradation benefit under the ACP Scheme, on completion of 24 years of regular service, has instituted the present proceeding.

4. Mr. D. Choudhury, learned counsel for the petitioner by referring to the advertisement dated 03.09.1991 submitted that the post against which the petitioner had submitted her application, carried a scale of pay of Rs. 1375-3375/-; however, the respondent authorities without assigning any reasons, whatsoever, while appointing the petitioner in terms of her selection, had authorized to her a scale of pay of Rs. 1185- 2395/-. Mr. Choudhury has thereafter, submitted that in terms of a notification dated 30.12.1993, the scale of pay authorized to the petitioner at the time of her initial appointment i.e. Rs. 1185-2395/- was upgraded to the Graduate Scale of Pay of Rs. 1375- 3375/-. Mr. Choudhury has submitted that the said up-gradation in fact was a rectification of the erroneous scale of pay authorized to the petitioner at the time of her initial appointment and the same cannot be deemed to be a promotion.

5. In support of his submission Mr. Choudhury has relied upon the Judgment & Order dated 19.06.2018, passed by this Court in WP(C) No. 2397/2015 (Sailendra Nath Das & Ors. Vs State of Assam & Ors.).

6. Mr. Choudhury has submitted that the petitioner was eligible to be extended the financial up-gradation benefit on completion of 10 years and 24 years of regular service in terms of the provisions of ACP Scheme, notified vide notification dated 25.05.2011, however, the same was illegally denied to the petitioner herein. Mr. Choudhury has Page No.# 5/11

submitted that the petitioner has retired from her services in the year 2024 and accordingly, the petitioner in terms of the MACP Scheme coming into force vide

notification dated 06.07.2017 was entitled to 3 rd financial up-gradation benefit on completion of 30 years of regular service w.e.f. 01.04.1992. In the above premises, Mr. Choudhury has submitted that the financial up-gradation benefit granted to the petitioner w.e.f. 01.012017 would call for an interference with a further direction to the respondent authorities to grant two financial up-gradation benefits to the petitioner on completion of 10 years and 24 years of regular service in terms of the ACP scheme, notified vide

notification dated 25.05.2011 and for grant of a 3 rd financial up-gradation benefit under the provisions of the MACP Scheme, notified vide notification dated 06.07.2017 w.e.f. the date she completed 30 years of regular service.

7. Per contra, Ms. D. Mushahary, learned Standing Counsel has submitted that the petitioner had not questioned the authorization of the Intermediate Scale of Pay at the time of her initial appointment. Further, the up-gradation of the scale of pay authorized to the petitioner to that of Graduate Scale of Pay in terms of the notification dated 30.12.1993 with prospective effect has also not been assailed by the petitioner. Accordingly, she submits that in view of the up-gradation of scale of pay authorized to the petitioner at the time of her initial appointment, the said up-gradation would have to be deemed to be a promotion and the same having occasioned within the period of 10 years

w.e.f. the date of her initial appointment, she would not be entitled to the 1 st financial up- gradation benefit under the ACP Scheme. She however, submits that the petitioner would

be entitled to the 2nd financial up-gradation benefit on completion of 24 years of regular service.

8. In the above premises, Ms. Mushahary submits that the respondent authorities, on considering the service particulars of the petitioner, the authorities had authorized to her a financial up-gradation benefit w.e.f. 01.01.2017 i.e., on completion of 20 years of regular service and the same would not mandate any interference from this Court.

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9. I have heard the learned counsels appearing for the parties and perused the materials brought on record.

10. The advertisement dated 03.09.1991, prescribes the scale of pay for the post of Graduate Teacher (Science) and Assistant Teacher (Science) of Secondary Schools at Rs. 1375-3375/- (Graduate Scale of Pay) per month. However, in the order of appointment dated 28.03.1992, issued in respect of the petitioner, while appointing her as Assistant Teacher (Science), she came to be authorized a scale of pay of Rs. 1185-2395/- only, which is the Intermediate Scale of Pay. The scale of pay authorized to the petitioner at the time of her initial appointment was admittedly not in consonance with the scale of pay prescribed for the post in question in the advertisement dated 03.09.1991.

11. The respondent authorities thereafter, vide notification dated 30.12.1993 had upgraded the scale of pay of the Assistant Teachers working in Intermediate Scale of Pay of Rs. 1185-2395/-, having graduate qualification to that of Graduate Scale of Pay of Rs. 1375-3375/- per month w.e.f. 30.12.1993. Accordingly, the scale of pay of the petitioner herein was also so upgraded to the Graduate Scale of Pay of w.e.f. 30.12.1993.

12. The issue arising in the present proceeding is as to whether the up-gradation of the petitioner's scale of pay from the Intermediate Scale of Pay to that of the Graduate Scale of Pay in pursuance to the notification dated 30.12.1993 can be construed to be a up- gradation of the post held by the petitioner. Further issue that would arise is as to whether the said up-gradation of the pay scale of the petitioner can be construed to be a promotion, so as to deny to the petitioner, the financial up-gradation benefits flowing to her in terms of the ACP Scheme notified vide the notification dated 25.05.2011.

13. For the purpose of examining the issues arising in the present proceedings, the provisions of the ACP Scheme, notified vide the notification dated 25.05.2011 is to be noted. The clauses relevant to the issue arising in the present proceeding are extracted herein below: -

"1. II. The benefit under the Scheme would be given twice in their entire service period-first Page No.# 7/11

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. ΧΙΙ. The 1st financial upgradation under the ACP Scheme shall be allowed after 10 years of regular service and 2nd 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."

14. The said aspect of the matter was examined by a Co-ordinate Bench of this Court, in the case of Sailendra Nath Das (supra). The Co-ordinate Bench of this Court, on examining the issue arising in the matter had drawn the following conclusions: -

"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 denled 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 Page No.# 8/11

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."

15. Having drawn the above conclusions, the Co-ordinate Bench of this Court was pleased to pass the following directions: -

"11. In view of the reasons stated above, this Court is of the view that the 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."

16. A perusal of the said conclusions, drawn by the Co-ordinate Bench of this Court in the case of Sailendra Nath Das (Supra), would go to reveal that the up-gradation of the scale of pay of the petitioner from Intermediate Scale of Pay to that of the Graduate Scale of Pay in pursuance to the notification dated 30.12.1993, was only a correction of a mistake and the petitioner was entitled to be authorized the Graduate Pay Scale of Rs. 1375-3375/- per month, w.e.f. the date of her initial appointment. Accordingly, this Court is in agreement with the conclusions drawn by the Co-ordinate Bench of this Court in the Page No.# 9/11

case of Sailendra Nath Das (supra) and accordingly, holds that the up-gradation of the Intermediate Scale of Pay of the petitioner to that of the Graduate Scale of Pay in pursuance to the notification dated 30.12.1993, cannot be construed to be a promotion and/or up-gradation of the post held by the petitioner.

17. Having drawn the above conclusions, this Court is of the considered view that the petitioner is entitled to 2(two) financial up-gradation benefits, flowing from the provisions of the ACP Scheme, notified vide notification dated 25.05.2011, on completion of 10 years of regular service and thereafter, on completion of 24 years of regular service, reckoned w.e.f. the date of initial joining in her services i.e. w.e.f. 01.04.1992. Accordingly, the petitioner would be entitled to her 1st financial up-gradation benefit in terms of the

ACP Scheme w.e.f. the year 2002 and the 2 nd financial up-gradation benefit w.e.f. the year 2016.

18. The petitioner had superannuated from her services in the year 2024. Prior to the superannuation of the petitioner from her services, the respondent authorities had introduced the MACP Scheme vide the notification dated 06.07.2017 and in terms of the said scheme, an employee is entitled to 3(three) financial up-gradation benefits on completion of 10 years, 20 years and 30 years of regular service.

19. Clause-7 of the said MACP Scheme provides that the financial up-gradation benefits flowing from the said scheme would be effective w.e.f. 01.07.2017 and the services rendered by the employee before 01.01.2017 and the promotions/ACPs benefit availed before 01.01.2017 shall be taken into account for deciding and determining the extend of benefits under the MACP Scheme.

20. This Court having held that the petitioner to be entitled to be authorized 2(two) financial up-gradation benefits under the ACP Scheme, on completion of 10 years and 24

years of regular service respectively, the petitioner is also held to be entitled to a 3 rd financial up-gradation benefit in terms of the MACP Scheme, notified vide notification dated 06.07.2017 w.e.f. the date she had completed 30 years of service reckoned w.e.f.

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01.04.1992.

21. At this stage, it is to be noticed that the petitioner was authorized a financial up- gradation benefit w.e.f. 01.01.2017, on completion of 20 years of service under the provisions of the MACP Scheme. The said authorization of the financial up-gradation benefit is clearly erroneous, inasmuch as, the petitioner was entitled to receive 2(two) financial up-gradation benefits under the provisions of the ACP Scheme w.e.f. 2002 and 2016 respectively, i.e. on completion of 10 years and 20 years of regular service. Accordingly, the said benefit authorized to the petitioner would call for interference and accordingly, the same would stand set aside.

22. In view of the conclusions drawn herein above, the respondent authorities are directed to authorize to the petitioner 2(two) financial up-gradation benefits on completion of 10 years and 24 years of regular service, reckoned w.e.f. 01.04.1992 in terms of the provisions of the ACP Scheme, notified vide notification dated 25.05.2011.

23. After authorizing to the petitioner, the 2(two) financial up-gradation benefits in terms of the directions passed herein above, the respondent authorities shall authorize to

the petitioner the 3rd financial up-gradation under the MACP Scheme, notified vide the notification dated 06.07.2017 w.e.f. the date, she completed 30 years of regular service.

24. The respondents, upon authorizing to the petitioner, the 2(two) financial up-

gradation benefits under the ACP Scheme and the 3 rd financial up-gradation benefit under the MACP Scheme, shall fix the pay of the petitioner w.e.f. the date on which such financial up-gradation benefits are so required to be authorized to the petitioner and release to the petitioner the arrears of pay so becoming available. Thereafter, the pension and pensionary benefits received by the petitioner shall also be revised and the arrears thereof shall also be released to the petitioner.

25. The respondents while fixing the pay of the petitioner in terms of the directions passed herein above, shall deduct the benefits so authorized to her in terms of the financial up-gradation benefit granted to her on completion of 20 years of regular service Page No.# 11/11

w.e.f. 01.01.2017, in terms of the provisions of the MACP Scheme, notified vide notification dated 06.07.2017.

26. The arrears of pay now accruing to the petitioner on account of the re-fixation of her pay and allowances in terms of the directions passed herein above, would be released to the petitioner within a period of 3(three) months from the date of receipt of a certified copy of this order. Thereafter, the respondent authorities shall release to the petitioner within a further period of 2(two) months, the arrears of pension and pensionary benefits accruing to her in terms of the re-fixation so required to be made therein, on implementation of the directions passed herein above.

27. With the above observations and directions, the present writ petition stands allowed.

JUDGE

Comparing Assistant