Gauhati High Court
Page No.# 1/28 vs The State Of Assam And 3 Ors on 25 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/28
GAHC010014702023
2025:GAU-AS:8616
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/419/2023
SMITA CHOUDHURY
D/O- HIRENDRA CH. CHOUDHURY, HOUSE NO-14, MITHA AAM TAL ,
KANAKLATA PATH, MALIGAON, GUWAHATI, ASSAM, PIN-781011
2: NABANITA DASGUPTA
D/O- PRASANTA KR DASGUPTA
R/O- FLAT NO. 502
GAUHATI HIGH COURT
P.S COMPLEX
MALIBAGAN
KHARGHULI ROAD UZAN BAZAR
GUWAHATI-04
KAMRUP (M)
ASSAM
3: MUNNA KUMAR
R/O- QUARTER NO-107F
RAILWAY COLONY
BAMUNIMAIDAM
NEW GUWAHATI
GUWAHATI-781021
KAMRUP (M)
ASSA
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY, TO THE GOVERNMENT
OF ASSAM,FINANCE (PAY RESEARCH UNIT) DEPARTMENT
DISPUR, GUWAHATI-781006, KAMRUP (M)
2:THE LEGAL REMEMBRANCER CUM COMMISSIONER AND SECRETARY
Page No.# 2/28
JUDICIAL DEPARTMENT
DISPUR
GUWAHATI-781006
KAMRUP (M)
ASSAM
3:THE HON'BLE GAUHATI HIGH COURT
REP. BY THE REGISTRAR GENERAL
GAUHATI HIGH COURT
GUWAHATI-781001
KAMRUP (M)
ASSAM
4:THE REGISTRAR ADMINISTRATION
GAUHATI HIGH COURT
GUWAHATI-781001
KAMRUP (M)
ASSA
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocates for the petitioner(s) : Mr. T Chakraborty
Mr. D Choudhury
Advocates for the respondent(s) : Mr. TJ Mahanta
Senior Advocate
& Standing Counsel,
Gauhati High Court
Mr. P Nayak
Standing Counsel
Finance Department,
Govt. of Assam
Page No.# 3/28
Date of hearing : 12.06.2025
Date of judgment : 25.06.2025
JUDGMENT & ORDER(CAV)
Heard Mr. T Chakraborty, the learned counsel appearing on behalf
of the petitioners. Mr. TJ Mahanta, the learned Senior Counsel as well
as the learned Standing Counsel, who appears on behalf of the
Gauhati High Court, Principal Seat and Mr. P Nayak, the learned
Standing Counsel, who appears on behalf of Finance Department,
Government of Assam.
2. The three petitioners herein have approached this Court by
invoking the extraordinary jurisdiction under Article 226 of the
Constitution being aggrieved by the actions of the respondents in not
condoning the delay in exercising the option under Rule 5 and Rule 7
of the Assam Services (Revision of pay) Rules 2017 (for short, 'the
ROP Rules of 2017') as well as also not providing the benefits of the
Principal Seat Pay (for short, 'the PSP'), while fixing the basic pay of
the petitioners under the ROP Rules of 2017.
3. The facts of the instant case are that the Gauhati High Court had
issued an advertisement on 03.10.2015 calling for applications for the
post of Private Secretary and Senior Personal Assistants. The
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petitioners applied and pursuant to a selection proceedings being
carried out they were selected and thereupon appointed vide order
dated 01.11.2016. The petitioners' names appear in the said
Appointment Order at Sl.No.3, 4, and 5 respectively.
4. It is the case of the petitioners that pursuant to an order dated
04.04.2016 passed in WP(C)No.1724/2015, a Notification was issued
in the name of the Governor of Assam dated 16.08.2016, whereby the
officers and staff of the Gauhati High Court (Principal Seat) were
provided the PSP in addition to their existing emoluments (existing
pay and allowances). Taking into account that the petitioners were
working in the Pay Band-3, the entitlement of the petitioners was
Rs.1000/- per month. Subsequent to the appointment of the
petitioners, the Government of Assam had notified the ROP Rules of
2017 on 17.03.2017 giving a retrospective effect from 01.04.2016.
Rule 5 of the ROP Rules of 2017 stipulated that the pay structure
proposed is also applicable in the case of the petitioners since they
were appointed and joined in the month of November, 2016, which is
before the date of the Notification of the ROP, Rules of 2017. The ROP
Rules of 2017 revised the pay in terms with the Fitment tables 1.1 to
1.2 of the Appendix-I of the ROP Rules of 2017. This was amended by
revised Fitment Table by 1.1-1.20 annexed with the ROP Rules as
Annexure-II.
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5. The petitioners' claim that they come within with the ambit of
Fitment Table 1.15, upon the ROP Rules 2017 being extended to the
employees of the Gauhati High Court (Principal Seat). The petitioners
submitted a representation dated 04.09.2017 before the Registrar
General of the Gauhati High Court and ventilated their grievances
praying inter alia for all such benefits to be payable as per the ROP
Rules of 2017. In their representation, the petitioners have
categorically stated that they are entitled to the new pay scale as
notified in Table 1.15 and their new scale of pay should be
Rs.34,000/- (Rs.23,900/- + 9,100 Grade Pay + 1000/- PSP).
6. Upon receipt of the said representation, the Registry of this Court
wrote a letter to the Judicial Department of the Government of Assam
dated 09.04.2018 seeking clarification in connection with initial
fixation of pay under the ROP Rules of 2017 in respect to the
petitioners. However, the Registry of this Court did not receive any
response therefrom. A reminder in that regard was issued on
07.12.2018 by the Deputy Registrar, (Finance) of this Court to the
Judicial Department. The said reminder also did not receive any
response. As the representation so submitted by the petitioners was
not considered, and the grievances of the petitioners remained
unredressed, the petitioners again submitted a representation on
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07.08.2019 reiterating their stand taken in the previous representation
dated 04.09.2017. Subsequent to the submission of the said
representation and upon repeated communications with the Judicial
Department, the Registry of this Court received a communication from
the Judicial Department dated 26.08.2019, wherein it was stated that
as per the advice of the Finance Department, the High Court was
directed to take necessary action as per the Government Notification
dated 09.03.2019. The Under Secretary to the Judicial Department,
Government of Assam again wrote a letter on 31.08.2019 and clarified
the issue of initial fixation of pay under the ROP Rules of 2017 for
Senior Personal Assistants and Computer Assistants of the Gauhati
High Court. The contents of the communication dated 31.08.2019
being relevant are reproduced hereinunder:
"Sub: Clarification regarding initial fixation of Pay under ROP-2017: Senior Personal
Assistant & Computer Assistant
Ref: Letter HC-VII1-154/2017/2542/AC dated 18th January, 2019
In inviting a reference to the letter on the subject mentioned above, I am directed
to inform you to kindly take necessary action as per Amended Fitment Table 1.15 and
the Government Notification No. FPC.43/2018/3 dated 09/03/2019. This issue is as per
endorsement vide U/O FPC 82/2019 dated 15/07/2019 of Finance (PRU) Department.
A copy of the Government Notification No. FPC.43/2018/3 dated 09/03/2019 is
enclosed herewith.
This is for favour of your information and necessary action.
This has the approval of L.R., Assam."
Page No.# 7/28
7. The reply so sent by the Judicial Department of the Government
of Assam did not redress the petitioners' grievances, for which, the
petitioners again submitted a representation to the Registrar General
of this Court on 08.03.2021, praying for condonation of delay to
exercise the option of the provision of Rule 5 of the ROP Rules of
2017. However, this received, again, no response. The petitioners
thereafter, preferred an RTI application before the Registry of this
Court, asking details of documentation regarding the exercising of
option for fixation of pay under Rule 5 of the ROP Rules of 2017 in
respect of Senior Personnel Assistants appointed between 01.04.2016
and 17.03.2017 in the Principal Seat of the Gauhati High Court. The
response to the said RTI application was that no option under Rule 5
of the ROP Rules of 2017 was called from the Senior Personal
Assistants or any other employees appointed during the period from
01.04.2016 to 17.03.2017 in the Principal Seat of the Gauhati High
Court. Upon receipt of the said communication, the petitioners again
wrote another communication on 24.03.2021 giving entire details as
regards the initial fixation of pay as per the ROP Rules of 2017 after
exercising the option under Rule 5 of the ROP Rules of 2017.
8. It is averred in the writ petition that the Registry of this Court had
been continuously writing to the Judicial Department of the
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Government of Assam seeking clarification as to whether the Senior
Personal Assistants and the Computer Assistants shall be allowed to
exercise option under Rule 5 of the ROP Rules of 2017. But the
Registry never received any communication from the Government
clarifying the aforesaid issue. The Government of Assam, after various
communications, ultimately on 13.12.2022 informed the Registry that
the delay in exercising the option under Rule 5 of the ROP Rules of
2017 in the case of the Computer Assistants has been condoned and
their salary has been re-fixed at Stage-4 on 01.07.2017. However,
though similarly situated, no stand was taken by the Finance
Department in respect of the present petitioners, who were appointed
as Senior Personal Assistants. It is under such circumstances, the writ
petition has been filed seeking the reliefs as already above mentioned.
9. The record reveals that pursuant to filing of the writ petition, this
Court vide an order dated 30.01.2023 issued notice and directed the
instant writ petition to be listed with WP(C)No.4464/2022. It is very
pertinent at this stage to take note of that the proceedings in
WP(C)No.4464/2022 relates to the case of the Computer Assistants,
who were appointed after the Notification dated 16.08.2016, whereby
the Government of Assam approved the payment of PSP and their
grievance was that the initial basic pay was not fixed as per the ROP
Rules of 2017 by including the PSP.
Page No.# 9/28
10. The record reveals that the Finance Department of the
Government of Assam, i.e. the respondent No.1, had filed an affidavit-
in-opposition on 05.02.2024. In the said affidavit-in- opposition, it was
mentioned that the proposals for initial fixation of pay of the Senior
Personal Assistants i.e. of the petitioners were received by the Finance
Department and the matter was examined. It was mentioned that as
the petitioner joined their services on November 2016, i.e. between
01.04.2016 (date of coming into effect of the ROP Rules, 2017) and
17.03.2017 (date of publication of the ROP Rules of 2017) in the pre-
revised pay scale of Rs.8000 - Rs.35000/- + Grade Pay of Rs.4300/-,
the revised pay scale of Pay Band-3, as per ROP Rules of 2017 was
PB-3, Rs.22,000- Rs.97,000/- + Grade Pay of Rs.9,400/-. It was
further mentioned that the matter was examined by the Finance
(PRU) Department and vide endorsement dated 03.02.2024, the
Judicial Department was advised to take necessary action and fix as
per the amended Fitment table 1.15 and the initial fixation of pay
would be Rs.34,320/- in respect to the Senior Personal Assistants. At
paragraph 9 of the said affidavit-in- opposition, it was stated that the
Judicial Department submitted proposal to the Finance (PRU)
Department to condone the delay towards exercising the option as
per Rule 5 of the ROP Rules of 2017, in respect of the Computer
Assistants in the Registry of the Gauhati High Court and the matter
Page No.# 10/28
upon being examined by the Finance (PRU) Department, it was
observed that the Computer Assistants were appointed after
01.04.2016, but before the publication of ROP Rules of 2017 i.e.
17.03.2017 in the pre-revised pay scale of PB-2, i.e. Rs.5200-20200/-
+ Grade Pay of Rs.2400/-.Accordingly, their pay was fixed as per the
OM No.FPC.14/2017/7 dated 28.07.2010 at Rs.5,600 + 2,400 =
Rs.8,000/- + PSP of Rs.750, total Rs.8,750/-. It was further
mentioned that Rule 7 of the ROP Rules of 2017 stipulated that the
option under Rule 5 is required to be exercised within 60 days from
the date of publication of the ROP Rules of 2017. The Computer
Assistants, though, did not exercise their option to retain their existing
pay as per Rule 5 within the stipulated period of 60 days, however,
the Finance (PRU) Department on humanitarian grounds agreed the
proposal of the Judicial Department to condone the delay towards
exercising the option as per Rule 5 of the ROP Rules of 2017 by
invoking Rule 3 of the ROP Rules of 2017 and the pay of the
Computer Assistants were allowed to be fixed on 01.07.2017 at Rs.
22,090/- + 750/- (PSP). It was further mentioned that a proposal for
condonation of delay in respect to the Senior Personal Assistants was
received from the Judicial Department, which was examined and the
Judicial Department had already been advised to take necessary
action as per the amended Fitment table 1.15 and the initial fixation
of pay would be Rs.34,320/- in respect of Senior Personal Assistants.
Page No.# 11/28
At paragraph 10 of the said affidavit-in- opposition, it was
categorically mentioned that the Finance (PRU)Department agreed to
condone the delay towards the exercise of option as per Rule 5 of the
ROP Rules of 2017 and the initial pay fixation in respect to the Senior
Personal Assistants was Rs.34,320/- as per the calculation given
thereinunder. Taking into account the relevance, paragraph 10 of the
said affidavit-in-opposition is reproduced hereinunder:
"10. That, as regards to the statements made in paragraph Nos. 17 and 18 of the
writ petition, the deponent begs Justice has never been denied to the petitioners.
Finance (PRU) Department agrees to condone the delay toward exercising of option
as per Rule-5 of ROP-2017 and the initial pay fixation in respect of Senior Personal
Assistant is Rs. 34320/ - as calculated below:
On the date of increment i.e. 1st of July 2017
Basic pay in the PB-3, Rs. 8000-35000, GP 4300 (pre revised) would be -
= 12300+3% of 13300 [12300+1000 (PSP)] + 1000 (PSP)
= 12300 + 399 + 1000 (PSP)
= 12699 + 1000 (PSP)
= i.e. Rs. 13050 + 1000 (Stage 3 on fitment table 1.15 as per ROP Rules, 2017).
On revision w.e.f. 01-07-2017, the corresponding pre-revised pay of Rs.13050/- is =
Rs. 33320+1000 (PSP)
= Rs. 34320/(Revised Basic Pay as per ROP Rules, 2017)."
11. To the affidavit-in-opposition filed by the Finance Department,
the petitioners filed an affidavit-in-reply, wherein the petitioners not
Page No.# 12/28
only reiterated their stand taken in the writ petition, but also stated
that the PSP has to form a part of basic pay and the same has to be
calculated in the manner i.e. the basic = Pay in the Pay band + grade
pay + PSP. It was stated that the petitioner's initial basic pay at the
time of their appointment was paid in the pay band, Rs.8000/- +
Grade Pay of Rs.4,300 + PSP of Rs.1,000/- =Rs.13,300/-. It was
mentioned that in terms with the judgment of the Coordinate Bench
of this Court dated 06.04.2017 in WP(C)No. 1724/2015, the basic pay
had to be arrived at only by taking into account the pay in the Pay
Band + Grade Pay + PSP. The petitioners further stated that in
respect to a Stenographer Grade II, a similar issue was raised by filing
a writ petition, being WP(C) No.2987/2020. The petitioner therein was
promoted from Stenographer Grade II to Grade-I as Private Secretary
to Hon'ble Judges. But at the time of fixation of his pay, the PSP was
not included with the basic pay and thereby causing financial loss to
the said petitioner. It is mentioned that this Court, vide the judgment
and order dated 29.11.2023 in WP(C)No.2987/2020 held that the
basic pay in the pre-revised structure has to be arrived at by taking
into account the PSP.
12. It was further mentioned by the petitioners herein in their
affidavit-in-reply that the calculation provided in Paragraph 10 of the
affidavit-in-opposition of the Finance Department, (the said paragraph
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having already been quoted hereinabove), there was a mistake
committed by the Finance Department to the extent that while
calculating the pre-revised basic pay as Rs.13050/-, the PSP of
Rs.1000/- was excluded, which could not have been done as it would
go contrary to the Notification dated 16.08.2016.
13. It is further relevant to take note of that on 16.12.2024, the
petitioners filed an additional affidavit bringing on record the order
passed by the Coordinate Bench in WP(C)No.4464/2022, whereby
taking into account the stand of the Finance Department, who had
undertaken to resolve the issue which is similar to that of the
petitioners, appropriate directions were passed.
14. The petitioners herein by way of the additional affidavit also
enclosed a communication dated 16.11.2024 whereby the pay fixation
of the Computer Assistants in the Gauhati High Court, who had
entered their services after 01.04.2016 but before 17.03.2017 was
fixed by taking into account the initial pay with Pay in the Pay Band +
Grade Pay + PSP.
15. The record further reveals that on 03.03.2025, another affidavit
has been filed to bring to the notice of this Court, that the petitioner
No.1 and petitioner No.3 herein have been promoted from the post of
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the Senior Personal Assistants to the post of Private Secretary to the
Hon'ble Judges in the Principal Seat of the Gauhati High Court and the
petitioner No. 2 had submitted her resignation from the post of Senior
Personal Assistant and was released from the employment under the
Gauhati High Court with effect from 18.04.2024.
16. From the above pleadings, it appears that the dispute in so far
as the condonation of delay in exercising the option under Rule 5 and
Rule 7 of the ROP Rule of 2017 has been duly taken care of by the
Finance Department as would be seen from paragraph 10 of the
affidavit-in-opposition filed by the Finance Department.
17. However, the dispute which remains for consideration is as to
whether the PSP is to be taken into consideration for fixation of the
revised pay or the existing pay is to be taken into account only on the
basis of Pay in the Pay Band + Grade Pay. In paragraph 10 of the
affidavit-in-opposition filed by the Finance Department, they have
separately treated the PSP and accordingly, without the PSP, the
Fitment table 1.15 of the ROP Rules of 2017 has been applied. On the
other hand, it is the specific case of the petitioners that the PSP has
to be taken into account along the Pay in the Pay Band + Grade Pay
along with the annual increment and thereupon on the said pre-
revised basic pay the amended Fitment table of 1.15 at the Stage 5
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be applied. In that regard, let this court take note of the respective
submissions made by the learned counsels appearing on behalf of the
parties.
18. The learned counsel appearing on behalf of the petitioners
submitted that the perusal of the Notification dated 16.08.2016, and,
more particularly, Clause 2 therein would clearly show that for
determination of the basic pay, pay in the Pay Band + Grade Pay +
PSP has to be taken into consideration. The learned counsel further
submitted that in the judgment and order delivered by the Coordinate
Bench of this Court dated 29.11.2023 in WP(C) No. 2987/2020
(Hasnine Alam Vs. State of Assam and 4 Others ), it was categorically
held that for arriving at the existing basic pay in the pre-revised stage
would include the component of the PSP and the same having been
arrived at, the revised pay in the appropriate Fitment table and stage
had to be applied. In that regard, reference was drawn to paragraphs
14, 15 and 16 and 17 of the said judgment.
19. The learned counsel for the petitioners further submitted that
the issues involved in the present case is squarely covered by the
decision of another Coordinate Bench judgment and order dated
28.09.2023 in WP(C) No.4464/2022 (Subhash Chandra Das and 22
others Vs. State of Assam and 3 Others ) wherein the Finance
Page No.# 16/28
Department had duly agreed that for arriving at the pre-revised
existing pay, the Pay in the Pay Band + Grade Pay + PSP has to be
taken into consideration and thereupon the appropriate Stage in the
Fitment table is to be applied. The learned counsel for the petitioners
further submitted that on the basis of such stand being taken by the
Finance Department, the learned Coordinate Bench of this Court had
directed the Finance Department to carry out the necessary
computation within 60 days from the date of receipt of the said order
and the benefit of the arrear salary and allowances which would be
admissible under the Rules upon re-fixation of the pay scale be
released to the petitioners therein within a further period of 60 days
from the date of the issuance of the Notification.
20. The learned counsel for the petitioners further submitted that
the said judgment and order dated 28.09.2023 passed in
WP(C)No.4464/2022 has been duly complied by the Finance
Department as would be apparent from the communication issued by
the Finance Department dated 14.11.2024 as well as by the Judicial
Department dated 16.11.2024.
21. The learned counsel for the petitioners has further submitted
that the present case is a gross case of discrimination whereby all
employees of the Gauhati High Court have been granted the benefit
Page No.# 17/28
by applying the PSP to the Pay in the Pay Band and the Grade Pay
while fixing the pre-revised basic pay and thereupon the revised
salary was arrived at by applying to the appropriate Fitment table and
the respective stage. However, only these three petitioners have been
deprived, and, as such, on the basis of Article 14 and Article 16 of the
Constitution, this Court is required to interfere with such
discriminatory actions on the part of the respondent authorities.
22. Per contra, Mr. P. Nayak, the learned Standing Counsel
appearing on behalf of the Finance Department, supported the stand
of the Finance Department as contained in paragraph 10 of the
affidavit-in-opposition. Elaborating his submissions, the learned
Standing Counsel submitted that the perusal of the said Notification
dated 16.08.2016 would show that the basic pay so worked out by
aggregating the Pay in the Pay Band + Grade Pay + PSP was only for
the purpose of calculating the dearness allowance, house rent
allowance, increment and pension etc., but not for the purpose of
fixation of the revised pay scale. He submitted that though he was the
counsel appearing on behalf of the Finance Department in
WP(C)No.4464/2022 i.e. in the case of Subhash Chandra Das (Supra),
but what he submitted therein was that the Finance Department
would have no objection, if the necessary computational error is
rectified by the Judicial Department, Government of Assam. He,
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therefore, submitted that the said stand taken in the case of Subhash
Chandra Das (supra) was on the basis of instructions so received from
the Finance Department. But in the present matter, he has not
received similar instructions from the Finance Department. He,
therefore, submitted that the petitioners herein would be entitled only
to the amount as has been mentioned in paragraph 10 of the
affidavit-in-opposition.
23. This Court has duly heard the learned counsels appearing on
behalf of the parties and has also perused the materials available on
record. Before deciding as to whether the PSP would form a part of
the pre-revised basic pay or not while arriving at the revised pay, it is
relevant to take note of the evolvement of the PSP till the Notification
was issued on 16.08.2016 by the Governor of Assam and the
subsequent decision so rendered by this Court. This Court vide an
order dated 04.04.2016 in WP(C) No.1724/2015 issued direction to
give effect to the proposal of the Finance Department, Government of
Assam with regard to payment of additional PSP to the officers and
staff of the Gauhati High Court, (Principal Seat), including such PSP
while calculating, Dearness Allowance, House Rent Allowance,
Pension, etc. Paragraph 29 of the said judgment and order being
relevant is reproduced hereinunder:
"29. Having regard to the discussions made above, as an interim measure,
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respondent Nos.1, 2 and 3 are directed to give effect to the proposal of the Finance
Department, Govt. of Assam, with regard to payment of additional 'Principal Seat Pay'
(PSP) to the officers and staff of the Gauhati High Court (Principal Seat) including such
PSP while calculating Dearness Allowance, House Rent Allowance, pension, etc. It shall
be given effect to from 01.01.2006 for the purpose of notional benefits and from
01.04.2008 for the purpose of calculating arrear pay. It is clarified that the above
payment would be in addition to such benefits which the officers and staff of the
Gauhati High Court (Principal Seat) may be entitled as granted to the State Government
employees under the 2010 Rules. Let Principal Seat Pay be paid as part of the current
salary with effect from 01.07.2016 and the arrears from 01.04.2008 to 30.06.2016 shall
be paid during the month of July, 2016."
24. Pursuant thereto a Notification dated 16.08.2016 was issued
under the orders of the Governor of Assam. Clause 2 of the said
Notification reads as under:
"2. Principal Seat Pay shall be admissible to the officers and staff of the Principal
Seat of the Gauhati High court in addition to their respective pay in the pay band and
grade pay, for determining the basic pay (i.e., Basic Pay = Pay in the Pay Band + Grade
Pay + PSP)
Dearness allowances, house rent allowances, increment and pension etc will be
paid on the basic pay arrived at in the aforesaid manner".
25. From the above-quoted clause, read with what has been
contained in paragraph 29 of the Order dated 04.04.2016, it appears
that for determination of the basic pay, PSP has to be taken into
account and therefore, the said Notification categorically observed
that "basic pay = Pay in the Pay Band + Grade Pay + PSP ". The
reference to the Dearness Allowance, House Rent Allowance,
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Increment and Pension etc in Clause 2 further suggests that apart
from the fact that the basic pay would include pay in the Pay Band +
Grade Pay + PSP, the Dearness Allowance, House Rent Allowance,
Increment and Pension etc. would also be calculated on the basis of
the said basic pay arrived at.
26. This Court further finds it relevant to take note of that the
Judgment and Order dated 06.04.2017 passed in WP(C)No.1724/2015
wherein at paragraphs 16, and 17, the learned Coordinate Bench of
this Court had further clarified this issue. Paragraphs 16 and 17 of the
said judgment are reproduced hereinunder:
"16. Following the aforesaid order of this Court, a notification dated 16.08.2016 was
issued by the Judicial Department, Government of Assam providing for Principal Seat
Pay to the officers and staff of the Gauhati High Court (Principal Seat) in addition to
their existing pay and allowances to be given notional effect from 01.01.2006 and
arrears w.e.f. 01.04.2008. It was clarified that Principal Seat Pay would be in addition to
the respective pay of the officers and staff in the pay band and grade pay for
determining basic pay. In other words, the basic pay would include pay in the pay band
+ grade pay + Principal Seat Pay. It was clarified by the Government that dearness
allowance, house rent allowance, pension etc. would be paid on the basic pay arrived at
in the aforesaid matter.
17. It has been submitted that the aforesaid proposal for grant of Principal Seat Pay
vide notification dated 16.08.2016 was accepted by the Gauhati High Court whereafter,
officers and staff of the Principal Seat of the Gauhati High Court received their arrears
and current salaries including the Principal Seat Pay, as above."
27. From the above-quoted paragraphs 16 and 17, it is clear that the
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learned Coordinate Bench had clarified without any ambiguity that the
PSP would be in addition to the respective pay of the officers and staff
in the Pay Band + Grade Pay for determining the basic pay. The
observations so made by the learned Coordinate Bench of this Court
in WP(C) 1724/2015 have attained finality. All employees of the
Gauhati High Court are receiving their pay as well as the revised pay
on the said basis as would be further apparent from the analysis
hereafter.
28. In the opinion of this Court, therefore, the submission so made
by the learned Standing Counsel for the Finance Department that the
basic pay arrived at in Clause 2 is only for the purpose of calculation
of the dearness allowance, house rent allowance, increment and
pension, etc. appears to be misconceived.
29. It is further relevant to take note of that in the case of Hasnine
Alam (Supra), the learned Coordinate Bench of the Court had
categorically held that for arriving at the pre-revised basic pay, the
PSP has to be taken into consideration and the applicability of the pre-
revised basic pay which would include the PSP has to be applied to
the equivalent Fitment table and the appropriate Stage. This aspect of
the matter would appear from the observations made by the learned
Coordinate Bench in paragraph 14 of the said judgment which is
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reproduced hereinunder:
"14. However, by applying the formula of basic pay equal to PB plus GP plus PSP,
the minimum basic pay in the pre-revised stage in respect of a Private Secretary
(Stenographer Grade-I) of the Principal Seat of the Gauhati High Court would be Rs.
12000/- plus Rs. 5900/- plus Rs. 1250/- which is equal to Rs. 19500/-. Without the PSP
being added, the same would be PB + GP i.e. Rs.12000/- + Rs. 5900/- which is equal to
Rs. 17900/-. As such, as provided in the formula contained in the notification dated
16.08.2016, the basic pay of an employee of the Principal Seat of the Gauhati High
Court would also have to include the component of PSP and the minimum basic pay of
such employee would not be same as the minimum basic pay of any other category of
employee and the figure that may be arrived at upon adding the PSP to PB and GP
would be the minimum basic pay. Accordingly, the minimum basic pay in the pre-revised
pay structure cannot be Rs. 17900/-, which is without adding the PSP and the minimum
basic pay would have to be Rs. 19150/- by adding the PSP. The applicability of the
minimum basic pay upon revision cannot be the fitment equivalent of Rs. 17900/-,
whereas it has to be equivalent to the fitment of Rs. 19150/-, which would be as per Sl.
No. 4 of the Table No. 1.22. Accordingly, it would be the revised pay corresponding to
fitment of Rs.19150/-, which as per Sl. 4 of Table No. 1.22 would be Rs. 19570/- and
thereafter the corresponding total pay in the revised structure would be Rs.47320/-
which would include the PB of Rs. 34020/-. In other words, when the pre-revised pay
structure had provided for a minimum basic pay of Rs. 19150/- for the Private Secretary
(Stenographer Grade-I) of the Principal Seat of Gauhati High Court, the minimum basic
pay in the revised pay structure cannot be less than the equivalent of the fitment
corresponding to Rs. 19150/- in the pre-revised pay structure."
30. This Court now finds it further relevant to take note of that the
issue involved in the case of the Computer Assistants, i.e. in the case
of the Subhash Chandra Das (Supra) which is similar to the case of
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the present petitioners, as these Computer Assistants were also
appointed post the Notification dated 16.08.2016, but before
17.03.2017. This aspect of the matter would be apparent from a
perusal of paragraphs 3 and 4 of the judgment in Subhash Chandra
Das (Supra) and taking into consideration its relevance, the said two
paragraphs are reproduced hereinunder:
"3. The facts of the case lie in a narrow campus and can be noticed as follows:-
The writ petitioners are all working as Computer Assistants in the Principal Seat of the
Gauhati High Court. As per the relevant service rules, the petitioners are employees of
the Principal Seat of the Gauhati High Court. By the notification dated 16-08-2016, the
Govt. of Assam had earlier approved the proposal for payment of Principal Seat Pay
(PSP) to the officers and staff of the Gauhati High Court (Principal Seat) with effect from
the date so notified. The notification dated 16-08-2016 was issued with the approval of
the Cabinet. The aforesaid notification had clearly mentioned that the PSP shall be
admissible to all the officers and staff of the Principal Seat of the Gauhati High Court in
addition to their pay band and grade pay, meaning thereby that the basic pay of the
employees under the RoP Rules had to be treated as "pay in the pay band + grade pay
+ PSP". Accordingly, the officers and other staff of the Principal Seat of the Gauhati High
Court have already been extended the benefit of revised pay scale. However, in the case
of Computer Assistants, the department had calculated the revised pay scale only on
the basis of the pay in the pay band + grade pay, by excluding the PSP as a result of
which, they are drawing a lesser amount as salary. The apparent reason for doing so is
on account of the fact that the writ petitioners herein, although were appointed prior to
the notification of the RoP Rules, 2017 but their appointments are after the notification
dated 16-08-2016 had been issued by the Govt. of Assam approving the payment of
PSP. It would be pertinent to mention herein that in the writ petition, the petitioners
have inter-alia prayed for issuance of a direction to fix the salary of the petitioners
under the Revised Pay Rules (RoP) w.e.f. 01-07-2017.
Page No.# 24/28
4. It appears that taking note of the grievance expressed by the petitioners
pertaining to erroneous fixation of pay scale, the Joint Registrar (Finance) of the
Gauhati High Court had earlier addressed a communication dated 23-12-2022 to the
Judicial Department of the Govt. of Assam, pointing out that the pre-revised fixation of
pay of the Computer Assistants ought to be Rs. 8750/- and after 3% increment, it
would become Rs. 9,020/- w.e.f. 01-07-2017. As such, the revised pay of the Computer
Assistant w.e.f. 01-07-2017 under the RoP, 2017 would be Rs. 24,160/- (next higher
stage of table No. 1.7). It was further, mentioned that pay in respect of all other officers
and staff of the Registry had been fixed after adding PSP with basic i.e. basic = pay +
grade pay + PSP, as admissible under the Govt. notification dated 16-08-2016.
Accordingly, a request was made to the Judicial Department of the Govt. of Assam to
rectify the above computational error and re-fix the pay scale of the writ petitioners.
However, notwithstanding the aforesaid communication, no action had been taken by
the Judicial Department primarily on the ground that approval of the Finance
Department was required in this regard."
31. A reading of the above-quoted two paragraphs would transpire
that the non-inclusion of the PSP at the time of fixation of the pre-
revised pay for fixation of the revised pay, was the computational
error referred to therein and the request made to the Judicial
Department of the Government of Assam was to rectify the said
computational error and re-fix the pay scale of the petitioners therein
was the issue. The stand of the Judicial Department in the said
proceedings was on the ground that the Finance Department's
approval was required. In the said proceedings, the Finance
Department submitted before this Court that the said Department
would have no objection, if the necessary computational error is
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rectified by the Judicial Department, and in that regard, if any further
clarification was required, the Finance Department was ready to
provide it. On the basis of the said stand taken by the Finance
Department, this Court in its judgment and order dated 28.09.2023
recorded that the said issue stood resolved and accordingly directions
were issued thereby directing the Finance Department to take note of
the projections made in the communication dated 23.12.2022 issued
by the Joint Registrar (Finance) and after carrying out the necessary
correction in the computation and fixation of revised pay scale in the
case of the petitioners, a proper Notification be issued.
32. It is also apparent from the record as detailed out in the
previous segments of the present judgment that the Finance
Department as well as the Judicial Department of the Government of
Assam have acted upon it and thereby the Computer Assistants have
been granted the benefit of fixation of the revised pay on the basis of
the pre-revised basic pay which was the aggregate of the Pay in the
Pay Band + Grade Pay + PSP.
33. In the backdrop of the above, therefore, it appears that the
submission so made by the Standing Counsel, Finance Department on
the basis of paragraph 10 of the affidavit-in-opposition of the Finance
Department to be not only contrary to the Clause 2 of the Notification
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dated 16.08.2016, but also contrary to what stand the Finance
Department took before the learned Coordinate Bench of this Court in
Subhash Chandra Das (supra) and acted upon. The case of the
petitioners herein is similarly situated to the case of the Computer
Assistants. There is no intelligible differentia why the petitioners
should be treated differently from the Computer Assistants as well as
all other employees of the Gauhati High Court whose revised pay have
been fixed and applied on the existing pay which included the Pay in
the Pay Band + Grade Pay + PSP. The denial of the benefit of the PSP
while computing and fixing the revised pay in the case of the
petitioners herein is discriminatory and, therefore, violates the
mandate of Article 14 of the Constitution.
34. Accordingly, the instant writ petition stands disposed off with the
following observations and directions:
(i) The petitioners, who were appointed on 01.11.2016
and having joined in between 01.04.2016 and 17.03.2017, their
existing basic pay as on the date of joining has to be the
aggregate of the pre-revised Pay in the Pay Band + Grade Pay
+ PSP.
(ii) The petitioners having been granted the benefit of
annual increment as would be seen from the affidavit filed by
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the Finance Department, the applicable revised pay has to be
arrived at by taking into account the aggregate of pre-revised
pay in the Pay Band + Grade Pay + PSP + increment. The pre-
revised aggregate amount so arrived at has to be applied to the
Amended Fitment Table 1.15 and the respective Stage
depending on the pre-revised aggregate amount arrived at.
(iii) The Respondent authorities, i.e., the Respondent Nos.
1, 2 and 3 are directed to do the needful, thereby re-fixing the
initial salary of the Petitioners on the date of joining, on the
basis of the observations made in Clauses (i) & (ii) hereinabove.
(iv) The Respondents herein, on the basis of the above
observations and directions made at Clause (i), (ii) and (iii)
hereinabove, shall thereupon compute, as to whether the
Petitioners are entitled for further amounts on the basis of re-
fixation of the revised salary.
(v) The said exercise so directed hereinabove be
completed within 2 (two) months from the date, a certified copy
of this Judgment is served upon the Respondent Nos. 1, 2 and
3. On the basis of the computation so made, the Petitioners if
found entitled to any amount(s), the arrears be paid not later
than 3 (three) months from the date, the certified copy of the
instant Judgment is served upon the Respondent Nos.1, 2 and
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3.
(vi) The concerned Treasury Officer shall, thereupon act,
in terms with the above directions.
JUDGE
Comparing Assistant
