Gauhati High Court
Page No.# 1/ vs Pradyut Baruah And Anr on 6 May, 2025
Page No.# 1/11
GAHC010237052023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/411/2023
THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM AND 3
ORS.
URBAN DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI- 06.
2: THE DIRECTOR OF TOWN AND COUNTRY PLANNING
ASSAM
DISPUR
GUWAHATI- 06.
3: THE DEPUTY DIRECTOR
TOWN AND COUNTRY PLANNING
DISTRICT OFFICE JORHAT
P.O.- JORHAT
DIST.- JORHAT.
4: THE UNDER SECRETARY TO THE GOVERNMENT OF ASSAM
URBAN DEVELOMENT (T) DEPARTMENT
DISPUR
GUWAHATI- 6
VERSUS
PRADYUT BARUAH AND ANR.
S/O SHRI DEBEN BARUAH, TOKALAI GAON, REJABARI, JORHAT- 785014.
2:THE COMMISSIONER AND SECRETARY
FINANCE (SIU) DEPARTMENT
ASSAM
DISPUR
GUWAHATI- 6
Advocate for the Petitioner : MR. C K S BARUAH, MR. D MOZUMDER
Advocate for the Respondent : ,
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 01.05.2025
Date of Judgment: 06.05.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair. J)
Heard Mr. D. Majumdar, learned Addl. Advocate General along with Ms. S.
Sarma, learned Government Advocate appearing for the appellants. None has
appeared for the respondent no. 1 in spite of service of notice. Also heard, Mr. A.
Chaliha, learned Standing Counsel, Finance Department representing the proforma
respondent no. 2.
2. The present Intra-Court appeal has been instituted, presenting a challenge to a
Judgment and Order dated 14.09.2023, passed by the learned Single Judge in WP(C)
No. 1680/2012, allowing the writ petition, instituted by the respondent no. 1 herein.
3. Before proceeding further, it would be appropriate to briefly encapsulate the
relevant facts so as to have a proper perspective of the case.
4. The respondent no. 1 herein, was initially recruited as a Sector Inspector Trainee
in the Jorhat Development Authority. The Jorhat Development Authority was
constituted under the Assam Town and Country Planning Act, 1959. The initial
appointment of the respondent no. 1 was regularized as a Sector Inspector Trainee
w.e.f., 01.03.2002. The respondent no. 1, in pursuance to an advertisement issued by
the Assam Public Service Commission (In short APSC) on 12.10.2007, submitted his
application through proper channel for recruitment against the post of Junior Engineer
(Civil) in the Directorate of Town and Country Planning. The respondent no. 1 on his
selection was recommended by the APSC for appointment as Junior Engineer (Civil)
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under the Directorate of Town and Country Planning. In terms of the selection of the
respondent no. 1 by the APSC, the Secretary to the Government of Assam, Urban
Development Department vide order dated 03.06.2009, appointed the respondent no.
1 as Junior Engineer (Civil) under the Directorate of Town and Country Planning,
Assam in the scale of pay of Rs. 3580-8750/- and he was posted in the establishment
of the Deputy Director, Town and Country Planning, Tezpur. The respondent no. 1,
accordingly, resigned from his service with the Jorhat Development Authority and
joined against the post, he was so appointed vide the order dated 03.06.2009.
Pursuant to joining his service under the Directorate of Town and Country Planning,
the respondent no. 1 preferred a representation on 16.07.2009 praying for pay
protection by reckoning the pay drawn by him against the post of Sector Inspector in
the Jorhat Development Authority. In the said representation, the respondent no. 1
had projected that he having applied for a post of Junior Engineer (Civil) as advertised
by the APSC, through proper channel, he is entitled to have his pay fixed by reckoning
the stage at which he was drawing his pay and allowances in the post of Sector
Inspector under the Jorhat Development Authority. The said representation of the
respondent no. 1 was processed however, the respondent authorities having not
acceded to his prayer, the respondent no. 1 had approached the writ Court by way of
instituting WP(C) No. 1680/2012, praying for fixation of his pay against the post of
Junior Engineer (Civil) under the Directorate of Town and Country Planning at the
stage equal to the stage he was drawing his pay and allowances against the post of
Sector Inspector under the Jorhat Development Authority.
5. The learned Single Judge, upon considering the issues arising in the matter and
after hearing the learned counsels appearing for the parties to the proceeding, was
pleased vide Judgment and Order dated 14.09.2023, to allow the writ petition by
directing the appellants herein to grant pay protection to the respondent no. 1 and to
fix his pay at the stage equal to the substantive pay drawn by him as a Sector
Inspector under the Jorhat Development Authority.
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Being aggrieved, the appellants herein have instituted the present writ appeal.
6. The challenge in the present proceeding being to the order dated 14.09.2023,
the operative portion thereof, being relevant, is extracted herein below: -
"13. The issue involved is with regard to protection of pay of the petitioner. It is not in
dispute that the petitioner was earlier appointed as a Sector Inspector Trainee in the JDA
where he was serving from 08.03.2001 with his services regularized w.e.f. 01.03.2002. While
in the said service, the petitioner had participated in the recruitment process for the post of
Junior Engineer under the Directorate of Town and Country Planning which was conducted
by the APSC and the said participation was through proper channel.
14. The post held by the petitioner as Sector Inspector Trainee in the JDA has been stated
to be equivalent to the post of Junior Engineer. The question, therefore, arises is as to
whether on being inducted into the services under the Directorate of Town and Country
Planning, the petitioner would entitle to a pay protection or not. To answer the said issue, the
statutory provisions, as contained in the Act of 1959, may be taken into consideration.
15. The learned counsel for the petitioner has referred to certain provisions of the Act of
1959 regarding the constitution of the Authority, grants, advances, loans by the State
Government and also audit by the Accountant General, Assam and also to Section 57 as per
which, the officers and staffs of the Authority would be deemed to be public servants within
the meaning of Section 21 of the IPC. This Court has further noticed that under Section 8-B,
the composition of the Authority itself had been laid down which would show that all the
members of the Authority are to be appointed by the State Government and most of them are
holding substantive posts under the State Government and are ex officio members.
16. FR 22 is with regard to pay protection. Though an objection has been raised on behalf
of the Finance Department that for getting benefit of FR 22, one has to fulfill the
requirements under FR 2, according to which, the FR applies to all Government servants
whose pay is debitable to civil estimates of the State. The meaning sought to be assigned by
FR 2 cannot be given a narrow meaning so as to exclude from its operation,
employees/officers under the Authorities which are constituted under the Act of 1959. The
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aforesaid opinion of this Court is based upon the judgment earlier rendered by this Court in
the case of Shri Ajit Kumar Kakoti (supra) wherein it has been held that the provisions of FR
22 would apply even for employees who were working in an undertaking of the State. In the
said case, the petitioner was earlier an employee of the Assam Syntex Ltd. and later
appointed in the Assam Textile Institute. This Court has also noted the observation of the
Hon'ble Supreme Court in the case of RL Marwaha (supra) wherein paragraph 8, the earlier
services have been directed to be counted. The aforesaid case, however, was with regard to a
claim for pension.
17. The aforesaid notification dated 24.05.2021 by which the officers and staffs of the
Urban Development Authority have been held to be interchangeable is also in favour of the
petitioner as for all purposes, such officers and staffs are held to be at par so far their
services are concerned.
18. Shri Nayak, learned Standing Counsel had contended that unless an incumbent is a
Government servant is not entitled to the benefits of the revision of pay. However, this Court
is of the opinion that the issue in this case being only with regard to the pay protection on
being appointed under the Directorate of Town and Country Planning when the petitioner
was initially working in the JDA, the said submission may not be relevant. The reliance placed
upon the case of AK Bindal & Anr. (supra) would also not be relevant as there is no dispute to
the proposition laid down by the Hon'ble Supreme Court regarding the difference between
Government Companies and the Government itself. In the said case, the findings of the
Hon'ble Supreme Court were with regard to protection under Article 311 of the Constitution
of India wherein a further observation was made that employees of a Government Company
cannot claim salaries from the Government. Though reliance has also been made upon a
notification dated 06.07.2017 of the Finance Department wherein it has been laid down that
past services would not be counted for the purpose of the MACPS, the present is not with
regard to any benefits under the said Scheme and rather, for protection of pay which the
petitioner is held to be entitled under the scheme of FR-22. The observation of the Finance
Department which has been reflected in the affidavit-in-opposition that the post earlier held
by the petitioner is a non-government post would not be relevant in the present context
wherein the claim is only for protection of pay and admittedly, the earlier services of the
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petitioner was with the JDA which is an authority under the Act of 1959.
19. Under the aforesaid facts and circumstances, this Court is of the considered opinion
that the petitioner has been able to make out a case for interference and accordingly, this
writ petition is allowed by holding that the petitioner is entitled to pay protection and
accordingly his initial scale of pay while he had joined the post should be at least equivalent
to the substantive pay which he was receiving while working with the JDA.
20. In view of the above, the respondent authorities are directed to give the benefit of
such pay protection expeditiously and the aforesaid exercise be completed within an outer
limit of 3 months from today."
7. Assailing the Judgment and Order dated 14.09.2023, Mr. D. Majumdar, learned
Addl. Advocate General, Assam has submitted that the said respondent no. 1 herein,
while serving under the Jorhat Development Authority, having not held a post under
the Government, he would not be entitled to claim pay protection on being appointed,
after selection, against the post of Junior Engineer (Civil) under the Directorate of
Town and Country Planning, Assam.
8. Mr. D. Majumdar, learned Addl. Advocate General by referring to the provisions of
FR 22 has submitted that the same would be applicable only in respect of a
Government servant, on being appointed against another post under the Government.
Mr. Majumdar, learned counsel, in support of his such submission has referred to the
provisions of FR 2 to contend that the provisions of the Fundamental Rules shall apply
only to Government servants whose pay is debitable to the civil estimates of the State.
9. Mr. Majumdar, learned counsel has submitted that the respondent no. 1 while
serving under the Jorhat Development Authority, was being paid his salaries by the
said Authority and he was not being paid his salaries from the civil estimates. It was
further submitted that an employee of Jorhat Development Authority by no stretch of
imagination can be deemed to be a Government servant for the purpose of application
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of the provisions of FR 22, on he being appointed against a post under the
Government.
10. Mr. Majumdar, learned counsel has submitted that in terms of the provisions of
the Assam Town and Country Planning Act, 1959, more particularly, the provisions of
Section 8 (G), the staff of the Jorhat Development Authority is appointed by the
Authority itself and their salaries are being so paid by the authorities. The Government
only provides for grants to the Authority and the Authority, from the funds generated
by it as well as from the grants so received, makes provision for payment of salaries to
its employees. Mr. Majumdar, learned counsel has also submitted that the Jorhat
Development Authority was so constituted under the provisions of Section 8 (A) of the
said Act of 1959, however, mere constitution of the said Authority by a statute would
not mean that the employees of the said Authority, appointed after its constitution
would also be deemed to be Government servants for the purpose of application of
the provisions of the FR/SR.
11. Mr. Majumdar, learned counsel has submitted that the learned Single Judge while
drawing his conclusions had not appreciated the provisions of FR 22 of FR/SR as well
as FR 2 and accordingly, the conclusions drawn by the learned Single Judge has
rendered the impugned Judgment and Order dated 14.09.2023 unsustainable and the
same would call for an interference by this Court.
12. As noticed herein above, although service of notice was effected upon the
respondent no. 1 by way of Dasti mode, however, none has appeared on behalf of the
respondent no. 1 in the present proceeding.
13. We have heard the learned counsels appearing for the appellants and also
perused the materials available on record.
14. A perusal of the provisions of FR 22 would go to reveal that for application of the
same, the person concerned must be a Government servant and on being appointed
against another Government post, his pay is now required to be fixed in the post to
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which he was subsequently appointed. The provisions of FR 22 when read in
conjunction with the provisions of FR 2, it would be clear that the Fundamental Rules
apply only to Government servants whose pay is debitable to the civil estimates of the
State. In other words, the person whose salary is being fixed under FR 22 must have
held a Government post prior to his recruitment against the post wherein, his pay is
now being fixed.
15. In the case on hand, it is an admitted position that the respondent no. 1 herein,
prior to being appointed as a Junior Engineer (Civil) under the Directorate of Town and
Country Planning was not a Government servant, inasmuch as, he was holding a post
under the Jorhat Development Authority and during his tenure with the Jorhat
Development Authority, the respondent no. 1 could not have been deemed to be a
Government servant. Accordingly, on his appointment as a Junior Engineer (Civil)
under the Directorate of Town and Country Planning, Assam, the provisions of FR 22
would have no application and his pay would be mandated to be fixed at the initial
stage of the scale of pay authorized to the post of Junior Engineer (Civil) by
construing him to be a fresh entrant into Government service.
16. Having noticed the above position, the Judgment and Order dated 14.09.2023,
passed by the learned Single Judge, is being considered.
17. The learned Single Judge, in the impugned Judgment had considered the stand
of the appellants herein that for application of the provisions of FR 22 in respect of the
respondent no. 1 herein, he has to fulfill the requirement under FR 2. The learned
Single Judge, upon considering the various provisions of the Act of 1959 and also
considering the Judgment rendered by a Co-ordinate Bench of this Court in the case of
Ajit Kumar Kakoti Lecturer Vs State of Assam and Ors., order dated 14.06.2013 in
WP(C) No. 2973/2006, rejected the same and proceeded to conclude that the
provisions of FR 2 cannot be given a narrow meaning so as to exclude from its
operation employees/officers under the authorities constituted under the Act of 1959.
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The learned Single Judge, further considered a notification dated 24.05.2021, by
which the officers and staff of the Urban Development authorities were held to be
interchangeable. Basing on the said conclusions, as well as relying upon the decision
of the Writ Court in the case of Ajit Kumar Kakoti (supra), the learned Single Judge
proceeded to allow the writ petition filed by the respondent no. 1 by directing the
appellants herein, to grant to him pay protection by reckoning the substantive pay
drawn by him while working with the Jorhat Development Authority.
18. A perusal of the decision of the Writ Court in the case of Ajit Kumar Kakoti
(supra) would go to reveal that in the said case, the claim of the petitioner therein
was for grant of seniority on his appointment against a post of Lecturer in the Assam
Textile Unit, a Government Institute, by reckoning the services rendered by him before
such appointment in the Assam Syntex Ltd., a Government of Assam undertaking.
19. The learned Single Judge, upon considering the issues arising in the matter, had
proceeded to reject the prayer of the petitioner therein. However, the learned Single
Judge had noticed in the said Judgment that the Education Department had granted
pay protection under the provisions of FR 22 (A) to the petitioner therein, providing
further that the personal pay that was granted would be merged with the next pay
increment. The said position as emanating with regard to the provisions of FR 22 is
not a conclusion drawn by the learned Single Judge but, a fact so noticed existing in
the matter. However, the said position being clearly in contravention of the provisions
of FR 22, the said observation cannot be said to be a binding precedent and
accordingly, the reliance placed thereon by the learned Single Judge in the impugned
order for drawing his conclusions therein, in our considered view was clearly
erroneous.
20. A perusal of the impugned Judgment and Order dated 14.09.2023, would go to
reveal that the learned Single Judge had proceeded to allow the prayer of the
respondent no. 1/writ petitioner solely on the premises that the respondent no. 1 was
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holding a Government post before being appointed against the post of Junior Engineer
(Civil) under the Directorate of Town and Country Planning, Assam. The said
presumption drawn by the learned Single Judge being clearly erroneous, the
conclusions drawn by the learned Single Judge basing on such presumption, is also
erroneous.
21. In view of the discussions made herein above, we are of the considered view
that the learned Single Judge, while drawing his conclusions in the matter, clearly
ignored the provisions of FR 22 read with FR 2 of the FR/SR. Further, the reliance
placed by the learned Single Judge, on the decision of its Co-ordinate Bench in the
case of Ajit Kumar Kakoti (supra), in our considered view is clearly erroneous
inasmuch as, in the said case, the grant of pay protection to a person who had joined
Government service from a Government of Assam undertaking was never in issue.
However, therein, the Government had granted pay protection to the petitioner
therein, which, however, was not disputed in the proceedings of the said case by the
authorities. A erroneous application of the provisions of FR 22, in our considered view
would not mandate the application thereof in other cases in violation of the clear
language of FR 22, which mandates that the same would be applicable only in respect
of Government servants.
22. It is to be noticed that in the present case, in respect of the respondent no. 1 in
pursuance to his selection by the APSC for appointment against the post of Junior
Engineer (Civil), he was given a fresh appointment and he was not so appointed by
transfer from the post held by him with Jorhat Development Authority.
23. In view of the conclusions reached by us herein above, we are of the considered
view that the Judgment and Order dated 14.09.2023, passed by the learned Single
Judge, would not be sustainable and would mandate an interference. The Judgment
and Order dated 14.09.2023, passed by the learned Single Judge in WP(C) No.
1680/2012 stands set aside. Consequently, the writ petition filed by the respondent
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no. 1 herein, being WP(C) No. 1680/2012 also stands set aside.
24. The appeal accordingly, stands allowed.
JUDGE CHIEF JUSTICE
Miriam
