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Judgment
Heard Mr. U.K. Nair, learned senior counsel for the petitioners. Also heard Mr. K. Gogoi, learned standing counsel for the Higher Education
Department (Technical) as well as Mr. R. Borpujari, learned standing counsel for the Finance Department.
The petitioner is an association of the Scientific Assistants working in the two Engineering Colleges and nine Polytechnics under the Govt. of
Assam. The petitioner raises a grievance that in the year 1960, there existed only one cadre, i.e., Demonstrator, but thereafter the Demonstrators
were re-designated initially as Laboratory Assistant and thereafter as Scientific Assistant.
According to the petitioners, they are infact serving as Demonstrators in the aforesaid colleges and therefore, they are entitled to the pay scale
applicable to Demonstrator. Accordingly, prayers are made that the respondent authorities be directed to upgrade the post of Laboratory
Assistant/Scientific Assistants to Demonstrators with retrospective effect from the date the 4th Pay Commission of 1988 came into force. Further
prayers are made that the Scientific Assistants be granted the pay scale applicable to Demonstrators w.e.f. the date the 4th Pay Commission of 1988
came into force.
Mr. K. Gogoi, learned standing counsel for the Higher Education Department (Technical) on the other hand contends that the service condition of
the Scientific Assistants in the aforementioned colleges and institutions are governed by a set of rules being the Assam Technical Education Service
(Junior Rules) 1984 (in short Rule of 1984). The said rule framed under the proviso to Article 309 of the Constitution of India provides that the service
shall consist of classes and cadres as indicated in schedule-1 schedule-2 thereof. Schedule-2 to the rule of 1984 provides that Demonstrator in science
subject is a cadre in the pay scale of Rs.3940/- - 8425/- and the manner of recruitment is provided to be by way of promotion from Laboratory
Assistant in science subject. The scale of pay for Laboratory Assistant in science subject is provided to be Rs. 3490/- - 8100/-. By referring to the
Rule of 1984, it is the submission of Mr. K. Gogoi, learned standing counsel that although in the past it may not have been, but in the present, the
Demonstrator is a promotional post, whereas, the Scientific Assistant is a feeder post and therefore, there may not be any direction for a pay parity
between the Demonstrator and the Scientific Assistant as claimed by the writ petitioner.
Mr. U.K. Nair, learned senior counsel for the writ petitioners on the other refers to the finding of the Pay Commission Anomaly Committee relating
to the 6th Pay Commission, wherein in Clause-17, it has been recorded that the Scientific Assistants were earlier designated as Demonstrator, but in
1962, these posts were re-designated first as Laboratory Assistants and then as Scientific Assistants with the same responsibility and same nature of
duty. Accordingly, the Anomaly Committee recommended that the department may examine the demand of the petitioner and ensure them getting a
suitable grade pay on the basis of their educational qualification and service rendered.
Mr. R. Borpujari, learned standing counsel for the Finance Department on the other hand contends that when there is a conflict between the
provision of the statutory Rules framed under the proviso to Article 309 of the Constitution of India and that of some recommendation of the Anomaly
Committee, the provisions of the Rules would have to prevail. It is taken note of that the recommendation of the Anomaly Committee provided that the
Scientific Assistants were earlier designated as Demonstrator, but in the year 1962, they were re-designated initially as Laboratory Assistants and
thereafter as Scientific Assistants. When the said conclusion of the Anomaly Committee is taken into consideration, the pay scale of the Scientific
Assistant and that of Demonstrator ought to be same, as because a re-designation would mean that infact the employees are working in the same
cadre and same post and only the name of the cadre of post had been changed. The said situation may have existed in the year 1962 when the re-
designation had taken place, but after the framing of the Rules, 1984 which in fact is a Rule under the proviso to Article 309 of the Constitution of
India, where the classes and cadres specifically provides that the cadre of Demonstrator is a promotional cadre, whereas Scientific Assistant is a
feeder cadre, the view expressed by the Anomaly Committee that it is a matter of re-designation of post in the year 1962, can no longer be accepted.
The purpose of the Anomaly Committee to that effect that the Pay Commission is to prescribe the requisite pay scales against the existing class and
cadres that are available. Neither the Pay commission nor the Anomaly Committee can arrive at a conclusion that two separate classes and cadres
provided by the statutory Rules would have to be considered to be the same class and cadre and thereupon to provide the same pay scale to both of
them.
However, it would definitely be within the competence of the Pay Commission or the Anomaly Committee to make recommendation to the State
Government for making the two cadres equivalent or same with each other. But again such recommendation depend upon the acceptance by the
government authorities and the recommendation of the Anomaly Committee on its own cannot bestow any legal right to the employees to claim a
parity in pay. Having said so, it is taken note of that the cadre of Demonstrator is a promotional cadre, whereas the cadre of Scientific Assistant is a
feeder cadre. Although the Rules may have provided that the Demonstrator is a promotional cadre and the Scientific Assistant is a feeder cadre, but a
mere provision in the Rules would not be sufficient to make the Demonstrator a promotional cadre for the Scientific Assistant unless such provision of
the statutory Rules can be given its effect, meaning thereby that effective promotion can be made from the feeder cadre of Scientific Assistant to that
of Demonstrator.
When the aforesaid aspect is examined, it has been submitted that the cadre strength of Demonstrator is 3, whereas, the cadre strength of Scientific
Assistant is 57. In view of such wide variance in the cadre strength of Demonstrator and Scientific Assistant, it can not be said that the 3 posts in the
cadre of Demonstrator would be a effective promotional avenue for the 57 Scientific Assistants.
When the law requires that adequate promotional avenue should be made available in the service condition, it does not mean that the promotional
avenue should be only in the name sake which cannot be effectively implemented. Availability of promotional avenue in our view is that there must be
an effective opportunity of being promoted which can be implemented, meaning thereby that everyone in the feeder cadre at some point of time or the
other must have an opportunity of being considered for promotion. In the event, it can be concluded that because of the wide variance in the cadre
strength in the promotional cadre and the feeder cadre all the incumbents in the feeder cadre in their entire career may not get even one opportunity of
being effectively considered for promotion, it cannot be said that appropriate and adequate promotional avenue is available.
The law regarding availability of promotional avenue has been settled by the Hon’ble Supreme Court in Council of Scientific and Industrial
Research and Anr â€"vs- K.G.S. Bhatt and Anr. reported in (1989) 4 SCC 635, wherein, in paragraph-9 it has been provided as under:-
“The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This
is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any
organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to
move upward. â€
The law as regards providing the promotional avenue is apparently clear to the extent that an opportunity to advance is a mandatory requirement
and every management must provide a realistic opportunity to the employees to move upward. When the provision of the 1984 Rules is looked into,
where the cadre strength of the promotional cadre is 3 and the cadre strength of the feeder cadre is 57, this Court is of the view that although there
may have been a provision for promotional avenue, but such provision is not a realistic opportunity for the Scientific Assistant for being promoted.
In view of such conclusion, the respondent authorities are directed to do the needful, if necessary to work out the appropriate cadre strength
required in the promotional cadre as well as in the feeder cadre so as to provide the Scientific Assistants a realistic opportunity of being promoted.
In so directing this Court is also oblivious of the fact that the Anomaly Committee of the Assam 6th Pay Commission had also made a
recommendation that the pay structure of the Demonstrator and the Scientific Assistant be brought in parity. To that extent, this Court leaves to the
discretion of the state respondent authorities in the Higher Education Department (Technical) as well as in the Finance Department to take their own
decision on the acceptance of such recommendation and in the event, the respondent authorities are of the view that the pay scale of the
Demonstrators and the Scientific Assistants are required to be made same, it is for the respondent authorities to take a decision on the matter. In this
respect, Mr. R. Borpujari, learned standing counsel for the Finance Department states that as per the affidavit of the Finance Department in
paragraph-13, it is for the Administrative department to submit a proposal to the Finance Department as regards pay parity and once such proposal is
submitted by the Administrative department, which in the present case is the Higher Education Department (Technical), the Finance Department
would look into the matter.
In view of such specific stand by the Finance Department, this Court is of the view that the grievance of the petitioner can be met either by
providing them with a realistic opportunity for promotion by referring to the provision of the Rule 1984 as indicated above or in the event, the
respondent i.e. the Higher Education Department (Technical) and the Finance Department are of the view that a pay parity is required to be brought
in , it would be open for the department to take recourse to such procedure.
However, it is provided that whichever procedure the respondent intends to take, i.e. providing a realistic opportunity of promotional avenue or
going for the procedure of bringing in pay parity, the same be done within a period of six weeks from the date of receipt of the certified copy of the
order. Writ petition is accordingly disposed of.