Pankaj Prakash Deka vs State Of Assam And 3 Ors

Heard Mr. P. Katakey, the learned counsel for the petitioner and Mr. M.R. Adhikari, the learned State counsel appearing for the respondent No. 1.

Also heard Mr. P.J. Saikia, the learned counsel for the respondent No. 2, Mr. P. Bora, the learned counsel for the respondent No. 3 and Mr. D. Das,

the learned senior counsel assisted by Mr. R. Sharma for the respondent No. 4.

The claim of the petitioner in the instant case is for re-fixation of his salary at a higher scale in the post of Senior Scientific Officer with effect from

the date of his completion of 5 years of service in the said post and as per the Draft Service Regulation, 1996.

The case of the petitioner in brief is that he joined the post of Scientific Officer on being appointed as such vide Office Order dated 12.12.1994

(Annexure IV) in the pay scale of Rs. 2275-4450/- per month with other allowances as admissible under the rules. He was thereafter promoted to the

post of Senior Scientific Officer in terms of the Governing Body Meeting Minutes dated 07.04.2005 and he was given the pay scale of Rs. 8100-

13025/- per month.

The further case of the petitioner is that before completion of two years of service, the respondent No. 2 vide Office Order dated 25.03.2003 re-

fixed the pay scale of Deputy Administrative Officer and Deputy Finance and Accounts Officer at Rs. 8100-13025/- instead of Rs. 5725-11825/-. The

two officers would however draw salary as per re-fixation w.e.f. 01.12.2002. The Under Secretary to the Government of Assam, Science and

Technology Department vide letter dated 02.11.2010 directed the respondent No. 2 to furnish a copy of the personal file of the Deputy Administrative

Officer and Deputy Finance and Accounts Officer alongwith the Service Book for approval of the Government. The same was required to be

examined by the Commissioner & Secretary of the Department. But the result of such verification is not known to the petitioner.

The further case of the petitioner is that one Sh. B.P Duarah, Reader of the Department of Geological Science sought information through RTI

regarding the re-fixation of salary of the aforesaid two Officers without the approval of the Government and in the reply dated 22.05.2009, the

respondent No. 3 who was holding the post of Information Officer stated that the pay scale was wrongly mentioned in the advertisement. They were

not promoted but they were rather given the actual scale of pay as per the 7th Governing Body Meeting as per the Draft Service Regulation, 1996.

According to the petitioner, the Draft Service Regulation, 2010 was notified on 12.02.2013 and as per Schedule-II of the said notification, the pay

scale of Deputy Administrative Officer as well as Deputy Finance and Accounts Officer is Rs. 8100-13025/-. Because of the anomaly, the petitioner

filed a representation before the respondent No. 3 on 09.12.2014 stating that the re-fixation of the pay scale of the two Officers vide Order dated

25.03.2003 was without the approval of the Governing Body but in so far as he was concerned, he joined his service in a similar pay scale given to

respondent Nos. 3 and 4 i.e. Rs. 5725-11825/- per month. But he was given promotion after completion of more than 11 years of service with the

approval of the Governing Body and therefore requested for fixation of his pay at par with the post of Deputy Finance and Accounts Officer.

As the said representation was not considered, the petitioner again submitted another representation on 05.05.2015 stating that the pay scale of the

Deputy Administrative Officer and Deputy Finance and Accounts Officer was fixed on the basis of Draft Service Regulation, 1996 by the 6th

Governing Body Meeting. That promotion of 23 employees were made with prior approval of the Governing Body. However, in so far as the

respondent Nos. 3 and 4 are concerned, no approval was taken for re-fixation of their pay as per the Draft Service Regulation, 1996.

It is also the stand of the petitioner that the pay scale of respondent Nos. 3 and 4 was revised from Rs. 5725-11825/- to Rs. 8100-13025/- on the

basis of Draft Service Rules, 1996. But as per the advertisement, they are entitled to pre-revised pay scale of Rs. 2275-4450/-. If the private

respondents are given higher scale, the petitioner as Scientific Officer is also entitled to be promoted as Senior Scientific Officer after 5 years of

regular service in the pay scale of Rs. 8100-13025/-. As such, he is entitled to draw the pay scale as Senior Scientific Officer w.e.f. 14. 12.1999. The

representation made by the petitioner in this regard having not been considered, the petitioner is before this Court. The petitioner thus prays that the

respondents authority be directed to grant him the pay scale of Senior Scientific Officer i.e. Rs. 8100-13025/- w.e.f. 12.12.1999 as per the Draft

Service Regulation, 1996 and/ or declare the Order dated 25.03.2003 (Annexure VI) by which the pay scale of Deputy Administrative Officer and

Deputy Finance and Accounts Officer were re-fixed at Rs. 8100-13025/- per month as illegal.

The Director, Science Technology and Environment Council (respondent No. 2) has filed an affidavit-in-opposition on 12.07.2016 contending inter

alia that as far as possible, the Department/ Directorate has been following the Draft Service Regulation, 1996 until the Assam Science Technology &

Environment Council Service Regulation, 2010 (ASTEC Regulation, 2010) came into force. Whenever Draft Service Regulation, 1996 was silent, the

Department/ Directorate followed the State Government Rules applicable to the case. The pay scale in the post of Deputy Administrative Officer and

Deputy Finance and Accounts Officer under the Draft Service Rules, 1996 was Rs. 2975-4750/- (pre-revised) and the 7th Governing Body Meeting

had also created the said post in the given scale of pay. The pay scale for the two posts were wrongly mentioned in the advertisement. The

respondent No. 3 submitted application before the then Director informing the differences in the pay scale received by him and the pay scale

mentioned in the Draft Service Regulation, 1996 and the pay scale approved by the Governing body and as such, requested for re-fixation of the pay.

On receiving the application, the Director made detail enquiry and found the grievance of the incumbent to be genuine and as such, corrected the pay

scale of both the Officers to Rs. 8100-13025/-(post-revised). In the meantime, the respondent No. 4 had also submitted a similar application and vide

Order dated 25.03.2003, the then Director had corrected both the pay scale of the respondent Nos. 3 and 4. As the corrected pay scale of both the

post is already mentioned in the Draft Service Regulation, 1996 and also approved by the 7th Governing Body Meeting, there is no requirement for

further approval of the Governing Body for granting the said scale. The scale of pay mentioned in the advertisement and the initial scale of pay

granted to the respondent Nos. 3 and 4 was without any justification or basis. Therefore, the pay scale granted to the respondent Nos. 3 and 4 were

not re-fixation of pay but correction of the pay scale as was entitled to them.

The respondent No. 2 contends that in reference to the Government letter dated 02.11.2010, the then Director vide letter dated 15.11.2010

forwarded the required documents alongwith the information sheet and thereafter, the Commissioner and Secretary to the Government of Assam,

Finance Department in presence of the respondent No. 2 discussed the matter and a favourable view was taken. Thereafter, the 12th Governing Body

approved the ASTEC Regulation, 2010 on 07.01.2013 with the approval of the State Government. Therefore, according to the respondent No. 2, the

pay scale of the respondent Nos. 3 and 4 in the advertisement as Rs. 2275-4450/- is erroneous and under the Draft Service Regulation, 1996, the

minimum length of service in the post of Scientific Officer to be rendered for promotion as Senior Scientific Officer is 7 years and accordingly, the

petitioner since the day of his promotion has been granted the pay scale of Rs. 8100-13025/-. The DPC sat for the first time after the appointment of

the petitioner in the year 1898 and the recommendation was effected in the year 2002 and thereafter, as per the resolution of the 9th General Body

Meeting held on 07.04.2005, the writ petitioner was upgradated and promoted to the post of Senior Scientific Officer. No illegality or inequality has

been met with the petitioner as alleged by him. In fact, the pre-revised scale of pay of Rs. 2275-4450/- is the pay scale of Assistant Administrative

Officer and Assistant Finance Officer and which is lower in rank than the post of Deputy Administrative Officer and Deputy Finance and Accounts

Officer.

The petitioner against the affidavit-in-opposition of the respondent No. 2 filed a reply affidavit on 25.11.2016 stating that the writ petition was filed

for non-consideration of his case for payment of pay scale of Senior Scientific Officer w.e.f 14.12.2001 as per the Draft Service Regulation, 1996

while similarly situated person such as the respondent Nos. 4 and 5 holding the post of Deputy Administrative Officer and Deputy Finance and

Accounts Officer were given the benefit of re-fixation of pay as per the Draft Service Regulation though they are not entitled. The petitioner contends

that initially in the 1st Meeting of the Governing Body held on 05.01.1987, approval for creation of administrative staff of the Council was given which

included one post of Administrative Officer in the rank of Under Secretary, Deputy Secretary, one post of Accountant-cum-Cashier, two posts of

Upper Division Assistant, four posts of Lower Division Assistant, three posts of Steno and four Grade IV posts. However, in the Governing Body

meeting held on 07.07.1997, the proposal for creation of one post of Deputy Administrative Officer and one post of Deputy Finance and Accounts

Officer, in lieu of the existing post of Administrative Officer and Accounts Officer respectively was approved. Therefore, in the initial advertisement,

the pay scale of Deputy Finance and Accounts Officer was Rs. 2275-4450/- and likewise, in case of the post of Deputy Administrative Officer as

well. However, vide Order dated 25.03.2003, the pay scale of both the Officers was fixed at Rs. 8100-13025/- instead of Rs. 5725-11825/-. In fact,

the scale of Rs. 8100-13025/- is that of the post of Under Secretary and held to be equivalent to the post of Administrative Officer as was indicated in

the 1st Meeting of the Governing Body held on 05.01.1987. Posts were created in the 7th Governing Body Meeting held on 07.07.1997 but no pay

scale was fixed. Therefore, it cannot be said that the pay scale mentioned in the advertisement for the post of Deputy Administrative Officer, Deputy

Finance and Accounts Officer were wrongly mentioned. Moreover, the pay scale was not approved by any Governing Body Meeting and it was

wrongly mentioned in the Draft Service Regulation, 1996. In other words, since the scale of Rs. 2975-4750/- (pre-revised) is applicable only to

Administrative Officer and Accounts Officer while the respondent Nos. 3 and 4 were holding the post of Deputy Administrative Officer and Deputy

Finance and Accounts Officer and as such, they are not entitled for the pay of Administrative Officer/ Accounts Officer. The fixation of pay of the

respondent Nos. 3 and 4 are therefore illegal and without any authority of law and in violation of the resolution passed by the Governing Body.

The respondent No. 4 has also filed an affidavit-in-opposition on 17. 05.2017. Mr. D. Das, the learned senior counsel appearing for the said

respondent by referring to the affidavit-in-opposition submits that the respondent Department has been following the Draft Service Regulation, 1996

for all practical purpose. As per the Regulation, the pay scale attached to the post of Deputy Finance and Accounts Officer was Rs. 2975-4750/-(Rs.

8100-13025/-) (revised). The Regulation also provided the pay scale in the post of Scientific Officer to be Rs. 2275-4450/-(Rs. 5725-11825/-)

(revised). The post of Deputy Finance and Accounts Officer was created in the 7th General Body Meeting on the basis of Draft Service Regulation,

1996, which was taken up as Agenda Item No. 5. The respondent Department after obtaining the approval of the General Body forwarded a

requisition to the Government exchange for appointment to the post of Deputy Finance and Accounts Officer on 25.07.1997 but when the said post

was advertised, due to typographical error, the pay scale of Deputy Finance and Accounts Officer was wrongly mentioned as Rs. 2275-4450/- (pre-

revised) which otherwise ought to have been Rs. 2975-4750/- as per the Draft Service Regulation, 1996. As per the Draft Service Regulation, the pay

scale of Assistant Administrative Officer is Rs. 2275-4450/- which is lower in rank/ grade, qualification, experience, pay scale than the post of Deputy

Finance and Accounts Officer. However, the respondent No. 4 was getting the pay scale as per the advertisement and at a lower scale which

eventually came to be rectified vide letter dated 25.03.2003 by giving the pay scale entitled to the respondent No. 4 i.e. Rs. 8100-13025/-(revised).

Later, the respondent No. 4 alongwith the petitioner have been allowed to draw pay allowances in the next higher pay scale of Finance and Accounts

Officer vide Order dated 24.08.2015 in the pay scale of Rs. 12,000-40,000/-with Grade Pay.

The learned senior counsel submits that the petitioner as Scientific Officer was getting the pay scale of Rs. 2275-4450/- which was later on

revised to Rs. 5725-11825/-. Subsequently, the petitioner was upgradated to the pay scale of Senior Scientific Officer with the pay scale of Rs. 8100-

13025/- vide Order dated 17.05.2005. Thereafter, the petitioner as Principal Scientific Officer is drawing the pay scale of Rs. 12000-40000/- with

Grade Pay vide Order dated 24.08.2015. The learned senior counsel therefore submits that it was only due to error committed in the advertisement

that the respondent No. 4 came to be given a lower scale of Rs. 2975-4750/-and when the mistake was detected, the respondent authority upon due

consideration made necessary rectification as per their entitlement of the respondent No. 4. As such, the writ petition being devoid of merit, the same

should be dismissed.

I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record.

From the above projection made by the parties, it is the case of the petitioner that the pay scale of the respondent Nos. 3 and 4 had been re-fixed

and enhanced to a higher scale although all of them initially appointed in the same pay scale of Rs. 2275-4450/-. The pay of the private respondents

were further enhanced after the Draft Service Regulation, 2010 was notified i.e. in the pay scale of Rs. 8100-13025/- for the post of Deputy

Administrative Officer as well as Deputy Finance and Accounts Officer. If such pay re-fixation could be granted to the respondent Nos. 3 and 4

despite the post to which they were initially appointed being provided with the pay scale of Rs. 2275-4450/-, the petitioner should also be granted a

similar scale by promoting him as Senior Scientific Officer after 5 years of regular service as Scientific Officer. It is however the case of the official

respondents that in the advertisement, the scale of pay in the post of Deputy Administrative Officer/ Deputy Finance and Accounts Officer were

wrongly mentioned. In fact, as per the Draft Service Regulation, 1996, the pre-revised pay scale was Rs. 2975-4750/- Therefore, when the matter

was taken up before the 7th Governing Body Meeting, the proposal to give corrected pay scale to the private respondents was approved and

therefore, the pay scale of the private respondents were accordingly re-fixed by Office Order dated 25.03.2003. Further, under the Draft Service

Regulation, 1996, the minimum length of service for promotion from the post of Scientific Officer to the post of Senior Scientific Officer is 7 years.

A perusal of the Draft Service Regulation, 1996 shows that from the post of Scientific Officer, promotion can be made to the post of Senior

Scientific Officer upon completion of 7 years as Scientific Officer. The pay scale attached to the promotional post is Rs. 2975-4750/-. It may further

be seen that the Pay Scale attached to the post of Scientific Officer is Rs. 2275-4450. As for the post of Deputy Administrative Officer and Deputy

Finance and Accounts Officer, the Pay Scale attached to the post is Rs. 2975-4750/-. After the pay scale got revised, the standard conversion of the

pay scale Rs. 2975-4750/- became Rs. 8100-13025/- while that conversion for the pay scale Rs. 2275-4450/- became Rs. 5725-11825/-. As such, the

petitioner came to enjoy the pay scale of Rs. 8100-13025/- on being promoted to the post of Senior Scientific Officer. The claim of the petitioner

otherwise w.e.f. 12.12.1999 having regard to the Draft Service Regulation, 1996 which prescribes 7 years of service in the lower grade, therefore,

cannot be accepted. Likewise, the claim of the petitioner for setting aside the re-fixation of pay scale of the private respondents in view of the pay

scale of Deputy Administrative Officer and Deputy Finance and Accounts Officer being clearly shown in the Draft Service Regulation, 1996, also has

no force. The advertisement issued for the said posts showing the pay scale as Rs.2275-4450/- was admittedly erroneous and therefore, necessary

correction was made accordingly at a subsequent stage. As for the initial pay scale attached to the post of Scientific Officer being Rs. 2275-4450/-

and which was correctly given to the petitioner, there is no question of re-fixation of his salary like those of the private respondents as there was no

errors in the pay scale.

Under the facts and circumstances, I do not find any merit in the writ petition and the same is accordingly dismissed. No cost.