Gauhati High Court
WP(C)/152/2020 on 13 September, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/22
GAHC010312162019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/152/2020
Sri Pankaj Kumar Sarma
S/o- Sri Ramani Kanta Sarma,
Village & P.O. Pathsala Town,
Ward No. 3, Hospital Path,
District - Barpeta, Assam, PIN- 781325.
.................. Petitioner
-Versus-
1. The State of Assam,
Represented By Chief Secretary
To The Government of Assam,
Dispur, Guwahati, Assam.
2. The Commissioner & Secretary
To The Government of Assam
Personnel [B] Department,
Dispur, Guwahati - 781006.
3. The Commissioner & Secretary
To The Government of Assam
Secretariat Administration Department,
Dispur, Guwahati - 781006.
4. The Commissioner & Secretary
To The Government of Assam
General Administration [B] Department,
Dispur, Guwahati - 781006.
5. The Commissioner & Secretary
To The Government of Assam,
Page No.# 2/22
Finance Department,
Dispur, Guwahati - 781006.
...................Respondents
Advocates :
Petitioner : Mr. A. Chamuah, Advocate
Respondent nos. 1 & 2 : Mr. D. Bora,
Junior Government Advocate, Assam
Respondent nos. 3 & 4 : Mr. P. Nayak, Standing Counsel
General Administration Department
Respondent no. 5 in : Mr. A. Chaliha, Standing Counsel,
Finance Department.
Date of Hearing and Judgment & Order : 13.09.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [Oral]
The writ petition has been instituted under Article 226 of the Constitution of India with two-fold prayers, firstly, for setting aside and quashing of an order dated 12.09.2019 passed by the respondent no. 3, that is, the Commissioner and Secretary to the Government of Assam, Secretariat Administration Department [SAD], and secondly, for a direction to the State respondents to consider the case of the petitioner for merger of the post of Data Entry Operator in which he is currently serving, with the post of Junior Administrative Assistant [Jr.A.A.] in the establishment of the General Administration Department [GAD], Assam Secretariat, Government of Assam in terms of the Resolution made in the Report of the 7th Assam Pay and Productivity Pay Commission and the Report of Page No.# 3/22 the Committee constituted to examine the Report of the 7 th Assam Pay and Productivity Pay Commission, by giving the consequential service benefits to him as per the provisions of the Assam Secretariat Subordinate Service Rules, 1963, as amended.
2. The case projected on behalf of the petitioner can be exposited as follows :
2.1. By an Office Order dated 16.07.2010 issued under the hand of the respondent no. 4 i.e. the Commissioner & Secretary to the Government of Assam [GoA], GAD, the petitioner came to be appointed as Data Entry Operator in the GAD, GoA in the Scale of Pay of Rs. 5,200/- - Rs. 20,200/- with Grade Pay of Rs. 2,500/- p.m. plus other allowances as admissible under the law. On receiving the Office Order dated 16.07.2010, the petitioner joined in the post of Data Entry Operator on 17.07.2010. It is the case of the petitioner that by various Office Orders, dated 02.08.2010, 07.12.2010, 13.11.2013, 08.02.2016 & 14.06.2017 respectively, the General Administration Department [GAD] distributed the works amongst the employees in the Department and from the said Office Orders, it is clearly discernible that the petitioner has since long been entrusted with works which are ordinarily done by a Jr.A.A. 2.2. As the petitioner was discharging the similar kind of duties as like the Jr.A.A., a member in the Assam Secretariat Subordinate Service, and was granted same pay scale like the Jr.A.A., the petitioner submitted a Memorandum before the 7th Assam Pay and Productivity Pay Commission on 05.01.2016 to examine his case and to recommend for encadrement of the post of Data Entry Page No.# 4/22 Operator in the GAD, GoA with the cadre of Jr.A.A. which post is encadred under the Assam Secretariat Subordinate Service Rules, 1963. The Memoramdum of the petitioner came to be considered by the 7 th Assam Pay and Productivity Pay Commission. In the Report submitted by the 7 th Assam Pay and Productivity Pay Commission containing its recommendations, the Commission after examination of the case of the petitioner noted that the petitioner is a graduate and was appointed in a post in the same Pay Band of the Jr.A.A. with Grade Pay of Rs.
3,000/-. With such notes, the Commission had recommended that since the petitioner had the qualification of the Jr.A.A., the single post of Data Entry Operator should be merged with the cadre of Jr.A.A. fixing his seniority in accordance with the principles to be determined by the Personnel Department, GoA.
2.3. The Committee constituted by the State Government to examine the Report of the 7th Assam Pay and Productivity Pay Commission in its Report had also agreed with the 7th Assam Pay and Productivity Pay Commission in so far as the recommendation made with regard to the case of the petitioner was concerned and had advised the GAD to take up the matter with the Personnel Department. Thereafter, the Government after careful consideration of the Report of the 7th Assam Pay and Productivity Pay Commission and the Report of the Committee thereof, had accepted the recommendations of the 7 th Assam Pay and Productivity Pay Commission with modifications as suggested by the Committee and any other modifications as have been deemed necessary and published the same by a Notification dated 17.03.2017 in the Assam Gazette. The State Government on the issue of encadrement in respect of the case of the Page No.# 5/22 petitioner had observed that the GAD shall take up the case of the petitioner with the Personnel Department.
2.4. After publication of the Gazette Notification dated 17.03.2017, the petitioner submitted his representations dated 17.11.2017 and 15.11.2017 before the respondent authorities to examine his case and to give recommendation for merger of the post of Data Entry Operator in the GAD into the cadre of Jr.A.A. The Personnel Department after consideration, had expressed in a communication dated 02.01.2018, addressed to the Secretariat Administration [Estt.] Department, to the effect that the Department had no objection to the prayer of the petitioner for absorbing him into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service in relaxation of the appropriate Rule thereby withdrawing its views made earlier on 08.11.2017, with the further advice that the Secretariat Administration [Estt.] Department should obtain approval from the Finance Department.
2.5. When the representations submitted by the petitioner were found to be not disposed of by the respondent authorities, the petitioner preferred a writ petition, W.P.[C] no. 2366/2018. By an Order dated 30.05.2018, the writ petition was disposed of with a direction to the Government in the Personnel Department to consider the representation of the petitioner in the light of the recommendation made by the 7th Assam Pay and Productivity Pay Commission and to take appropriate decision in the matter. The petitioner had also filed a contempt application, Cont. Case [C] no. 393/2018. During the pendency of the contempt application, the respondent no. 3 herein after consideration of the representation of the petitioner, disposed of the same by a Speaking Order Page No.# 6/22 dated 29.11.2018 expressing his inability to accept the recommendation of the 7th Assam Pay and Productivity Pay Commission with regard to merger of the post of Data Entry Operator, General Administration Department into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service. In view of the Speaking Order dated 29.11.2018, the contempt application, Cont. Case [C] no. 393/2018 was disposed of by an order dated 10.12.2018.
2.6. Subsequent to the Speaking Order dated 29.11.2018, the petitioner had again submitted representations/appeals before the Chief Secretary to the Government of Assam on 11.01.2019 renewing his prayer for merger of the post of Data Entry Operator in the GAD with the post of Jr.A.A. under the Assam Secretariat Subordinate Service. The representations/appeals dated 11.01.2019 had been disposed of by the impugned Order dated 12.09.2019 by the respondent no. 3. In the Order dated 12.09.2019, the respondent no. 3 had observed that after careful consideration of all the relevant aspects, the Government in Assam Secretariat Administration [Estt.] Department has taken decision to reject the prayer of merging the post of Data Entry Operator in the GAD, occupied by the petitioner, to that of Jr.A.A. in the Assam Secretariat Subordinate Service.
3. I have heard Mr. A. Chamuah, learned counsel for the petitioner; Mr. D. Bora, learned Junior Government Advocate, Assam for the respondent nos. 1 & 2; Mr. P. Nayak, learned Standing Counsel, General Administration Department [GAD] for the respondent nos. 3 & 4; and Mr. A. Chaliha, learned Standing Counsel, Finance Department for the respondent no. 5.
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4. It is relevant to mention that by a Notification dated 20.07.2021 of the Administrative Reforms and Training Department, Government of Assam, the Secretariat Administration Department [SAD] and the General Administration Department [GAD] have got merged and after such merger, the Department has been renamed as the General Administration Department [GAD].
5. Mr. Chamuah, learned counsel for the petitioner has submitted that from the various Office Orders, quoted above, it is very much evident that the petitioner though appointed as a Data Entry Operator in the GAD, has been discharging similar duties as like the Junior Administrative Assistants [Jr.A.A.s] in the Assam Secretariat Subordinate Service. By referring to the Report of the 7 th Assam Pay and Productivity Pay Commission, he has contended that the case of the petitioner received due consideration of the Commission and the Commission noting the facts that the petitioner is a graduate and was appointed in a post with Scale of Pay in Pay Band : 2 with Grade Pay of Rs. 3,000/- and has the similar qualifications as like the Jr.A.A., recommended for merger of the single post of Data Entry Operator into the cadre of Jr.A.A. in accordance with the principles to be determined by the Personnel Department. The said recommendation was further considered by the Committee constituted to examine the Report of the 7th Assam Pay and Productivity Pay Commission and advice was made to the General Administration Department [GAD] to take up the matter with the Personnel Department. The said view of the Committee was also approved by the Cabinet, as reflected from the Gazette Notification dated 17.03.2017 and, as such, there is no occasion for the respondent authorities to deny the case of the petitioner for merger by the Speaking Order dated 29.11.2018 as well as by the order dated 12.09.2019.
Page No.# 8/22 5.1. It is his further submission that the Personnel Department, Government of Assam had also written to the Secretariat Administration Department [SAD] expressing its no objection for absorption of the post of Data Entry Operator, occupied by the petitioner, into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service in relaxation of the rules. He has also referred to the endorsement of the Secretariat Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department and the views of the 7 th Assam Pay and Productivity Pay Commission, extracted in the Order dated 12.09.2019, to urge that the petitioner has been treated with discrimination considering the fact that the Data Entry Operator, GAD is a standalone post and there is no avenue for further promotion. It is only in the event the post is merged into the cadre of Jr.A.A., the petitioner would have the opportunity of promotion as creation of promotional avenue is a Constitutional obligation for the State under Article 14 and Article 16 of the Constitution of India.
5.2. In support of his such submissions, he has referred to the decision of the Hon'ble Supreme Court of India in State of Tripura and others vs. K.K. Roy, reported in [2004] 9 SCC 65. By relying upon the decision of the Hon'ble Supreme Court of India in Food Corporation of India and others vs. Parashotam Das Bansal and others, reported in [2008] 5 SCC 100, he has contended that an employee of the State Government has fundamental right to be considered for promotion and it is an obligation on the part of the State to provide opportunities of advancement for all its employee. Since there is no channel of promotion for the petitioner which has resulted in his stagnation, this Court has to consider the said aspect regarding lack of promotional avenues qua the Page No.# 9/22 Constitutional obligation of the employer State.
6. Per contra, Mr. Nayak, learned Standing Counsel, General Administration Department [GAD] has submitted that the matters of recruitment and conditions of service of Junior Administrative Assistant [Jr.A.A.] are regulated by a set of rules viz. Assam Secretariat Subordinate Service Rules, 1963, as amended ['the 1963 Rules' and/or 'the Rules, 1963', for short], framed under the proviso to Article 309 of the Constitution of India. The petitioner here is seeking a direction to merge the ex-cadre post of Data Entry Operator, occupied by him, to that of the Jr.A.A. in the Assam Secretariat Subordinate Service, which is impermissible in law. It is his further submission that the 7 th Assam Pay and Productivity Pay Commission had merely made a recommendation for merger of the post of Data Entry Operator, GAD into the cadre of Jr.A.A., subject to the ultimate decision by the Government in the concerned Department.
6.1. By referring to the Report of the Committee constituted to examine the Report of the 7th Assam Pay and Productivity Pay Commission, he has submitted that it was only an advisory of the Committee to the GAD, GoA to take up the matter with the Personnel Department. It is his contention that both the views of the 7th Assam Pay and Productivity Pay Commission and the Committee were recommendatory in nature and it is finally for the Government side to accept or not to accept such recommendations. In the case in hand, the Gazette Notification dated 17.03.2017 has showed that the Cabinet had only approved the views of the Committee and did not say that there should be merger of the post of Data Entry Operator, GAD with that of the Jr.A.A. in the Assam Secretariat Subordinate Service. In such backdrop, no exception can be taken to Page No.# 10/22 the Speaking Order dated 29.11.2018 and the Order dated 12.09.2019 impugned in this writ petition whereby the decision has been taken not to merge the post of Data Entry Operator, GAD with that of Jr.A.A. in the Assam Secretariat Subordinate Service.
6.2. In support of his submissions, Mr. Nayak has referred to the decisions of the Hon'ble Supreme Court of India in State of Haryana and others vs. Navneet Verma, reported in [2008] 2 SCC 65; Union of India vs. Pushpa Rani and others, reported in [2008] 9 SCC 242; and State of Orissa and others vs. Jagabandhu Panda, reported in [2013] 11 SCC 631.
7. I have given due consideration to the submissions of the learned counsel for the parties and also perused the materials brought on record by the parties through their pleadings. I have also gone through the decisions cited on by the learned counsel for the parties in support of their respective submissions.
8. By the Office Order dated 16.07.2010, the petitioner came to be appointed as Data Entry Operator in the GAD, GoA in the Scale of Pay of Rs. 5,200/- - Rs. 20,200/- with Grade Pay of Rs. 2,500/- p.m. plus other allowances as admissible from time to time w.e.f. the date of his joining the post. The petitioner joined service as Data Entry Operator in the GAD, GoA on 17.07.2010. Initially, the post of Data Entry Operator in the GAD was created by a letter dated 28.01.2011 for the period up to 28.02.2010 w.e.f. the date of sanction/filing up of the post. The retention of the post of Data Entry Operator was thereafter sanctioned from time to time. The various Office Orders, quoted above, go to indicate that the petitioner as the Data Entry Operator had Page No.# 11/22 discharged a number of duties in the GAD, GoA which are ordinarily entrusted to a Jr.A.A., after the same being entrusted to him by those Office Orders.
9. The issue that has been arisen for consideration in this writ petition is whether the denial to merge the post of Data Entry Operator in the GAD with that of the Jr.A.A. in the Assam Secretariat Subordinate Service is valid or not on the basis of the fact situation obtaining in the case in hand. A perusal of the Assam Secretariat Subordinate Service Rules, 1963 ['the 1963 Rules'/'the Rules,1963', for short] goes to show that it is a set of rules made by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India for regulating recruitment and conditions of service of persons appointed to the non-Gazetted Ministerial Staff of the Assam Secretariat. One of the posts in the Assam Secretariat Subordinate Service is Jr.A.A., which was earlier known as Lower Division Assistant [LDA].
10. Rule 8 of the 1963 Rules has provided that appointment in the post of LDA shall be made by :- [i] by direct recruitment on the basis of a competitive examination and an interview; [ii] by selection from among the typists of the Secretariat who are matriculates or passed the equivalent examination and have rendered at least 4 years of continuous service on the first day of the year in which selection is to be made; and [iii] by selection from among the Grade IV staff and Record Suppliers of the Secretariat who have the requisite qualification and experience, as mentioned therein.
11. In the Speaking Order dated 29.11.2018, the respondent no. 3 had expressed his inability to accept the recommendation of the 7 th Assam Pay and Page No.# 12/22 Productivity Pay Commission to merge the post of Data Entry Operator in the GAD with the post of Jr.A.A. in the Assam Secretariat Subordinate Service after careful consideration of the Assam Secretariat Subordinate Service Rules, 1963, as amended. Conspicuously, the Speaking Order dated 29.11.2018 has not been challenged by the petitioner. It is pertinent to iterate that the Speaking Order dated 29.11.2018 had been passed in deference to the direction made in the Order dated 30.05.2019 passed in the writ petition, W.P.[C] no. 2366/2018. Instead, the petitioner had gone on filing a representation on 11.01.2019. The Order dated 12.09.2019 came to be passed on the basis of the representation dated 11.01.2019 submitted by the petitioner after being aggrieved by the Speaking Order dated 29.11.2018. In the Order dated 12.09.2019, the respondent no. 3 has once again considered the views of the various Departments like Secretariat Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department as well as the views of the 7 th Assam Pay and Productivity Pay Commission, before arriving at the decision. An observation was also made therein to the effect that the Assam Secretariat Services' Association and Assam Secretariat Computer Operators' Association had registered their protests against the proposal of merger by their separate representations dated 26.06.2019 and 24.07.2019 respectively.
12. The learned counsel for the petitioner has urged that it is only on the face of such protests by the Assam Secretariat Service' Association and Assam Secretariat Computer Operators' Association, the respondent no. 3 had taken the decision not to merge the post of Data Entry Operator in the GAD, GoA with that of the Jr.A.A. in the Assam Secretariat Subordinate Service. Be that as it may and notwithstanding the same, this Court would like to consider first as to Page No.# 13/22 whether the prayers made in this writ petition by the petitioner can be granted.
13. Before going into the said aspect, reference to the decisions wherein the learned counsel for the parties have placed reliance appears apposite.
14. In K.K. Roy [supra], the respondent employee was serving in a single cadre post with no promotional avenue. His several representations for upgrading the said post or in the alternative, to provide two promotional avenues were not considered by the State of Tripura. Aggrieved thereby, he filed the writ petition seeking specific direction to the appellant State to provide at least two promotional avenues. It was in such backdrop, the Hon'ble Supreme Court had observed that the State should have created promotional avenues for the respondent employee having regard to its Constitutional obligations adumbrated in Article 14 and Article 16 of the Constitution of India. In view of its Constitutional obligations it was not open for the State to take a stand that as the respondent had accepted the terms and conditions of the offer of appointment knowing fully well that there would be no avenue for promotion, he cannot resile therefrom. The principle of estoppel or waiver should not be applied having regard to the Constitutional functions of the State. Taking note of the fact that other States in India/Union of India having regard to the recommendations made in that behalf by the Pay Commission had introduced the Scheme of Assured Career Promotion and also the fact of absence of such a scheme in the State of Tripura, the Hon'ble Supreme Court of India in K.K. Roy [supra] had expressed the view that the respondent therein was at least entitled to two higher grades in the manner indicated therein. At the same time, the Hon'ble Supreme Court had observed that the High Court in exercise of its Page No.# 14/22 jurisdiction under Article 226 of the Constitution of India could not have issued a writ in the nature of Mandamus directing the appellant State to grant a particular scale of pay.
15. In Food Corporation of India [supra], the Hon'ble Supreme Court of India has held that an employee of a State although has no fundamental right of promotion, has a right to be considered for promotion and it is necessary for the State to provide an opportunity of advancement, with promotion being a normal incidence of service. When employees are denied opportunity of promotion for long period of time on the ground that they fell within a cadre of employees excluded from promotional prospect, the Superior Court has the jurisdiction to issue necessary direction.
16. There is no denial to the propositions laid down in K.K. Roy [supra] and Food Corporation of India [supra] that there should be promotional avenues for employees and the Superior Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India can direct creation of promotional avenues in an appropriate case when there is lack of promotional avenues. But, such is not the case here. The case here is, as set up by the petitioner in the writ petition, for a direction in the nature of Mandamus for merger of the ex- cadre post of Data Entry Operator which the petitioner is holding, into the cadre of Jr.A.A., a cadre, the matters of recruitment and conditions of service of which are governed and regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended.
17. In Jagabandhu Panda [supra], it is held that an employee cannot seek a Page No.# 15/22 Mandamus for encadering an ex-cadre/temporary posts as any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength and it would amount to asking the State for encadrement of the ex-cadre/temporary posts meaning thereby asking the Government to create more posts.
18. It has been held in Pushpa Rani [supra] as a settled legal position that matters relating to creation and abolition of posts, formulation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any Constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
19. It is observed in Navneet Verma [supra] that the creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general Page No.# 16/22 public. The Court would be the least competent in the face of scanty materials to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide, legal or factual.
20. Thus, from the above decisions, the one proposition that can be readily culled out is that creation of post or merger of a particular post in a particular cadre is purely an administration decision and the same is to be based on the policy decision. This Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India cannot direct the merger of any post into any cadre, regulated and governed by a set of rules framed under the proviso to Article 309 of the Constitution of India. The rules made under the proviso to Article 309 of the Constitution of India are legislative in character and these rules are Constitutional rules, not like rules under a statute and they have the same force as a statute. The act of creation of a post or the decision of merger of a post has to be a policy decision for the Government to take and so long as it is not done, it is not open for the Court to issue direction in that regard.
21. With regard to the contention advanced on behalf of the petitioner that there is a positive recommendation by the 7 th Assam Pay and Productivity Pay Commission and a consequent approval to the said recommendation by the Committee constituted to examine the Report of the Assam Pay and Productivity Pay Commission are concerned, it is discernible from a perusal of the Report of the 7th Assam Pay and Productivity Pay Commission that the Commission while examining the case of the petitioner took note of the facts that the petitioner is a graduate and was appointed on a post with Pay Band-2 with Grade Pay of Rs. 3,000/- and has the qualification of Jr.A.A. and after taking note of those facts, Page No.# 17/22 had recommended that the single post of Data Entry Operator in the GAD should be merged with the cadre of Jr.A.A. fixing the seniority in accordance with the principles to be determined by the Personnel Department, Government of Assam. After the 7th Assam Pay and Productivity Pay Commission prepared its Report on 18.11.2016, the Government of Assam constituted a Committee vide a Notification dated 13.12.2016 to examine the Report of the 7 th Assam Pay and Productivity Pay Commission and to concretize the points and submit them to the Government. The Committee submitted its Report on 27.01.2017. The Government after consideration of the Report of the 7 th Assam Pay and Productivity Pay Commission and the Committee thereof, had accepted some of the Recommendations of the 7th Assam Pay and Productivity Pay Commission, as modified and suggested by the Committee and after other modifications as found necessary and made its decision thereof which was published in the Gazette Notification dated 17.03.2017. In so far as the recommendation made by the 7th Assam Pay and Productivity Pay Commission and the Committee in relation to the case of the petitioner is concerned, the Gazette Notification had recorded that the GAD, GoA shall take up the case of the petitioner with the Personnel Department. Thus, it is evident therefrom that no finality had been attached to the aspect regarding merger of the post of Data Entry Operator in the GAD, which the petitioner is holding, into the cadre that Jr.A.A., whose recruitment and conditions of service are regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended. The decision regarding such merger was made subject to the decision of the Government.
22. In so far as the endorsements of different Departments like Secretariat Page No.# 18/22 Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department and the views of the 7th Assam Pay and Productivity Pay Commission, excerpts of which are found reflected in the Order dated 12.09.2019, are concerned, this Court is of the view that such inter- departmental communications are only observations made in the process of consideration for the final decision and cannot be relied upon by the petitioner as a basis to claim any right. The Hon'ble Supreme Court of India in its decision in State of Uttaranchal vs. Sunil Kumar Vaish , reported in [2011] 8 SCC 670, has held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. It has further been held as follows :-
"23. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In the other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its Page No.# 19/22 opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. [See : State of Punjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493; Bachhittar Singh vs. State of Punjab, AIR 1963 SC 395; State of Bihar vs. Kripalu Shankar, [1987] 3 SCC 34; Rajasthan Housing Board vs. Shri Kishan, [1993] 2 SCC 84; Sethi Auto Service Station vs. DDA, [2009] 1 SCC 180; and Shanti Sports Club vs. Union of India, [2009] 15 SCC 705]."
23. In view of such position of law with regard to inter-departmental communications, this Court is of the considered view that the various observations by different Departments made in the process of considering the case of the petitioner for merger of the post of Data Entry Operator into the cadre of Jr.A.A. cannot be made the basis of any claim by the petitioner for a direction in the nature of Mandamus for the merger of the post of Data Entry Operator in the GAD which is albeit an ex-cadre post, into the cadre of Jr.A.A., governed and regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended, as there is no decision of the Government sanctified and acted upon by issuing an order under Article 166 of the Constitution of India.
Page No.# 20/22
24. It is settled position that merger of a post into a cadre or one cadre into another cadre is an executive act and it is entirely within the administrative domain of the State Government. It is for the State to consider whether a particular post is to be merged into a cadre or a particular cadre is to be merged into another cadre or not. The Pay Commission like the 7 th Assam Pay and Productivity Pay Commission is constituted by the Government for a number of purposes including evaluation of the duties and functions of the employees. The Pay Commission is considered to be an expert body and as such expert body, it makes recommendations to the State Government. It can recommend for merger of a post or a cadre into another cadre. It is for the State Government to accept or not to accept the recommendations in toto or only some of the recommendations made by the Pay Commission, with modifications or without modifications. So long as any of the recommendations of the Pay Commission is not accepted by the State Government by an order made and executed in the manner prescribed in Article 166 of the Constitution of India, such recommendation cannot be treated as an order on behalf of the State Government. It has been observed by the Hon'ble Supreme Court of India in State of West Bengal vs. Subhas Kumar Chatterjee and others, reported in [2010] 11 SCC 694, that even the recommendations of the Pay Commissions are subject to acceptance or rejection, the courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. As has been noted above, the Assam Secretariat Subordinate Service Rules, 1963, as amended, are in the nature of Constitutional rules. The State Government by the impugned Order Page No.# 21/22 dated 12.09.2019 has reiterated its earlier decision made by the Speaking Order dated 29.11.2018, thereby, deciding not to merge the post of Data Entry Operator in the GAD, GoA which the petitioner is holding, into the cadre of Jr.A.A., a cadre forming part of the Assam Secretariat Subordinate Service, whose recruitment and conditions of service are governed and regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended. Any direction in the nature of mandamus to merge the post of Data Entry Operator in the GAD, GoA into the cadre of Jr.A.A., would amount to a direction to make changes in the Assam Secretariat Subordinate Service Rules, 1963, as amended, which is like a direction to make law and such a direction is not ordinarily issued.
25. It is also submitted by the learned counsel for the petitioner that after serving in the post of Data Entry Operator in the GAD pursuant to the Office Order dated 16.07.2010, the petitioner has not been given any further benefit in the form of revision of pay or any advancement of career by creating any promotional avenues. It is further submitted by him that the petitioner has not been granted the benefit of assured career progression. Since the case set up by the petitioner in this writ petition is not on the aforesaid aspects, this Court is not inclined to make any observation in this regard and it is left for the petitioner to take recourse to appropriate remedy as may be permitted under the law on the aforesaid aspects. It is, however, stated for clarity that any of the observations made hereinabove are not to be construed as observations on the aspects mentioned in this paragraph, as the observations made herein are for the purpose of deciding the issues raised in this writ petition for consideration.
Page No.# 22/22
26. In the light of the discussion made above and for the reasons assigned therein, this Court has found no good and sufficient reason for arriving at a view that the impugned order dated 12.09.2019 has suffered from any illegality and is of the considered view that the prayers made by the petitioner in this writ petition cannot be acceded to. As a consequence, the writ petition is found bereft of any merit and the same is liable to be dismissed. It is accordingly dismissed. There shall, however, be no order as to cost.
JUDGE Comparing Assistant