Gauhati High Court
Girin Chandra Das vs The State Of Assam And 4 Ors on 28 July, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/18
GAHC010159262018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No: WP(C)/4835/2018
GIRIN CHANDRA DAS
S/O. SRI DEBEN CHANDRA DAS
R/O. VILLAGE- KAHILIPARA
P.O. KAHILIPARA
P.S. DISPUR
DIST. KAMRUP(M)
ASSAM
PIN 781019.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY
FINANCE DEPTT.
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM
PHE DEPTT.
DISPUR
GUWAHATI- 781006.
3:THE DEPUTY SECRETARY
FINANCE (ESTT.-A) DEPTT.
DISPUR
GUWAHATI- 781006
4:THE CHIEF ENGINEER
PHE
ASSAM
HENGRABARI
GUWAHATI- 781036.
5:THE ADDL. CHIEF ENGINEER
Page No.# 2/18
(PHE) BARAK VALLEY ZONE
SILCHAR- 781014
------------
Advocate for : MR. S CHAUHAN Advocate for : SC FINANCE DEPTT. appearing for THE STATE OF ASSAM AND 4 ORS.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. S. Chauhan, Advocate.
For State respondent Nos.1 and 5 : Mr. R. Borpujari, standing counsel.
For respondent Nos.2 to 4 : Mr. R. Bora, standing counsel
Date of hearing : 06.06.2022
Date of judgment : 28.07.2022
JUDGMENT AND ORDER
(CAV)
Heard Mr. S. Chauhan, learned counsel for the petitioner. Also heard Mr. R. Borpujari, learned standing counsel for the Finance Department, representing respondent nos.1 and 5. Also heard Mr. R. Bora, learned counsel appearing on behalf of Mr. P.N. Goswami, learned Standing counsel for the Public Health Engineering Department, representing respondent nos.2 to 4.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has claimed for the following reliefs:
(i) Restore the Order No.PHE/209/Estt./98/1017 dt. 09/04/1999 passed by Chief Engineer (PHE).
(ii) Set aside the order dt. PHED-227/98/41 dt. 23/11/2007 passed by the Finance Department.
(iii) Set aside the order No.PHE-209/Estt./98 dt. 31/05/2013 passed by the Chief Engineer (PHE), Hengrabari.
(iv) Set aside the Office Order No.54 dt. 18/01/2014 passed by the Additional Chief Page No.# 3/18 Engineer (PHE), Barak Valley Zone.
(v) Set aside the order no. 55 dt. 18/01/2014 passed by the Additional Chief Engineer (PHE), Barak Valley Zone, Silchar;
(vi) Set aside the order no. 57 dt. 24/02/2014 passed by the Additional Chief Engineer (PHE), Barak Valley Zone, Silchar; and also issue writ of Mandamus directing the respondents to refund the recovered amount Rs.6,27,082/- and give the benefit of equalization of pay to the petitioner as given to Smt. Lily Hrangkhal by virtue of judgment dated 20/04/2015 passed in W.P.(C) No. 597/2008 and by order dt. 25/07/2017 of Finance Department, order dt. 03/08/2017 by the PHE Department and/or pass such other order(s) as Your Lordships may deem fit and proper."
3. The case of the petitioner is that he belongs to Scheduled Caste community. By an order dated 10.06.1981, issued by the Executive Engineer (PHE), Sibsagar Division, the petitioner was temporarily appointed as Work- charged Sectional Assistant under S.D.O. Public Health Engineering (PHE for short), Sonari, and that his service was extended from time to time. Thereafter, by an order dated 04.07.1996, issued by the Additional Chief Engineer, PHE, Assam, the petitioner was appointed as Lower Division Assistant (LDA for short) on regular basis and posted in the office of the Addl. Chief Engineer, PHE, Barak Valley & Hills Zone, Haflong. Thereafter, on promotion, the petitioner had joined the post of Upper Division Assistant in the office of the Additional Chief Engineer, PHE, Hills & Barak Valley Zone, Haflong, where he joined on 07.10.1996.
4. It is projected by the petitioner that one Jiban Chandra Nath, who was general category candidate, was appointed as a Typist in the establishment of the PHE Department. However, in the year 1981, the post of Typist and the post of LDA were amalgamated and re-designated as Typist-cum- LDA, and on 30.03.1998, he was promoted from the post of LDA to the post of Page No.# 4/18 UDA. Likewise, one Smt. Lily Hrangkhal, who belonged to Scheduled Tribes (Hills), was promoted to the post of UDA on 05.09.1991. Thus, as the petitioner had joined as UDA on 07.10.1996 on promotion, the petitioner was junior to Smt. Lily Hrangkhal, but senior to the said Jiban Chandra Nath, who was drawing higher scale of pay due to long service in the feeder post of Typist-cum- LDA and as on 01.03.1998, after considering increments, his salary was fixed at Rs.6,075/-.
5. It is projected that by virtue of 77 th amendment to the Constitution of India, the Government was empowered to make provisions for reservation in promotion vide Article 16 (4A). Thereafter, by 82 nd amendment to the Constitution of India, Article 335 was amended. Thereafter, by 85 th amendment to the Constitution of India, Article 16(4A) was amended. Accordingly, the Government was empowered to make provisions for reservation in matters of promotion, with consequential seniority.
6. Subsequently, by an order no. PHE-209/Esst/98/1017 dated 09.04.1999, the pay of Smt. Lily Hrangkhol, Girin Chandra Das (petitioner) and Jiban Chandra Nath was stepped-up with effect from 01.01.1996 to equalize the pay to their juniors as per provisions of Rule 10 of Revision of Pay Rules, 1998. Thereafter, the Govt. of Assam, Personnel (B) Department, issued an Office Memorandum no. ABP.59/96/163 dated 12.03.2002, which is extracted below:
"No. ABP.59/96/163 Dated Dispur, the 12th March, 2002 Office Memorandum Subject: Fixation of Seniority of Reserved Candidates vis-à-vis Page No.# 5/18 General Candidates in Promotional Posts Consequent upon the amendment of Article 16(4A) of the Constitution of India by the Constitution (Eighty Fifth) Amendment Act 2001 it has been decided that the following principle of fixation of seniority of reserved candidates vis-à-vis general candidates in promotional posts shall be followed:-
Scheduled Castes/ Scheduled Tribes Government servants shall on their promotion by virtue of rule of reservation/ roster be entitled to consequential seniority also and the above decision shall be effective from 17 th June, 1995.
On the basis of the revised seniority, consequential benefits like promotion, pay, pension etc. shall be allowed to the concerned Scheduled Castes/ Scheduled Tribes Government servants (without arrears by applying principle of no work no pay). For this purpose, senior Scheduled Castes/ Scheduled Tribes Government servants may be granted promotion with effect from the date of promotion of their immediate junior General/ Other Backward Classes Government servants. Such promotion of Scheduled Castes/ Scheduled Tribes Government servant may be given with the approval of this appointing authority of the post to which the Government servant is to be promoted at each level after following normal procedure of Departmental Selection Committee and with the approval of Assam Public Service Commission.
Except seniority, other consequential benefits like promotion, pay, etc. (including retiral benefits in respect of those who have already retired), allowed to General/ Other Backward Classes Government servant by virtue of implementation of Office Memorandum No.ABP.59/96/17 dated 12.06.96 and/or in pursuance of the direction of Assam Administrative Tribunal/ Court should be protected as personal to them. The instructions contained in this Department's Office Memorandum No.ABP.59/96/17 dated 12-6-96 stand withdrawn with effect from 12-6-96 itself and seniority of Government servant determined in the light of Office Memorandum dated 12-6-96 shall be revised as if that Office Memorandum was never issued.
sd/- illegible (J.P. Saikia) Commissioner & Secretary to the Govt. of Assam, Personnel Department"
Page No.# 6/18
7. However, it may be mentioned that the Under Secretary to the Government of Assam, PHE Department, vide communication dated 23.11.2007, had informed the Chief Engineer, PHE, Assam that the Finance Department did not agree with the proposal for equalization of pay of Smt. Lily Hrangkhal with that of Jiban Chandra Nath, which was made by the Chief Engineer, PHE vide letter no. PHE-209/Esst/98/36570 dated 09.12.2004, and the same was regretted by the Finance Department with the following views:
"Your endorsement above.
Finance Deptt's OM No. FEG.25/87/132 dated 10.09.1992 was issued for the purpose of guiding the principles to be followed while disposing the cases of equalization of pay of senior Govt. servants but not restoration of seniority. So, the justification given by the PHE Deptt. is not agreeable to Finance Deptt. and hence regretted."
8. Consequently, the Chief Engineer, PHE, Assam vide letter under memo no. PHE-209/Estt/98 5977-79 dated 31.05.2013, had cancelled the order dated 09.04.1999, by which equalization of pay was granted to the petitioner and accordingly, his basic pay was with effect from 01.10.1996 was fixed at Rs.4,720/-. Accordingly, the amount which was overdrawn by the petitioner, was also ordered to be recovered in 30 installments. By another order no. 54 of 2013-14 dated 18.01.2014, the basic pay of the petitioner was fixed at Rs.4,480/- with effect from 01.12.1996 and that the date of next increment would be on 01.12.1997. By another order no. 55 dated 18.01.2014, the basic pay of the petitioner was re-fixed at Rs.4600/- per month with effect from 01.03.1998 and at Rs.17,590/- per month as on 01.07.2013. By an order no. 57 dated 24.02.2014, the petitioner was intimated about the quantum of installments by which the excess payment made to him would be recovered.
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9. Similar cancellation was also ordered in respect of Smt. Lily Hrangkhal. However, she had challenged the same before this Court by filing WP(C) 597/2008, and this Court by judgment and order dated 20.04.2015, had allowed her consequential seniority and equalization of pay with that of Jiban Chandra Nath. It is projected that the said judgment had attained finality. Pursuant to the said judgment, the Finance (Estt-A) Department vide letter under memo no. FEG.23/2015/260 dated 25.07.2017, informed the Secretary to the Govt. of Assam, PHE Department regarding their concurrence towards the pay equalization in respect of Smt. Lily Hrangkhal. The Under Secretary to the Govt. of Assam, Public Health Engineering Department vide letter dated 03.08.2017, forwarded the Finance Department's letter dated 25.07.2017 to the Chief Engineer (PHE), Water, and requested the said authority to take action. Accordingly, the Chief Engineer (PHE), Water, Assam vide letter dated 24.10.2017, directed the Additional Chief Engineer (PHE) for taking necessary action regarding stepping-up of pay of Smt. Lily Hrangkhal. The petitioner has projected that on 24.10.2017, he had submitted a representation for equalization of his pay at par with Jiban Chandra Nath.
10. Thereafter, as the petitioner had superannuated on 28.02.2018, he had submitted his representation dated 06.04.2013 to the Chief Engineer, PHE for reconsidering of his case for equalization of pay, but the same remained unattended to.
11. As on 28.02.2018, the date when the petitioner had superannuated, the respondent authorities had recovered a sum of Rs.5000/- from his monthly salary and the balance overdrawn amount of Rs.6,27,082/-
Page No.# 8/18 was ordered to be recovered from gratuity and leave encashment benefit.
12. The learned counsel for the petitioner, by referring to the hereinabove referred OM dated 12.03.2002 by which fixation of seniority of reserved candidates vis-à-vis general candidates in promotional post was challenged before this Court by filing a writ petition, being the case of Bhogeswar Saikia & Ors. v. State of Assam & Ors., 2010 (3) GLT 377, which was dismissed. The said judgment was put to challenge by way of an intra-court appeal, which was filed with a delay of 279 days. However, the Division Bench of this Court, by order dated 12.05.2017, had dismissed the application for condonation of delay, being IA(C) 1081/2017. Consequently, WA under Sl. No. 270874 was also dismissed on ground of delay.
13. Accordingly, it was submitted that as the judgment dated 20.04.2015, passed by this Court in the case of Smt. Lily Hrangkhal [WP(C) 597/2008] had attained finality, the petitioner ought not to be denied similar relief on the ground of parity.
14. Per contra, the learned standing counsel for the Finance Department, by extensively referring to the affidavit-in-opposition filed for and on behalf of the respondent no.5 in WP(C) 4924/2018, has submitted that as per OM No.FEG.25/87/132 dated 10.09.1997, equalization of pay and/or stepping-up of pay of senior Government employee with that of his junior was admissible on the following cases only, viz., (i) both the senior and junior Government employees involved with the equalization/stepping-up of pay should be recruited to the same cadre post initially and should be promoted from the same source; and (ii) when disparity is attributable directly due to Page No.# 9/18 fixation of pay under FR-22 (I)(a)(1) or under any other provision of the Fundamental Rules and Subsidiary Rules ("FR & SR" for short).
15. It was also submitted that as per the said OM dated 10.09.1997, when a junior Govt. servant is promoted to a higher post prior to his senior as per special Rules/ orders, he cannot claim equalization of pay with his junior who was in fact senior to him in the base post. In the said context it was submitted that as per the records (i) the petitioner was initially appointed as Work Charged Sectional Assistant by order dated 10.06.1981, and he was promoted to the post of LDA by order dated 04.07.1996, but Sri Jiban Chandra Nath was initially appointed to the post of Typist on 30.12.1978, and the said post was merged with the post of LDA with a new nomenclature of Typist-cum- LDA w.e.f. 01.01.1981; and (ii) the petitioner was promoted to the post of UDA prior to the promotion of Jiban Chandra Nath, who was his senior in the feeder cadre, i.e. LDA and that the petitioner got promoted by virtue of reservation as per Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in services and posts) Act, 1978 and Rules framed thereunder. Accordingly, it is submitted that as per OM dated 10.09.1997 of the Finance Department, the claim of the petitioner for equalization of pay was not tenable.
16. It was submitted that as per the OM dated 12.03.2002 of the Government in the Personnel (B) Department, effective from 17.06.1995, the Government servants belonging to Scheduled Castes and Scheduled Tribes category, on their promotion by virtue of rule of reservation/ roster became entitled to consequential seniority. It was further submitted that the said OM dated 12.03.2002 had no bearing on the OM dated 10.09.1997 of the Government in the Finance Department. Moreover, it is submitted that on Page No.# 10/18 promotion to the next higher post, promotional pay benefit is allowed to the promoted Government servant by fixation of pay as per the provisions of FR- 22(I)(a)(1) upto 31.12.2005, and thereafter under the provisions of Assam Services (Revision of Pay) Rules as notified from time to time read with FR-22(I)
(a)(1). Hence, it is submitted that equalization/stepping-up of pay of a senior Government servant with that of his junior is considered, if found admissible as per Finance Department's OM dated 10.09.1997 by invoking FR-27.
17. It was also submitted that the Chief Engineer, PHE had granted equalization of pay to the petitioner without prior consultation and/or concurrence of the Finance Department, which was highly irregular and illegal. It was also submitted that as the judgment of this Court dated 20.04.2015 in WP(C) 597/2008 - Smt. Lily Hrangkhal, had attained finality after the writ appeal of the State was dismissed, the said writ petitioner, by alleging non-compliance of the judgment dated 20.04.2015, had filed Cont. Cas (C) 39/2016. Hence, the respondent authorities had no option but to comply with the judgment dated 20.04.2015 passed in WP(C) 597/2008, notwithstanding that as per Finance Department's OM dated 10.09.1997, equalization of pay in respect of the said Smt. Lily Hrangkhal was not admissible. Moreover, it was submitted that the case of the petitioner is distinguishable on facts from the case of Smt. Lily Hrangkhal because while the petitioner was initially appointed as a work- charged Sectional Assistant, Smt. Lily Hrangkhal was initially appointed as LDA. Accordingly, it is submitted that the present case is devoid of any merit and the same is liable to be dismissed.
18. In the case of Bhogeswar Saikia & Ors. (supra) , the legality and validity of the OM dated 12.03.2002, issued by the Department of Personnel, Page No.# 11/18 Govt. of Assam was upheld. Paragraph 37 and 43 to 45 are quoted below:-
"37. The aforesaid OM dated 12.6.96 was also issued by the Government of Assam in the Department of Personnel pursuant to the decision of the Apex Court in Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684, laying down the principle relating to fixation of seniority of reserved candidates vis-a-vis general candidates in promoted posts. Following the said decision, it was laid down that while the rule of reservation shall be applied and the roster followed in the matter of promotions, the candidates promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over his seniors in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate, notwithstanding that he is promoted subsequent to the reserved candidate. The principle of such seniority was made effective from 10.2.1995.
43. It is true that the recruitment Rules make provision for determination of seniority, which is on the basis of merit position obtained in the select list. However, it does not take care of the situation in which a reserved category candidate gets accelerated promotion. The earlier position was that de hors the provision in the recruitment Rules, a reserved category candidate along with his accelerated promotion would also earn seniority. However, pursuant to the decision of the Apex Court in Virpal Singh Chauhan (supra), it was provided that by the aforesaid OM dated 12.6.96 that the erstwhile senior in the feeder cadre being promoted to the higher post would regain his seniority over the reserved category candidate, although they were promoted at earlier point of time by virtue of reservation. This position has now been altered pursuant to the aforesaid amendment of Article 16(4)(A) of the Constitution of India. As per the enabling provision, the State has issued the OM dated 12.3.2002, in terms of which the reserved category candidate on accelerated promotion would also get consequential seniority and consequently catch-up formula as envisaged in Virpal Singh Chauhan has been done away with.
44. The whole controversy has arisen in view of the particular interpretation given by the Petitioners that unless a law is framed, merely on the strength of an OM like the one dated 12.3.2002 and/or without amending the recruitment rules or making any provision to supplement the said rules, the reserved category candidate cannot be given consequential seniority. Thus, the issue raised is on technicalities.
45. Article 16(4)(A) enables the State to make provision for reservation with consequential seniority. Such provision can be laid down by Office Memorandum as has been done in the instant case. The whole emphasis of the Petitioners is on Page No.# 12/18 "Law and Rules" and not on "Provisions". Once it is held that the State is empowered to make a provision and the source of its power is traceable and discernible, irrespective of the technicalities raised by the Petitioners, I am of the considered opinion that the implementation of the decision of the State Government to grant consequential seniority to the reserved category candidates in the form of the impugned OM dated 12.3.2002, is sustainable in law."
19. Hence, from the above referred case citation, the learned counsel for the petitioner has not been able to show that the said decision is an authority on the point of equalization/stepping-up of pay, which would help the petitioner in any manner to have his pay at par with the said Jiban Chandra Nath. Although the petitioner and the said Jiban Chandra Nath were not recruited in the same cadre post initially, but the said Jiban Chandra Nath was initially appointed to the post of Typist by order dated 30.12.1978, which is found mentioned in the judgment and order dated 20.04.2015 in WP(C) 597/2008, but in the provisional seniority list dated 10.09.2002 (Annexure-7), the date of entry of Jiban Chandra Nath in Govt. service is noted as 02.11.1974. The said post of "Typist" was merged with the post of "LDA" with effect from 01.01.1981 and given a new nomenclature of "Typist-cum- LDA". However, the petitioner was appointed as "Work-charged Sectional Assistant" by order dated 10.06.1981 and that he was appointed as a regular LDA on 04.07.1996 and therefore, the petitioner is deemed to have joined Government service on and from 24.03.1986. From the feeder post of Typist-cum- LDA, the petitioner was promoted to the higher post of UDA on 07.10.1996, which was prior to the date when the said Jiban Chandra Nath was promoted from feeder post of LDA to the post of UDA w.e.f. 30.03.1998. The comparative seniority position of (i) the petitioner; (ii) Smti. Lily Hrangkhal; and (iii) Jiban Chandra Nath, in terms of the provisional inter-se seniority list dated 10.09.1992 (Annexure-7) is as follows:
Page No.# 13/18 Sl. Name Category Date of Date of Date of Date of No. ST(P)/ST birth entry of entry to retd.
(H)/SC/ Govt. the
General service present
cadre
a. Girin Ch. Das S.C. 01-03-59 24-03-86 07-10-96 28-02-17
(Petitioner)
b. Lily Hrangkhal S.T.(H) 19-03-67 20-03-87 05-09-91 31-03-25
c. Jiban Chandra General 01-03-53 02-11-74 30-03-98 29-02-11
Nath
20. From the above chart, it is observed that the said Jiban Chandra Nath (General category) entered into Govt. service on 02.11.1974 and he entered into the cadre of UDA on 30.03.1998. However, the petitioner, namely, Girin Chandra Das [SC category] had entered Govt. service on 24.03.1986, i.e. approximately 11 (eleven) years - 4 (four) months 22 (twenty two) days after the said Jiban Chandra Nath. However, being member of the reserved category, the petitioner had got accelerated promotion on 07.10.1996, compared to the said Jiban Chandra Nath. Thus, on examining the date when the petitioner and the said Jiban Chandra Nath had entered into Govt. service, the said Jiban Chandra Nath had joined about 11 years-4 months prior to the petitioner.
Hence, the petitioner finds force in the submissions of the learned standing counsel for the Finance Department that by passage of 11 year-4 month 22 days time, it is quite possible that the said Sri Jiban Chandra Nath may be drawing higher pay-scale than the petitioner. Therefore, when because of longer duration of Government service in the feeder post of LDA, the said Jiban Chandra Nath is drawing higher pay-scale, the petitioner has not been able to Page No.# 14/18 make out a prima facie case for equalization/stepping-up of his pay at par with Jiban Chandra Nath, who was though his junior in the cadre of UDA, had joined Government service 11 year- 4 month prior to the petitioner. It is not the pleaded case of the petitioner that despite the fact that the said Jiban Chandra Nath had joined Government service on 02.11.1974, his pay should have been lower than that drawn by the petitioner, who had entered Government service on 24.03.1986.
21. Thus, the Court finds force in the submissions made by the learned standing counsel for the Revenue Department that from the materials available on record, the petitioner has not been able to demonstrate that the pay disparity, if any, between the petitioner and the said Jiban Chandra Nath was attributed directly due to fixation of pay under FR-22 (I)(a)(1) or any other provision of the FR and SR. Thus, the claim of the petitioner for equalization/ stepping-up of pay is in consonance with the OM No. FEG.25/87/ 132 dated 10.09.1997, issued by the Govt. of Assam, Finance (Establishment-A) Department.
22. As the learned counsel for the petitioner is claiming parity with the case of Smt. Lily Hrangkhal, it is seen from the herein before referred chart that the said Smti. Lily Hrangkhal [S.T.(H) category] had joined Govt. service on 30.03.1987, i.e. after the petitioner had entered Government service on 24.03.1986, and upon promotion, she had entered in the cadre of UDA on 07.10.1996, i.e. after the petitioner had entered into the cadre of UDA on 07.10.1996. However, in view of the judgment dated 20.04.2015 passed by this Court in the case of WP(C) 597/2008 (lily Hrangkhal v. State of Assam & Ors.) , she had got the benefit of equalization/stepping-up of pay. Paragraphs 4, 17 Page No.# 15/18 and 18 are quoted below:-
"4. One Shri Jiban Chandra Nath had entered service in the Public Health Engineering Department as 'Typist' on 30.12.1978. Though the post of Typist and the post of LDA belonged to different cadres, the two cadres were amalgamated in the year 1981 and re-designated as 'LDA-cum-Typist'. Thus, Shri Jiban Chandra Nath became 'LDA-cum-Typist' on and from 1981. He was promoted to the post of UDA with effect from 30.08.1998 after that of the petitioner, who, as noticed above, was promoted on 5.9.1991.
17. Reverting back to the two objections raised by the Finance Department, the first being that the petitioner and Shri Jiban Chandra Nath belong to two different feeder cadres and, therefore, question of equalization or stepping-up of pay did not arise and the second being that equalization of pay was not claimed by the petitioner within one year of promotion, the said objections do not appear to be tenable at all. In so far the first objection is concerned, though initially the petitioner and Shri Jiban Chandra Nath were appointed in two different cadres of LDA and Typist, later on, the two cadres were amalgamated into one cadre of LDA-cum-Typist. Thereafter, Shri Jiban Chandra Nath was promoted from LDA-cum- Typist to UDA. As already noticed, petitioner was promoted from LDA to UDA earlier. In such circumstances, it cannot be said that the two of them belonged to two different feeder cadres. In so far the second objection is concerned, the question of equalization of pay arose only on the promotion of Shri Jiban Chandra Nath to the higher post of UDA. Petitioner being a reserved category candidate was promoted earlier by applying the principle of accelerated promotion with consequential seniority. Only when Shri Jiban Chandra Nath was promoted in the year 1998 to the rank of UDA, the discrepancy in the pay between the two could be noticed. It was at this stage that the petitioner moved the PHE Department for equalization of the pay which was granted on 9.4.1999. Therefore, equalization of pay was claimed by the petitioner within one year of promotion of Shri Jiban Chandra Nath. Both the objections of the Finance Department, therefore, are untenable and the view taken by the PHE Department based on the Office Memorandum of the Personnel Department dated 12.03.2002 appears to be correct.
18. Accordingly and in view of above, order dated 5.4.2005 cancelling the annual increment granted to the petitioner with effect from 1.3.2005 is hereby set aside and quashed. Petitioner would be entitled to equalization of paywith that of Shri Jiban Chandra Nath in the rank of UDA w.e.f. the date of promotion of Shri Nath to the rank of UDA in terms of the Office Memorandum of the Personnel Department dated 12.03.2002."
Page No.# 16/18
23. From the above, in consonance with the entries made in the provisional inter se seniority lists dated 10.09.2002 (Annexure-7), the categorical finding of this Court in the said judgment dated 20.04.2015 is that the Smti. Lily Hrangkhal was promoted from LDA to UDA earlier to Shri Jiban Chandra Nath. Accordingly, the categorical finding of the Court was to the effect that only when the said Jiban Chandra Nath was promoted in the year 1998, the discrepancy in the pay between the two was noted and that the said Smt. Lily Hrangkhal had claimed equalization of pay within one year of promotion of Jiban Chandra Nath and accordingly, both the objections of the Finance Department, as morefully referred in the said judgment, and similar to the ones raised in this case, were held to be untenable.
24. Therefore, in light of the facts of the case of Smt. Lily Hrangkhal, the present case has some similarity on facts. In the case of Smt. Lily Hrangkhal, while the order of equalization of pay was granted by order dated 09.04.1999 (refer to para-17 of the herein before extracted judgment dated 20.04.2015), in the present case, the equalization of pay to the petitioner was granted by order dated 09.04.1999.
25. Be that as it may, from the copy of the order bearing No. PHE- 209/Estt/98/1017 dated 09.04.1999 (Annexure-6), issued by the Chief Engineer (PHE), Assam, it is seen that the said authority had granted equalization of pay to the petitioner, Smti. Lily Hrangkhal as well as to Jiban Chandra Nath. Therefore, if based on equalization of pay, ordered for Jiban Chandra Nath, the said Smt. Lily Hrangkhal had got the benefit of equalisation/stepping-up of pay vide judgment dated 20.04.2015 passed by this Court in the case of WP(C) Page No.# 17/18 597/2008 (Lily Hrangkhal v. State of Assam & Ors.) , it would be travesty of justice to deny the petitioner of similar benefit on the basis of parity. It is reiterated at the cost of repetition that the State had assailed the said judgment dated 20.04.2015 by filing a writ appeal, which was filed with a delay of 279 days, but by order dated 12.05.2017, the Division Bench of this Court had dismissed IA(C) 1081/2017, which was filed for condonation of delay and resultantly, WA under filing Sl. No. 270874 was also dismissed on ground of delay. Therefore, the said judgment dated 20.04.2015 had attained finality and the same was duly complied with.
26. Therefore, on claim of parity on the basis of the judgment dated 20.04.2015, passed by this Court in the case of WP(C) 597/2008 (Lily Hrangkhal v. State of Assam & Ors.), the present writ petition stands allowed.
27. Accordingly, in view of above, the following reliefs are granted to the petitioner, viz., a. The order no. PHED-227/98/41 dated 23.11.2007, passed by the Finance Department, Government of Assam, impugned in this writ petition is set aside and quashed;
b. The order no. PHE-209/Estt./98 dated 31.05.2013 (Annexure-14), passed by the Chief Engineer, PHE, Hengrabari are set aside and quashed;
c. The office order No. 54 dated 18.01.2014; order no. 55 dated 18.01.2014; order no. 57 dated 24.02.2014, passed by the Addl. Chief Engineer (PHE), Barak Valley Zone are set aside and quashed.
d. Resultantly, the respondents are jointly and severally directed to Page No.# 18/18 restore the order no. PHE/209/Estt./90/1017 dated 09.04.1999, passed by Chief Engineer, PHE, Assam, which shall be done within a period of one month from the date when the certified copy of this order is served on the Commissioner and Secretary to the Government of Assam, Finance Department (respondent no.1) and/or any other Head of the Department, by whatever post designated.
e. The respondents are jointly and severally directed to pass appropriate order for refund of the recovered amount Rs.6,27,082/- (Rupees six lakh twenty seven thousand eighty two only) to the petitioner, which shall be done within a period of one month from the date when a copy of this order is served on the respondents.
f. The respondents are further jointly and severally directed that the sum of Rs.6,27,082/- (Rupees six lakh twenty seven thousand eighty two only) already recovered from the petitioner from his gratuity and leave encashment benefits on his superannuation on 28.02.2018, be restored back and/or paid to the petitioner within one month from the date when a copy of this order is served on the respondents.
28. Accordingly, the present writ petition stands allowed to the extent as indicated above, with no order as to costs.
JUDGE Comparing Assistant