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2. The brief facts for disposal of the writ petition may be noticed at the outset. The writ petitioner was appointed as Executive Engineer (Electrical and Mechanical) on 1.11.1985. He was thereafter promoted to the post of Superintending Engineer (Electrical and Mechanical) on 1.9.2004. As per the 6th Central Pay Commission recommendation, in order to remove stagnation, non- functional upgradation scheme for Group-A services in Pay Band -3 and Pay Band-4 was introduced in the organisation vide BRDB Office Memorandum No.AB- 14017/64/2008-Estt.(RR) dated 24.4.2009, No.AD -14017/64/2008-Estt (RR) dated 1.7.2010 and AB 14017/30/2011-Estt (RR) dated 11.7.2011. The non- functional upgradation was in the pay scale of Rs.37400- 67000 with Grade pay of Rs.10000/- in Pay Band-4. The officer junior to the petitioner was extended the benefit of non-functional upgradation w.e.f 1.4.2011 vide communication dated 2.2.2012. However, the petitioner was not given the benefit of non- functional pay upgradation.

6. The third grievance of the petitioner is that he was not given a command posting by the respondent authorities despite his representation and which otherwise was necessary to be eligible for non-functional upgradation of pay.

7. Appearing for the petitioner, Mr. D Borah, the learned counsel submits that there is no dispute with regard to the seniority list of Superintending Engineer (Electrical and Mechanical) under the organisation as on 1.1.2011 wherein the petitioner has been placed at Serial No.2 of the list. However, the respondent authorities by ignoring the seniority position of the petitioner have given the person immediately junior to the petitioner whose name appears at Serial No.3 of the seniority list the benefit of non-functional upgradation of pay w.e.f. 1.4.2011 vide communication dated 2.2.2012. He submits that without there being any adverse service record of the petitioner, the petitioner could not have been deprived of the upgradation especially when his next junior officer in the seniority list was given such benefit.

12. The learned counsel for the petitioner further submits that as regards the command posting required for at least two years as per the relevant rules for being considered for non-functional upgradation of pay, the discretion lies with the respondent authorities and therefore to be posted as such is beyond the control of the petitioner. The petitioner therefore having not been granted the non-functional upgradation w.e.f. 1.4.2011 i.e. the date on which his next junior was granted such benefit is before this Court.

15. The learned counsel for the petitioner therefore submits that the petitioner similarly was denied of the same opportunity although he was communicated his APAR grading in a much later stage, the respondent authorities therefore be directed to grant the petitioner the non-functional upgradation of his pay scale to Pay Band- 4 in the Grade Pay of Rs.10,000/- w.e.f. 1.4.2011.

16. Appearing for the respondents, the learned Senior Central Government Counsel Mr. Y Doloi refers to the stand taken by the respondents in the affidavit- in-opposition filed on 28.8.2015. He submits that the petitioner is only eligible for grant of non-functional upgradation in accordance with the hierarchy of post subject to fulfilling the criteria as laid down in R and P Rules. The petitioner was required to complete two years of command experience as per the Rules to be eligible for being given the benefit of non-functional upgradation. The petitioner having completed the required steps only on 26.1.2013, he became eligible for upgradation in the panel year of 2014-15. He further submits that the command posting is not based on seniority alone. In fact in order to be eligible for such posting, the performance of the officer concerned is also accounted for at the consideration of APAR is not limited only for a certain period but is related to the performance and overall efficiency in the post held by the officer. He submits that although the petitioner may have not been timely communicated with the downgrading in his APAR but nevertheless the R.O. and A.O. after properly considering and evaluating the performance of the petitioner decided not to accept the grading given by the I.O. and accordingly gave him a lower grading. Mr. Y Doloi submits that proper means were in fact assigned by the R.O. and A.O. before finally deciding upon the grading of the petitioner as was accepted.