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2002 DIGILAW 459 (GAU)

Jibeswar Das v. State of Assam

2002-11-18

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.— Heard Mr B.K. Sharma, learned sr. counsel assisted by Mrs. R. Bora, learned counsel for the petitioners and also heard Mr A. Thakur, learned Govt. counsel appearing on behalf of State respondents. 2. The only grievance of the petitioners in this writ petition is that they have been deprived of their correct revised scale of pay on refixation as given with effect from 9.3.90. The petitioners were appointed as Sericulture Demonstrators in the month of March, 1990 under the respondent No. 3, the Director of Sericulture, Assam Guwahati-22. The initial pay of the petitioners have been refixed with effect from 9.3.90 in the scale of pay as Rs. 12057 - p.m. from Rs. 1188 p.m. vide order dated 23.4.98. A specimen copy of the order dated 23.4.98 has been annexed as Annexure-1 to this writ petition which reads as follows: “…………………………………………………………………………………………….. Government of Assam Office of the Asstt. Director of Sericulture Goalpara:: Assam. Order Consequent upon the revision of pay scale on the strength of Govt. publication vide No. FPC 24/90/128, Dt. 6.12.90, the initial pay of Shri Narayan Ch. Das, Sericulture Demonstrator, Budlung Pahar Huga V.G.R. has been re-fixed in the revised scale of pay Rs.1125-20-1225-30-1435-EB-40-1635-50-2035-60-2215/- p.m. as per Rule No. 11(2) of revision of pay 1990 & fundamental Rule 22(a) with effect from 9.3.90. The incumbent is also allowed to draw his subsequent increments with effect from the date as shown below in the scale of pay as mentioned above. Name & Desi- Total emolu- Initial Date of Pay gnation of the ments in the pay subsequent after incumbent existing refixed increment incr- ement scale as on revised 9.3.90 i.e. scale as of joining on 9.3.90 Sri Narayan Rs.1188/ Rs.1205/ 1.3.91 12251- P.M. P.M. Ch. Das,S.D. 1.3.92 1235/- Budlung 1.3.93 1285/- PaharVGR. 1.3.94 1315 1.3.95 1345/- 1.3.96 1375/- 1.3.97 1405/- 1.3.98 1485/- Sd/- H.Ch. Kalita Asstt. Director of Sericulture Goalpara:: Assam Memo No. ADSGE 65/90-9 l/RSP/46 Dated Goalpara the 23rd April/98 3. It clearly appears from the above order that the total emoluments as on 9.3.90 i.e., the date of initial joining of the petitioners was at Rs. 1188 per month. Be it mentioned herein that prior to revision of pay scale, the petitioners' total emolument was at Rs.1188 per month with the break up:- (1) Basic-Rs. It clearly appears from the above order that the total emoluments as on 9.3.90 i.e., the date of initial joining of the petitioners was at Rs. 1188 per month. Be it mentioned herein that prior to revision of pay scale, the petitioners' total emolument was at Rs.1188 per month with the break up:- (1) Basic-Rs. 490/-, (2) D.A. Rs.597/- @121.8 as per Annexure-A to the affidavit-in-reply filed by the petitioner (3) Special Relief Rs.21/- and (4) Interim Relief Rs.80/- total being Rs.1188/- as reflected in paragraph 5 of the writ petition. As per Rule 11(2) of the revision of pay scales, 1990, the initial pay cannot be less than the total emoluments. It is contended by Mr. Sharma, learned sr. advocate for the petitioners that the petitioners' entitlement for the re-fixation of the revised pay is Rs. l 188 per month as total emolument in the existing scale as on 9.3.90 and the same has been protected vide order dated 23.4.98. But suddenly without giving any opportunity and/or assigning any reason whatsoever to the petitioners, the respondent vide order dated 16th September, 1998 cancelled the earlier refixation of pay so made vide order dated 23.4.98 and altered the initial pay of the petitioners from an amount of Rs.1205/-to Rs.l 125/- which is lesser than the total emoluments of Rs.1188/- existing as on 9.3.90. The impugned order dated 16th September, 1998 is reproduced hereunder: “ ____ Government of Assam Office of the Asstt. Director of Sericulture Goalpara:: Assam Order In pursuance to the letter No. SDP 45/97/2, Dt. 20.8.98 from the Directorate read with office memorandum No. FPG 41/90/6, Dt. 1.2.01 from Finance Department, Dispur, Guwahati under Rule 4(iii) the re-fixation of pay made vide this office letter cited below is hereby cancelled. 1) No. ADSGE 65/90-91 /RSP/56 Dt. 21.7.98 2) No. ADSGE 65/90-91/RSP/55 Dt. 29.6.98 3) No. ADSGE 65/90-91/RSP/54 Dt. 29.6.98 4)No.ADSGE65/90-91/RSP/53 DL 20.6.98 5) No. ADSGE 65/90-91 /RSP/52 Dt 20.6.98 6) No. ADSGE 65/90-91/RSP/51 Dt. 4.5.98 7) No. ADSGE 65/90-91/RSP/53 Dt. 2.5.98 8) No. ADSGE 65/90-91/RSP/54 Dt. 29.4.98 9) No. ADSGE 65/90-91/RSP/52 Dt. 28.4.98 10)No.ADSGE65/90-91/RSP/50 Dt.28.4.98 11)No.ADSGE65/90-91/RSP/49 Dt.24.4.98 12)No.ADSGE65/90-91/RSP/48 Dt.24.4.98 13) No. ADSGE 65/90-91/RSP/47 Dt. 24.4.98 14)No.ADSGE65/90-91/RSP/46 Dt. 23.4.98 Sd/- H.Ch. Kalita Asstt. Director of Sericulture Goalpara:: Assam Memo No. ADSGE 65/98-99/RSP/65 Dated Goalpara the 16th Sept/98 4. The State respondents have responded to the claim made by the petitioners by filing response. The stand of the Govt. 28.4.98 10)No.ADSGE65/90-91/RSP/50 Dt.28.4.98 11)No.ADSGE65/90-91/RSP/49 Dt.24.4.98 12)No.ADSGE65/90-91/RSP/48 Dt.24.4.98 13) No. ADSGE 65/90-91/RSP/47 Dt. 24.4.98 14)No.ADSGE65/90-91/RSP/46 Dt. 23.4.98 Sd/- H.Ch. Kalita Asstt. Director of Sericulture Goalpara:: Assam Memo No. ADSGE 65/98-99/RSP/65 Dated Goalpara the 16th Sept/98 4. The State respondents have responded to the claim made by the petitioners by filing response. The stand of the Govt. is that as per order dated 1.2.91 issued by the Finance Department, pay scale of the Sericulture Demonstrator are required to be fixed at Rs.1125 i.e., the minimum of the revised pay scale of Rs. 1125 to Rs. 2215 p.m. Further while admitting the pre-revised basic pay at Rs. 490/-, the D.A. has been calculated at Rs.5047- @121.8 per cent (as already indicated above vide Annexure-A to the rejoinder filed by the petitioners) and taking into account such calculation, according to the Govt., the petitioners are entitled to a total emoluments in the existing scale of pay as on 9.3.90 at Rs. 10957-. In paragraph 11 of the affidavit-in-opposition, the State respondents have Stated as follows: 11. That with regard to the statements made in paragraphs 14 and 15 to the writ petition, the deponent says that the total emoluments of a Sericulture Demonstrator appointed during March, 1990 under the pre-revised pay of Rs.490/- comes to Rs.1095/-According to the orders issued by the Finance Department dated 1.2.91 pay scale of the sericulture demonstrator are required to be fixed at Rs. 11257- to i.e., minimum of the revised scale of pay of Rs.l 125/- for Rs.2215/- p.m. prescribed fro the post of Sericulture Demonstrators under the R.O.P. Rules, 1990. n 5. The petitioners rejected such calculation of the D.A. by the Govt. by filing their rejoinder against the affidavit-in-opposition and in paragraph 4 and 6 it is stated that if DA is calculated @ 121.8 per cent upon the basic pay of Rs.490/- as on 3.8.90 the D.A. will come to Rs.5977-instead of Govt's determination of Rs.504/-. So, the Govt. has faulted in making the calculation of the DA as mentioned above. If there would have been a correct calculation on DA, then this anomaly would have been avoided inasmuch as the petitioners have already been satisfied with the re-fixation vide order dated 28.4.98. 6. Mr Sarma, learned sr. counsel has submitted that this cancellation of refixation of pay scale of the petitioners without giving any opportunity itself is contrary to the settled law. 6. Mr Sarma, learned sr. counsel has submitted that this cancellation of refixation of pay scale of the petitioners without giving any opportunity itself is contrary to the settled law. In support of his submission, he has cited three decisions of the Apex Court, namely (i) Divisional Superintendent, Eastern Railway, Dimapur and others-Vs-Shri L.N. Keshri and others reported in (1975) 3 SCC1, (ii) H.L Trehan and others-Vs-Union of India and others reported in (1989) 1 SCC 764 and (iii) Bhagwan Shukla-Vs-Union of India and ors. reported in AIR 1994 SC 2480 . The ratio laid down in those cases is that there is a flagrant violation of principles of natural justice in reduction/ alteration of the basic pay of the employees without giving any opportunity of being heard to the petitioner. This is what has exactly happened in this case. On a bare perusal of the impugned order dated 16.9.98 it clearly goes to show that same has been passed without giving any opportunity to the petitioners or without assigning any reason whatsoever. 7. Having regard to the above cited cases and after hearing learned counsel for the parties and on perusal of the materials on record, this Court is of the considered view that the impugned order deserves to be interfered with on the count of violation of principle of natural justice alone. Besides, the fixation of revised pay scale of the petitioners at Rs.l 1257- as stated in para 11 of the Govt.'s affidavit is appeared to the contrary of Rule 11(2) of the revision of pay scale, 1990 providing that the initial pay cannot be less than the total emoluments which is admittedly Rs. 11887 - as on 9.8.90. Accordingly, the impugned order dated 16.9.98 shall stand quashed. In the result, this writ application is allowed. No costs. 8. It is made clear that the petitioners shall be given all the consequential benefits in view of the refixation of the revised pay scale in terms of order dated 23.4.98, Annexure-l in the writ Application.