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Gauhati High Court · body

2007 DIGILAW 166 (GAU)

Safior Rahman v. State of Assam

2007-02-28

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. All the writ petitions on the same set of facts raising the same issue as to the admissibility or otherwise of the extended scale of pay as envisaged under the Assam Services (Revision of Pay) Rules 1983, have been heard together and are being disposed of by this common judgment and order. 2. The petitioners except the petitioner No. 5 in W.P.(C) No. 8195/05, who is grade-IV employee of the particular school, all other petitioners are teachers of High school, Higher Secondary School and High Madrassa. Their grievance is in respect of the extended scale of pay as was provided under the ROP Rules, 1983. All the petitioners have been granted the extended scale of pay but they are aggrieved by the decision of the State Govt. to refix their pay without the benefit of extended scale of pay from the dates from which they were granted the extended scale of pay. 3. The relevant service particulars of the petitioner are indicated below: W.P. (C) No. 8194/2005 In W.P.(C) No. 8195/2005 In W.P. (C) No. 8199/2005 4. While in the first two writ petitions, the petitioners have assailed the legality and validity of the proposed action on the part of the respondents to refix the pay of the petitioners by way of withdrawing the benefit of the extended scale of pay and the recovery of the alleged access payment made, in the third writ petition the two petitioners have made a prayer for refund of the deduction already made from their pension. Such deduction has been made on the ground of inadmissibility of the extended scale of pay. 5. It is the case of the petitioners that since they have completed the required 15 years of service as per ROP Rules, 1983, they were rightly granted the benefit of extended scale of pay and the respondents are now proposing to refix their pay, and wanted to make recovery on the ground that the petitioners were not entitled to the benefit of extended scale of pay. 6. I have heard Mr. F.U. Borbhuyan, learned Counsel for the petitioners as well as Ms. M. Gogoi, learned S.C., Education Department. I have also heard Ms. R. Chokrabotry, learned State counsel representing the Directorate of Pension, Assam. 7. Mr. 6. I have heard Mr. F.U. Borbhuyan, learned Counsel for the petitioners as well as Ms. M. Gogoi, learned S.C., Education Department. I have also heard Ms. R. Chokrabotry, learned State counsel representing the Directorate of Pension, Assam. 7. Mr. Borbhuyan, learned Counsel for the petitioners placing reliance on the three decisions of this Court rendered on the same subject matter, submitted that the action on the part of the respondents is illegal and in complete violation of the principles of natural justice. On the other hand, Ms. M. Gogoi, learned S.C., Education Department as well as Ms. R. Chokraborty, learned State counsel submitted that the petitioners having been extended with the benefit of extended scale of pay illegally, there is nothing wrong in taking the decision to refix their pay without the benefit of extended scale of pay and then to make recovery from their pensionary benefits. 8. In the counter affidavit filed by the Director of Secondary Education, Assam, it is his stand that the extended scale of pay is admissible only on completion of 15 years of service from the date of provincialisation of the service of the incumbents. Referring to the respective dates of provincialisation of the service of the petitioners, it is the case of the respondents that the required length of service, i.e., 15 years, as contemplated in the ROP Rules, 1983 (Rule 11) is to be counted from the date of provincialisation of the services and not from the date of recognition of the school and/or providing grants-in-aid to the school. 9. Before proceeding to deal with the issue on its own merit, it will have to be seen as to whether the petitioners were provided with any reasonable opportunity of being heard before taking the impugned action of refixation of their pay and then to make recovery from their pension. While it is true that in the first two writ petitions no recovery has yet been made, but there is proposed action to refix their pension on the basis of the refixation of their pay. Such a course of action has been adopted on the ground that the petitioners were provided with the benefit of extended scale of pay in spite of the fact that they were not entitled to the same, they having not completed 15 years of service from the date of provincialisation. 10. Such a course of action has been adopted on the ground that the petitioners were provided with the benefit of extended scale of pay in spite of the fact that they were not entitled to the same, they having not completed 15 years of service from the date of provincialisation. 10. In the 3rd writ petition, the two petitioners have been deprived of the benefit of extended scale of pay although the same was already granted to them. Such deprivation has been made by way of recovery from their pension and there is no dispute that they were not provided with any reasonable opportunity of being heard. From the above, it will be seen that before proposing to take the impugned action and/or taking the impugned action, the petitioners were not provided with any opportunity of being heard. It is in this context, the petitioners have placed reliance on the decisions of this Court rendered in W.P.(C) Nos. 9805/03, 9806/03 and 1195/02. These three writ petitions have been disposed of by common judgment and order dated 30.11.04. Those writ petitions were also on the same issue as in the instance case. Referring to the decisions of the Apex Court as reflected in the judgment and order the copy of which has been annexed to the writ petitions, it has been held in the said decision that the extended scale of pay could not have been withdrawn and no recovery could have been made by way of refixation of pay and pension of the petitioners without first providing them an opportunity of being heard. There being violation of the principles of natural justice, the impugned orders involved in the writ petitions have been set aside. 11. In the instant case also none of the petitioners have been provided with any opportunity of being heard before proposing to take the impugned action and/or taking the impugned action towards refixation of their pension and recovery of alleged excess payment made to the petitioners. On this score alone, the impugned action on the part of the respondents is liable to interfered with which I accordingly do. 12. Coming to the merit of the case, the issue is, as to whether the petitioners were entitled to the benefit of extended scale of pay they having completed 15 years of service which is the requirement as per Rule-11 of the ROP Rules, 1983. 12. Coming to the merit of the case, the issue is, as to whether the petitioners were entitled to the benefit of extended scale of pay they having completed 15 years of service which is the requirement as per Rule-11 of the ROP Rules, 1983. As per the said Rule, a Govt. servant who has not earned a single promotion in any higher grade since his first appointment even after completion of 15 years of service in the same post/service, he would be eligible only once in his service career for the extended scale of pay corresponding to the revised scale held by the Govt. servant. As per the note appended to Rule-11 of the Rules, service means the service rendered in the particular post/service in officiating/substantive or probationary capacities. 13. In all the three writ petitions, the petitioners have been granted extended scale of pay. The respective dates of granting of such extended scale of pay to the petitioners have been indicated in chart above. The petitioners having been granted with the extended scale of pay, they have enjoyed the same and some of them have gone on retirement on attaining the age of superannuation. It is not the case of the respondents that the petitioners were responsible in any manner towards earning the extended scale of pay. Such scale of pay were granted to them by the respondents themselves. 14. Learned Counsel for the petitioners has placed reliance on the judgment and order dated 04.05.06 passed in W.P.(C) No. 277/02 and the judgment and the common order dated 27.09.06 passed in W.P.(C) Nos. 3085/06, 3086/06, 3087/06, 3088/06, 3089/06, 3090/06 and 3091/06. In both the decisions, this Court noticing the order dated 06.07.94 passed in the writ petition being CR No. 1409/94 subsequently followed in CR No. 6086/96 disposed of vide order dated 20.04.99 and also followed in W.P.(C) No. 3488/03, has held that the action on the part of the respondents with the same kind of plea as has been raised in the instant proceeding, was wholly unwarranted. In the earlier decisions of this Court referred to above, it has been held that the required 15 years of service can be counted from the date of receipt of ad hoc grants by the school. In the earlier decisions of this Court referred to above, it has been held that the required 15 years of service can be counted from the date of receipt of ad hoc grants by the school. In the instant case, all the writ petitioners have completed 15 years of service from the respective dates of receiving the ad hoc grants by the respective schools and if that be so, in view of the earlier decisions of this Court, they had been rightly granted the extended scale of pay. 15. Now the said respondents have altogether taken a different plea unlike the earlier plea raised in the earlier writ proceedings. The plea raised is that the required 15 years of service will have be counted from the date of provincialisation of the school. This Court having held that the period of 15 years cold be counted from the date of receiving the ad hoc grants and the said finding having already attained the finality, such finality attained could not have diluted by Executive fiat as has been sought to be done in the instant case. 16. The respective dates of granting of ad hoc grants and recognition have been indicated in the chart. The petitioners have rendered fairly long years of service and there is no dispute that the petitioners have rendered more than 15 years of service from the date of providing ad hoc grants to the schools. However, according to the respondents the required 15 years is to be counted from the date of provincialisation of school. There is no such indication in the ROP Rules, 1983, rather the Rule 11 provides that service for the purpose would mean all the service rendered in the particular post/service, be it officiating/substantive or in probationary capacity. It is significant to note that it is not only the J post, but the service as well which would count towards 15 years of service. 17. The provision in Rule 11 is a beneficial provision to mitigate the hardship faced by the Govt. employees in view of the stagnation. Rule 3 of the Rules provides for relaxation of rules in case of operation of any of the rules causes undue hardship in any particular case. 17. The provision in Rule 11 is a beneficial provision to mitigate the hardship faced by the Govt. employees in view of the stagnation. Rule 3 of the Rules provides for relaxation of rules in case of operation of any of the rules causes undue hardship in any particular case. Taking into account all these together coupled with the fact that the petitioners were granted with the benefit of extended scale of pay by the respondents of their own, I am of the considered opinion that the proposed action and/or action already taken by the respondents towards denying the said benefit and that too at a belated stage will be opposed to the principles of justice and equity, apart from the fact that the said action is in complete violation of the principles of natural justice. 18. For the foregoing reasons, discussions, reasons and conclusions, the writ petitions are allowed. Impugned action on the part of the respondents and any orders passed on that basis are all set aside and quashed. While in the first two writ petitions, the petitioners will continue with the benefit of extended scale of pay which have already been granted to them and there shall be no deprivation of the same to the petitioners by way of any refixation and consequential recovery, in the 3rd writ petition the recovery already made shall be refunded to the petitioners, meaning thereby the extended scale of pay which was already granted to them but subsequently withdrawn, stands restored from the respective dates from which they were granted the same. The writ petitions are allowed. However, there shall be no order as to costs. Petition allowed.