JUDGMENT AND ORDER : 1. Heard Mr. N. Dutta, learned senior counsel assisted by Mr. N. Borah, learned counsel appearing for the wit petitioners. Also heard Mr. R. Borpujari, learned Standing Counsel, Finance Department, representing the respondent Nos.1 to 5 as well as Mr. L. P. Sharma, learned Standing Counsel, Assam Financial Corporation, appearing on behalf of respondent Nos.6, 7 and 8. 2. Both the writ petitions raise a common question of law and fact and are, therefore, being disposed of by this common judgment and order. 3. The brief factual matrix giving rise to the filing of the writ petitions may be noticed as follows:- I. The writ petitioner No.1 herein is a registered Trade Union and its constituent members are the employees of Assam Financial Corporation (in short “AFC”) whereas the petitioner Nos.2 and 3 are its President and Secretary, respectively. The case of the petitioner association is that the Government of Assam had earlier set up a sub-committee to examine the recommendations made by the Assam Pay Commission, inter-alia, suggesting revision of pay for the State Government employees and after a proper consideration of the report of the Pay Commission, a decision was taken by the State Government to implement the revised pay scale suggested by the Pay Commission. Accordingly, by issuing notification dated 22.01.2010, the Governor of Assam had framed the Assam Services (Revision of Pay) Rules, 2010 [here-in-after referred to as the ROP, Rule 2010] giving effect to the revised pay scale with effect from 01.01.2006. II. On 24.08.2012 the Government of Assam in the Department of Finance had issued a notification providing for adoption of such revised pay scale by the individual State Level Public Enterprises (SLEPs) by extending the benefit of the Assam Services (Revision of Pay) Rules, 2010 to its employees subject to fulfillment of the conditions laid down therein. The AFC being an enterprise of the Government of Assam took a resolution in the 358th meeting of its Board of Directors held on 08.01.2013 to extend the benefit of the ROP Rules, 2010 to all its employees. Accordingly, by issuing a letter dated 04.02.2013 addressed to the Principal Secretary, Finance Department, Government of Assam, a request was made by the Corporation seeking necessary approval so as to implement the ROP, Rules of 2010 for the employees of the AFC. Accordingly, by issuing a letter dated 04.02.2013 addressed to the Principal Secretary, Finance Department, Government of Assam, a request was made by the Corporation seeking necessary approval so as to implement the ROP, Rules of 2010 for the employees of the AFC. The Corporation had also executed a Memorandum of Understanding (MoU) with the Government in terms of the conditions laid down in the notification dated 24.08.2012. III. Being satisfied with the compliance of all the requisite norms, the respondent No.3 had issued a notification dated 07.06.2013 conveying the approval of the Governor of Assam, paving the way for implementing the ROP Rules, 2010 in respect of the employees of the AFC along with arrear salary with effect from 01.10.2008. Thereafter, the respondent No.6 had issued an office order dated 24.06.2013 conferring the benefits of the ROP Rules, 2010 to the employees of the Corporation with effect from the month of June, 2013.Accordingly, all the employees of the Assam Financial Corporation were also given the benefit of the revised pay scale for the month of June, 2013. IV. After the ROP Rules, 2010 was adopted and implemented by the AFC, on 15.07.2013 the respondent No.6 had issued an office order directing that the Drawing and Disbursing Officers of the Corporation shall draw pay and allowances for the officers and staff in the pre-revised pay scale, as was drawn till May, 2013 with effect from July, 2013 till a final decision is taken by the Board of Directors in the matter. The effect of the office order dated 15.07.2013 was that the revised pay scale which was earlier extended to the officers and staff of the Corporation with effect from the month of June, 2013 as per the earlier resolution of the Board of Directors stood withdrawn with effect from the month of July, 2013. V. Alleging that the notification dated 15.07.2013 has been issued in a most illegal and arbitrary manner, acting contrary to the decision of the Board of Directors, the petitioners had approached this Court by filing WP(C) No.4056/2013. This Court, after hearing the learned counsel for the parties, had passed an order dated 22.07.2013 directing the learned Standing Counsel, AFC, to produce the record relating to the proceedings of the Board of Directors including the proceeding dated 08.01.2013. VI. This Court, after hearing the learned counsel for the parties, had passed an order dated 22.07.2013 directing the learned Standing Counsel, AFC, to produce the record relating to the proceedings of the Board of Directors including the proceeding dated 08.01.2013. VI. During the pendency of WP(C) No.4056/2013, the respondent No.7 had issued another office order dated 30.07.2013 forwarding the resolution adopted by the Board of Directors in its 362nd meeting held on 08.07.2013 whereby the Board had taken a decision to review the earlier resolution adopted on 08.01.2013 and further resolved that the ROP Rules, 2010 shall not be given effect to w.e.f. July, 2013 till the Corporation’s business income permits the payment of monthly pay and allowances as per the revised pay scale and till the Board reviews the position after three months and takes necessary decision in this regard as deemed appropriate. VII. Aggrieved by the office order dated 30.07.2013, the petitioners had filed WP(C) No.4471/2013 before this court seeking annulment of the said decision of the Board adopted in the 362nd meeting as well as the notification dated 30.07.2013. VIII. On 13.08.2013, this Court had passed an interim order suspending the operation of the office orders dated 15.07.2013 and 30.07.2013 as a result of which the Corporation had continued to pay the revised pay scale to its employees with effect from the month of July, 2013 till date. 4. The respondent Nos.6, 7 and 8 have filed counter-affidavit primarily taking the stand that the cash flow projection earlier made by the Corporation vide letter dated 04.01.2013 did not materialize in the financial year 2012-2013 resulting into shortfall in the revenue generation of the Corporation. The net profit earned by the Corporation was entirely wiped out for meeting the past liability of the Corporation which did not permit sufficient surplus fund to defray the financial burden of the revised pay scale to be paid to its employees. 5. By referring to the profit and loss account of the Corporation for the financial years 2012-13, 2013-14, 2014-15 and 2015-16 Mr. Dutta, learned senior counsel, submits that the Corporation has been continuously making profit during all these years and therefore, the initial projection made by the Corporation before the Government vide letter dated 04.02.2013 had a valid basis. 5. By referring to the profit and loss account of the Corporation for the financial years 2012-13, 2013-14, 2014-15 and 2015-16 Mr. Dutta, learned senior counsel, submits that the Corporation has been continuously making profit during all these years and therefore, the initial projection made by the Corporation before the Government vide letter dated 04.02.2013 had a valid basis. The learned senior counsel submits that the additional financial burden that would fall upon the Corporation on account of the revised pay scale would be to the tune of Rs.45.06 Lacs whereas profit earned by the Corporation for the relevant period has been assessed at Rs.47.23 Lacs. Therefore, submits Mr. Dutta, the stand taken by the corporation to the effect that the resources of the AFC would not permit implementation of the ROP Rules, 2010 is completely baseless. 6. By producing a copy of the 62nd Annual Report of the Corporation pertaining to the year 2015-2016, Mr. Dutta submits that the Corporation is still a profit making organization despite having continued to pay the revised scale to its employees. Therefore, the resolution adopted in the 362nd meeting of the Board is untenable. The learned senior counsel further submits that since June, 2013 several of the employees working under the Corporation have retired from service and since no fresh recruitment has been made by the Corporation during this period, the financial burden for payment of salary of the employees has also been further lessened. Under the circumstances, submits Mr. Dutta, the decision to deny the benefits of the revised pay scale to the employees of the Corporation is a wholly arbitrary decision. The learned senior counsel further submits that right to receive revised scale of pay is a legitimate right of the employees of the Corporation and the same cannot be denied merely on the ground that the past liability of the Corporation does not permit the same. 7. Mr. The learned senior counsel further submits that right to receive revised scale of pay is a legitimate right of the employees of the Corporation and the same cannot be denied merely on the ground that the past liability of the Corporation does not permit the same. 7. Mr. L. P. Sharma, learned Standing Counsel, AFC, submits that although a decision was initially taken to extend the benefit of ROP Rules, 2010 to the employees of the Corporation, yet, upon realizing the fact that the Corporation had to deal with huge liability accrued from the past, a discreet decision was taken by the Board of Directors to defer the conferment of the benefit of revised pay to the employees until such time the Corporation was in a financially sound position to do so. Mr. Sharma submits that such decision of the Board being based on proper consideration as regards the future of the Corporation, the same cannot be termed as arbitrary or illegal. He submits that the employees of the corporation are not State Government employees and, as such, it would be open for the Board of Directors to take appropriate decision fixing their pay structure. 8. Mr. R. Borpujari, learned Standing Counsel, Finance Department, submits that the stand of the Government is available in the counter affidavit and he has nothing more to add. 9. I have bestowed my anxious consideration to the rival submissions made at the bar and have also perused the materials available on record. 10. There can be no doubt about the fact that strictly speaking, the members of the petitioner No.1 association are not the employees of the Government of Assam. But at the same time it cannot also be lost sight of that they are all serving under the AFC which is an Enterprise of the Government of Assam. It is also the admitted position of fact that the AFC functions under the administrative control of the Government of Assam, and therefore, all major policy decisions taken by the Board of Directors would be subject to the administrative approval of the State Government. 11. By issuing the notification dated 24.08.2012, the Government of Assam had, in principle, permitted all the SLPEs to extend the benefit of the revised pay scale to its employees. 11. By issuing the notification dated 24.08.2012, the Government of Assam had, in principle, permitted all the SLPEs to extend the benefit of the revised pay scale to its employees. The contents of the notification dated 24.08.2012 will be relevant for the purpose of appreciating the contentious issues involved in this proceeding and is therefore extracted herein below :- “GOVERNMENT OF ASSAM FINANCE (PAY RESEARCH UNIT) DEPARTMENT DISPUR GUWAHATI -6 ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION Dated Dispur the 24th August, 2012. No.FPC.16/2007/Pt.174 :- In supersession of Public Enterprise Department’s Notification No.PE.66/2010/154 dated 07-06-2011 and Notification No.PE.66/2010/155 dated 07-08-2011 the Governor of Assam is pleased to order that the individual State Level Enterprise’s (SLPEs) may adopt the provisions regarding revision of pay/pay scales, allowances and payment of arrear pay as prescribed to the State Govt. employees as per Assam Service (ROP) Rules, 2010 for its employees/Officers subject to the following conditions :- (i) The Board of Directors of each SLPEs shall decide to adopt the provisions regarding revision of pay/pay scales, allowances and payment of arrear pay as per Assam Services (ROP) Rules, 2010 read with Notification No.FPC.109/2010/41 dt. 19th February, 2011 after examining the detailed financial involvement regarding pay revision. Pay revision is to be allowed with the approval of concerned Administrative Deptt. Only after the Board of Directors agree that the concerned SLPEs has adequate financial resources to meet the expenditure for paying the revised pay, revised allowances or the arrear pay. (ii) The Administrative Department shall examine at its own level the proposal received from the SLPEs for revision of pay etc. under its control along with the decision of the Board to ensure that the concerned SLPE has adequate financial resources to meet the expenditure for paying the revised pay, allowances or the arrear pay and thereafter allow the revision of the pay scale. No reference to Finance Department will be necessary. (iii) Before allowing the pay revision by the Administrative Department each of the SLPEs would be required to sign a Memorandum of Understanding (MoU) with the Administrative Department indicating the exact number of posts and number of employees working against sanctioned posts. The said MoU should specifically provide that no fresh post shall be created by the SLPEs without prior approval of Finance Department. This is to ensure that provision of AFRBM would not be violated in any case. The said MoU should specifically provide that no fresh post shall be created by the SLPEs without prior approval of Finance Department. This is to ensure that provision of AFRBM would not be violated in any case. A standard format of MoU is being issued separately. In so far as those SLPEs which have already allowed revision of pay scales are concerned, the Administrative Deptt. May instruct those SLPEs also to immediately sign the MoU as mentioned above. (iv) Public Enterprise Department will monitor that the accounts of these SLPEs are updated in a time bound manner within 6 months. The above provision is without prejudice to the contents of Public Enterprises Department’s Notification No.PE.66/2010/153, dated 06-06-2011 and Notification No.PE.66/2010/156, dated 07-06-2011. Sd/-illegible Commissioner & Secretary to the Govt. of Assam, Finance Department, Dispur, Guwahati-6.” 12. A reading of the notification dated 24-08-2012 goes to show that a policy decision had been taken by the Government to bring in parity in the pay structure of the employees of the SLPEs and therefore, a clear instruction has been issued to all the SLPE’s by the Government to extend the benefit of the ROP Rules 2010 to their employees subject to the condition that the respective SLPE would have to arrange for their own financial resources to meet the expenses. In the wake of the notification dated 24.08.2012 the Board of Directors of the Corporation appears to have examined the issue in details and on being satisfied with the financial ability of the Corporation to meet the expenses, took a conscious decision in its 358th meeting held on 08.01.2013 to extend the ROP Rules, 2010 to its employees. Accordingly, by issuing the letter dated 04-02-2013, the Government was intimated about the decision of the Board and a request was made by the Managing Director of the Corporation i.e. the respondent No 6 to accord necessary approval by the Administrative Department. The contents of the letter dated 04.02.2013 is quoted herein below :- “ASSAM FINANCIAL CORPORATION AN ISO 9001:2008 CERTIFIED ORGANISATION Ref : AFC/Estt/113/2012-13/2324 Dated Guwahati, February 04, 2013 The Principal Secretary, Finance Department, Govt. of Assam, Dispur, Guwahati-6. Sub: Revision of Pay Scales for the employees of Assam Financial Corporation. Ref : Govt. of Assam Notification No.FPC.16/2007/Pt./174 dated 24th August, 2012. of Assam, Dispur, Guwahati-6. Sub: Revision of Pay Scales for the employees of Assam Financial Corporation. Ref : Govt. of Assam Notification No.FPC.16/2007/Pt./174 dated 24th August, 2012. Sir, I have the honour to draw your kind attention to the Notification No.FPC.16/2007/Pt./174 dated 24th August, 2012 of the Finance Department, Govt. of Assam, allowing the individual SLPEs to adopt the provision regarding revision of pay scales, allowances and payment of arrear pay as prescribed to the State Govt. employees as per Assam Service (ROP) Rules, 2010 for its employees with certain conditions. The Corporation, after observing due formalities and compliance of stipulated terms & conditions, placed the matter before the Board of Directors, in its 358th meeting held on 8th January, 2013 and the Board after careful deliberation and examination of detailed financial involvement as well as adequate financial resources to meet the expenditure for paying the revised pay; approved the proposal vide its Resolution NO.05, dated 08.01.2013. The extract of the Board Resolution is reproduced below for your kind perusal : “The Board considered the Memorandum No.5593 dated 05.01.2013 and approved revision of pay scales as prescribed to the State Government employees as per Assam Services (ROP) Rules, 2010 to the employees of the Corporation as communicated vide Govt. circular No.FPC.16/2007/Pt./174 dated August 24, 2012 based on the projections made by the Corporation. The Managing Director apprised the Board that a detailed exercise had been carried out as to the availability of the fund for meeting the resultant cost of payment of revised pay &allowances to the employees. A power point presentation was accordingly made before the Board. Based on the projection made in the presentation, the Board agreed to this proposal. The salary under revised pay scales shall be paid to the employees of the Corporation from the month of receipt of the approval from the Finance (Economic Affairs) Department, Govt. of Assam which is the Administrative Department for the Corporation. The Board authorized the Managing Director to forward the proposal to the Finance (Economic Affairs) Department, Govt. of Assam with detailed justification and execute the necessary MoU with the Government of Assam in this connection. of Assam which is the Administrative Department for the Corporation. The Board authorized the Managing Director to forward the proposal to the Finance (Economic Affairs) Department, Govt. of Assam with detailed justification and execute the necessary MoU with the Government of Assam in this connection. As regards the releasing of arrears arising out of revision of pay scales, the Board decided to take a call on the matter on improvement of the financial performance of the Corporation.” The Projected Cash Flow Statement for the FY : 2012-13, 2013-14, 2014-15 & 2015-16, which was considered by the Board while taking up the proposal of revision of pay scales, is enclosed herewith for your kind perusal. In view of the above, the Finance (Economic Affairs) Department, which is the Administrative Department for the Corporation, is requested to kindly convey necessary approval on the proposal so as to enable the Corporation to implement the revision of pay & allowances of the employees of the Corporation at the earliest. It may be apprised that the Corporation will sign the MoU as per condition (iii) of the Govt. Notification dated 24.8.2012 as and when directed by the Govt. in this regard. Enclo : (1) Projected Cash Flow Statement. Yours faithfully, Sd/- illegible (Amlan Baruah, IAS) MANAGING DIRECTOR.” 13. The respondent Corporation had thereafter executed a MoU with the Government of Assam in the Finance (Economic Affairs) Department pursuant whereto, by issuing the notification dated 07.06.2013, the Governor of Assam had approved the proposal of the Corporation to extend the benefit of revised scale of pay to its employees. 14. From the record, it is established that the Corporation had not only taken a conscious decision to extend the benefit of the Assam Services ROP Rules, 2010 to its employees by complying with the formalities laid down by the Government of Assam but had also implemented such decision by paying the salary of its employees as per the revised pay scale for the month of June, 2013 in terms of the Office Order dated 24-06-2013. The question that would, therefore, arise for consideration of this court in the present proceeding is as to whether the subsequent decision to withdraw the benefit of the revised pay scale was valid in the eye of law ? 15. The question that would, therefore, arise for consideration of this court in the present proceeding is as to whether the subsequent decision to withdraw the benefit of the revised pay scale was valid in the eye of law ? 15. As noted above, the profit and loss account statements as well as the Annual Report of the Board adopted in its 62nd general meeting are part of the record. A proper scrutiny of the aforesaid materials goes to show that despite having paid the revised pay scale to its employees since the month of June, 2013 till date, the Corporation is still making profit. The aforesaid position has also not been denied by Mr. Sharma, learned Standing Counsel for the Corporation. Moreover, since the month of July 2013, the Corporation has admittedly being paying the revised scale of pay to all its employees in terms of the interim order dated 13-08-2013 passed by this court and no appeal has been preferred against the said order by the Corporation. From the aforementioned facts, It is established beyond doubt that the Corporation has the necessary financial resources to implement the ROP Rules, 2010 and therefore, there was no legal justification for it to retract from the representation made before the Government in the letter dated 04-02-2013. 16. In the above context it would be further relevant to point out that the representation made in the letter dated 04-02-2013 has not been withdrawn by the Corporation till date. A bare reading of the Corporation’s letter dated 04-02-2013 leaves no room for doubt that the Board of Directors were aware of the actual financial position of the corporation and the resolution No 5 was adopted in its 358th meeting held on 08-01-2013 after a threadbare consideration of all aspects of the matter. The letter dated 04-02-2013 seeking approval of the Government was even supported by the cash flow statement. It is not the case of the Corporation that the projections made therein were not based on truth. 17. The past liability of the corporation has been cited as the sole ground for withdrawing the benefit of revised pay scale which was earlier extended to the employees of the corporation. However, the past liability of the Corporation was known to the Corporation on the date when the letter dated 04-02-2013 was issued to the Government seeking its approval for adopting ROP Rules, 2010. However, the past liability of the Corporation was known to the Corporation on the date when the letter dated 04-02-2013 was issued to the Government seeking its approval for adopting ROP Rules, 2010. Therefore, it is evident on the face of the record that the decision to withdraw the revised pay scale was not because of any changed circumstances but was a unilateral review made by the Corporation taking a diametrically opposite view on the same set of facts. 18. The impugned notifications dated 15-07-2013 and 30-07-2013 have been purportedly issued on the basis of the resolution adopted by the Board of Directors of the Corporation in its 362nd meeting held on 08-07-2013. From the record, it appears that the earlier decision to pay the revised scale to its employees had been withdrawn till such time the business of the Corporation permits payment of the same. However, there is no mention of any past liability of the Corporation as the ground for withdrawal of the benefit of revised pay scale. That apart no realistic projection has been made as to how non-payment of the revised pay scale would help wipe out the past liability. 19. The AFC, being an enterprise of the State Government Assam, is an authority within the meaning of Article 12 of the Constitution of India. Therefore, the Corporation was expected to act in a fair and transparent manner by avoiding whimsical decisions. The decision of the Board of Directors to adopt the ROP Rules of 2010 was not only based on cogent materials but was also backed by the approval of the Governor of Assam. The implementation of the revised pay scale had given rise to a legitimate expectation amongst the employees that they would be able to enjoy the benefit of pay revision at par with their counter parts working in the other departments under the State Government. 20. As noted above, there was a policy decision of the Government of Assam to extend the benefit of the ROP Rules 2010 to the employees of all the SLPEs and the Board of Directors of the Corporation had taken that decision forward by adopting the resolution in its meeting held on 08-01-2013. The decision was thereafter implemented with the approval of the Government resulting into altering the pay structure of the employees. The decision was thereafter implemented with the approval of the Government resulting into altering the pay structure of the employees. In the absence of any change in the Government policy, it was not open for the respondent corporation to take a contrary stand in the matter at a subsequent stage withdrawing the benefit already conferred. The Board of Director of Respondent Corporation was, therefore, clearly estopped from adopting the subsequent decision in its 362nd meeting whimsically withdrawing the benefits of the revised pay scale without there being any legitimate basis to do so. 21. The withdrawal of the benefit of revised pay scale was a decision to the detriment of the employees of the corporation. Notwithstanding the same, the Corporation had also failed to give any opportunity of being heard to the petitioner association before taking the impugned decision adversely affecting the interest of its members. The impugned decision of the Board to withdraw the revised pay scale is, therefore, not only found to be in clear breach of fundamental rights guaranteed to the members of the petitioner association under Articles 14 and 16(1) of the Constitution but the same is also held to be in flagrant violation of the principles of natural justice. 22. There is yet another aspect of the matter which deserves to be mentioned herein. As has been mentioned above, the decision to extend the benefit of the ROP Rules, 2010 was evidently taken by the Corporation in the light of the Government notification dated 24.08.2012 after fulfilling all the pre-conditions mentioned therein. The decision was thereafter implemented upon obtaining the formal approval of the Government. However, record reveals that the Corporation did not seek the approval of the administrative department before suspending the operation of the notification dated 24.06.2013 which was issued in terms of the Government order dated 07.06.2013. 23. In the counter-affidavit filed on behalf of the respondent No. 1, a categorical statement has been made in paragraph 4 to the effect that the pay band with grade pay applicable to the employees of the State Government under the ROP Rules 2010 has been made applicable to the employees of the State PSUs including the AFC. The above statement goes to show that the administrative department was not consulted before issuing the impugned Notification date 15-07-2013 and 30-07-2013. The above statement goes to show that the administrative department was not consulted before issuing the impugned Notification date 15-07-2013 and 30-07-2013. The respondent Corporation being under the administrative control of the Department of Finance, Government of Assam was not free to retract from a major decision such as withdrawal of the revised pay scale without taking the prior approval of the Government of Assam in the matter. 24. For the foregoing reasons, I am of the view that the impugned office orders dated 15.07.2013 and 30.07.2013 are not sustainable in the eye of law. The same are accordingly set aside. The interim order dated 13.08.2013 is hereby affirmed. Both the writ petitions stand allowed.