Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1278 (GAU)

MD. Matin Uddin Laskar v. State of Assam

2018-08-30

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. NH Barbhuiya, learned counsel for the writ petitioner. Also heard Mr. P Nayak, learned Standing Counsel, Finance Department and Mr. D Nath, learned counsel for the respondent Nos. 1, 3 and 5. Mr. RK Talukdar, learned counsel appears for the respondent No.4. 2. The petitioner, who is serving as an Electrical Inspector prays for fixation of his salary on the basis of his last pay drawn in the Regional Engineering College, Silchar, where he worked as Junior Engineer (Electrical) Senior Grade. 3. The petitioner's case in brief is that he was initially appointed as an Engineering Technician Grade-A (Electrical) in the Regional Engineering College on 09.01.1979. Thereafter, he was promoted to the post of Overseer Grade-I which was re-designated as Junior Engineer (Electrical) Senior Grade. The petitioner's service in Regional Engineering College as Junior Engineer was confirmed on 31.08.1987. 4. The Assam Public Service Commission thereafter issued an advertisement No.3/92, dated 06.03.1992, calling for candidates for filling up the post of Deputy Electrical Inspector under the Inspectorate of Electricity, Assam. The pay scale of the said post was Rs. 1835-4325 P.M. The petitioner, thereafter, submitted his application for the post of Deputy Electrical Inspector and in the application form at Serial No.16 it was stated as follows: "16. If the advertisement contemplates Higher initial pay for specially Qualified and experienced candidates, State the amount of higher initial Pay desired. If not : Pay as per LPC contemplated say "Not Applicable" is to be protected" The petitioner accordingly submitted his application form stating that his pay as per his last pay certificate should be protected. 5. Pursuant to the selection process, the petitioner was placed at Serial No.1 in the merit list for the post of Deputy Electrical Inspector made by the Assam Public Service Commission (APSC in short). Consequent to his recommendation by the APSC, the petitioner was appointed to the post of Deputy Electrical Inspector, on the pay scale of Rs. 1835-4325 pm, vide notification dated 16.11.1993. Thereafter, the post of Deputy Electrical Inspector under the Inspectorate of Electricity, Assam, was re-designated as Electrical Inspector in the existing scale of pay vide notification dated 23.08.1995. 6. Consequent to his recommendation by the APSC, the petitioner was appointed to the post of Deputy Electrical Inspector, on the pay scale of Rs. 1835-4325 pm, vide notification dated 16.11.1993. Thereafter, the post of Deputy Electrical Inspector under the Inspectorate of Electricity, Assam, was re-designated as Electrical Inspector in the existing scale of pay vide notification dated 23.08.1995. 6. The petitioner being aggrieved with the fact that his pay as per his last pay certificate in the Junior Engineering College was not protected by the respondents, filed representations dated 14.06.1994 and 31.10.1996, praying for protection of his last pay drawn in the Regional Engineering College. The petitioner also submitted his last pay certificate issued by the Regional Engineering College to the respondent authorities. 7. The petitioner was thereafter confirmed to the post of Electrical Inspector under the Inspectorate of Electricity, Assam, vide notification dated 03.12.2001 issued by the Under Secretary to the Government of Assam, Power (Electricity) Mines and Minerals Department. 8. As the State respondents had not decided the claim of the petitioner for protection of his pay, as given to him in the Regional Engineering College, he filed WP(C) No.1821 of 2003. WP(C) No.1821 of 2003 was disposed of vide order dated 30.09.2010 as follows: "The petitioner having claimed the benefit of pay protection, the authority cannot sit over the matter for an indefinite period of time, as has been done in the instant case. The authority is duty bound to decide the said issue, which has not been done till date. In view of the above, the writ petition is disposed of with a direction to the respondent No.1, namely, the Commissioner and Secretary to the Government of Assam, Power (Electricity) Department, to pass necessary order relating to the grievance of the petitioner for pay protection on his appointment as Deputy Electrical Inspector vide order dated 16th November, 1993. The necessary speaking order in that regard shall be passed by the Commissioner and Secretary, Government of Assam, Power (Electricity) Department within a period of 30 days from the date of production of the certified copy of this order along with a copy of the writ petition and its annexure appended thereto to be furnished by the petitioner before the said authority. The writ petition is accordingly disposed of, as indicated above. No cost." 9. The writ petition is accordingly disposed of, as indicated above. No cost." 9. In pursuance to the order dated 30.09.2010 passed by this Court in WP(C) No.1821 of 2003, the Principal Secretary, Power Department, Government of Assam, issued the impugned speaking order dated 24.01.2012, stating that protection of pay was not admissible in the case of the petitioner, as the service rendered by him under the Regional Engineering College was not service rendered in respect of a full-fledged Government organization. Accordingly, the petitioner could not be given protection of his last pay as per FR 22. 10. The petitioner's counsel submits that the Regional Engineering College (REC) became National Institute of Technology (NIT) on the promulgation of NIT Act, 2007. He also submits that in reply to his RTI queries, the Government of India, Ministry of Human Resources and Development, Department of Higher Education had stated that prior to conversion of REC into NIT, the College was established under the joint venture of the State Government and the Government of India on a funding pattern of 50:50 basis. He accordingly submits that the above would go to show that the REC was under the administrative control of the Government and accordingly, as per FR 22C, the petitioner's last pay drawn in the REC should have been protected. The petitioner's counsel also submits that as per OMs dated 07.08.1989 and 28.02.1992, issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Government of India, pay protection is granted to candidates who are appointed by the method of recruitment and selection through UPSC if such candidates are in Government service. As pay protection is granted to candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous bodies when they are appointed in the Government, the same analogy and guidelines as given in the OM dated 07.08.1989 would have to be followed in the present case. 11. Mr. P Nayak and Mr. D Nath, learned Counsels for the respondents, on the other hand, submit that the REC is a society and it is not a Government Department or Government Organization. They also submit that FR 22 could not be applied, as the petitioner's service in the REC was not Government service. 12. I have heard the counsels for the parties. 13. Clause 16 of the application form states as follows: "16. They also submit that FR 22 could not be applied, as the petitioner's service in the REC was not Government service. 12. I have heard the counsels for the parties. 13. Clause 16 of the application form states as follows: "16. If the advertisement contemplates Higher initial pay for specially Qualified and experienced candidates, State the amount of higher initial Pay desired. If not : contemplated say "Not Applicable" A reading of the above shows that a candidate can state the amount of higher initial pay desired by the candidate if the Advertisement contemplates higher initial pay for specially qualified and experienced candidates. The Advertisement No.3/1992 dated 06.03.1992 calls for filling up of various posts under the Assam Government, one of them being the post of Deputy Electrical Inspector, states at paragraph-4 as follows: "4. POWER (ELECTRICITY) ETC.DEPTT. (i) Deputy Electrical Inspector, under the Inspectorate of Electricity, Assam No. of posts-10(ten), 2(two) permanent and 8 (eight) temporary Scale of Pay:-Rs. 1835/- to Rs. 4325/- p.m (Revised)" A reading of the advertisement in relation to the post i.e. to be filled up, that is, the post of Deputy Electrical Inspector, which is relevant for the case at hand, shows that there is nothing in the Advertisement contemplating higher initial pay for specially qualified and experienced candidates. Accordingly, just because the petitioner, in his application form has written that he wanted protection of his last pay as given to him in the REC, does not bind the respondents with the claim made by the petitioner. Accordingly, this Court finds that the respondents were not bound by the claim of the petitioner for pay protection. The pay protection claim made by the petitioner in the REC is not supported by the Advertisement No.3/1992 and accordingly, no right accrues to the petitioner for pay protection as per his LPC in the REC. 14. The appointment of the petitioner as Deputy Electrical Inspector under the Inspectorate of Electricity, Assam vide Notification dated 16.11.1993 states that the petitioner has been appointed in the scale of pay of Rs. 1835-50-2035-60-2395-80-2555-EB-2875-100- 3575-125-4325 onwards. 15. The Advertisement No.3/1992 clearly shows that the pay of the Deputy Electrical Inspector was Rs. 1835/- to Rs. 4325/-. The appointment order of the petitioner also shows that the petitioner has been given the pay scale as given in the Advertisement No.3/1992. 1835-50-2035-60-2395-80-2555-EB-2875-100- 3575-125-4325 onwards. 15. The Advertisement No.3/1992 clearly shows that the pay of the Deputy Electrical Inspector was Rs. 1835/- to Rs. 4325/-. The appointment order of the petitioner also shows that the petitioner has been given the pay scale as given in the Advertisement No.3/1992. Though, the petitioner had stated in his application form that his last pay was to be protected, the same has not been accepted by the respondents. This can be easily inferred from the appointment order issued vide Notification dated 16.11.1993. The submission of the petitioner in his application form that he wanted protection of his last pay certificate does not bind the respondents with regard to the claim made by the petitioner. If the petitioner was not agreeable to the pay scale given to him, the petitioner was not barred from leaving his post. 16. The REC being a Society, registered under the Societies Registration Act, the REC cannot be said to be a full fledged Government organization. Funds or grants given by the Government to a Society does not make the Society a Government Organization, as a Society is bound by its own Constitution and by-law. Also the services rendered in a society by an employee of the Society cannot be said to be Government service. Accordingly, FR -22 cannot be applicable to the case in hand as FR -22 is applicable only to a person who has been in Government service. 17. With regard to the petitioner's contention that the case of the petitioner has to be decided as per OMs dated 07.08.1989 and 28.02.1999, issued by the Ministry of Personnel, P.G & Pensions Department of Personnel and Training, Government of India, the question is whether the above two OMs would be applicable in the present case. This Court finds the above OMs are not applicable to the case in hand as the petitioner is an employee of the State of Assam and not the Union of India. Further, nothing has been produced by the petitioner to show that the above OMs have been made applicable to the employees of the State Government. In fact, a reading of the OM dated 28.02.1992 shows that the above two OMs have been made applicable to the employees of the State Government undertaking selected for post in Central Government by direct recruitment basis as in the case of Central Public Undertaking. In fact, a reading of the OM dated 28.02.1992 shows that the above two OMs have been made applicable to the employees of the State Government undertaking selected for post in Central Government by direct recruitment basis as in the case of Central Public Undertaking. The extract of OM dated 28.02.1992 is reproduced below: "The undersigned is directed to say that the question of inclusion of employees of State Government Undertakings within the purview of this Department's O.M No.12/1/89-Estt. ( Pay-I) dated 7.8.89, has been engaging the attention of the Government for some time. The matter has been carefully considered and the President is pleased to decide that the provisions of this Deptt.'s O.M. of even number dated 7.8.89 may be extended to the employees of State Govt. Undertakings selected for posts in Central Government on direct recruitment basis as in case of Central Public Undertakings." In the present case, the REC was never a State Government Undertaking but a Society. Thus, the above OMs are not applicable to the present case. 18. In view of the reasons cited above, this Court is of the view that the petitioner has not been able to make out a case for pay protection, with regard to his last pay received by him, while working in the REC, which was a registered Society. 19. Writ petition is accordingly dismissed.