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2018 DIGILAW 216 (GAU)

KALYAN KUMAR CHAKRABORTY v. STATE OF ASSAM

2018-02-05

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr.K.K. Mahanta, the learned senior counsel assisted by Mr. K. Sinha for the petitioners. Also heard Mr. M.R. Adhikari, the learned Government Advocate who appears for all the respondents. 2. The case of the petitioners in brief is that they were appointed as Field Investigators (F.I.s for short) between the years 1988 to 1994 under the Old Age Pension Scheme, 1983 introduced by the State Government in the Department of Welfare of Plains Tribes & Backward Classes & Social Welfare. The petitioners were confirmed against their respective posts. According to the petitioners, the posts of F.I.s were created in the establishment of District Social Welfare Officer (DSWO) with one Grade lower to the said post and they work under direct supervision of DSWOs. They were initially employed for effective implementation of the schemes like old age pension scheme etc. According to the petitioners, the nature of duties and functions of F.I.s and Statistical Assistant in the Social Welfare Department are more or less similar and in fact the post of F.I.s carries a higher responsibility. Although the petitioners have been rendering their services since their initial appointment in the year 1988-1992, no promotion have been given to them for want of service rules to govern their service conditions. The petitioners therefore, submitted their representations to the Secretary to the Government of Assam, Social Welfare Department on 02.02.2006 requesting their promotion to appropriate posts such as the District Social Welfare Officer/Child Development Project Officer/Superintendent of Homes/Programme Officer amongst others. 3. The petitioners also represented their cause before the State respondents even through their service association i.e., All Assam Social Welfare Field Investigators Association (Service Association) on several occasions and consequently, vide communication dated 25.09.2010, the Director of Social Welfare Department informed the Service Association that a draft service rules covering all categories of officers and employees under the Department was going to be prepared and therefore, asked them to submit their views, comments and suggestions on or before 05.06.2010. 4. Accordingly, the Service Association submitted their views and opinion for framing the contemplated draft service rules and consequently, a draft service rules i.e. the Assam Social welfare Officers Service Rules, 2010 (Draft Rules) was made and a copy of the same was circulated to all stake holders for their views and comments by the Director of Social Welfare Department vide his communication dated 29.06.2011. 5. 5. As per the Draft Rules, 2% of the vacancies in the Class-II category of post other than the post of DSWO were to be filled up from the post of F.I.s having requisite qualifications with 8 years of experience as F.I.s. However, despite framing of the Draft Rules, the same was not finalised and the petitioners have been stagnating in the post of F.I. since the last more than 22 years. Having no other option, they have filed the present writ petition. 6. Mr. K.K. Mahanta, the learned senior counsel appearing for the petitioners submits that non-creation of promotional avenues for the petitioners from the post of F.I. amounts to gross violation of Article 14, 16 and 21 of the Constitution of India. He submits that the State respondents are duty bound to frame service rules for F.I.s so that there are promotional avenues for them to move to a next higher post/grade. He submits that the post of F.I. is equivalent to the post of Supervisor and Statistical Assistant under the Social Welfare Department having similar pay scale and similar nature of duties to perform. While a Supervisors and Statistical Assistants have the opportunity for being considered for promotion to the post of Child Development Project Officer (CDPO), which is at par with the post of DSWO, the petitioners in the absence of any service rules do not have such opportunity. It is therefore, highly discriminatory on the part of the respondents in not providing F.I.s any scope of promotion to a higher post/grade. 7. Mr. K.K. Mahanta further submits that in neighbouring states like Manipur and Arunachal Pradesh, the State Government concerned has framed appropriate service rules whereby the post of F.I. is one of the feeder posts for promotion to the post of DSWO. Referring to the State of Manipur, Mr. K.K. Mahanta submits that 75% of the posts of DSWO are being filled up by way of promotion and the post of F.I. is one of the feeder posts for such promotion. He therefore submits that there is no reason as to why similar rules should not be framed for the F.I.s in the State of Assam so that the petitioners can also have an opportunity of being promoted to the next higher post/grade. 8. Mr. He therefore submits that there is no reason as to why similar rules should not be framed for the F.I.s in the State of Assam so that the petitioners can also have an opportunity of being promoted to the next higher post/grade. 8. Mr. K.K. Mahanta, the learned senior counsel further submits that a similar grievance was raised by the All Assam Social Welfare Statistical Employees Association by filing WP (C) No.5346/2002. It was the case of the association that there was no promotional avenue for them in service and consequently, there was great stagnation in a particular post. The writ petition came to be disposed vide order dated 03.03.2004 with a direction to the State respondents to frame appropriate service rules covering all categories of employees of the statistical wing of the Social Welfare Department. He submits that pursuant to the said direction, incumbents holding the post of Statistical Assistant in the Department have been considered for promotion to the post of CDPO. Therefore, he submits that the petitioners having similar grievances, Court may pass appropriate direction to the State respondents to mitigate their grievances on stagnation. 9. The respondent No. 2 has filed affidavit in opposition on 24.10.2011 wherein it has been stated that the petitioners were appointed as F.I.s in connection with the implementation of Old Age Pension Scheme. The Scheme was being implemented by the Panchayat and Rural Development under the banner of National Old Age Pension Scheme w.e.f. the year 2003. However, with the discontinuance of the Scheme, the services of the F.I.s are being utilised for implementation of other schemes under the establishments of the DSWO. With regard to the promotional avenue of F.I.s, the Director of Social Welfare Department took up the matter and decided to consider them for promotion to the post of Research Assistant under the Care and Protection Scheme under the Directorate of Social Welfare. Such decision was taken in the meeting held on 06.11.2009 and accordingly, necessary steps were being initiated to collect the individual ACRs of the incumbent. As regards the Draft Rules, the same was under active consideration of the respondent government for its finalisation. 10. Such decision was taken in the meeting held on 06.11.2009 and accordingly, necessary steps were being initiated to collect the individual ACRs of the incumbent. As regards the Draft Rules, the same was under active consideration of the respondent government for its finalisation. 10. Against the affidavit-in-opposition of respondent No.2, the petitioners filed their affidavit-in-reply on 16.05.2012 contending that the Draft Rules was discriminatory and unfair since only 2% of the vacancy in the last two category post other than the post of DSWO was reserved for F.I.s whereas higher percentage was reserved for Statistical Assistant and for the ministerial cadre. The Service Association therefore, submitted their objection to the respondent authorities highlighting their grievances. 11. Apart from the respondent No.2, the respondent No. 1 has also filed affidavit-in-opposition on 25.03.2015 contending inter-alia that F.I.s were neither encadred nor inducted into the Integrated Child Development Scheme (ICDS) and therefore, the question of their promotion did not arise. However, on humanitarian point of view, the Department included the post in the existing Service Order and after consultation with the Assam Public Service Commission, a promotional quota of 0.08 Nos. was earmarked considering the cadre strength of 14 posts. As a result, the F.I. who appeared at the 1st position in the gradation list was given promotion. 12. The respondent No.2 has also filed an additional affidavit-in-opposition on 04.12.2017 wherein it has been stated that the petitioners were granted two financial up-gradation on completion of 24 years of service in their respective post as per the Assured Career Progression Scheme (ACPS). Alongwith the said affidavit, the respondent No. 2 has annexed supporting documents showing the grant of the benefit of ACPS to the petitioners w.e.f. 01.01.2011 i.e. the date on which the ACPS has been implemented. Mr. M.R. Adhikari, the learned Government Advocate appearing for the State respondents submits with the implementation of the ACPS and its benefits given to the petitioners, they cannot have further grievance on stagnation. Mr. KK Mahanta, the learned senior counsel on the other hand submits that introduction of ACPS cannot be compared to the creation of promotional avenues by framing appropriate service rules. He submits that a perusal of the financial up-gradation given to the petitioners does not seem to have any material difference in their pay as it appears that only increments have been given to them. Mr. He submits that a perusal of the financial up-gradation given to the petitioners does not seem to have any material difference in their pay as it appears that only increments have been given to them. Mr. KK Mahanta submits that annual increments as it is are usually given to employees of the Government unless they are withheld as a penalty. Therefore, the respondents may be directed to properly clarify as to how the petitioners can be said to have benefitted with the ACPS. 13. I have considered the submissions advanced by the learned counsels for the rival parties and I have also perused the materials available on record. The learned counsels for the parties have produced the ACPS which was notified by the Government of Assam in the Finance (Pay Research Unit) Department on 25.05.2011. The Scheme involves two financial up-gradation for employees employed under the Government. Clause 1 (II) provides that the benefit of the Scheme would be given twice in the entire service career of the employee. The first benefit would be given after completion of 10 years of service and the second, after completion of 24 years of service. Clause 2 (IX) of the ACPS contemplates placement on personal basis to the immediate higher Grade Pay/grant of financial benefits only and shall not amount to actual functional promotion of the employees concerned. Clause 3 (XI) of the ACPS provides that the Scheme would be operational w.e.f. 01.01.2011 and financial up-gradation as per the provisions of the ACPS would be granted w.e.f. 01.01.2011. 14. The benefit given to the petitioners as per the ACPS has been highlighted by the respondents in their additional affidavit-in-opposition filed on 04.12.2017. The learned counsel for the parties have also produced a notification dated 06.07.2017 issued by the State Government in the Finance (Pay Research Unit) Department notifying the Modified Assured Progression Scheme (MACPS) which includes grant of financial up-gradation to a regular employee drawing Grade Pay in Pay Band 1, Pay Band 2, 3 and 4 excluding the last Grade Pay of Pay Band 4. The MACPS is also to cover isolated post where there is no scope for promotion. Unlike the ACPS, the MACPS provides for up-gradation at 3 stages i.e. after 10 15. The MACPS is also to cover isolated post where there is no scope for promotion. Unlike the ACPS, the MACPS provides for up-gradation at 3 stages i.e. after 10 15. As can be seen from the additional affidavit-in-opposition filed by the respondent No.2, financial up-gradation in terms of the ACPS has been granted to the petitioners w.e.f. 01.01.2011 in 2 stages i.e. after 10 years of completion of service and after completion of 24 years of service. As can be noticed, ACPS has been introduced by the State respondents for those posts which do not have avenues for promotion. Such being the case, the grievances of the petitioners apparently is taken care of. The decision of the Apex Court relied upon by Mr. K.K. Mahanta learned senior counsel for the petitioners i.e., State of Tripura and Ors. Vs. K.K. Roy (2004) 9 SCC 65 has also been considered. The Apex Court upon noticing that the writ petitioner who was appointed as Law Officer had no promotional avenue directed the State respondents to provide him the benefit of ACPS. The first promotion to the next higher scale was directed to be given upon completion of 12 years and the second upon completion of 24 years in service. 16. The grievance of the petitioners with regard to stagnation in the post of F.I.s as may be noticed having been met by the respondent authorities in the above manner, cause of action on that count no longer survives. The issue with regard to the mode, manner and extent in which the ACPS or the MACPS is being implemented in my considered opinion would be a separate issue altogether which may be considered if challenged but in a separate proceeding and not through the present writ petition. 17. In the result, the writ petition stands closed.