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2018 DIGILAW 842 (GAU)

BISWANATH KALITA v. STATE OF ASSAM

2018-05-22

HRISHIKESH ROY

body2018
JUDGMENT AND ORDER : 1. Heard Mr. T.J. Mahanta, the learned Sr. counsel appearing for the petitioners. The respondent Nos.1, 3, 4, 5 and 6 are represented by Mr. S.S. Roy, the learned Govt. advocate. Mr. R. Borpujari, the learned standing counsel for the Finance Department appears for the respondent No.2. 2. The 45 petitioners are personnel of the Special Branch in the Assam Police and this category who were given the benefit of 2 advance increments on the basis of PU/Intermediate or other higher qualification through the communication dated 26.10.1978 (Annexure-2) are aggrieved by the communication dated 03.07.2009 (Annexure-3), whereby, the increments availed by the Special Branch Constables were declared to be unmerited and on that basis recovery of the excess drawal is ordered by the authorities. 3.1 Assailing the legality of the impugned communication dated 03.07.2009 (Annexure-3), Mr. T.J. Mahanta, the learned Sr. counsel contends that the petitioners (some of whom have already retired), are drawing the two advance increments either from the date of joining serving or since they acquired the requisite qualification after their appointment, on the strength of the communication dated 26.10.1978 (Annexure-2) and the withdrawal of the increment for the Special Branch Constables is projected to be discriminatory, since the Constables in other branches of Assam Police are allowed the benefit of the advance increments without interruption. 3.2 As can be seen from the Annexure-2 circular, the advance increments were granted with concurrence of the Finance Department and accordingly the arbitrary withdrawal of the benefit without hearing the affected Constables, is questioned by the petitioners. The Sr. counsel cites Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475 and State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 to project that since the petitioners had nothing to do with the increment decision, they cannot be penalised by ordering recovery of the excess amount drawn by the Special Branch Constables, some of whom have now retired from service. 4.1 On the other hand, Mr. R. Borpujari, the learned standing counsel for the Finance Department and the Govt. advocate Mr. 4.1 On the other hand, Mr. R. Borpujari, the learned standing counsel for the Finance Department and the Govt. advocate Mr. S.S. Roy refer to the counter affidavit filed on 04.05.2011 to contend that because of the Assam Services (Revision of Pay) Rules, 1983 and the Assam Services (Revision of Pay) Rules, 1990, the police personnel are ineligible for advance increments for possessing higher qualification and that is why the impugned cancellation decision was taken. 4.2 The respondents justify the impugned order of 03.07.2009 on the basis of the Home Departments circular dated 03.07.1991 and the consequential communication dated 20.07.1991 by the Police Department and the Govt. advocates argue that since the increments were mistakenly granted, the recovery thereof, should not be interfered by the Court. 5. While the ineligibility of the police personnel to receive advance increment is projected to be justified on account of the ROP Rules, 1983 and the ROP Rules, 1990, it can be seen from the respective Clause 7 and Clause 9 of both the ROP Rules that continuation of the advance increment for higher qualification for certain posts, is supported by the ROP Rules itself. The situation is no different under the ROP Rules, 1998 as Clause 9 of the later Rules also envisaged continuation of the advance increment. If such be the implications of the ROP Rules, the ineligibility of the police personnel to receive advance increment on the basis of the ROP Rules as projected by the Govt. counsel, cannot be supported from that perspective. 6. That apart, while the averred stand of the respondent No.6 is that all police personnel are ineligible for advance increment because of the ROP Rules, the personnel in other police branches are not impacted by the circular dated 03.07.2009, whereas the same is sought to be arbitrarily enforced against the Special Branch Constables. Such discriminatory treatment by the State, cannot naturally be supported as the State is expected to be fair in their dealings. 7. The petitioners as can be seen, had no role in getting the advance increments, which was allowed by the authorities with due concurrence of the Finance Department and therefore the recovery of the alleged excess drawal from the innocent beneficiaries cannot now be supported, in the light of the ratio in Syed Abdul Qadir (supra) and Rafiq Masih (supra) cited by the petitioners counsel. 8. 8. The advance increment allowed w.e.f. 26.09.1973 and drawn by the petitioners either from the date of joining service or from the date of acquiring the requisite qualification have become part of the salary package for the petitioners and those have also been taken into account for determining the pension for some of the retired Special Branch Constables. In such circumstances, the State could not have ordered for recovery of the alleged excess drawal without affording hearing to the affected petitioners. Unfortunately no such opportunity was afforded before issuing the impugned circular dated 03.07.2009 (Annexure-3) and accordingly the same is declared to be vitiated and unsustainable. 9. It may not also be out of place to mention here that while the impugned decision is based upon the Home Departments circular of 03.07.1991 and the consequential circular of the Police Department issued on 20.07.1991, neither of these circulars have been produced by the Govt. advocates to justify the impugned decision. It may not therefore be appropriate for the Court to comment on these two circulars referred to in the impugned communication dated 03.07.2009 (Annexure-3). However since withdrawal of the increment benefit will impact the pay package for the Special Branch Constables, the same cannot be retrospectively enforced against those, who have drawn their emoluments on the basis of the advance increments allowed by the circular dated 26.10.1978 (Annexure-2). Hence the impugned decision dated 03.07.2009 (Annexure-3) stands quashed with all legal consequences. 10. With the above order, the case stands allowed without any order on cost.