JUDGMENT : (ROBIN PHUKAN, J.) Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Ms. H. Terangpi, learned standing counsel, Secondary Education Department, appearing for respondent Nos.1—3 and Ms. P.R. Mahanta, learned standing counsel, Higher Education Department, appearing for respondent Nos.4 and 5. 2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Anwar Hussain has challenged the correctness or otherwise of the letter dated 15.11.2022, issued by the respondent No.2, whereby the petitioner was denied the benefit of pay protection of his earlier post of Lecturer in Sibsagar College, in the post of District Elementary Education Officer (DEEO) and also to provide him consequential benefit of pension and other retiral benefits. 3. The background facts leading to filing of the present writ petition is briefly stated as under:- “The petitioner was serving as Lecturer of Philosophy in Sibsagar College against a valid sanctioned post and he was receiving UGC scale of pay. Pursuant to an advertisement dated 25.12.1989 for filling up of posts of 8 nos. of Inspector of Schools/Deputy Directors/District Elementary Education Officer, the petitioner has applied for the same and he was also selected and he got appointed in the said post and while he was serving as DEEO, he was dismissed from service on 09.03.2011 after conducting a departmental proceeding against him. Thereafter, the petitioner approached this Court by filing one writ petition, being WP(C) No.2399/2011, which was dismissed on 08.04.2014. Thereafter, the petitioner preferred an appeal before this Court, being WA No.187/2014 challenging the aforesaid dismissal order. The order of dismissal has been converted to compulsory retirement with service benefits. Thereafter, the petitioner has received the retirement benefits and also receiving the pension. But, his grievance is that the scale of pay in the later post received by the petitioner was Rs.1500-60-1800-EB-60-1988-65-21-2175/-, which is lower than the UGC scale of pay of Lecturer i.e. Rs.2200-75- 2800-100-4000/- and as per provisions under FR-9(23), FR- 22(i)(a)(1) and FR-37, the petitioner is entitled to pay protection from lower to higher pay scale as the later post carries duties and responsibility of greater importance than the duty and responsibility to the post of Lecturer. It is also the pleaded case of the petitioner that similar benefit was provided to one of his colleague, namely, Mr. Khabir Uddin Ahmed and therefore, the petitioner approached this Court praying for the relief mentioned hereinabove.” 4. It is also the pleaded case of the petitioner that similar benefit was provided to one of his colleague, namely, Mr. Khabir Uddin Ahmed and therefore, the petitioner approached this Court praying for the relief mentioned hereinabove.” 4. Mr. Khan, learned counsel for the petitioner submits that after intervention of this Court and conversion of the dismissal to compulsory retirement with service benefit, the petitioner has filed one representation on 21.09.2017 (Annexure-12 of the petition) to the Commissioner and Secretary to the Govt. of Assam, Secondary Education Department. But the said representation was dismissed by the respondent No.2 vide impugned letter dated 15.11.2022. Mr. Khan further submits that in the aforesaid letter dated 15.11.2022, no reason has been assigned by the respondent No.2. But, while the said letter is being challenged in this petition, the respondent No.2 had issued another order dated 24.11.2024 bearing Memo No.E-233371/361, whereby the letter dated 15.11.2022, bearing No.233371/212 was set aside and assigned reason for refusing to grant benefit of pay protection of his earlier post of Lecturer in Sibsagar College on the ground that FR-22(i)(a)(1) deals with option of fixation of initial pay, which option as per the rule is to be availed by the Government servant within one month of appointment. Md. Anwar Hussain had first raised the issue of pay fixation after much delay only in 2017 and no explanation has been provided for the delay in claiming such pay protection and that during the pendency of this writ petition, setting aside the letter under challenge dated 15.11.2022 by the respondent No.2 is illegal and arbitrary and in view of a decision of this Court in the case of Akaddas Ali v. State of Assam & Ors. , reported in 2014 (4) GLR 3 , the same amounts to vehemently interfering with the dispensation of justice by the Courts of law and is an instance of an authority try to overreach the order of the Court and as such, the same is illegal and without jurisdiction and are of no consequence and as such, Mr. , reported in 2014 (4) GLR 3 , the same amounts to vehemently interfering with the dispensation of justice by the Courts of law and is an instance of an authority try to overreach the order of the Court and as such, the same is illegal and without jurisdiction and are of no consequence and as such, Mr. Khan submits that the impugned order dated 24.11.2024 is non est in the eye of law and also the impugned letter dated 15.11.2022, by which the claim of the petitioner stood rejected is not at all sustainable as no reason has been assigned for the same and under such circumstances, it is contended to set aside the impugned letter dated 15.11.2022 and also the order dated 24.11.2024 and to grant benefit of pay protection to the petitioner, which was also granted to a similarly situated person, namely, Khabir Uddin Ahmed, vide letter dated 18.09.2012 (Annexure-17 of the petition). 5. On the other hand, Ms. Mahanta, learned standing counsel for the Higher Education Department submits that the petitioner has claimed for pay protection under the provision of FR-9(23), FR-22(i)(a)(1) and FR-37, and FR-22(i)(a)(1) deals with option for fixation of pay and the said option has to be availed by the Government servant within one month of appointment. But the petitioner has raised the issue of fixation only in the year 2017 while he was appointed in the joint cadre of Deputy Director/Inspector of Schools/District Elementary Education Officer under Rule 3(1) of the Assam Public Service (Adhoc) Appointment Rules, 1986 on 05.07.1990 and after consideration of the letter dated 15.11.2022 was revisited and set aside and on account of delay, his claim was rejected and there is no merit in this petition and therefore, it is contended to dismiss the petition. 6. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned letter dated 15.11.2022 and also the subsequent order dated 24.11.2024 passed by the respondent No.2 and also the FR-22(i)(a)(1). 7. The basic facts here in this case are not in dispute. Earlier the petitioner was serving in the Department of Philosophy of Sibsagar College, which was a deficit college and the petitioner was availing the UGC scale of pay, which was at the relevant point of time Rs.2200-75- 2800-100-4000/-. 7. The basic facts here in this case are not in dispute. Earlier the petitioner was serving in the Department of Philosophy of Sibsagar College, which was a deficit college and the petitioner was availing the UGC scale of pay, which was at the relevant point of time Rs.2200-75- 2800-100-4000/-. Thereafter, he applied for the post of Inspector of Schools/Deputy Director/DEEO and he was selected and he was appointed to the aforementioned post and the said post carries scale of pay of Rs.1500-60-1800-EB-60-1988-65-21-2175/-, which is much lower than the UGC scale of pay and he was appointed on 05.07.1990 and while he was serving as DEEO, Sivsagar, a departmental proceeding was initiated against him and ultimately he was dismissed from service vide order dated 09.03.2011. The said order was unsuccessfully challenged in a writ petition, for which the petitioner preferred one writ appeal, being WA No.187/2014 and a Division Bench vide order dated 23.06.2015 has modified the order of dismissal to compulsory retirement with legally entitled consequential benefits without however back wages. 8. It is also not in dispute that thereafter, the petitioner has preferred one representation to grant him pay protection to the respondent authorities on 18.05.2022. But the said representation was regretted by the respondent authorities vide impugned letter dated 15.11.2022. It is also not in dispute that while the letter dated 15.11.2022 is being challenged before this Court, the respondent No.2 revisited the same vide impugned order dated 24.11.2024 and set aside the impugned letter dated 15.11.2022. 9. It appears that in the impugned letter dated 15.11.2022, no ground has been assigned as to why the representation filed by the petitioner for pay protection was regretted. But, in the order dated 24.11.2024, it has been stated that the petitioner has failed to file the application within the stipulated period of one month as provided by FR- 22(i)(a)(1) and no explanation has been provided, for which the same has been regretted. 10. Now, let it be seen that what FR-22(i)(a)(1) contains. But, in the order dated 24.11.2024, it has been stated that the petitioner has failed to file the application within the stipulated period of one month as provided by FR- 22(i)(a)(1) and no explanation has been provided, for which the same has been regretted. 10. Now, let it be seen that what FR-22(i)(a)(1) contains. It is to be noted here that the said FR-22(i)(a)(1) read as under:- “ F.R. 22 (1) The initial pay of a Government servant who is appointed to a post on a time scale of pay is regulated as follows: (a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale shall be fixed by giving one increment in the level from which the Government servant is promoted and he or she shall be placed at a cell equal to the figure so arrived at in the level of the post to which promoted or appointed and if no such cell is available in the level to which promoted or appointed, he shall be placed at the next higher cell in that level. Save in cases of appointment on deputation to an ex cadre post or to a post on ad hoc basis or on direct recruitment basis, the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the next higher cell in the level of the post to which he or she is promoted on regular basis and subsequently, on the date of accrual of next increment in the level of the post from which Government Servant is promoted, his pay shall be re-fixed and two increments (one accrued on account of annual Increment and the second accrued on account of promotion) shall be granted in the level from which the Government Servant is promoted and he or she shall be placed at a cell equal to the figure so arrived, in the level of the post to which he or she is promoted; and if no such cell is available in the level to which he or she is promoted, he or she shall be placed at the next higher cell in that level.” 11. Thus, a careful perusal of the FR 22(i)(a)(1) reveals that the option for protection of pay has to be exercised by the concerned employee within a period of one month from the date of promotion or appointment or to have the pay fixed under the rule from the date of such promotion or appointment. It also appears that in the said Rule word shall is used. Now, what left to be seen is whether the said rule is directory or mandatory. And this issue has to be determined in the light of the nature of the right to pay protection. 12. Notably, pay protection is a recognized legal principle in India. This principle aimed at safeguarding employee’s salary level during transitions. It is also well settled that eligibility to pay protection can vary significantly based upon the nature of employment. It also depends upon policies in place of the respective governments. 13. This right to pay protection arises from the right to salary/wages, to which an employee is entitled to. This principle aimed at safeguarding employee’s salary level during transitions. It is also well settled that eligibility to pay protection can vary significantly based upon the nature of employment. It also depends upon policies in place of the respective governments. 13. This right to pay protection arises from the right to salary/wages, to which an employee is entitled to. This right to salary/wages is intrinsically related to his right to life and personal liberty, as guaranteed by Article 21 of the Constitution of India. If the employee is wholly dependent upon his salary/wages for his livelihood his right to get salary/wages has to be regarded as a fundamental right as guaranteed by Article 21 of the Constitution of India. In holding so, this Court derived authority from a decision of Hon’ble Supreme Court in the case of Olga Tellis vs. Bombay Municipal Corporation , reported in (1985) 3 SCC 545, wherein it has been held as under:- “The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life can not be extinguished, or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important fact of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.” 14. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.” 14. Hon’ble Supreme Court in the case of State of Andhra Pradesh & Anr. vs. Smt. Dinavahi Lakshmi Kameswari ( CIVIL APPEAL NO. 399 OF 2021 ), observed that: “The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognized by the applicable rules and regulations which govern the service of the employees of the State.” 15. Thus, it is well settled that entitlement of an employee or an ex- employee to his salary or pension, as the case may be, is an intrinsic part of his right to life under Article 21 and right to property under Article 300A of the Constitution of India which cannot be taken away except by authority of law. 16. Thus, depriving any employee of his salary would be a violation of his rights contained, under Articles 21 and 300-A of the Constitution of India. It is well established that Fundamental Rights cannot be waived by any person and, therefore, by no stretch of imagination it can be said that mere non exercising his option within one month amounts to waiver of the right to get salary. Thus, denial of pay protection to the petitioner would certainly amount to violation of his fundamental right as well as human rights which cannot be permitted. 17. Thus, from all stand points FR-22(i)(a)(1) has to be read as directory not as mandatory. And the state respondent cannot be permitted to take shield of the FR-22(i)(a)(1) to deny the benefit of pay protection being the same fundamental as well as human right. 18. 17. Thus, from all stand points FR-22(i)(a)(1) has to be read as directory not as mandatory. And the state respondent cannot be permitted to take shield of the FR-22(i)(a)(1) to deny the benefit of pay protection being the same fundamental as well as human right. 18. Further, it appears that in the representation filed by the petitioner on 18.05.2022, he has cited an example of his colleague Khabir Uddin Ahmed, who is also similarly situated with the petitioner and he was granted the protection of pay vide Govt. letter No.MC(3)S-795/2001/35, dated 18.09.2012, copy of which is enclosed with the petition as Annexure-17 and it appears that Khabir Uddin Ahmed, who is also similarly situated like the present petitioner and who was also the Lecturer before his posting as DEEO w.e.f. 01.04.1999, was granted the protection of pay. If similarly situated person is granted the benefit, there is no reason to deny the same benefit to the present petitioner also. If the unexplained delay is ground for rejection of the representation filed by the petitioner, the same was not applied in the case of Khabir Uddin Ahmed, who is also similarly situated like the petitioner. The treatment thus received by the petitioner in the hand of the respondent No.2 is discriminatory and also cannot be allowed to be sustained. It is being reinforced by various precedents that there is a necessity for equitable treatment amongst similarly situated employees. 19. Further, it appears that while this Court is in-seisin of the matter, with the impugned letter dated 15.11.2022, the said letter was set aside by the respondent No.2 vide order dated 24.11.2024, which is nothing but an attempt to overreach the order of the Court as held by a Division Bench of this Court in the case of Akaddas Ali (supra) 20. To recapitulate, on following grounds, the writ petition stands allowed and the impugned letter dated 15.11.2022 and the order dated 24.11.2024, stand set aside and quashed:- (i) In the impugned letter dated 15.11.2022, the respondent No.2 has not assigned any reason, why the benefit of pay protection was not granted to the petitioner. (ii) Secondly, similar benefit was granted to one Khabir Uddin Ahmed, who is also similarly situated like the petitioner even after much delay. (iii) The FR-22(i)(a)(1) has to be read as directory not mandatory and it cannot prevail over the fundamental right of the employee. (ii) Secondly, similar benefit was granted to one Khabir Uddin Ahmed, who is also similarly situated like the petitioner even after much delay. (iii) The FR-22(i)(a)(1) has to be read as directory not mandatory and it cannot prevail over the fundamental right of the employee. (iv) The order dated 24.11.2024 is an abortive attempt to circumvent the Court proceeding and to overreach the Court order, which is not at all permissible in view of the decision of a Division Bench of this Court in Akaddas Ali (supra) 21. In view of above, the respondent authorities are directed to extend the benefit of pay protection to the petitioner. And the said exercise has to be carried out within a period of 3(three) months from the date of receipt of certified copy of this order. In the event of failing to carry out the exercise within the aforementioned period, the amount which the petitioner will be entitled to, shall carry interest @ 9% per annum from the date of his application i.e. 21.09.2017, till the date of payment of the same. 22. With the above observation, the writ petition stands disposed of. The parties have to bear their own costs.