Allowed

Sashadhar Patowary v. the Assam State Electricity Board and 3 Ors.

Gauhati HC9 May 2019WP(C)/1172/2018

Case brief

AI extract

What is this about?

Petitioner seniority and pension challenged. Court found authorities erred by treating sanctioned leave as a service break, reducing pay-scale. Ordered rectification of pay-scale and pension. Authorities to issue speaking order within four weeks.

What did the court decide?

Direct authorities to rectify petitioner's pay-scale and pension within four weeks, treating the leave period as continuous service.

Sashadhar Patowary Vs the Assam State… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010038102018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1172/2018

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1:SASHADHAR PATOWARY

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S/O. LT. H.C. PATOWARY, R/O. VILL. BELSOR, P.O. AND P.S. BELSOR, DIST. NALBARI, PIN-781304, ASSAM.

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VERSUS

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1:THE ASSAM STATE ELECTRICITY BOARD AND 3 ORS

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REP. BY ITS CHAIRMAN, BIJULI BHAWAN, PALTAN BAZAR, GUWAHATI-1.

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2:THE CHIEF ENGINEER (DISTRIBUTION) ASEB PALTAN BAZAR GUWAHATI-1.

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3:THE CHIEF GENERAL MANAGER (F AND A) APDCL BIJULI BHAWAN PALTAN BAZAR GUWAHATI-1.

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4:THE ACCOUNTANT GENERAL ASSAM KRISHNAPUR BELTOLA GUWAHATI-78102

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Advocate for the Petitioner : MR. B J TALUKDAR

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Advocate for the Respondent : SR. SC, ASEB(R1TO3)

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Page No.# 2/6

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 09-05-2019

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Heard Mr. B.J. Talukder, learned counsel for the petitioner. Also heard Mr. P. Bhowmick, learned Standing Counsel, ASEB for respondent Nos. 1 to 3 and Mr. C. Baruah, learned Standing Counsel, AG for respondent No.4.

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In this petition, the petitioner has sought for parity of pension with the others who were admittedly junior to him and who have been given higher pensionary benefits.

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Brief facts leading to the filing of this writ petition are adverted to.

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The petitioner was appointed as a Meter Reader in the erstwhile Assam State Electricity Board (ASEB), and now under the Assam Power Distribution Company Limited (APDCL) on 24.03.1970. Thereafter, he was promoted to the higher post of Senior Meter Reader vide order dated 28.05.1985 w.e.f. 20.08.1980.

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Because of certain departmental enquiry initiated against him while serving as a Senior Meter Reader and having found the charges proved against him in the departmental enquiry, the petitioner was inflicted with the penalty of demotion to the lower post of Meter Reader vide order dated 23.05.2003.

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The demotion order, however, specifically mentioned that on being demoted to the lower post of Meter Reader, the petitioner will get the maximum of the time scale in the cadre of Meter Reader and further that he will also be placed at the first position in the current list of Meter Readers.

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In other words, he will be treated as the Senior most Meter Reader on being demoted and he will be getting the maximum time scale fixed in the said cadre of the Meter Reader.

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Subsequently, after being demoted, the petitioner by virtue of his own merit was again promoted to the higher post of Senior Meter Reader vide order dated 11.10.2011 and thereafter, on attaining the age of superannuation, the petitioner retired from service. The petitioner also got his necessary pension.

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However, later, on coming to know that some of the Senior Meter Readers, who were junior to the petitioner and promoted on the same day as Senior Meter Readers on

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Page No.# 3/6

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11.10.2011, were found to be enjoying higher penisonary benefits, which the petitioner could not understand as to how they got to enjoy higher pensionary benefits.

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Accordingly, being aggrieved, the petitioner submitted a detail representation to the authorities, which, however, was rejected by the authorities, though the petitioner has not received any communication in this regard.

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Be that as it may, ultimately, the petitioner has filed this writ petition seeking for an appropriate direction to the authorities to ensure that he gets his full appropriate pension and has approached this Court for grant of proper pension entitled to him.

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The APDCL respondent has contested the claim of the petitioner for grant of parity of pensionary benefit.

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The stand taken by the APDCL as contained in their affidavit-in-opposition are as follows:

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(i) Firstly, the other Senior Meter Readers who were promoted along with him were never demoted at any point of time and, as such, the petitioner cannot be treated equally with the aforesaid Senior Meter Readers.

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(ii) Secondly, it has been also stated that the initial pay of those Senior Meter Readers were more than the petitioner at the time of initial entry in the service of Meter Readers and, as such, they got higher pensionary benefits.

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(iii) Thirdly, it has been also stated by the APDCL authority that the petitioner upon being demoted to the post of Meter Reader in the year 2003 and instead of immediately joining the said post of Meter Reader, he belatedly joined in the year 2006 resulting in a break in service. It is on record that the petitioner was demoted vide order dated 23.05.2003.

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Learned counsel for the petitioner, however, has raised objections to the aforesaid grounds taken by the APDCL as not tenable in law as well as on facts.

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As regards the contention that the other Senior Meter Readers were not demoted like the petitioner, it has been contended that it would make no difference for the simple reason that when the petitioner was demoted to the rank of Meter Reader, he was assigned the senior most position in the Grade of Meter Reader and also was granted the maximum payscale attached to the post of Meter Reader and hence, he was senior to them.

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In that view of the matter, there is no reason why the petitioner should get any less remuneration.

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Accordingly, it has been submitted that the demotion of the petitioner to the post of Meter Reader would make no difference as far as pensionary entitlements are concerned. 14. Coming to the issue raised by the APDCL authorities that the petitioner was getting less pay at the time of initial entry in service of Meter Reader, though petitioner also admits to that, learned counsel for the petitioner submits that the authorities have not taken into consideration that the petitioner entered service much earlier than the aforesaid persons as clearly evident from the Comparative Statement annexed by the authorities themselves in their affidavit-in-opposition.

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In the said Comparative Statement, the date of initial joining in service of the petitioner is shown as 01.03.1971 whereas others have been shown to have joined service initially on 04.06.1979, 30.06.06.1977 and 22.05.1979.

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Learned counsel for the petitioner further clarifies that even the date of joining of the petitioner in service as mentioned in the Comparative Chart is wrong as the petitioner actually joined service earlier on 24.03.1970 as reflected in the seniority list and which can also be ascertained from the service book of the petitioner.

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Be that as it may, the fact remains that the aforesaid persons entered service about 6 to 8 years after the petitioner had entered service and obviously, by the time, there had been revisions in the pay-scale of the post of Meter Readers, and accordingly, they have been shown to be getting higher pay than the petitioner in the rank of Meter Reader. The authorities obviously ignored the revision in pay and calculated the entitlements of the petitioner on the basis of the initial pay received by the petitioner as Rs.113/- while showing the initial pay of the other persons as Rs.350/-, Rs.295/- and Rs.350/- etc.

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According to the petitioner, the authorities had made this fundamental error in calculating the salary on the basis of the old pay scale attached to the post of Meter Reader compared to the new pay scale given to the others

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This Court is also of the view that the aforesaid difference in the initial pay scales of the petitioner vis-a-vis and others is not possible unless there has been a revision of pay-scale as otherwise the petitioner having joined 6-7 years prior to the aforesaid persons would naturally be entitled to higher pay in the rank of Meter Reader.

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This is also fortified by the fact that in the Comparative Statement itself the respondent authorities have shown the pay-scale of the petitioner on the date of suspension on 13.09.2001 as Rs.8,225/- whereas others have shown enjoying the pay-scale Rs.7,520/- only.

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However, at the time of joining duty after suspension and demotion, the figures have been wrongly given in the said Comparative Statement.

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In the said Comparative Statement, the petitioner has been shown to have joined the post of Meter Reader only on 10.03.2006, which according to the petitioner, is not correct.

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To substantiate his submission, learned counsel for the petitioner has drawn attention to the leave sanction order, a copy of which is annexed as Annexure 1 to the affidavit-in-reply of the petitioner.

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The said leave sanction order clearly mentions that the petitioner had been granted Earned Leave for the period of 131 days w.e.f. 31.05.2003 to 08.10.2003 and Commuted Leave for a period of 20 days w.e.f. 09.10.2003 to 28.10.2003 and Extraordinary Leave for the period of 862 days w.e.f. 29.10.2003 to 09.03.2006 on medical ground.

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According to the petitioner, though it is true that he joined duty in the post of Meter Reader only on 10.03.2006, the said period of the gap in duty has to be counted towards qualifying service as the petitioner had taken leave during the said period, which was sanctioned by the authorities. There is no document or order issued by the authorities stating that the aforesaid leave period shall not be counted for the purpose of fixing of pay-scale, etc.

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If that is so, the decision of the APDCL to show that the petitioner joined duty only on 10.03.2006 after a gap and calculate his salary, accordingly, is plainly erroneous.

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The APDCL authorities made the mistake of wrongly calculation of the pay-scale of the petitioner by showing to mere Rs.14,020/- while in respect of others to be Rs.17,340/-. 21. This Court finds force in the submission advanced by the learned counsel for the petitioner.

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From the Comparative Statement prepared by the APDCL authorities, as mentioned above, it is clearly evident that the authorities calculated the pay-scale of the petitioner by assuming that the petitioner had joined the post of Meter Reader only on 10.03.2006 and accordingly, his pay-scale was shown to be lower than the pay-scale of the others.

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Perusal of the aforesaid leave sanction order does not at all indicate that he will not be entitled to the benefits attached to the pay-scale including increments, revision of pay etc. during the said leave period. Even if certain leave period was treated to be extraordinary leave, it does not mean that he would not be entitled to the pay-scale attached to the said post though he may not be getting any arrears of pay in respect of the aforesaid period of extraordinary leave. Mere denial of arrear of pay for the aforesaid period of extraordinary leave does not mean that he would not be entitled pay-scale attached to the said post. There was no breach in the continuation of his service.

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This Court, accordingly, is of the view that the authorities made the fundamental error in fixing the lower pay scale at the Rs.14,020/- in respect of the petitioner as mentioned in the Comparative Chart in the Grade of Meter Reader because of which, after promotion he has been shown to be enjoying lesser pay-scale.

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Accordingly, for the reasons discussed above, this Court is of the view that the authorities need to rectify the said mistakes.

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The petitioner shall be entitled to the Grade Pay as revised from the time in the post of Meter Reader and also will be entitled to treat the entire period of leave for the purpose of fixing of pay-scale and consequently, his pay-scale in the next higher Grade of Senior Meter Reader needs to be rectified.

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The aforesaid exercise shall be undertaken by the authorities within a period of 4 (four) weeks from today and the authorities will inform the petitioner the result thereof by issuing a speaking order in that regard, so that if the petitioner finds any anomaly in such calculation, he may draw attention of such anomalies to the authorities for further rectification, if needed.

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With the above observations and directions, the present petition stands allowed. 28. It goes without saying that upon such rectification, the pensionary benefits of the petitioner would also required to be rectified and necessary arrear, if any, shall also be given to the petitioner.

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JUDGE

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Comparing Assistant

Sashadhar Patowary v. the Assam State Electricity Board and 3 Ors.

Case brief

What is this about?

What did the court decide?

Sashadhar Patowary v. the Assam State Electricity Board and 3 Ors.

Case brief

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