Allowed

Smti. Arpana Sarkar v. the State of Assam and 4 Ors.

Gauhati HC6 Mar 2019WP(C)/2333/2016

Case brief

AI extract

What is this about?

Petitioner, suspended due to pending criminal case, sought regularization of suspension and fixation of pay scale. Court denied regularization due to pending liability but directed authorities to fix pay scale for the promoted post immediately.

What did the court decide?

Direction to respondent authorities to fix petitioner's pay scale to the promoted post within three months.

Smti. Arpana Sarkar Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010013392016

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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) 2333/2016

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1:SMTI. ARPANA SARKAR

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D/O LT. SUSHIL CH. SARKAR, R/O DIPHU, DC COLONY, P.O. and P.S. DIPHU, DIST- KARBI ANGLONG, ASSAM, PIN-782460

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, FINANCE DEPTT., DISPUR, GHY-6

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2:THE JT. SECY. TO THE GOVT. OF ASSAM FINANCE ESTT-B DEPTT. DISPUR GHY-6

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3:THE ACCOUNTANT GENERAL AG MAIDAMGAON BELTOLA GHY-28 ASSAM

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4:THE KARBI ANGLONG AUTONOMOUS COUNCIL REP. BY THE PRINCIPAL SECY. DIPHU KARBI ANGLONG PIN-782460

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5:THE DY. COMMISSIONER KARBI ANGLONG PIN-78246

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Advocate for the Petitioner : MS.M GOGOI

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Advocate for the Respondent : SC, FINANCE

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 06-03-2019

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Heard Ms. M. Gogoi, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned counsel for the respondent Nos.1 & 2, Mr. R.K. Talukdar, learned counsel for the respondent No.3, Ms. S. Kemprai, learned counsel for the respondent No.4 and Mr. S.S. Roy, learned Government Advocate for the respondent No.5.

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In this petition, the petitioner has sought for two reliefs- (1) regularization of the period of suspension and (2) fixation of pay scale.

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The petitioner was initially appointed as a Junior Account Assistant vide order dated 01.02.1990 thereafter, she was promoted to the post of Senior Accounts Assistant vide order dated 10.04.2003. It seems that while she was serving in that capacity she successful completed the attachment training. Thereafter, the petitioner and along with others were appointed to officiate as Finance and Accounts Officer in the scale of pay of Rs.12,00040,000/- (PB-4) Plus Grade Pay of Rs.5400/- per month in the Class-1 Grade-III cadre of Assam Finance Service with effect from the date of taking over charge and thereafter she was posted as Treasury Office, Bokajan under Bokajan Sub Treasury.

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There was some criminal case against certain officials including the petitioner in connection with which she was placed under suspension vide order dated 08.06.2005. However, the said suspension order was subsequently revoked vide order dated 08.04.2006. Accordingly the petitioner continues to be in service in the aforesaid post.

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By this petition, the petitioner is seeking for a direction to regularize the said suspension period as well as for fixation of pay scale. In this connection, the Finance (Establishment-B) Department also wrote to the Director of Accounts and Treasury, Assam requesting for fixation of pay scale of the petitioner (Annexure-K to the writ petition). Since, nothing has materialized, the petitioner has approached this Court.

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Mr. P. Nayak, learned counsel for the respondent Nos.1 & 2 submits that the affidavit on behalf of respondent Nos.1 & 2 has been prepared and prays for two weeks time to do so, on the plea that the instructions have been received to the extent that as far as the regularization of the suspension period is concerned, as the criminal case is still pending against the petitioner, the same can be considered on conclusion of the criminal proceeding. As regards fixation of pay scale is concerned, the same cannot be done without regularizing the suspension period.

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Heard learned counsel for the parties and perused the materials on record.

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As far as the claim for regularization of the suspension period is concerned, the same cannot be granted at this stage for the reason that the petitioner was placed under suspension in connection with certain criminal case, which is stated to be pending and till such time and till the petitioner is discharged from any liability, it may not be possible to regularize the said suspension period, for in the event the petitioner is found to be guilty, the authorities would have the discretion either to regularize or not to regularize the period of suspension depending upon the nature of the offence and the findings by the criminal Court and punishment imposed.

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However, as regards the plea of the petitioner for fixation of pay scale, this Court is of the view that irrespective of the findings of the criminal Court, since the authorities have given promotion to the petitioner to the higher post in spite of pendency of the criminal Case, the petitioner would be entitled to get the salary attached to the promoted post. As such, this Court is of the view that there should not be any difficulty on the part of the authority to fix the pay scale, as fixation of pay scale cannot be linked to the aforesaid period of suspension nor with the pending criminal case. The petitioner would be entitled to receive the pay scale to which the petitioner has been promoted and has been made to work as mentioned above. It has been also noted that there is already a request from the Finance Department to the Director of Accounts and Treasury, Assam on 16.05.2016 for fixing the pay scale of the petitioner.

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Accordingly, the present petition is disposed of with a direction to the respondent authorities to fix the pay scale of the petitioner to the post to which the petitioner has been

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promoted and presently working. However, this fixation will be without any prejudice to the authorities to recover any amount for which the petitioner may be held to be liable under any order of the Court or any valid order of the authority. The authorities will do the needful as directed above, preferably within a period of 3(three) months from today.

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With the above observations and directions, this petition is disposed of.

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JUDGE

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Comparing Assistant

Smti. Arpana Sarkar v. the State of Assam and 4 Ors.

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Smti. Arpana Sarkar v. the State of Assam and 4 Ors.

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