Disposed

Mrinal Jyoti Hazarika and 3 Ors. v. the State of Assam and 9 Ors.

Gauhati HC14 Dec 2021WP(C)/4294/2015

Case brief

AI extract

What is this about?

Writ petition seeking correction of pay scale anomaly. Court agreed with counsels to direct administrative department to forward proposal to Finance Department without deciding merits.

What did the court decide?

Health and Family Welfare (B) Dept to forward justified proposal to Finance Department within four weeks for processing; Finance Dept to pass reasoned order within six weeks.

Mrinal Jyoti Hazarika and 3 Ors. Vs the… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010177462015

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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)/4294/2015

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MRINAL JYOTI HAZARIKA and 3 ORS S/O MR. PRAFULLA CHANDRA HAZARIKA, R/O JORHAT MEDICAL COLLEGE and HOSPITAL, JORHAT,

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2: PRANJAL PEGU S/O SRI SURENDRA PEGU R/O KALBARIGAON BAHPHALA JORHAT PIN-785108

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3: BIJOY KAKATI S/O MR. JAWAHARLAL KAKATI R/O GARMUR KAIBARTA GAON JEC ROAD NEAR GREEN PARK JORHAT

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4: SANJOY CHALIHA S/O MR. DURHA MOHAN CHALIHA R/O CHALIHAGAON PIN-785004 JORHAT ASSA

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VERSUS

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THE STATE OF ASSAM AND 9 ORS REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GHY-6

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2:DEPARTMENT OF HEALTH AND F.W. B DEPTT. REP. BY ITS COMMISSIONER AND SECY. DISPUR

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Page No.# 2/7

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GHY-6 3:THE UNDER SECY. TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND F.W.B DEPTT. DISPUR GHY-6 4:THE DY. SECY. TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND F.W.B DEPTT. DISPUR GHY-6 5:THE PRINCIPAL CUM CHIEF SUPERINTENDENT OF THE JORHAT MEDICAL COLLEGE and HOSPITAL JORHAT 6:THE DIRECTOR OF MEDICAL EDUCATION KAHILIPARA GHY-19 7:THE DEPTT. OF FINANCE REP. BY THE COMMISSIONER AND SECY. GUWAHATI DISPUR-6 8:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM DEPTT. OF FINANCE DISPUR-6 9:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM FINANCE PAY RESEARCH UNIT DEPTT. DISPUR GHY-

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Advocate for the Petitioner : MSW YHOSHII

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Advocate for the Respondent : SC, HEALTH

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Linked Case : WP(C)/4299/2015 GYANDEEP GOGOI and 3 ORS S/O MR. NARESH CHANDRA GOGOI R/O JORHAT MEDICAL COLLEGE and HOSPITAL JORHAT

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2: SONTONU BORAH S/O LT. PRAFULLA CHANDRA BORAH

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R/O DOHABORA CHOWK JORHAT PIN-785001 3: KHIROD CHANDRA BORAH S/O MR. TARA NATH BORAH R/O JORHAT MEDICAL COLLEGE and HOSPITAL JORHAT PIN-785001 4: DIPEN BHARALI S/O MR. SOMNATH BHARALI R/O TOCKLAIGAON RAJABARI PIN-785014 JORHAT ASSAM VERSUS THE STATE OF ASSAM AND 9 ORS REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR-6 2:DEPARTMENT OF HEALTH AND F.W. B DEPTT. REP. BY ITS COMMISSIONER AND SECY. DISPUR GHY-6 3:THE UNDER SECY. TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND F.W.B DEPTT. DISPUR GHY-6 4:THE DY. SECY. TO THE GOVT. OF ASSAM DEPTT. OF HEALTH AND F.W.B DEPTT. DISPUR GHY-6 5:THE PRINCIPAL CUM CHIEF SUPERINTENDENT OF THE JORHAT MEDICAL COLLEGE and HOSPITAL JORHAT 6:THE DIRECTOR OF MEDICAL EDUCATION KAHILIPARA GHY-19 7:THE DEPTT. OF FINANCE REP. BY THE COMMISSIONER AND SECY. GUWAHATI DISPUR-6 8:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM DEPTT. OF FINANCE DISPUR-6 9:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

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FINANCE PAY RESEARCH UNIT DEPTT. DISPUR GHY-6

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-----------Advocate for : MR.U K NAIR Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 9 ORS

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BEFORE

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THE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

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order

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14.12.2021

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Heard Mr. R Sinha, learned counsel for the petitioners. Also heard Mr. B Gogoi, learned standing counsel for the Finance Department and Mr.D.P. Bora, learned Standing Counsel, Health and Family Welfare department.

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The case projected in the present writ proceeding is that the petitioners were appointed as Cashier/Accountant at Jorhat Medical College and Hospital, pursuant to an advertisement dated 04.09.2009. Their grievance is that though the Government of Assam has accepted the 6^th Pay Commission report and resultantly, issued Office Memorandum dated 28.07.2010 (annexure-3) laying down the manner and method of fixation of pay in respect of the services of the employees, who had entered into the services of Assam Government on or after 01.01.2006. As per the said memorandum, category of employees, who had entered services on or after 01.01.2010, the pay structure denoting various prerevise scales of pay and its corresponding revised pay was scaled out. But, accordingly to the petitioners, the pre-revised scale of pay of Rs. 3850-7350, which is the scale of pay of the petitioners as reflected in the advertisement dated 02.09.2009, was not included in the said Office Memorandum. According to the petitioners, the non-inclusion of the said scale of pay has resulted in deprivation of the petitioners as their pay has not been fixed by applying the multiplying factor of 1.86 to pre-revised basic scale as on the date of the joining of the

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petitioners. Such illegality has created a situation whereby the petitioners are getting lesser emolument than the Account Assistant whose rank and grade is below the petitioners.

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The petitioners, in support of such contention highlights the factum of the scale of pay as reflected in advertisement dated 02.09.2009 (annexure-1). The petitioners also submit that the departmental authority, in fact, has candidly admitted said anomalies and mistakes.

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Mr. Sinha, learned counsel for the petitioners in support of his contention takes the court to the communication dated 27.11.2011 (annexure-7) to project that though the respondent authorities have initiated process of correction of anomalies relating to the petitioners but except making correspondences between themselves, the respondents have done nothing till date to mitigate the grievances of the petitioners.

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According to the learned counsel, the communication dated 07.10.2011 (annexure-8), communication dated 10.11.2011 (annexure-10), communication dated 16.05.2012 (annexure-11) and communication dated 08.06.2012 (annexure-13) from the respondent No. 5 to the respondent No. 6 clearly establishes that there are anomalies in fixation of the scale of pay of the petitioners and that there is no impediment in correcting such anomalies.

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In reference to the said communications, Mr. Sinha, learned counsel for the petitioners submits that it was also made clear by the office note quoted in annexure-11 communication that the posts were duly created, due selection process was made and therefore, there is no impediment in granting the revised scale of pay by applying the multiplier 1.86. He further submits that the respondent authority cannot deny such right of the petitioners on the ground, that the post wherein the petitioners had been appointed are promotional posts and ought not to have filled up through direct recruitment. According to him, the Government cannot be allowed to approbate and reprobate at the same time inasmuch as from the aforesaid communications, it is abundantly clear that with due sanction from the Government the posts were created, due selection process was made and the petitioners were appointed.

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The respondent Nos. 2,3,4,5 and 6 are the authorities under the Health and Family Welfare Department. But the said authorities has preferred not to file any affidavit countering the statements made and contentions raised by the writ petitioners, rather the materials

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available on records discloses that the respondent No. 5 has in fact supported the claims of the petitioners. The department of finance i.e. the respondent No. 7 has filed affidavit and has taken a stand that the petitioners had been recruited directly against promotional posts. Though it is submitted that no service rule is available so far relating to the employees of the college but according to Mr.Gogoi, learned standing Counsel Finance department, the principle of Secretariat Sub-ordinate Service Rule, 1963 needs to be applied here and as per the said Service Rule, the scales of pay which the petitioners are getting is meant for UDA and the post of UDA is a promotional post. Therefore, according to Mr. Gogoi, it is a natural corollary that the petitioners have wrongly been appointed against the promotional posts through process of direct recruitment, giving scale of pay meant for promotional posts.

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At this stage, Mr. Gogoi submits that the communications for resolving the issues relating to the fixation of scale of pay of the petitioners, more particularly, the communication dated 09.06.2015 issued by the respondent No. 5, has directly been addressed to the respondent No. 7 but such proposal should have come from administrative Department i.e. Health and Family Welfare (B) Department and not directly from the respondent No. 5. According to Mr. Gogoi, the Finance Department can still consider the cases of the petitioners, in the peculiar facts and circumstances of the case, provided such proposal with justification comes from the Administrative department i.e. Health and Family Welfare (B) Department.

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In the aforesaid backdrop and in the peculiar facts and circumstances of the case, the learned counsels for the parties have come to an agreement that a fresh proposal needs to be forwarded by the competent authority in the administrative department i.e. Health and Family Welfare (B) Department addressed to the respondent No. 7.

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In view of the aforesaid submissions, this court, without entering into the merit of the case, proposes to dispose of the present writ petitions in the following terms:

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i. The competent authority in the respondent Health and Family Welfare (B) shall forward the claims of the petitioners to the respondent No. 7 with their justifications for correction of the anomalies of the scale of pay of the petitioners, within a period of four weeks from the date of receipt of a certified copy of this order, to be furnished by the petitioners to the respondent No. 2.

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The petitioner shall be at liberty to file a fresh representation, while submitting the certified copy of this order.

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ii. The respondent Nos. 5 and 6 shall fully co-operate with the respondent No. 2 in this regards.

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iii. On receipt of such proposal, the respondent No. 7 will pass a reasoned order on such proposal within a period of six weeks.

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iv. Whatever be the decision, the same shall duly be communicated to the petitioners.

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v. In the event the claims of the petitioners are rejected, the petitioners shall be at liberty to approach the appropriate forum for redressal of their grievances. However, all the parties to this proceeding shall be at liberty to raise all the contentions that has been raised in the present lis, as this court has not entered into the merit of the case.

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With the above observation and finding, this writ petition is disposed of. However, no order as to cost.

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JUDGE

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Comparing Assistant

Mrinal Jyoti Hazarika and 3 Ors. v. the State of Assam and 9 Ors.

Case brief

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Mrinal Jyoti Hazarika and 3 Ors. v. the State of Assam and 9 Ors.

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