A Data Entry Operator sought merger of his ex-cadre post into the Junior Administrative Assistant cadre on Pay Commission recommendations. The Court upheld the Government’s refusal and dismissed the writ petition. Claims concerning pay revision, promotional avenues and assured career progression were left open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010312162019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/152/2020
Sri Pankaj Kumar Sarma S/o- Sri Ramani Kanta Sarma, Village & P.O. Pathsala Town, Ward No. 3, Hospital Path, District - Barpeta, Assam, PIN- 781325.
……………… Petitioner
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Finance Department, Dispur, Guwahati – 781006.
| ……………….Respondents | |
|---|---|
| Advocates : |
|
| Petitioner | : Mr. A. Chamuah, Advocate |
| Respondent nos. 1 & 2 |
: Mr. D. Bora, Junior Government Advocate, Assam |
| Respondent nos. 3 & 4 |
: Mr. P. Nayak, Standing Counsel General Administration Department |
| Respondent no. 5 in |
: Mr. A. Chaliha, Standing Counsel, Finance Department. |
| Date of Hearing and Judgment & Order | : 13.09.2022 |
BEFORE
HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [Oral]
The writ petition has been instituted under Article 226 of the Constitution of India with two-fold prayers, firstly, for setting aside and quashing of an order dated 12.09.2019 passed by the respondent no. 3, that is, the Commissioner and Secretary to the Government of Assam, Secretariat Administration Department [SAD], and secondly, for a direction to the State respondents to consider the case of the petitioner for merger of the post of Data Entry Operator in which he is currently serving, with the post of Junior Administrative Assistant [Jr.A.A.] in the establishment of the General Administration Department [GAD], Assam Secretariat, Government of Assam in terms of the Resolution made in the Report of the 7th Assam Pay and Productivity Pay Commission and the Report of
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the Committee constituted to examine the Report of the 7th Assam Pay and Productivity Pay Commission, by giving the consequential service benefits to him as per the provisions of the Assam Secretariat Subordinate Service Rules, 1963, as amended.
2.1. By an Office Order dated 16.07.2010 issued under the hand of the respondent no. 4 i.e. the Commissioner & Secretary to the Government of Assam [GoA], GAD, the petitioner came to be appointed as Data Entry Operator in the GAD, GoA in the Scale of Pay of Rs. 5,200/- - Rs. 20,200/- with Grade Pay of Rs. 2,500/- p.m. plus other allowances as admissible under the law. On receiving the Office Order dated 16.07.2010, the petitioner joined in the post of Data Entry Operator on 17.07.2010. It is the case of the petitioner that by various Office Orders, dated 02.08.2010, 07.12.2010, 13.11.2013, 08.02.2016 & 14.06.2017 respectively, the General Administration Department [GAD] distributed the works amongst the employees in the Department and from the said Office Orders, it is clearly discernible that the petitioner has since long been entrusted with works which are ordinarily done by a Jr.A.A.
2.2. As the petitioner was discharging the similar kind of duties as like the Jr.A.A., a member in the Assam Secretariat Subordinate Service, and was granted same pay scale like the Jr.A.A., the petitioner submitted a Memorandum before the 7th Assam Pay and Productivity Pay Commission on 05.01.2016 to examine his case and to recommend for encadrement of the post of Data Entry
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Operator in the GAD, GoA with the cadre of Jr.A.A. which post is encadred under the Assam Secretariat Subordinate Service Rules, 1963. The Memoramdum of the petitioner came to be considered by the 7th Assam Pay and Productivity Pay Commission. In the Report submitted by the 7th Assam Pay and Productivity Pay Commission containing its recommendations, the Commission after examination of the case of the petitioner noted that the petitioner is a graduate and was appointed in a post in the same Pay Band of the Jr.A.A. with Grade Pay of Rs. 3,000/-. With such notes, the Commission had recommended that since the petitioner had the qualification of the Jr.A.A., the single post of Data Entry Operator should be merged with the cadre of Jr.A.A. fixing his seniority in accordance with the principles to be determined by the Personnel Department, GoA.
2.3. The Committee constituted by the State Government to examine the Report of the 7th Assam Pay and Productivity Pay Commission in its Report had also agreed with the 7th Assam Pay and Productivity Pay Commission in so far as the recommendation made with regard to the case of the petitioner was concerned and had advised the GAD to take up the matter with the Personnel Department. Thereafter, the Government after careful consideration of the Report of the 7th Assam Pay and Productivity Pay Commission and the Report of the Committee thereof, had accepted the recommendations of the 7th Assam Pay and Productivity Pay Commission with modifications as suggested by the Committee and any other modifications as have been deemed necessary and published the same by a Notification dated 17.03.2017 in the Assam Gazette. The State Government on the issue of encadrement in respect of the case of the
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petitioner had observed that the GAD shall take up the case of the petitioner with the Personnel Department.
2.4. After publication of the Gazette Notification dated 17.03.2017, the petitioner submitted his representations dated 17.11.2017 and 15.11.2017 before the respondent authorities to examine his case and to give recommendation for merger of the post of Data Entry Operator in the GAD into the cadre of Jr.A.A. The Personnel Department after consideration, had expressed in a communication dated 02.01.2018, addressed to the Secretariat Administration [Estt.] Department, to the effect that the Department had no objection to the prayer of the petitioner for absorbing him into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service in relaxation of the appropriate Rule thereby withdrawing its views made earlier on 08.11.2017, with the further advice that the Secretariat Administration [Estt.] Department should obtain approval from the Finance Department.
2.5. When the representations submitted by the petitioner were found to be not disposed of by the respondent authorities, the petitioner preferred a writ petition, W.P.[C] no. 2366/2018. By an Order dated 30.05.2018, the writ petition was disposed of with a direction to the Government in the Personnel Department to consider the representation of the petitioner in the light of the
recommendation made by the 7th Assam Pay and Productivity Pay Commission and to take appropriate decision in the matter. The petitioner had also filed a contempt application, Cont. Case [C] no. 393/2018. During the pendency of the contempt application, the respondent no. 3 herein after consideration of the representation of the petitioner, disposed of the same by a Speaking Order
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dated 29.11.2018 expressing his inability to accept the recommendation of the
7th Assam Pay and Productivity Pay Commission with regard to merger of the post of Data Entry Operator, General Administration Department into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service. In view of the Speaking Order dated 29.11.2018, the contempt application, Cont. Case [C] no. 393/2018 was disposed of by an order dated 10.12.2018.
2.6. Subsequent to the Speaking Order dated 29.11.2018, the petitioner had again submitted representations/appeals before the Chief Secretary to the Government of Assam on 11.01.2019 renewing his prayer for merger of the post of Data Entry Operator in the GAD with the post of Jr.A.A. under the Assam Secretariat Subordinate Service. The representations/appeals dated 11.01.2019 had been disposed of by the impugned Order dated 12.09.2019 by the respondent no. 3. In the Order dated 12.09.2019, the respondent no. 3 had observed that after careful consideration of all the relevant aspects, the Government in Assam Secretariat Administration [Estt.] Department has taken decision to reject the prayer of merging the post of Data Entry Operator in the GAD, occupied by the petitioner, to that of Jr.A.A. in the Assam Secretariat Subordinate Service.
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5.1. It is his further submission that the Personnel Department, Government of Assam had also written to the Secretariat Administration Department [SAD] expressing its no objection for absorption of the post of Data Entry Operator, occupied by the petitioner, into the cadre of Jr.A.A. in the Assam Secretariat Subordinate Service in relaxation of the rules. He has also referred to the endorsement of the Secretariat Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department and the views of the 7th Assam Pay and Productivity Pay Commission, extracted in the Order dated 12.09.2019, to urge that the petitioner has been treated with discrimination considering the fact that the Data Entry Operator, GAD is a standalone post and there is no avenue for further promotion. It is only in the event the post is merged into the cadre of Jr.A.A., the petitioner would have the opportunity of promotion as creation of promotional avenue is a Constitutional obligation for the State under Article 14 and Article 16 of the Constitution of India.
5.2. In support of his such submissions, he has referred to the decision of the Hon’ble Supreme Court of India in State of Tripura and others vs. K.K. Roy, reported in [2004] 9 SCC 65. By relying upon the decision of the Hon’ble Supreme Court of India in Food Corporation of India and others vs. Parashotam Das Bansal and others, reported in [2008] 5 SCC 100, he has contended that an employee of the State Government has fundamental right to be considered for promotion and it is an obligation on the part of the State to provide opportunities of advancement for all its employee. Since there is no channel of promotion for the petitioner which has resulted in his stagnation, this Court has to consider the said aspect regarding lack of promotional avenues qua the
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Constitutional obligation of the employer State.
6.1. By referring to the Report of the Committee constituted to examine the Report of the 7th Assam Pay and Productivity Pay Commission, he has submitted that it was only an advisory of the Committee to the GAD, GoA to take up the matter with the Personnel Department. It is his contention that both the views of the 7th Assam Pay and Productivity Pay Commission and the Committee were recommendatory in nature and it is finally for the Government side to accept or not to accept such recommendations. In the case in hand, the Gazette Notification dated 17.03.2017 has showed that the Cabinet had only approved the views of the Committee and did not say that there should be merger of the post of Data Entry Operator, GAD with that of the Jr.A.A. in the Assam Secretariat Subordinate Service. In such backdrop, no exception can be taken to
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the Speaking Order dated 29.11.2018 and the Order dated 12.09.2019 impugned in this writ petition whereby the decision has been taken not to merge the post of Data Entry Operator, GAD with that of Jr.A.A. in the Assam Secretariat Subordinate Service.
6.2. In support of his submissions, Mr. Nayak has referred to the decisions of the Hon’ble Supreme Court of India in State of Haryana and others vs. Navneet Verma, reported in [2008] 2 SCC 65; Union of India vs. Pushpa Rani and others, reported in [2008] 9 SCC 242; and State of Orissa and others vs. Jagabandhu Panda, reported in [2013] 11 SCC 631.
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discharged a number of duties in the GAD, GoA which are ordinarily entrusted to a Jr.A.A., after the same being entrusted to him by those Office Orders.
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Productivity Pay Commission to merge the post of Data Entry Operator in the GAD with the post of Jr.A.A. in the Assam Secretariat Subordinate Service after careful consideration of the Assam Secretariat Subordinate Service Rules, 1963, as amended. Conspicuously, the Speaking Order dated 29.11.2018 has not been challenged by the petitioner. It is pertinent to iterate that the Speaking Order dated 29.11.2018 had been passed in deference to the direction made in the Order dated 30.05.2019 passed in the writ petition, W.P.[C] no. 2366/2018. Instead, the petitioner had gone on filing a representation on 11.01.2019. The Order dated 12.09.2019 came to be passed on the basis of the representation dated 11.01.2019 submitted by the petitioner after being aggrieved by the Speaking Order dated 29.11.2018. In the Order dated 12.09.2019, the respondent no. 3 has once again considered the views of the various Departments like Secretariat Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department as well as the views of the 7th Assam Pay and Productivity Pay Commission, before arriving at the decision. An observation was also made therein to the effect that the Assam Secretariat Services’ Association and Assam Secretariat Computer Operators’ Association had registered their protests against the proposal of merger by their separate representations dated 26.06.2019 and 24.07.2019 respectively.
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whether the prayers made in this writ petition by the petitioner can be granted.
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jurisdiction under Article 226 of the Constitution of India could not have issued a writ in the nature of Mandamus directing the appellant State to grant a particular scale of pay.
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Mandamus for encadering an ex-cadre/temporary posts as any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength and it would amount to asking the State for encadrement of the ex-cadre/temporary posts meaning thereby asking the Government to create more posts.
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public. The Court would be the least competent in the face of scanty materials to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide, legal or factual.
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had recommended that the single post of Data Entry Operator in the GAD should be merged with the cadre of Jr.A.A. fixing the seniority in accordance with the principles to be determined by the Personnel Department, Government of Assam. After the 7th Assam Pay and Productivity Pay Commission prepared its Report on 18.11.2016, the Government of Assam constituted a Committee vide a Notification dated 13.12.2016 to examine the Report of the 7th Assam Pay and Productivity Pay Commission and to concretize the points and submit them to the Government. The Committee submitted its Report on 27.01.2017. The Government after consideration of the Report of the 7th Assam Pay and Productivity Pay Commission and the Committee thereof, had accepted some of the Recommendations of the 7th Assam Pay and Productivity Pay Commission, as modified and suggested by the Committee and after other modifications as found necessary and made its decision thereof which was published in the Gazette Notification dated 17.03.2017. In so far as the recommendation made
by the 7th Assam Pay and Productivity Pay Commission and the Committee in relation to the case of the petitioner is concerned, the Gazette Notification had recorded that the GAD, GoA shall take up the case of the petitioner with the Personnel Department. Thus, it is evident therefrom that no finality had been attached to the aspect regarding merger of the post of Data Entry Operator in the GAD, which the petitioner is holding, into the cadre that Jr.A.A., whose recruitment and conditions of service are regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended. The decision regarding such merger was made subject to the decision of the Government.
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Administration [Estt.] Department, Finance [PRU] Department, Personnel [B] Department and the views of the 7th Assam Pay and Productivity Pay Commission, excerpts of which are found reflected in the Order dated 12.09.2019, are concerned, this Court is of the view that such interdepartmental communications are only observations made in the process of consideration for the final decision and cannot be relied upon by the petitioner as a basis to claim any right. The Hon’ble Supreme Court of India in its decision in State of Uttaranchal vs. Sunil Kumar Vaish, reported in [2011] 8 SCC 670, has held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. It has further been held as follows :-
“23. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In the other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
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opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. [See : State of Punjab vs. Sodhi Sukhdev Singh, AIR 1961 SC 493; Bachhittar Singh vs. State of Punjab, AIR 1963 SC 395; State of Bihar vs. Kripalu Shankar, [1987] 3 SCC 34; Rajasthan Housing Board vs. Shri Kishan, [1993] 2 SCC 84; Sethi Auto Service Station vs. DDA, [2009] 1 SCC 180; and Shanti Sports Club vs. Union of India, [2009] 15 SCC 705 ].”
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dated 12.09.2019 has reiterated its earlier decision made by the Speaking Order dated 29.11.2018, thereby, deciding not to merge the post of Data Entry Operator in the GAD, GoA which the petitioner is holding, into the cadre of Jr.A.A., a cadre forming part of the Assam Secretariat Subordinate Service, whose recruitment and conditions of service are governed and regulated by the Assam Secretariat Subordinate Service Rules, 1963, as amended. Any direction in the nature of mandamus to merge the post of Data Entry Operator in the GAD, GoA into the cadre of Jr.A.A., would amount to a direction to make changes in the Assam Secretariat Subordinate Service Rules, 1963, as amended, which is like a direction to make law and such a direction is not ordinarily issued.
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JUDGE
Comparing Assistant
2 issues framed by the court
Was the refusal to merge the ex-cadre Data Entry Operator post into the Junior Administrative Assistant cadre unlawful?
Could Pay Commission recommendations and interdepartmental endorsements support mandamus directing the requested cadre merger?
Colour shows how this judgement treated each authority
State of Tripura and others vs. K.K. RoyDistinguished¶67
State of Tripura and others vs. K.K. Roy, reported in [2004] 9 SCC 65 · Who else cites this
Food Corporation of India and others vs. Parashotam Das Bansal and othersDistinguished¶67
Food Corporation of India and others vs. Parashotam Das Bansal and others, reported in [2008] 5 SCC 100 · Who else cites this
State of Haryana and others vs. Navneet VermaRelied on¶72
State of Haryana and others vs. Navneet Verma, reported in [2008] 2 SCC 65 · Who else cites this
Union of India vs. Pushpa Rani and othersRelied on¶71
Union of India vs. Pushpa Rani and others, reported in [2008] 9 SCC 242 · Who else cites this
State of Orissa and others vs. Jagabandhu PandaRelied on¶68
State of Orissa and others vs. Jagabandhu Panda, reported in [2013] 11 SCC 631 · Who else cites this
State of Uttaranchal vs. Sunil Kumar VaishApplied¶82
State of Uttaranchal vs. Sunil Kumar Vaish, reported in [2011] 8 SCC 670 · Who else cites this
State of West Bengal vs. Subhas Kumar Chatterjee and othersRelied on¶89
State of West Bengal vs. Subhas Kumar Chatterjee and others, reported in [2010] 11 SCC 694 · Who else cites this
4 provisions across 2 enactments
Pankaj Kumar Sarma
The State of Assam
The Commissioner & Secretary To The Government of Assam Personnel [B] Department
The Commissioner & Secretary To The Government of Assam Secretariat Administration Department
The Commissioner & Secretary To The Government of Assam General Administration [B] Department
The Commissioner & Secretary To The Government of Assam, Finance Department
MANISH CHOUDHURY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
