Disposed

Janak Kalita and 6 Ors. v. the State of Assam and 3 Ors.

Revenue – Service – Pay Parity

Gauhati HC22 Sept 2022WP(C)/5762/2017

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What is this about?

Writ petition filed by Assistant Managers (Non-Technical) against the State of Assam seeking pay parity with Assistant Managers (Technical). Court held that an interim observation cannot be treated as a judgment. Ordered Industries and Commerce Department to take a final decision on pay parity and submit it to the Finance Department within one month.

What did the court decide?

Direct Industry Dept to decide on pay parity within one month; Finance Dept to pass reasoned order within another month.

Janak Kalita and 6 Ors. Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010241282017

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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)/5814/2017

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ATUL CHANDRA MAHANTA and 3 ORS. S/O LT. SOMESWAR DEV MAHANTA VILL- BATADARBA P.O. and P.S. BATADARBA DIST.NAGAON, ASSAM

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2: BIREN KUMAR NATH S/O LT. JIKENDRA NATH NAMGHAR ROAD SOUTH HAIBORGAON P.O. HAIBORGAON DIST. NAGAON H.N. 113 ASSAM PIN - 782122. 3: NITYANANDA BHARALI S/OLT. PRIYA NATH BHARALI M.D. ROAD H.N. 380 NORTH HAIBORGAON P.O. HAIBORGAON DIST. NAGAON ASSAM PIN - 782002 ASSAM

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4: MD. NAZMUL HUSSAIN S/O LT. MD. ZAMIL R/O AMIN PATH HOUSE NO. 312 P.O. NAGAON P.S. SADAR DIST. NAGAON ASSA

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VERSUS

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THE STATE OF ASSAM and 4 ORS.

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REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT.

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OF ASSAM.

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2:ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM INDUSTRIES and COMMERCE DEPARTMENT DISPUR GUWAHATI-6 ASSAM 3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6 ASSAM 4:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM FINANCE PRU DEPARTMENT DISPUR GUWAHATI -6. 5:COMMISSIONER INDUSTRIES AND COMMERCE DEPARTMENT BAMUNIMAIDAM GUWAHATI UDYOG BHAWAN GUWAHATI -21

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Advocate for the Petitioner : MR. R GOSWAMI

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Advocate for the Respondent : GA, ASSAM

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Linked Case : WP(C)/5762/2017 JANAK KALITA and 6 ORS S/O LATE SARBESWAR KALITA R/O KAHILIPARA GUWAHATI KAMRUP M ASSAM

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2: SRI RITUMONI PACHANI S/O LATE SARESWAR PACHANI R/O DIFFLOO ROAD BOKAKHAT PO-BOKAKHAT GOLAGHAT ASSAM

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3: NAZRUL ANWAR S/O LATE ANWAR HUSSAIN R/O HOUSE NO. 15 SAHEB TILLA ANWAR HUSSAIN PATH ZOO NARENGI ROAD GUWAHATI-21 KAMRUP M ASSAM

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4: SRI UMESH KUMAR S/O LATE CHANDRA KANTA KUMAR R/O VILLAGE- PACHARIA PO-PACHARIA KAMRUP ASSAM

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5: SALIM REZA MONDAL S/O LATE ABDUL GAFFAR MONDAL R/O VILLAGE-FARINGAPARA PO-LAKHIPUR GOALPARA ASSAM

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6: SRI NRIPENDRA NARAYAN SARMA S/O LATE UMA KANTA SARMA R/O VILLAGE- KAKAYA NALBARI ASSAM 7: SRI PULAKJYOTI DAS S/O LATE PUSPA KANTA DAS R/O BAMUNIMAIDAN GUWAHATI-21 KAMRUP M ASSAM VERSUS

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THE STATE OF ASSAM AND 3 ORS REP. BY THE PRINCIPAL SECRETARY-CUM- COMMISSIONER

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GOVT. OF ASSAM DEPTT. OF INDUSTRIES AND COMMERCE DISPUR GUWAHATI-781006 ASSAM 2:THE COMMISSIONER OF INDUSTRIES AND COMMERCE UDYOG BHAWAN BAMUNIMAIDAN GUWAHATI-21 ASSAM 3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-6 ASSAM 4:THE COMMISSIONER AND SECRETARY TO THE GOVT.OF ASSAM FINANCE PRU DEPTT. DISPUR GUWAHATI-6 -----------Advocate for : MR. M P SARMA Advocate for : MS. A VERMA SC FINANCE DEPT. R - 3 and 4 appearing for THE STATE OF ASSAM AND 3 ORS

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER (ORAL)

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Date : 22-09-2022

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Heard Mr. R. Goswami, learned counsel for the petitioners in WP(C) No. 5814/2017 and Mr. M.P. Sarma, learned counsel for the petitioners in WP(C) No. 5762/2017. Also heard Mr. A. Kalita, learned counsel for the respondents in the Industries and Commerce Department of the Government of Assam and Mr. P. Nayak, learned counsel for the respondents in the Finance Department of the Government of Assam.

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The petitioners herein are all Assistant Manager (Non-Technical), serving

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in the Department of Industries and Commerce of the Government of Assam. The Assistant Managers (Non-Technical) are subjected to a scale of pay at Pay Band 3 with Grade Pay of Rs. 5100/-, whereas the Assistant Managers (Technical) are subjected to a scale of pay at Pay Band 4 with Grade Pay of Rs. 5400/-. It is the claim of the petitioners that considering the nature of work performed, the responsibilities that they have to undertake, there is no difference between the Assistant Manager (Technical) and Assistant Manager (Non-Technical) and therefore, there ought to be a parity of the scale of pay applicable to the two categories of Assistant Managers.

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It is stated that the distinction between the Assistant Manager (Technical) and Assistant Manager (Non-Technical) is maintained on the premises that at the time of entry into service, the required qualification of Assistant Manager (Technical) is B.E., whereas the required qualification of Assistant Manager (Non-Technical) is graduation. But a specific statement is made by the respondents in the Industries and Commerce Department that in spite of such distinction at the entry point, once the Assistant Managers are appointed and starts functioning in the Department, no distinction is maintained even to the extent that the same posts are held interchangeably by the Assistant Managers (Technical) and Assistant Managers (Non-Technical). The said statement of the Department would also be indicative that the nature of duties and the responsibilities that the Assistant Managers are required to undertake in the Department would be same for Assistant Manager (Technical) and Assistant Manager (Non-Technical) inasmuch, the respective posts may be held interchangeably by them.

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Be that as it may, some similarly situated persons who were Assistant Manager (Non-Technical) had earlier instituted WP(C) No. 2690/2012, wherein

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there was an interim order dated 27.11.2014. In the third paragraph of the said order the Court had observed as extracted:

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“In fact the Department has recommended the case of the petitioners to bring the pay parity with that of the Assistant Manager (Technical). However, the Finance Department by its Annexure-B note dated 3rd December, 2011 raised certain queries, which are not relevant to the issue raised in the report of the Pay Anomaly Committee in terms of which the Department shall either being parity in the Grade Pays of both the categories with the concurrence of the Finance Department or inform the Finance Department about the rationale behind the existence of 2(two) different Grade Pays for Assistant Manager (Technical) and Assistant Manager (N onTechnical) instead of doing the recommendation made by the Department, the Finance Department has made the irrelevant queries.

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In view of the above, Mr. B. Gogoi, learned standing counsel, Finance Department is granted time till 4(four) weeks time to obtain instruction in this regard. Such instruction shall be furnished in writing. The Finance Department shall take appropriate decision in consultation with the Industries and Commerce Department, which has already recommended in favour of the petitioners.”

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A reading of the aforesaid extracted paragraph in the order dated 27.11.2014 would make it discernible that the Industries and Commerce Department had proceeded in the matter for bringing about a pay parity between the Assistant Manager (Technical) and Assistant Manager (NonTechnical). But the Finance Department as per its note dated 03.12.2011 had raised certain queries that the proposal of the Industries and Commerce Department was not in conformity with the report of the Pay Anomaly Committee and further, that the Industries and Commerce Department inform the Finance Department as to the rationale behind the existence of the two different grade pays for Assistant Manager (Technical) and Assistant Manager (Non-Technical) and further that the Finance Department may have made certain irrelevant queries. In the circumstance, the Finance Department was granted four weeks time to obtain instruction as to why the Finance Department had raised the queries.

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But the authorities in the Industries and Commerce Department had

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construed the order dated 27.11.2014 in WP(C) No. 2690/2012 to be a judgment and order and accordingly, issued the notification dated 19.09.2015, wherein the Industries and Commerce Department provided that the Governor of Assam was pleased to bring pay parity between the Assistant Manager (Technical) and Assistant Manager (Non-Technical) in the Industries and Commerce Department subject to fulfilment of the conditions mentioned at page 132-133 of the report of the Pay Anomaly Committee.

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Firstly, we are concerned that the interim observation of the Court requiring the Finance Department to provide the instruction on the same had been construed by the Industries and Commerce Department to be a judgment. A judgment requires adjudication of any issue that may have been raised by taking note of all the relevant factual aspects as well as the law that may be involved. A tentative observation requiring another department to provide their instruction cannot be termed to be a judgment. Subsequently, WP(C) No. 2690/2012 was disposed of by the order dated 23.12.2017, wherein it was projected that by the order dated 27.11.2014, the Finance Department was asked to take appropriate decision in the matter in consultation with the Industries and Commerce Department and accordingly, the Government had taken a decision as per their notification dated 19.09.2015. By accepting the said stand, the writ petition was closed.

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The entire approach where an interim order raising certain observation requiring one department to provide their instruction had been construed by the departmental authorities in the Industries and Commerce Department to be a judgment and accordingly, to issue a notification providing for a decision by taking recourse that the Court had already given its judgment on the issue and thereafter, closing the writ petition on the basis of such notification in our view

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would be an unacceptable procedure adopted in law.

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Mr. R. Goswami, learned counsel for the petitioner refers to certain subsequent orders either by the Finance Department or by the Industries and Commerce Department, by which it is stated that the authorities had taken its decision on the question of pay parity between the Assistant Manager (Technical) and Assistant Manager (Non-Technical). Without going to the merits of such orders or decisions that may have taken but as noticed all such decisions were preceded by an act where an observation of the Court was wrongly construed to be a judgment and acted upon accordingly. As there had been no judgment by the Court and it was wrongly construed to be a judgment and acted thereupon, we are of the view that such orders or decisions that may have been taken would have to be declared to be non-est in law. But at the same time, as already observed hereinabove, the writ petitioners being Assistant Manager (Non-Technical) had made out a strong case that they perform the same nature of work as well as the same duties and responsibilities and the only discernible distinction is that at the time of entry into service, the Assistant Manager (Technical) would have the requirement to have a technical degree whereas the Assistant Manager (Non-Technical) to have non-technical degree. But thereafter, the duties and responsibilities undertaken by the two classes of Assistant Managers are same and are also interchangeable with other and further their seniorities are also provided in the same gradation list.

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In the circumstance, we direct the authorities in the Industries and Commerce Department to take a decision on the claim of the petitioners for pay parity between the Assistant Manager (Technical) and Assistant Manager (NonTechnical) based upon the factual aspects involved in the matter as well as the law that may be applicable. The said decision be forwarded to the Finance

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Department and the Finance Department shall pass their reasoned order on the same as may be advised. The requirement of the Industries and Commerce Department be done within a period of 1(one) month from the date of receipt of certified copy of this order. In doing so, the Industries and Commerce Department to also look into the aspect as to whether the initial difference between the Assistant Manager (Technical) and Assistant Manager (NonTechnical) as regards their respective qualifications have any further bearing in the nature of the work performed and the responsibilities that the Assistant Managers are required to undertake in the Department. Upon the decision being taken, the same shall be transmitted to the Finance Department and the Finance Department with a period of another 1(one) month shall pass its reasoned order on the decision that the Industries and Commerce Department may have taken. Whatever is the final outcome, the financial implications thereof be made applicable to the Assistant Manager (Non-Technical), either serving or who may have retired in the meantime, as the case may be, meaning thereby that it would be benefit of pay and salary for the serving Assistant Manager (Non-Technical) and pension for the retired Assistant Manager (NonTechnical).

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Writ petition stands disposed of as indicated above.

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JUDGE

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Comparing Assistant

Janak Kalita and 6 Ors. v. the State of Assam and 3 Ors.

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Janak Kalita and 6 Ors. v. the State of Assam and 3 Ors.

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