Dismissed

Surendra Nath Dihingia v. the State of Assam and 7 Ors.

Gauhati HC4 Nov 2024WP(C)/128/2022

Case brief

AI extract

What is this about?

This order dismisses three writ petitions challenging the adjustment of pension due to pay re-fixation and rejects a claim for third financial upgradation under MACPS, noting petitioners already availed two upgradations and one promotion.

What did the court decide?

No interference with pension adjustment; prayer for third financial upgradation dismissed as ineligible.

Surendra Nath Dihingia Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2024)

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Page No.# 1/13

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GAHC010211872021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7109/2021

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L IBOCHOW SINGHA S/O. BINODE SINGHA, RETD. SENIOR METER READER, HAFLONG ELECTRICAL SUB-DIVISION, APDCL, R/O. 94, HAFLONG, DIMA HASAO, NORTH BAGETAR, LUNGKHOK, NORTH CACHAR HILLS, DIMA HASAO, ASSAM, PIN-788820.

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VERSUS

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THE STATE OF ASSAM AND 7 ORS. REP. BY THE COMM. AND SECY., TO THE GOVT. OF ASSAM, DEPTT. OF POWER, DISPUR, GUWAHATI, ASSAM, PIN-781006. 2:THE ASSAM POWER DISTRIBUTION COMPANY LTD. TO BE REP. ITS CHAIRPERSON BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001.

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3:THE MANAGING DIRECTOR ASSAM POWER DISTRIBUTION COMPANY LTD. (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001.

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4:THE CHIEF GENERAL MANAGER (AUDIT)

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ASSAM POWER DISTRIBUTION COMPANY LTD. BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001 5:THE CHIEF GENERAL MANAGER (D AND S) ASSAM POWER DISTRIBUTION COMPANY LTD. (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001.

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6:THE CHIEF GENERAL MANAGER (F AND A) PENSION ASSAM POWER DISTRIBUTION COMPANY LTD. (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001.

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7:THE CHIEF GENERAL MANAGER (HRA) ASSAM POWER DISTRIBUTION COMPANY LTD. (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001.

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8:THE ASSTT. GENERAL MANAGER HAFLONG ELECT. DIVISION ASSAM POWER DISTRIBUTION COMPANY LTD. (CAR) HAFLONG DIMA HASAO ASSAM

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Linked Case : WP(C)/6901/2021

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KHAGENDRA ARDAO

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S/O- LATE UMAKANTA ARDAO RETIRED SENIOR METER READER HAFLONG ELECTRICAL SUB-DIVISION APDCL R/O BOILDURA NORTH CACHAR HILLS DIMA HASAO ASSAM-788819 VERSUS

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THE STATE OF ASSAM AND 7 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF POWER DISPUR GUWAHATI ASSAM-781006

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2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED REPRESENTED BY ITS CHAIRPERSON BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM -781001

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3:THE MANAGING DIRECTOR ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI-781001

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4:THE CHIEF GENERAL MANAGER (AUDIT) ASSAM POWER DISTRIBUTION COMPANY LIMITED BIJULEE BHAWAN PALTAN BAZAR GUWAHATI-781001

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5:THE CHIEF GENERAL MANAGER (D AND S) ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI-781001

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6:THE CHIEF GENERAL MANAGER (F AND A) PENSION ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN

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PALTAN BAZAR GUWAHATI-781001

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7:THE CHIEF GENERAL MANAGER (HRA) ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI-781001 8:THE ASSISTANT GENERAL MANAGER HAFLONG ELEC. DIVISION ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) HAFLONG DIMA HASAO ASSAM

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Linked Case : WP(C)/128/2022

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SURENDRA NATH DIHINGIA S/O- BONGSHIDHAR DIHINGIA RETD. SENIOR METER READER JORHAT ELECTRICAL SUB- DIVISION APDCL R/O- JADU NATH BARUAH PATH TARAJAN GAYAN GAON JORHAT EAST DIST- JORHAT ASSAM PIN-785001

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VERSUS

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THE STATE OF ASSAM AND 7 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF POWER DISPUR GUWAHATI ASSAM PIN-781006

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2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED TO BE REP. BY ITS CHAIRPERSON BIJULEE BHAWAN

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PALTAN BAZAR

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GUWAHATI ASSAM PIN-781001

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3:THJE MANAGING DIRECTOR ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN

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PALTAN BAZAR GUWAHATI ASSAM PIN-781001

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4:THE CHIEF GENERAL MANAGER (AUDIT) ASSAM POWER DISTRIBUTION COMPANY LIMITED BIJULEE BHAWAN

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PALTAN BAZAR GUWAHATI ASSAM PIN-781001

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5:THE CHIEF GENERAL MANAGER (D AND S) ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN

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PALTAN BAZAR GUWAHATI ASSAM PIN-781001

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6:THE CHIEF GENERAL MANAGER (F AND A) PENSION ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN PALTAN BAZAR GUWAHATI ASSAM PIN-781001

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7:THE CHIEF GENERAL MANAGER (HRA) ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAR) BIJULEE BHAWAN

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PALTAN BAZAR GUWAHATI ASSAM PIN-781001

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8:THE ASSISTANT GENERAL MANAGER JORHAT ELECT. DIVISION -I (UAR) ASSAM POWER DISTRIBUTION COMPANY LIMITED DIST- JORHAT ASSAM

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Advocate for the Petitioners : Mr. A K Dutta, Mr. B Purkayastha Advocate for the Respondents : Mr. S P Sarma, SC, APDCL

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B E F O R E HON’BLE MR. JUSTICE NELSON SAILO

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Date of hearing & judgment : 05.11.2024

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J U D G M E N T & O R D E R (ORAL)

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All the 3 (three) writ petitions are being disposed of by this common

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order as the issue involved are similar.

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[2.] Heard Mr. B Purkayashtha for the petitioners and Mr. S P Sarma, learned Standing Counsel, APDCL for respondent Nos. 2 to 8.

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[3.] Brief facts of the case is that all the petitioners were appointed as Meter Reader under the erstwhile Assam State Electricity Board, now known as

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the Assam Power Distribution Company Limited (APDCL). The petitioner in WP(C) No. 7109/2021 was appointed on 16.12.1980. He was promoted as

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Senior Meter Reader on 02.03.2016 and subsequently retired from service on

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30.09.2019.

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[4.] The petitioner in WP(C) No. 6901/2021 was also appointed as Meter Reader on 16.12.1980 and promoted as Senior Meter Reader on 24.11.2014. Subsequently, he retired from service on 31.03.2019.

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[5.] The petitioner in WP(C) No. 128/2022 too was appointed as Meter Reader on 16.12.1980 and promoted as Senior Meter Reader on 24.11.2014. Subsequently, he retired from service on 31.12.2017.

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[6.] It is the case of the petitioners that the respondent establishment adopts and follows the Revision of Pay Rules of the State Government issued from time to time by way of publishing a separate notification in this regard. Despite their appointment way back on 16.12.1980, the petitioners did not get a chance of promotion for a long period of time and therefore, when the respondents came up with the O.M dated 30.12.2006 introducing financial upgradation scheme for its employees w.e.f. 01.01.2007, all the petitioners were given the benefit of financial upgradation w.e.f. 01.01.2007. Thereafter, the petitioner in WP(C) No. 7109/2021 was promoted as Senior Meter Reader on 02.03.2016 while the petitioners in the other two writ petitions were both promoted as such on 24.11.2014.

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[7.] After their retirement on superannuation, the pension to be received

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by them was revised on the ground of wrong fixation of their pay. According to the petitioners, upon such re-fixation of their pay, the amount of excess drawal was deducted from the pensionary benefits due to them. Aggrieved with the same, they submitted their respective representation before the authority concerned which however was rejected. That is how they are now before this Court.

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[8.] Mr. B Purkayastha, learned counsel submits that the petitioners have been given promotion to the post of Senior Meter Reader after rendering mote than 33 to 35 years of service. Therefore, when the financial upgradation scheme was notified vide O.M dated 30.12.2006, they were given two financial upgradation w.e.f. 01.01.2007. Thereafter, the respondent authorities vide O.M dated 12.12.2017 notified the ASEB and its Successor Companies, Revised Pay Rules- 2017 (ROP 2017), which came into effect from 01.04.2016 as an interim measure. Clause 12 of the said Office Memorandum speaks of Modified Assured Career Progression Scheme (MACPS) which provides for grant of financial upgradation benefit for three times in the entire service period upon completion of 10 years, 20 years and 30 years of service to those employees who do not get one regular promotion within the first ten years or two regular

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promotion/ACPS benefits within two years or three promotion/ACPS benefit within 30 years of regular service. It was provided that a separate order in this regard would follow.

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[9.] Thereafter, the respondent authorities, in order to implement the MACPS, notified O.M dated 04.05.2018. Clause 10 of the O.M provides as

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follows:-

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“10 The financial benefit of the scheme shall be given with effect from 01.01.2018 only, although the services rendered by the employee before 01.01.2018 and promotions/ACPS benefits availed before 01.01.2018 shall be taken into account for deciding and determining the extent of benefit under MACPS. For example an employee who has joined regular service on 1995 and his case has been considered in 2016, the service for the purpose of MACPS shall be counted from 1995 and accordingly he will be entitled for one promotion in 2006 and another in 2016. However, the first benefit under MACPS will in this case start from 01.01.2018 only and not from earlier.”

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[10.] Mr. B Purkayastha, learned counsel submits that since the MACPS provides for financial upgradation for three times in the entire service period on completion of 10 years, 20 years and 30 years, as the petitioners were promoted only at the very fag end of their career in the year 2014-2016, they

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are entitled to be given the benefit of the financial upgradation in terms of the MACPS. The said Scheme came into effect from 01.01.2018 and the petitioners having all served more than 30 years before they were promoted, they should be given their 3^rd financial upgradation as provided by the MACPS and their pension emoluments be accordingly modified.

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[11.] Mr. S P Sarma, learned counsel for the respondent APDCL, on the other hand, submits that the petitioners were given benefit of 1^st and 2^nd financial upgradation w.e.f. 01.01.2007 without recasting their pay w.e.f. 01.04.1997 and therefore, the same was required to be rectified and accordingly a communication in this regard was made to the respective Controlling Officers of the petitioners to make rectification in their service book. On recasting their pay, it was found out that there was excess drawal of pay which then had to be adjusted from their pension emoluments. Therefore, the petitioners cannot be said to have any legitimate grievance in this regard. Insofar as the claim to get the 3^rd financial upgradation by the petitioners is concerned, the same will not be admissible in view of the fact that they had already earned their respective promotion in the year 2014-2016 and moreover, the MACP Scheme came into

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effect only from 01.01.2018 and by which time, the petitioners had already earned two financial upgradation and one promotion to the next higher rank. As

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such, the petitioners would be getting four upgradation if their prayer is to be allowed and which is not in terms of Assured Career Progression Scheme or the MACPS. He, thus, submits that the writ petitions are without merit and they should be dismissed.

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[12.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record.

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[13.] As regards, the claim for interference with the adjustment being made upon the re-fixation/re-casting of the pay of the petitioners, it may be

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seen that according to the respondents when the 1^st and 2^nd financial upgradation benefit was given to them w.e.f. 01.01.2007, proper fixation of their

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pay was not done leading to excess drawal of pay. Accordingly, the respondent authority concerned intimated the Controller Officers concerned under whom the petitioners were working to make the rectification in their respective service books. However, the same was not done. It is seen that the re-fixation of pay was done by calculating the pay scale benefit as per completion of the prescribed years of service. Under the circumstance and in the absence of any serious dispute raised by the petitioners, the re-fixation of pay of the petitioners

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appears to be in order. It is also a settled law that matters relating to pay fixation should be left to those who are experts in the field as the Courts lack

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the expertise and the resource.

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[14.] In respect of the claim of the petitioners to be given the 3^rd financial upgradation of their pay, it may be seen that the 1^st financial upgradation was introduced vide O.M dated 30.12.2006 which was applied w.e.f. 01.01.2007. Under the said scheme, only those employees who did not already get two regular promotions or two similar benefits of higher pay scales as on the date of implementation of the scheme were eligible to avail the benefit of the financial upgradation. By that time, the petitioners admittedly had not earned any promotions and therefore, they were given two financial upgradation w.e.f. 01.01.2007. The MACPS was introduced vide O.M dated 12.12.2017 and it was subsequently implemented by the issuance of O.M dated 04.05.2018, which further provided that the financial benefit of the scheme shall be given w.e.f. 01.01.2018. The MACPS no doubt provides for three financial upgradation in the entire service period on completion of 10 years, 20 years and 30 years. However, such upgradation are meant for those employees who do not get one regular promotion within the the first 10 years of their appointment or two regular promotions/ACPS benefit within 20 years or three promotions/ACPS benefit within the 30 years of regular service. In the present case, as already noted herein above, the petitioners were given two upgradation w.e.f.

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01.01.2007 and thereafter, they were promoted to the Senior Meter Reader post on 24.11.2014 in respect of the petitioners in WP(C) No. 6901/2021 & WP(C) No. 128/2022. The petitioner in WP(C) No. 7109/2021 was promoted on 02.06.2016. Therefore, the petitioners in all have availed for one regular promotion and two financial upgradation benefits. Under the circumstance, it only appears that they already having availed three benefits whether by promotion or by financial upgradation and therefore, they are not eligible to get the three financial upgradation as contemplated by the MACPS. Therefore, no relief can be granted as claimed by the petitioners.

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[15.] Under the facts and circumstances, I find no merit in the writ petitions and accordingly they are dismissed. No costs.

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JUDGE

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Comparing Assistant

Surendra Nath Dihingia v. the State of Assam and 7 Ors.

Case brief

What is this about?

What did the court decide?

Surendra Nath Dihingia v. the State of Assam and 7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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