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2023 Supreme(Gau) 155
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Neepjyoti Das and Others – Petitioners
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 5658 of 2015
Decided On : 20-02-2023
Advocate Appeared:
For the Petitioner: G. Goswami.
Headnote:
Assam Services (ROP) Rules, 2010 - Assam Services (ROP) Rules, 2017- Assam Town and Country Planning, Town Planners Service Rules, 2016 – Constitution of India, 1950 - Article 309 - Advertisement - Temporarily appointed - Entitled to Grade Pay - Whether petitioners are entitled to Grade Pay of Rs. 5,400/- or Rs. 5,900/- taking into account notification issued by Finance Department - Held, Similarly situated persons who have been appointed prior to petitioners appointment and after petitioners appointment initially were given Grade Pay of Rs. 5,900/- and now being given Rs. 13,300/ - Learned counsel for petitioner has, therefore, submitted that Assam Services (ROP) Rules, 2010 are Rules made under provision of Article 309 of Constitution - Rules cannot be overridden by way of executive instructions - Only manner by which respondent Finance Department would have not granted benefits to petitioner is by amending Rules which has however been not done - Court, vide order directed Standing Counsel for Finance Department to obtain instructions as to any amendments were carried out to Assam Services (ROP) Rules, 2010 - Court further is also of opinion that pursuant to Assam Services (ROP) Rules of 2017 coming into effect, applicable pay scale of petitioner would be Rs. 30,000/- to Rs. 1,10,000/- with Grade Pay of Rs. 13,300/ - Petition disposed of.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. R. Mazumdar, the learned counsel for the petitioners and Mr. B. Gogoi, the learned counsel appearing on behalf of the Finance Department. Also heard Mr. C.S. Hazarika, the learned counsel appearing on behalf of Town and Country Planning Department, Assam as well as Mr. S.K. Medhi, the learned counsel appearing on behalf of the respondent No. 7.
2. The case of the petitioners herein is that pursuant to the advertisement dated 29.09.2011, the petitioners applied for the post of Assistant Director in the Directorate of Town and Country Planning, Assam under the Urban Development Department. In terms with the said advertisement, the scale of pay was mentioned as Rs. 12,000-40,000 with Grade Pay of Rs. 5,900/- per month. Subsequent thereto, by the notification dated 07.08.2012, the petitioners were temporarily appointed to the vacant sanctioned posts with the scale of pay of Rs. 12,000-40,000 with Grade Pay of Rs. 5,900/- plus other allowances as admissible under the Rules from time to time. Although as per the advertisement as well as by the appointment order, the petitioners were entitled to the Grade pay of Rs. 5,900/- but the petitioners were only given the Grade Pay of Rs. 5,400/- for which the petitioners had submitted representations to the respective authorities. Upon such representations, the Senior Accounts Officer of the Office of the Accountant General (A&E) had sent a communication to the Secretary to the Government of Assam (Pay Research Unit) Department seeking a clarification as to whether the petitioners are entitled to the Grade Pay of Rs. 5,400/- or Rs. 5,900/- taking into account the notification dated 12.12.2011, issued by the Finance Department.
3. At this stage, this Court deems it proper to quote the relevant portion of the said notification dated 12.12.2011 which is reproduced herein-below:
NOTIFICATION
Dated Dispur the 12th December, 2011
No. FPC-12/2000/145: The Governor of Assam is pleased to allow Grade Pay of Rs. 5,900/- as personal to the present incumbents in the post of Assistant Director, Town and Country Planning under Urban Development Department. All future recruits to the said post shall enjoy pay structure of Pay band-4 + Grade pay of Rs. 5,400/-. While advertising for the said post, Department shall clearly bring out this fact.
(M. Rahman)
Deputy Secretary to the Govt. of Assam,
Finance (Pay Research Unit) Department
4. A perusal of the said notification stipulates that the Governor of Assam was pleased to allow Grade Pay of Rs. 5,900/- as personal to the present incumbents in the post of Assistant Director, Town and Country Planning under the Urban Development Department. All future recruits to the said post shall enjoy pay structure of PB-4 plus Grade pay of Rs. 5,400/-. It was also mentioned that while advertising for the said post, Department should clearly bring out this fact.
5. At this stage, it is relevant to take note of that the said notification was issued subsequent to the advertisement which was issued on the basis of which the petitioners were appointed.
6. The Finance Department has filed an affidavit-in-opposition. In the said affidavit-in-opposition it has been mentioned that pursuant to the Assam Services (ROP) Rules, 2010, the Anomaly Pay Committee had given a recommendation that the Finance Department should issue necessary notification correcting the anomalies to stop the Assistant Directors’ continued drawal of Grade pay of Rs. 5,900/- which is more than the Grade Pay fixed for the Assistant Engineer. It is, however, relevant to take note of that in the said affidavit-in-opposition so filed by the Finance Department, there is no mention as to whether pursuant to the Anomaly Committee’s Report there was any amendment carried out to the Assam Services Revision of Pay Rules, 2010.
7. The learned counsel for the petitioners has also drawn the attention that while appointing subsequent persons as the Assistant Director under the Directorate of To
