Point of Law: Cabinet being a general controlling body is constitutionally entrusted with duty of formulating national policy whose decisions are binding on all governmental departments.

JUDGEMENT :

Suman Shyam, J

1. This intra-court appeal is presented against the judgment and order dated 13/09/2022 passed by the learned Single Judge in WP(C) No. 152/2020, dismissing the writ petition filed by the petitioner thereby declining his prayer for issuance of a Writ of Mandamus to merge the post of Data Entry Operator (DEO) with the cadre of Junior Account Assistant (Jr. AA) in the General Administration Department (GAD), Government of Assam by making necessary amendments to the Assam Secretariat Subordinate Service Rules, 1963 (herein after referred to as the Rules of 1963)

2. The basic facts, necessary for disposal of this appeal, are as follows:-Pursuant to a process initiated for filling up one post of DEO in the General Administration (B) Department, Government of Assam, the appellant had participated and was eventually selected, pursuant whereto, by the order dated 16/07/2010, he was appointed as a DEO in the pay scale of Rs. 5200 – 20,200 with Grade Pay of Rs. 2500/-per month plus other allowances, as admissible from time to time. The appellant had joined the post of DEO on 17/07/2010 and submitted his joining report on the same day. By the communication dated 28/01/2011, the Deputy Secretary to the Government of Assam, General Administration (B) Department, had informed the Accountant General, Assam, about the sanction of the Governor of Assam for creation of one post of DEO in the pay scale of Rs. 3490-90-4480-120-4600-EB-5200-175-6600-250-8100/-per month in the GAD, Assam, for the period till 28/02/2010 with effect from the date of filling up of the post. It was further intimated that the creation and sanction of the post had the concurrence of the Finance Department U.O. No. FPC(II)2176/10 dated 19/01/2011.

Thereafter, notification dated 02/07/2015 was issued conveying the sanction of the Governor of Assam for retention of the post of DEO in the General Administration (B) Department for a period of one year w.e.f. 01/03/2015 to 29/02/2016. Since the date of joining in the post of DEO on 16/07/2010, as aforesaid, the appellant has continued to serve in the said post till today without any break. The post of DEO carries the same pay scale as the post of Junior Administrative Assistant (Jr. A.A.) which is a cadre post under the Rules of 1963 and the works assigned to the appellant as DEO was also similar in nature as Jr.A.A. However, since the post of DEO was an ex-cadre post (single post),hence the appellant did not have any avenue of career progression. Not only that, the appellant was also denied the benefit of revision of pay scale/increment in pay pursuant to pay revisions carried out from time to time in respect of similarly situated employees in the department. Situated thus, and realizing that he would not be entitled to any service benefit in future since the post held by him was an ex-cadre post, the appellant had submitted a memorandum dated 05/01/2016 before the Secretary to the Government of Assam, 7th Pay Commission, with a request to consider integration of the post of DEO into the Service Rules by merging it with the cadre of Jr. A.A. The matter was then placed before the 7th Assam Pay & Productivity Pay Commission, which had considered the prayer of the writ petitioner/appellant and vide note at Sl. No. 1.12(3) at Chapter 14, recommended merger of the single post of DEO with the cadre of Jr. AA. The Pay Commission had, however, advised that the seniority of the appellant, upon such merger, would be fixed as per the principles to be determined by the Personnel Department and that there should be no further creation of post of DEO under the GAD. The relevant portion of the recommendation of the 7th Assam Pay & Productivity Pay Commission pertaining to the request of the appellant is extracted herein below for ready reference :-

“(3) the Commission examined the case of Sri Pankaj Sarma, Data Entry Operator (DEO) in GAD. It appears that he is a graduate and was appointed on a post with a pay in PB-2