Pay protection is a fundamental right under Articles 21 and 300A, and denial based on procedural delays is impermissible.

JUDGMENT :

(ROBIN PHUKAN, J.)

Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Ms. H. Terangpi, learned standing counsel, Secondary Education Department, appearing for respondent Nos.1—3 and Ms. P.R. Mahanta, learned standing counsel, Higher Education Department, appearing for respondent Nos.4 and 5.

2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Anwar Hussain has challenged the correctness or otherwise of the letter dated 15.11.2022, issued by the respondent No.2, whereby the petitioner was denied the benefit of pay protection of his earlier post of Lecturer in Sibsagar College, in the post of District Elementary Education Officer (DEEO) and also to provide him consequential benefit of pension and other retiral benefits.

3. The background facts leading to filing of the present writ petition is briefly stated as under:-

“The petitioner was serving as Lecturer of Philosophy in Sibsagar College against a valid sanctioned post and he was receiving UGC scale of pay. Pursuant to an advertisement dated 25.12.1989 for filling up of posts of 8 nos. of Inspector of Schools/Deputy Directors/District Elementary Education Officer, the petitioner has applied for the same and he was also selected and he got appointed in the said post and while he was serving as DEEO, he was dismissed from service on 09.03.2011 after conducting a departmental proceeding against him. Thereafter, the petitioner approached this Court by filing one writ petition, being WP(C) No.2399/2011, which was dismissed on 08.04.2014. Thereafter, the petitioner preferred an appeal before this Court, being WA No.187/2014 challenging the aforesaid dismissal order. The order of dismissal has been converted to compulsory retirement with service benefits. Thereafter, the petitioner has received the retirement benefits and also receiving the pension. But, his grievance is that the scale of pay in the later post received by the petitioner was Rs.1500-60-1800-EB-60-1988-65-21-2175/-, which is lower than the UGC scale of pay of Lecturer i.e. Rs.2200-75- 2800-100-4000/- and as per provisions under FR-9(23), FR- 22(i)(a)(1) and FR-37, the petitioner is entitled to pay protection from lower to higher pay scale as the later post carries duties and responsibility of greater importance than the duty and responsibility to the post of Lecturer. It is also the pleaded case of the petitioner that similar benefit was provided to one of his colleague, namely, Mr. Khabir Uddin Ahmed and therefore, the petitioner approached this Court praying for the relief mentioned hereinabove.”

4. Mr. Khan, learned counsel for the petitioner submits that after intervention of this Court and conversion of the dismissal to compulsory retirement with service benefit, the petitioner has filed one representation on 21.09.2017 (Annexure-12 of the petition) to the Commissioner and Secretary to the Govt. of Assam, Secondary Education Department. But the said representation was dismissed by the respondent No.2 vide impugned letter dated 15.11.2022. Mr. Khan further submits that in the aforesaid letter dated 15.11.2022, no reason has been assigned by the respondent No.2. But, while the said letter is being challenged in this petition, the respondent No.2 had issued another order dated 24.11.2024 bearing Memo No.E-233371/361, whereby the letter dated 15.11.2022, bearing No.233371/212 was set aside and assigned reason for refusing to grant benefit of pay protection of his earlier post of Lecturer in Sibsagar College on the ground that FR-22(i)(a)(1) deals with option of fixation of initial pay, which option as per the rule is to be availed by the Government servant within one month of appointment. Md. Anwar Hussain had first raised the issue of pay fixation after much delay only in 2017 and no explanation has been provided for the delay in claiming such pay protection and that during the pendency of this writ petition, setting aside the letter under challenge dated