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Hasnine Alam v. The State of Assam and 4 Ors

Allowed
Court
High Court of Gauhati
Decided
29 November 2023
Bench
Achintya Malla Bujor Baruaauthor
Case no.
WP(C) 2987/2020

Judgment

JUDGMENT & ORDER (ORAL)

Date : 29-11-2023 Heard Ms. D. Ghosh, learned counsel for the petitioner and Mr. B. Deuri, learned Junior Government Advocate for the respondent No. 1, being the Legal Remembrancer and Secretary to the Government of Assam in the Judicial Department. Also heard Mr. B. Gogoi, learned counsel for the respondents No. 2 and 4, being the authorities in the Finance Department; Mr. H.K. Das, learned counsel for the respondent No. 3, being the Registrar General, Gauhati High Court and Ms. J. Das, learned counsel for the respondent No. 5, being the Accountant General (A&E), Assam. Page No.# 3/15

¶2The writ petitioner Hasnine Alam was appointed as Stenographer Grade-II in the Principal Seat of Gauhati High Court in the Pay Band 3 (for short 'PB3') of Rs. 8000-35000/-with Grade Pay (for short 'GP') of Rs. 4300/-per month plus other allowances as admissible under the Rules. Later on the petitioner was promoted as Private Secretary in the Principal Seat of Gauhati High Court in the PB4 of Rs. 12000-40000/-with GP of Rs. 5900/-. Without there being any other entitlement and without there being any revision of pay, the petitioner was entitled to the basic pay as Stenographer Grade-II in PB3 of Rs. 8000/-plus GP of Rs. 4300/-subject to increments from time to time as may be applicable. Similarly, without there being any revision of pay and without any further entitlement, the petitioner upon being promoted as Private Secretary in the PB4 of Rs. 12000-40000/-with GP of Rs. 5900/-, was entitled to the basic pay of Rs. 12000/-plus GP of Rs. 5900/-which is equal to Rs. 17900/-. However, the petitioner being an employee of the Principal Seat of the Gauhati High Court, he is also entitled to an additional pay nomenclatured as Principal Seat Pay (for short 'PSP') which had been notified as per the notification dated 16.08.2016 of the Legal Remembrancer and Secretary to the Government of Assam in the Judicial Department. The said notification dated 16.08.2016 is extracted as below: " JDJ.456/213/290: In compliance of the Hon'ble Gauhati High Court's order dated 04-04-2016, passed in Writ Petition(C) No. 1724/2015 and as approved by the Cabinet in its meeting dated 27-07-2016, the Governor of Assam is pleased to approve payment of Principal Seat Pay (PSP) to the Officers & Staff of the Gauhati High Court (Principal Seat) as an interim measure as follows:-

¶1The Officers and Staff of the Gauhati High Court (Principal Seat) will be paid "Principal Seat Pay" in addition to their existing emoluments (existing pay and allowances) on the following scale: Page No.# 4/15

Pay Band Principal Seat Pay (in Rs. Per month) 1 Pay Band- 500/-2 Pay Band-750/-3 Pay Band-1,000/-4 Pay Band- 1250/-

¶2Principal Seat Pay shall be admissible to the Officers and Staff of the Principal Seat of the Gauhati High Court in addition to their respective Pay in the Pay Band and Grade Pay for determining Basic Pay (i.e. Basic Pay= Pay in the Pay Band+ Grade Pay+ PSP) Dearness Allowances, House Rent Allowances, Increment and Pension etc. will be paid on the Basic Pay arrived at in the aforesaid manner.

¶3The Principal Seat Pay (PSP) to the Officers & Staff of the Gauhati High Court will be notionally given effect from 01-01-2006 and it will be counted for arrears with effect from 01-04-2008, in addition to the benefits which the Officers & Staff of the Gauhati High Court (Principal Seat) may be entitled as granted to the State Govt. employees under the Assam Services (ROP) Rules, 2010.

¶4The Principal Seat Pay (PSP) shall be paid as a part of the current salary with effect from 01-08-2016 and the arrears from 01-04-2008to 31-07-2016 shall be paid in a single installment during the current financial year 2016-2017. This is issued as per concurrence of Finance (PRU) Department vide their U/O No. FPC.68/2016 dated 12-08-2016."

¶3Paragraph 1 of the notification dated 16.08.2016 provides the PSP to be Rs. 1000/- per month in respect of those employees of the Principal Seat of the Gauhati High Court who are in the PB3 and Rs. 1250/- per month in respect of such employees who are in PB4. In other words, the petitioner as Stenographer Grade-II was entitled to the basic pay of PB3 of Rs. 8000/- plus GP of Rs. 4300/- and further Rs. 1000/- as PSP which was added to his basic pay, the total basic pay being Rs. 13300/- per month.

¶4Paragraph 2 of the notification dated 16.08.2016 provides that the PSP shall be in addition to the respective pay in the pay band and the grade pay and Page No.# 5/15 accordingly, a formula is provided in the notification itself as to in what manner the basic pay is to be calculated upon taking note of the PSP. In the notification it is provided that the basic pay is equal to pay in the pay band plus grade pay plus PSP, i.e. Basic Pay = Pay in the Pay Band + Grade Pay + PSP.

¶5The aforesaid calculation that the basic pay of the petitioner as Stenographer Grade-II was Rs. 13300/- is arrived at by applying the said formula provided in the notification dated 16.08.2016 i.e., PB3 of Rs. 8000/- plus GP of Rs. 4300/- plus PSP of Rs. 1000/- which would be 8000+4300+1000 which is equal to Rs. 13300/-.

¶6Upon being promoted as Private Secretary by the notification dated

23.01.2017, the pay of the petitioner had been fixed in the PB4 of Rs. 12000-40000/- with GP of Rs. 5900/-. Accordingly, immediately on being promoted the petitioner would be entitled to a basic pay comprising of PB4 of Rs. 12000-40000/- plus GP of Rs. 5900/- plus PSP of Rs. 1250/- and by adopting the formula provided in the notification dated 16.08.2016, his basic pay would be 12000 + 5900 + 1250 which is equal to Rs. 19150/-. In other words, we have to understand that under no circumstance the minimum basic of the petitioner upon promotion could have been less than Rs. 19150/-.

¶7As per the Assam Services (Revision of Pay) Rules, 2017 (for short 'the Rules of 2017') which was implemented on and from 17.03.2017 w.e.f.

01.04.2016, there is a revision of pay. To give effect to the revision, the basic pay of the petitioner, as per the fixation of initial pay available at Annexure 7 page 37 to the writ petition in clause 7, the basic pay of the petitioner in the pre-revised structure was accepted to be Rs. 14550/- which is Rs. 9250/- being the pay band plus Rs. 4300/- being the GP plus Rs. 1000/ being the PSP. In other words, the basic pay was accepted by the authorities to comprise of three Page No.# 6/15 elements i.e. the PB plus GP plus PSP and the cumulative effect of the same was considered to be the basic pay. Accordingly, a fitment of the petitioner after revision was on the basis of basic pay being Rs. 14550/- which also included the PSP and the revised pay which also included PB plus GP plus PSP was arrived at Rs. 37160/-.

¶8What we have specifically taken note of that in order to arrive at the revised basic pay, the existing basic pay included three components i.e. PB, GP and the PSP. The issue remains as to what would be the revised pay of the petitioner in his promoted post of Private Secretary. For the purpose, the Finance Department of the Government of Assam had issued a communication dated 11.06.2021 for fixation of the revised pay of the petitioner as Private Secretary which is also referred to as Stenographer Grade-I. The said communication dated 11.06.2021 is extracted as below: "With reference to the above, I am directed to say that the prayer of the petitioner of Shri Hasnine Alom has been reviewed and his pay scale has been re-fixed as under-The Officer & staff of the Principal Seat of GHC is allowed the Principal Seat Pay as follows: Pay Band Principal Seat Pay (PSP) IN Rs. (per month) PB-1 Rs. 500/- PB-2 Rs. 750/- PB-3 Rs. 1000/- PB-4 Rs. 1250/- Accordingly, the fixation has been done in respect of Mr. Hasnine Alom, Stenographer Grade-I, Principal Seat GHC in the following manner: (As per Rule 11 of the Assam Services (ROP) Rules, 2017 read with FR 22(I) (a)(1).

¶1Lower Post : Stenographer (Grade-II)

(a) Pay Structure of the post : PB-3 Rs.22000-97000/-+ GP Rs.9400/-

(b) Date of release : 23-01-2017

(c) Last Pay drawn : Rs.38640/- (PBP=Rs.28240/-) + GPRs.9400+ PSP (Rs.1000)

¶2Higher Post : Stenographer (Grade-I)

(a) Pay Structure of the Post : PB-4 Rs.3000-110000/-+ Page No.# 7/15 GPRs.13,300/-

(b) Date of Joining : 23-01-2017

¶3Fixation of pay in the higher post on the date of promotion/appointment.

(i) Last drawn in the lower post :Rs.38640/- (Pay in PB= Rs.28240/- + GP Rs.9400/- + PSP Rs. 1000/-)

(ii) 1 (one) increment @ 3% of Rs.36410/-:Rs.1,160/-

(iii) Total :39,800/-

(iv) (-)Grade Pay of the Lower Post :Rs.9,400/-

(v) (-) PSP of the Lower Post :Rs.1,000/-

(vi) Pay in the Pay Band3 :Rs.29,400/-

(vii) (+) Grade Pay of the Higher Post :Rs.13,300/-

(viii) (+) PSP of the higher post :Rs.1,250/-

(ix) Pay fixed on 23-01-2017 at :Rs.43,950/- The amount arrived is found to be less than the minimum of the pay sum of the pay in Pay Band (Rs.30,000-1,10,000/-) Grade Pay (Rs.13,300/-) and PSP (Rs.1250/-), i.e. Rs. 44,550/-. As such, the pay of Shri Hasnine Alom is to be fixed at Rs. 44,550/- (Pay in PB-4, Rs.30000 + GP Rs. 13,300/- + PSP Rs.1250/-) on 23-01-2017 with the date of next increment on 01-07-2017. You are, therefore, requested to communicate the same with Hon'ble High Court accordingly for doing the needful."

¶9A reading of the communication dated 11.06.2021 makes it discernible that calculations were made in respect of how the pay of the petitioner was revised as a Stenographer Grade-II and also how it stood revised as Stenographer Grade-I. While calculating the revision of pay as Stenographer Grade-I, the ultimate figure that was arrived at by the authorities is Rs. 43950/-, but it was found that the figure 43950 was less than the minimum pay in the PB4 of Rs. 30000-110000/- with GP of Rs. 13300/- and PSP of Rs. 1250/- which came out to be Rs. 44550/-. Accordingly, Clause 11 of the Rules of 2017 was Page No.# 8/15 invoked. Rule 11 of the Rules of 2017 is extracted as below: "11. Fixation of pay on promotion on or after 1st day of April, 2016:

(1) In case of promotion from one post to higher post on or after the 1st day of April, 2016, the fixation of pay of a Government employee shall be made in the following manner :

(a) One increment equal to three per centum (3%) of the sum of the existing prepromotion pay in the Pay Band and the Grade Pay corresponding to the prepromotion post shall be computed and rounded off to the next multiple of Rs. 10/-.

(b) In case of promotion, revised pay in the Pay Band shall be fixed by adding the amount arrived at Clause (a) above to the existing pre-promotion pay of the employee in a Pay Band. He will also be given Grade Pay at enhanced rate as applicable to the promotion post.

(c) In case the promotion from one post to another involves movement from one Pay Band to a higher Pay Band then also fixation of pay consequent to promotion shall be done in the same manner as at (a) and (b) above. However, if the revised pay so arrived at consequent to promotion becomes lower than the minimum of the higher Pay Band to which he has been promoted, then his pay shall be fixed at the minimum of the higher Pay Band. After such fixation he will automatically move to the higher Pay Band to which he is promoted and he will also draw Grade Pay as applicable to the post to which he has been promoted. Note: I. In case the Government employee opts to get his pay fixed from his date of next increment, then, on the date of promotion, pay in the Pay Band shall continue to be unchanged, but Grade Pay of the higher post shall be granted. Further, refixation shall be done on the date of his next increment, i.e. 1st day of July. On that day, such a Government employee shall be granted two increments; one annual increment and the second on account of promotion. While computing these two increments, basic pay prior to the date of promotion and Grade Pay corresponding to such pay in the Pay Band shall be taken in account. After allowing such increments, Grade Pay of the higher post/scale shall be allowed. II. In case he was promoted between the period commencing from 2nd April and ending on 30th June of a particular year, he shall get his increment on the 1st July of the next year."

¶10Mr. B. Gogoi, learned counsel for the respondents in the Finance Department by relying upon the provision of Rule 11(1)(a) submits that as the petitioner is a category of employee who was promoted after 01.04.2016, his fixation of pay in the higher post where he was promoted would be one increment equal to three per centum of the sum of the existing pre-promotion Page No.# 9/15 pay and accordingly seeks to justify the calculation made in the communication dated 11.06.2021 that the existing pre-promotion pay of the petitioner was Rs. 38,640/- and therefore three per centum was added to it and the calculation made out in the communication dated 11.06.2021 was carried forward. Reliance is further placed on the proviso which begins with the expression 'however' of Rule 11 which provides that if the revised pay arrived at by following the calculation provided in Rule 11(1)(a) becomes lower than the minimum of the higher pay band to which the person has been promoted, then the pay shall be fixed at minimum of the higher pay band. Accordingly, by referring to Table 1 of the pay structure provided in the notification No. FPC.1/2017/Pt/1 dated

17.03.2017, it is stated that the writ petitioner having been in the existing pay band of Rs. 12000-40000/- would be in the revised pay band of Rs. 30000-110000/-.

¶11It is noticed that the Rules of 2017 had been notified as per the notification No. FPC.1/2017/Pt/2 dated 17.03.2017, whereas the notification containing the structure is as per the notification No. FPC.1/2017/Pt/1, which apparently appears to be two separate notifications.

¶12Be that as it may, by referring to the figures Rs. 30000-110000/- as appearing to be the revised pay band as per Table 1 referred above, it is the submission of Mr. B. Gogoi, learned counsel for the respondents in the Finance Department that the minimum of the higher pay band referred in the proviso to Rule 11(1) of the Rules of 2017 would now have to be read as Rs. 30000/-. Accordingly, calculations available in the communication dated 11.06.2021 is sought to be justified inasmuch as, it also provided that the pay of the petitioner had been fixed at Rs. 44,550/- which is stated to be PB4 of Rs. 30000-110000/- with GP of Rs. 13300/- plus PSP of Rs. 1250/-. Page No.# 10/15

¶13In other words, we are required to examine as to what would be the meaning of the expression 'minimum of the higher pay band' as appearing in the proviso to Rule 11(1) of the Rules of 2017. For any other employees under the Government of Assam, the meaning of the expression 'minimum of the higher pay band' would have to be understood to be as what is submitted by Mr. B. Gogoi, learned counsel for the respondents in the Finance Department that it would be PB4 of Rs. 30000-110000/- with GP of Rs. 13300/-. But the writ petitioner being an employee of the Principal Seat of the Gauhati High Court, as to whether the same meaning given to the expression 'minimum of the higher pay band' would also be applicable requires an examination. If we examine the fitment table which is available at page 40 Annexure 9 to the writ petition, which is Table No. 1.22 of the Rules of 2017, the revised pay band is provided in the manner that in respect of ROP Rules 2010 of PB of Rs. 12000-40000/- with GP of Rs. 5900/-, the total being Rs. 17900/-, the revised PB would be Rs. 30000-110000/- with GP of Rs. 13300/- where the total pay is shown to be Rs. 43300/- of which PB would be Rs. 30000/-.

¶14However, by applying the formula of basic pay equal to PB plus GP plus PSP, the minimum basic pay in the pre-revised stage in respect of a Private Secretary (Stenographer Grade-I) of the Principal Seat of the Gauhati High Court would be Rs. 12000/- plus Rs. 5900/- plus Rs. 1250/- which is equal to Rs. 19500/-. Without the PSP being added, the same would be PB + GP i.e. Rs. 12000/- + Rs. 5900/- which is equal to Rs. 17900/-. As such, as provided in the formula contained in the notification dated 16.08.2016, the basic pay of an employee of the Principal Seat of the Gauhati High Court would also have to include the component of PSP and the minimum basic pay of such employee would not be same as the minimum basic pay of any other category of Page No.# 11/15 employee and the figure that may be arrived at upon adding the PSP to PB and GP would be the minimum basic pay. Accordingly, the minimum basic pay in the pre-revised pay structure cannot be Rs. 17900/-, which is without adding the PSP and the minimum basic pay would have to be Rs. 19150/- by adding the PSP. The applicability of the minimum basic pay upon revision cannot be the fitment equivalent of Rs. 17900/-, whereas it has to be equivalent to the fitment of Rs. 19150/-, which would be as per Sl. No. 4 of the Table No. 1.22. Accordingly, it would be the revised pay corresponding to fitment of Rs. 19150/-, which as per Sl. 4 of Table No. 1.22 would be Rs. 19570/- and thereafter the corresponding total pay in the revised structure would be Rs. 47320/- which would include the PB of Rs. 34020/-. In other words, when the pre-revised pay structure had provided for a minimum basic pay of Rs. 19150/- for the Private Secretary (Stenographer Grade-I) of the Principal Seat of Gauhati High Court, the minimum basic pay in the revised pay structure cannot be less than the equivalent of the fitment corresponding to Rs. 19150/- in the pre-revised pay structure.

¶15On the contrary, if we accept the view expressed by the Finance Department and the authorities in the Gauhati High Court to be correct, the resultant situation would be that the minimum basic pay of a Private Sectary (Stenographer Grade-I) upon revision would be Rs. 43300/- which would comprise of PB of Rs. 30000-110000 with GP of Rs. 13300/-. If the minimum basic pay is Rs. 43300/- which contains PB of Rs. 30000-110000 with GP of Rs. 13300/-, as accepted by the respondents in the Finance Department and the Gauhati High Court in presenting their calculation as per the communication dated 11.06.2021, conversely it would have to be accepted that the minimum basic pay of a Private Secretary (Stenographer Grade-I) in the pre-revised pay Page No.# 12/15 structure was Rs. 17900/-. But as already discussed above, the said figure firstly does not include the PSP and upon inclusion of the PSP as per the formula that basic pay is equal to pay in the PB plus GP plus PSP, the minimum basic pay would have to be Rs. 19150/- which is factually correct and in fact, was paid to the petitioner prior to giving effect to the revision of pay. As the view of the Finance Department and the respondents in the Gauhati High Court is that the minimum of the higher pay band upon revision of pay to be Rs. 43300/- comprising of PB of Rs. 30000-110000 with GP of Rs. 13300/-, the same would be inconsistent and incongruent to the corresponding minimum basic pay paid to a Private Secretary (Stenographer Grade-I) of the Principal Seat of the Gauhati High Court in the pre-revised pay structure. The corresponding minimum basic pay to the revised pay of Rs. 43300/- in the pre-revised pay structure would be Rs. 17900/-. By adopting the formula basic pay is equal to PB plus GP plus PSP, the minimum basic pay cannot be less than Rs. 19150/-, therefore the minimum basic pay in the pre-revised structure would have to be Rs. 19570/- corresponding to Sl. No. 4 of Table No. 1.22 and therefore the corresponding minimum basic pay in the revised structure would have to be Rs. 47320/-. To make it corresponding to the minimum basic pay in the pre-revised pay structure, the fitment as per Sl. No. 4 of Table No. 1.22 would be the relevant fitment and accordingly, the minimum of the higher pay band upon revision in respect of a Private Secretary (Stenographer Grade-I) of the Principal Seat of Gauhati High Court having the benefit of PSP would necessarily have to be the total pay of Rs. 47320/- which would comprise of PB of Rs. 34020/-.

¶16As the minimum of the higher pay band as provided in the proviso of Rule 11(1) of the Rules of 2017 in respect of Private Secretary (Stenographer Grade-I) of the Principal Seat of Gauhati High Court would be Rs. 47320/-, the same Page No.# 13/15 should be the basis to make the calculation and not the minimum otherwise provided in Table No. 1.22 which is Rs. 43300/-. In other words, the corresponding total pay in Sl. Nos. 1, 2 and 3 of Table No. 1.22 in respect of Private Secretary (Stenographer Grade-I) being an employee of the Principal Seat of Gauhati High Court in fact would be less than the minimum of the higher pay band, and such figures may otherwise be applicable in respect of any other employee under the Government of Assam.

¶17Upon revision, the equivalent fitment of a minimum of the higher pay band in respect of Private Secretary (Stenographer Grade-I) of the Principal Seat of the Gauhati High Court would be corresponding to the fitment against Sl. No. 4 where the total basic pay before revision was Rs. 19150/- which after revision would be Rs. 47320/- of which PB would be Rs. 34020/-. As per Annexure 17 page 54 to the writ petition which is a RTI reply of the Registry of this Court dated 30.04.2019, the pre-revised basic pay of a Private Secretary (Stenographer Grade-I) of the Principal Seat of the Gauhati High Court as per ROP of 2010 is also stated to be Rs. 19150/-. As the minimum of the basic pay before revision and after revision as provided in Table 1 as well as Table 1.22 referred above are not applicable to the employees of the Principal Seat of the Gauhati High Court, the expression 'minimum of the higher pay band' in the proviso to Rule 11 of the Rules of 2017 would also have to be read as such.

¶18Accordingly, the minimum of the higher pay band upon revision of the present petitioner would have to be accepted to be the pay band which would be corresponding to Sl. No. 4 of the Table No. 1.22. If the minimum pay prior to revision is not applicable to a particular category of employees, the corresponding minimum of the higher pay band after revision cannot be made applicable to that particular category of employees when the fixation of pay is Page No.# 14/15 made to the higher post after the revision of pay.

¶19With the aforesaid observation, the respondents in the Finance Department of the Government of Assam and the respondents in the Gauhati High Court to recalculate the calculations made in the communication dated

11.06.2021 as regards fixation of pay of the petitioner in the higher post of Private Secretary (Stenographer Grade-I) as regards the revised pay structure in terms of the interpretation of the expression minimum of the higher pay band appearing in proviso to Rule 11(1) of the Rules of 2017 as made hereinabove.

¶20We are interfering with the provisions in the communication dated

11.06.2021 as regards the acceptance of minimum of the higher pay band of the petitioner to be Rs. 30000/-, which would now be subject to the direction for recalculation to be made, but by leaving intact the other calculations of revision of pay in the pre-promoted post of Stenographer Grade-II after giving effect to the revision of pay w.e.f. 01.04.2016. We accept the submission of Mr. B. Gogoi, learned counsel for the respondents in the Finance Department that in respect of calculating the revision of pay of a person who had been promoted after 01.04.2016, the provision of Rule 11(1)(a), (b) and (c) would be applicable and to that extent, we have not interfered with the part of the calculation of the communication dated 11.06.2021. Further, in respect of all other manner of calculations made by the respondents in the Finance Department as well as in the Gauhati High Court, no view is expressed but the same are retained for the purpose of this order as it had been provided, but it should be done by following the interpretation of the expression 'minimum of the higher pay band' as indicated above. Meaning thereby, that to the lowest of the basic pay of a Private Secretary (Stenographer Grade-I) of the Principal Seat of the Gauhati High Court before revision, the Principal Seat Pay will be added and Page No.# 15/15 corresponding minimum of the total pay after revision shall be the total pay corresponding to the basic pay that was applicable prior to the revision. The benefit of the effect of the re-calculation should be given to the petitioner from the date when the revision of pay made applicable in the post of Private Secretary (Stenographer Grade-I).

¶21The petitioner be given the benefit of the pay upon the calculations being made as indicated above within a period of 3 (three) months from the date of receipt of certified copy of this order.

¶22Writ petition stands allowed as indicated above.

JUDGE Comparing Assistant

Case details

Parties and counsel

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Source: High Court of Gauhati, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.