BISWANATH KALITA Vs. STATE OF ASSAM, REPRESENTED BY COMMISSIONER & SECR
LAWS(GAU)-2018-5-102
HIGH COURT OF GAUHATI
Decided on May 22,2018

Biswanath Kalita Appellant
VERSUS
State Of Assam, Represented By Commissioner And Secr Respondents

JUDGEMENT

Hrishikesh Roy, J. - (1.) Heard Mr. T.J. Mahanta, the learned Sr. counsel appearing for the petitioners. The respondent Nos.1, 3, 4, 5 and 6 are represented by Mr. S.S. Roy, the learned Govt. advocate. Mr. R. Borpujari, the learned standing counsel for the Finance Department appears for the respondent No.2.
(2.) The 45 petitioners are personnel of the Special Branch in the Assam Police and this category who were given the benefit of 2 advance increments on the basis of PU/Intermediate or other higher qualification through the communication dated 26.10.1978 (Annexure-2) are aggrieved by the communication dated 03.07.2009 (Annexure-3), whereby, the increments availed by the Special Branch Constables were declared to be unmerited and on that basis recovery of the excess drawal is ordered by the authorities.
(3.) Assailing the legality of the impugned communication dated 03.07.2009 (Annexure-3), Mr. T.J. Mahanta, the learned Sr. counsel contends that the petitioners (some of whom have already retired), are drawing the two advance increments either from the date of joining serving or since they acquired the requisite qualification after their appointment, on the strength of the communication dated 26.10.1978 (Annexure-2) and the withdrawal of the increment for the Special Branch Constables is projected to be discriminatory, since the Constables in other branches of Assam Police are allowed the benefit of the advance increments without interruption. 3.2 As can be seen from the Annexure-2 circular, the advance increments were granted with concurrence of the Finance Department and accordingly the arbitrary withdrawal of the benefit without hearing the affected Constables, is questioned by the petitioners. The Sr. counsel cites Syed Abdul Qadir Vs. State of Bihar, 2009 3 SCC 475 and State of Punjab Vs. Rafiq Masih (White Washer), 2015 4 SCC 334 to project that since the petitioners had nothing to do with the increment decision, they cannot be penalised by ordering recovery of the excess amount drawn by the Special Branch Constables, some of whom have now retired from service.;


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