ASSAM DIPLOMA ENGINEERS SERVICE ASSOCIATION Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner is the Association of Diploma Holders Junior Engineers working in Public Works Department, Irrigation, Flood Control and Public Health Engineering Departments of the Government of Assam. Due to lack of promotional opportunities, there has been stagnation in the cadre of Junior Engineers working under the Government of Assam. The Assam Pay Commissioner, 1988, took into account the aforesaid stagnation in the cadre of Junior Engineers and its report recommended for creation of senior grade in the revised pay scale of Rs. 1475/- 3825/ - above the existing cadre of Junior Engineer, but stipulated that the number of posts in the aforesaid senior grade should be limited to 10% of the cadre strength of Junior Engineers and the qualifying length of service for entitlement of the scale should be 8 years. The aforesaid recommendation of the Assam Pay Commissioner, 1988 was accepted by the Government of Assam, and in the Assam Services (Revision of Pay) Rules, 1990, the following provisions were made with regard to revised scale of pay of Junior Engineers (Senior Grade ) and Junior Engineers: Name of the service Existing Scale Revised Scale Remarks or post Junior - 1475-40-1635-50 The scale Engineer -2035-EB-60-2395 will be (SrTGrade) -80-2875-100 admissible -3575-125-3825 to the Jr. Junior 620-25-745 1375-30-1435-40 Engr.in Engineer -EB-30-895 1635-50-1885-EB completion -EB-35-1315 -50-2035-60-2395 of 8 yrs. of -80-2875-100-3375 service and on due selection. In the aforesaid schedule to the Assam Services (Rervision of Pay) Rules, 1990, (for short, "the Rules, 1990"), erroneously, the stipulation that the cadre of Junior Engineer (Sr. Grade) would be limited to 10% of the cadre strength of Junior Engineers was omitted. The said omission was subsequently rectified by notification dated 20.11.1993. Several members of the petitioner Association who had completed 8 years of service were appointed as Junior Engineers (Sr. Grade) after selection. After such appointment, they were entitled to the revised pay scale of Junior Engineer (Senior Grade ) as fixed in the Schedule to the Rules, 1990, extracted above. By a notification dated 8.9.1997 of the Government of Assam, Flood Control Department, the pay of 255 Junior Engineers who were appointed as Senior Grade was to be fixed in accordance with the provisions of FR-22 (I) (a) (1). In accordance with the said notification,, the initial pay of such Junior Engineers appointed to Senior Grade was fixed in accordance with the provisions of FR-22 (I) (a) (1) But thereafter, by a letter dated 28.4.1998 of the Government of Assam, Finance (Estt-A) Department to the Accounta it General ( A & E), Assam , the Finance Department informed him that appointment to Senior Grade Junior Engineer post does not confer any higher responsibility as they continue to perform same as wark before and, therefore, i1has been dec ded under such circumstances that prov: sions of FR-22(I) (a) (1) cannot be applie I and that the pay of such Senior Grade Junior Engineers has to be regulated under FR -22 (I) (a) (2). In the said letter dated 28.1.1998, the Deputy Secretary to the Government of Assam, Finance (Estt- A ) Department referred to office Memo, dated 25 9.1995 of the Government of Assam, F inance (Esst-A) Department In the said office Memo, dated 25.9.1995 of the Government of Assam, Finance (Esst- A) Department, the Government of Assam in the Fi lance Department had taken a view that 1 on appointment to Selection Grade post on 1.1.1989 or thereafter, the pay would be regulated under the provisions of FR-22 (I) (a) (2) and not under any other provision. By the said office Memo, the Administrative Departments were asked to review fixation of pay scale of different Goverment employees on appointment to Selection Grade posts on 1.1.1989 and thereafter to fix the pay as per the provisions of FR-22 (I) (a) (2) in all such cases with effect from the respective dates of joining. By the said office Memo, however, the Departments were informed that in order to avoid undue hardship to government servants who were enjoying financial benefits due to fixation of pay under the provisions other than FR- 22(1) (a) (2) the Government had decided to waive the excess emoluments drawn upto 7th August, 1992, i.e.the date prior to amendment of FR-22. In office Memo.dated 2.4.1998, again the Government in the Finance Department decided that after refixation of pay of persons appointed to Selection or Senior Grade under FR-22 (I) (a) (2) with effect from 1.1.1989, the excess drawal for the period from 1.1.1989 to 24.9.1995 would not be recovered. Aggrieved, the petitioner has filed this writ petition for quashing the office Memoranda dated 25.9.1995 of the Govt of Assam, Finance (Estt-A) Department (Annexure-D) ,dated 2.4.1998 of the Government of Assam, Finance (Estt-A) Department (Annexure- C), letter dated 28.4.1998 of the Deputy Secretary to the Government of Assam, Finance (Estt-A) Department ( Annexure-E), and the letter dated 8.6.1998 of the Deputy Secretary to the Government of Assam, Finance (Estt-A) Department (Annexure- F) to the Chief Engineer, Irrigation Department. By the aforesaid impugned office Memoranda and the letters in Annexures-C, D, E and F, the initial pay of a Junior Engineer appointed to Senior Grade is to be fixed under FR-22 (I) (a) (2) and not under FR-22 (I) (a) (1).

(2.) Mr.BK Das, learned senior counsel appearing for the petitioner, submitted that the reason given for fixing the pay of Junior Engineers appointed to Senior Grade under FR-22 (I) (a) (2) and not under FR-22 (I) (a) (1) as indicated in the office Memorandam dated 25.9.1995 (Annexure-D) is that appointment to senior grade post does not imply promotion. This reason , according to Mr. Das, is not at all correct. He cited the decision of the Supreme Court in Union of India vs. S.S. Ranade, (1995) 4 SCC 462, in support of his aforesaid contention. He farther argued that it would be clear from the recommendations of the Assam Pay Commission, 1988, that to relieve: congestion in the cadre of Junior Engineer. a senior cadre in the revised scale of Rs. 1475/- -3825/-was recommended. He pointed out that in the recommendation, the Pay Commission clearly mentioned that such senior cadre of Junior Engineers is in Keeping with the work load and responsibility of the similar posts in other departments and will offer reasonable prospect to the Junior Engineer at least for promotion in pay scale.

(3.) Mr. AK Phukan, learned Advocate General, Assam, on the other hand , submitted that Junior Engineers who have been appointed to Senior Grade within the limit of 10% of the cadre of Junio;r Engineer are not being denied revised scale of pay of Junior Engineer (Senior Grade) as fixed in the schedule to the Rules, 1990, by the impugned office Memoranda and letters. All that is sought to be done by the impugned office Memoranda and the letters is to fix their initial pay in the revised scale of Junior Engineer (Senior Grade) in accordance with FR 22 (1) (a) (2) and not in accordance with FR-22 (I) (a) (1) for the reason that appointment to senior grade does not involve assumption of duties and responsibility of greater importance than those of the post of Junior Engineer.