WP(C) 4274/2010 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER Heard Mr. B Banerjee, learned counsel appearing for the petitioner. Also heard Ms. VL Singh, learned State counsel appearing for respondent Nos.1 and 4 and Mr. D Saikia, learned Standing counsel, Finance Department as well as Mr. C Baruah, learned Standing counsel for Accountant General, Assam. 2. The instant writ petition arises out of an order dated 17.06.2010 passed in Contempt Case (C) No. 433 of 2004 whereby and whereunder the Court has close d the contempt petition on the ground that office of the Accountant General (A&E ) Assam has in the meanwhile passed an order dated 16.01.2008 declining to accep t the Government’s direction to fix the pay at Rs.7850/- as on 01.01.1996 under Rule 9 (iv) of AS(ROP) Rules 1998 wherein the Finance Department, Government of Assam has also concurred with the views expressed by the Accountant General Assa m. As the said order was not under challenge by the petitioner, the instant writ petition has been filed challenging the order dated 16.01.2008 passed by the Ac countant General Assam alongwith the letter dated 23.09.2005 issued by the Finan ce Department, Government of Assam including the Office Memorandum dated 10.09.1 997 issued by the Finance Department. 3. In order to determine the factual matrix raised by the parties, it would be appropriate to summarize the basic facts in a nutshell as follows: - The service conditions of the Cooperation Department,. Government of Ass am are regulated under the Service Rules/Orders 1989. There are two direct recru itment under the service rules, viz., one Lower Division Assistant and the other Junior Inspector and/or Auditor of Cooperative Societies. The promotional chann el from the respective cadres is appended as follows: Lower Division Assistant ﬂ Upper Division Assistant ﬂ Senior Inspector of Cooper ative Societies/Auditor of Cooperative Societies ﬂ Sub-Registrar of Cooperative Societies ﬂ Assistant Registrar of Cooperative Societies And so on Junior I nspector / Auditor of Cooperative Societies ﬂ Senior Inspector of Cooperative So cieties / Auditor of Cooperative Societies ﬂ Sub-Registrar of Cooperative Societ ies ﬂ Assistant Registrar of Cooperative Societies And so on 4. The petitioner was a direct recruit to the post of Lower Di vision Assistant (hereinafter referred to as ’LDA’) on 15.06.1970. There after he was promoted to the post of Upper Division Assistant (herei nafter referred to as ’UDA’) on 29.06.1979 and subsequently promoted to the post of Senior Inspector / Auditor of Cooperative Societies on 15.06.1983. The gradation list was published wherein the Ju nior Inspector / Auditor of Cooperative Societies promoted to the post of Senior Inspector/Auditor of Cooperative Societies was shown above th e promotees of Senior Inspector/Auditor of Cooperative Societies from the post o f UDA which culminated in preferring an appeal being Appeal Case No. 20 ATA/2001 before the Assam Administrative Tribunal. However, the appeal was dismissed on 03.07.2001. The matter was taken up before this Court under the certiorari juris diction being WP (C) No. 1860 of 2002 which came up for consideration on 10.12.2 003 wherein the Court has held that the promotees from the cadre of UDA to the c adre of Senior Inspector/Auditor of Cooperative Societies shall be treated as se nior above the promotees from the cadre of Junior Inspector/Auditor of Cooperati ve Societies and consequently thereupon directed to re-determine the seniority o f the petitioner for financial benefit by modifying the order dated 03.07.2001 p assed by the Assam Administrative Tribunal. 5. However, the order dated 10.12.2003 passed in WP(C) No. 1860 of 2002 did not yield any result and consequently thereupon a contempt proceeding was initi ated being COP (C) No./ 433 of 2004, whereof, the petitioner was promoted to the post of Assistant Registrar of Cooperative Societies vide Notification dated 26 .08.2004 and accordingly he joined in the said post on 01.09.2004. In the notifi cation dated 26.08.2004 it was clearly mentioned that ’A separate notification w ould be issued in respect of retrospective promotional benefits’ which was issue d on 28.01.2005 wherein the seniority of the petitioner was fixed above Shri B.R . Purkayastha (who was born in the cadre of Junior Inspector/Auditor of Cooperat ive Societies and promoted subsequently to the cadre of Senior Inspector/Auditor of Cooperative Societies) entitling the petitioner to get promotion to the post if Sub-Registrar of Cooperative Societies on 19.12.1994 i.e. the date of promot ion of B.R. Purkayastha being junior to the post of Sub-Registrar of Cooperative Societies and subsequently to the post of Assistant Registrar of Cooperative So cieties from 21.10.1999 on the basis of Gradation list of Sub-Registrar of Coope rative Societies vide Notification dated 11.12.1997 wherein the name of Shri B.R . Purkayastha appeared at Sl. No. 59 while juniors of Shri B.R. Purkayastha, Sub -Registrar got promotion to the post of Assistant Registrar of Cooperative Socie ties on the basis of the aforementioned gradation list with financial benefit an d consequently thereupon the seniority of the petitioner in the cadre of Assista nt Registrar of the Cooperative Societies was fixed below Smti Sunanda Choudhury . 6. Thereafter the Government of Assam Cooperation Department by two separat e Notifications dated 03.01.2006 whereby and whereunder the petitioner was promo ted under Regulation 4(d) of APSC giving retrospective effect to the cadre of Su b-Registrar of Cooperative Societies with effect from 01.02.1995 vice Shri Siva Phukan, Sub-Registrar of Cooperative Societies retired on 31.01.1995 in the scal e of pay of Rs.1635/-....3950/- (pre-revised) and other allowances as admissible from time to time. Simultaneously by another Notification dated 03.01.2006, the petitioner was promoted to the post of Assistant Registrar of Cooperative Socie ties under Regulation 4(d) of the APSC giving retrospective effect to the cadre of Assistant Registrar of Cooperative Societies with effect from 06.12.1999 vide Shri Dulal Ch. Bordoloi Assistant Registrar of Cooperative Societies retired on 31.10.1999 in the scale of pay of Rs.4300/- - 11,025/- and other allowances as admissible from time to time. 7. The seniority in the cadre of Sub-Registrar of Cooperative Societies and in the cadre of Assistant Registrar of Cooperative Societies though fixed above Shri B.R. Purkayastha but the financial benefits for the period from 01.02.1995 to 05.07.2001 as Sub-Registrar of Cooperative Societies (in short SRCS) and fro m 06.12.1999 to 31.08.2004 as Assistant Registrar of Cooperative Societies (in s hort ARCS) were not made available to him and consequently thereupon the Coopera tion Department moved the Finance Department for relaxation of Fundamental Rule 17(1) in order to enable the petitioner to get the financial benefit since he wa s not holding the post at that point of time. Consequently thereupon, the Financ e Department relaxed FR 17(1) for the period from 06.01.1995 to 31.01.1995 and a ccorded approval for relaxation for the period from 01.02.1995 to 05.07.2001 aga inst the post of SRCS and for the period from 06.12.1999 to 31.08.2004 as ARCS d ated 06.09.2006 subject to the creation of supernumerary post for the period fro m 06.01.1995 to 31.01.1995 with the approval of the concerned Central Branch of Finance Department. 8. It may be pertinent to mention herein that the petitioner was holding th e post of Senior Inspector/Auditor of Cooperative Societies and his salary was f ixed at Rs. 7600/- as he was granted two advance increments giving weightage as Senior Inspector/Auditor of Cooperative Societies on the date of revision of pay under Rule 9(1)(c) of the Assam Services (Revision of Pay) Rules 1998 fixing hi s pay on the revised scale of pay of Rs. 3760-90-4480-12-4960-EB-5200-175-6000-2 50-8100-325-9400/-. However, consequent upon retrospective promotion to the post of SRCS and ARCS which are gazetted post, pay as on 01.01.1996 was required to be fixed by AG in the cadre of SRCS first. Accordingly the AG has fixed his pay at Rs. 7350/- as on 01.01.1996 as per revision of pay 1998 which was less than w hat he was drawing in the lower cadre of Senior Inspector/Auditor of Cooperative Societies. 9. The fixation of pay at Rs. 7350/- as on 01.01.1996 of the petitioner by the AG Assam was taken up by the Cooperative Department on 17.09.2007 by Registr ar of Cooperative Societies contending inter alia that one cannot get less pay o n promotion than what he was drawing before the promotion. Consequently thereupo n, a communication was made on 19.11.2007 to AG, Assam by the Cooperation Depart ment fixing his pay as SRCS at Rs. 7850/- as on 01.01.1996 as per provisions of Rule 9(2) (iv) of ROP Rules 1998. Therefore by another communication dated 29.03 .2008, a request was made to protect his pay with the promotional benefit not be low what is drawn by Shri B.R. Purkayastha which was also turned down by the AG, Assam. 10. On receipt of the communication dated 17.09.2007 and 19.11.2007, the AG, Assam issued a communication on 16.01.2008 to the Secretary Government of Assam , Cooperation Department contending that since the promotion of the petitioner a s SRCS was effect from 01.02.1995 retrospectively and has accepted/taken over th e charge of the post though he had actually joined in the post on 06.07.2001 and as such he was officiating and the pay he had drawn in those posts after 01.02. 1995 would automatically ceased to exist anymore and as such drawing of pay at R s. 7600/- as on 01.01.1996 was not acceptable and the Government’s view that his pay should be fixed at Rs. 7850/- under Rule 9(iv) of ROP Rules could not be ac cepted in view of a communication dated 23.09.2005 issued by the Finance Departm ent, Government of Assam. Moreover, the stepping up of his pay with that of his junior Shri B.R. P urkayastha was also turned down by the Finance Department in view of Office Memo randum dated 10.09.1997. Therefore the order dated 16.01.2008, 23.09.2005 along Office Memorandum dated 10.09.1997 issued by AG, Assam and the Finance Departmen t, Government of Assam are under challenge before this Court. 11. Mr. Banerjee, learned counsel appearing for the petitioner has raised tw o questions and would urge mainly on those questions, apart from the validity of orders dated 16.01.2008, 23.09.2005 and Office Memorandum dated 10.09.1997 whic h are as follows: - i) Whether an employee can get less pay on promotion than what he was drawing wh ile holding the substantive post before promotion? ii) Whether the stepping up of his pay with that of his junior is permissible un der Rule 10 of the ROP Rules 1998? 12. To answer the first question Mr. Banerjee would submit that it is univer sal in service jurisprudence that on promotion to the higher post, one cannot ge t lesser pay than what he was drawing in the feeder cadre. Admittedly, the petit ioner was drawing Rs.7600/- before the revision of pay came into existence and o n promotion to the post of SRCS his pay cannot be fixed at Rs.7350/-, more so, w hen his junior Shri B.R. Purkayastha was getting higher scale of pay as on 01.01 .1996 than the petitioner. In support of his contentions, Mr. Banerjee has relie d on a decision reported in (2010) 1 SCC 129 (Union of India -Vs- T.M. Somarajan ) and hence prayed for fixation of his pay atleast at par with his junior Shri B .R. Purkayastha. 13. Referring to Rule 10 of the ROP Rules 1998, Mr. Banerjee submits that th e same would demonstrate that when a Government servant drawing higher pay than that of his junior as a result of promotion to a higher grade/cadre in the exist ing scale, but after fixation of pay in the revised scale of pay of the junior h olding lower cadre post happens to be fixed at a stage higher than his senior ho lding the higher cadre post, as a result of granting advance increments under Ru le 9, the pay of the senior Government servant in the revised scale shall be ste pped up to that of his junior. Admittedly the AG, Assam vide communication dated 05.05.1999 conveyed stepping up of pay in respect of Shri B.R. Purkayastha (Ret d.) SRCS and accordingly under Rule 10 of ROP Rules 1998 the Government stepped up his pay to Rs. 8425/- in the revised scale of pay of Rs. 4120-9725/- on 01.01 .1996 with DNI on 01.01.1996 with the same pay of Smti. Kusum Das, Sr. Inspector of Cooperative Societies who was junior, to be fixed on 01.01.1996 and the bene fit of stepping up of pay was allowed vide communication dated 16.12.1999, where as, in the instant case, the stepping up of pay with his junior has been denied which require interference under judicial review. In support of his contentions, Mr. Banerjee has referred a decision of this Court in WP (C) No. 8572/2004 (Mit hu Kundan Das -Vs- The State of Assam & Ors.). 14. Mr. Banerjee would contend referring the impugned order dated 16.01.2008 issued by the Sr. Accounts officer, Office of the AG, Assam wherein AG, Assam h as conveyed as follows: .................Shri Satyabrata Chakraborty, Sr. Inspector (Now A.R.C.S.) was promoted as S.R.C.S. w.e.f. 01.02.1995 retrospectively and has accepted/taken ov er charge of the post. In view of all the previous posts in which he had officia ted and the pay he had drawn in those post after this date i.e. 01.02.1995 will cease to exist any more................. Therefore the fixation of pay at Rs. 7600/- on 01.01.1996 is not accepta ble and the pay fixed by the office are found to be as per rules and hence the G overnment’s view that the pay should be fixed at Rs. 7850/- under Rule 9(iv) of ROP Rules 1998 appears to be incorrect application of Rule 9(2)(iv) of ROP Rules 1998 and hence cannot be accepted as per Finance (Establishment-A) Department’s letter No. FEG.25/87/289 dated 23.09.2005. In this regard Mr. Banerjee submits that the impugned order dated 16.01.2008 has no application because the petition er was promoted to the post of Sr. Inspector of Cooperative Societies on 15.06.1 983 and he was holding the post of Sr. Inspector substantively till 05.07.2001 a nd not officiated in the post of Sr. Inspector as contended by AG, Assam. Also t he question of all previous post in which the petitioner had officiated after 0 1.02.1995 would cease to exist is total non-application of mind, more so, when A G, Assam relied on a letter dated 23.09.2005 issued by the Finance Department r elates to a police personnel (S) which is not applicable in the instant case and requires interference holding that the order dated 16.01.2008 along with the le tter dated 23.09.2005 has no application in the instant case. 15. Referring the Office Memorandum dated 10.09.1997 whereby the Finance Dep artment issued certain guidelines for stepping up of pay with that of his junior wherein the case of the petitioner for stepping up of his junior has been turn ed down, Mr. Banerjee submits that the same shows total non-application of mind of the authority because the Office Memorandum dated 10.09.1997 cannot override the ROP Rules 1998, inasmuch as, under Rule 10 of the ROP Rules 1998, it has been specifically stated that here after fixation of pay in the revised scale of pay of the junior holding lower cadre post happens to be fixed at a stage highe r than his senior holding the higher cadre post, as a result of granting Advance increments. Under Rule 9, the pay of the senior Government servants in the revi sed scale be stepped up to that of junior and admittedly his junior Shri B.R. Pu rkayastha joined as Sr. Inspector/Auditor of Cooperative Societies on 29.09.1983 on promotion much later than the petitioner and Shri B.R. Purkayastha was prom oted to the post of SRCS on 06.01.1995 and the petitioner in absence of vacancy of SRCS was promoted on 01.02.1995 to the post of SRCS though by order dated 28 .01.2005 the Cooperation Department fixed the seniority of the petitioner above Shri B.R. Purkayastha in the post of Sr. Inspector and by stepping up of pay in respect of Shri B.R. Purkayastha (retd.) SRCS to Rs. 8425/- pm as on 01.01.1996 with that of Smti. Kusum Das in the revised scale of pay by application of Rule 10 of the ROP Rules 1998 and therefore the pay of the petitioner should be stepp ed up to that of his junior Shri B.R. Purkayastha by application of Rule 10 of t he ROP Rules 1998 as contended by Mr. Banerjee. 16. Refuting the argument advanced by Mr. Banerjee learned counsel for the p etitioner, Mr. D. Saikia learned Standing counsel, Finance Department, appearing for the respondent No. 2, has referred to the two affidavits filed by the respo ndent No. 2 and would contend that the petitioner was not promoted to the post o f SRCS at the time of revision of pay on 01.01.1996 and accordingly pay was fixe d by giving him advance increments as weightage benefit under Rule 9(1)(c) of RO P Rules 1998 and as such his pay was fixed at Rs. 7600/- whereof he was promoted to the post of SRCS retrospectively w.e.f. 01.02.1995 and to the cadre of ARCS with retrospective effect from -06.12.1999 and accordingly AG, Assam fixed the p ay of the petitioner as SRCS at Rs. 3175/- as on 01.02.1995 i.e. the date of ret rospective promotion to the post of SRCS and on revision of pay under ROP Rules 1998 w.e.f. 01.01.1996 his period of service in the existing pay scales of SRCS w.e.f. 01.01.1996 being less than minimum 3 (three) completed years required for earning advance increments as pay weightage under Rule 9(1)(c) of ROP Rules and thus could not get any weightage as advance increments in the revised pay scale of Rule 9(1)(c) of ROP Rules 1998 and the pay fixed by AG Assam at Rs.7350/- as on 01.01.1996 in the post of SRCS is correct which do not require to be interfe red with under judicial review in exercise of power under Article 226 of the Con stitution of India. 17. Mr. Saikia, learned counsel for the respondent No. 2 would further conte nd referring the impugned order dated 16.01.2008 issued by AG, Assam wherein it has been specifically stated that since the petitioner has accepted the promotio nal post of SRCS retrospectively w.e.f. 01.02.1995, the officiating post he was holding prior to that has ceased to exist and the pay he had drawn in those pos ts after 01.02.1995 would automatically cease to exist any more and therefore th e contention raised by the petitioner that he was holding the post of Sr. Inspe ctor on 01.01.1996 and drawing the pay at Rs.7600/- on that date is not acceptab le, thereby supported the impugned order dated 16.01.2008 as correct which do no t require to be interfered with in the facts and circumstances of the case. 18. Mr. Saikia would further submit referring to the Office Memorandum dated 10.09.1997 that stepping up of pay with that of Shri B.R. Purkayastha is also n ot in consonance with the above Office Memorandum as the petitioner and Shri B.R . Purkayastha were initially recruited to different cadre posts and were promote d to the post of Senior inspector/Auditor of Cooperative Societies from differen t cadre posts, the petitioner is not entitled to the benefit of equalization of his pay with the pay of Shri B.R. Purkayastha as per clause 1 of the Office Mem orandum dated 10.09.1997 and the Finance Department do not agree with the equali zation of pay of the petitioner with the pay of Shri B.R. Purkayastha and thus p rayed for dismissal of the writ petition. 19. In support of his contentions, Mr. Saikia has referred the following cit ations:- (i). (1997) 6 SCC 360 (Union of India -Vs.- O.P. Saxena) (ii). (1997) 7 SCC 690 (Union of India -Vs.- R. Swaminathan & Ors.) 20. Mr. C. Barua, learned counsel appearing for the AG, Assam, the responden t No. 3, would contend referring to the Finance Department’s letter dated 23.09. 2005 that the petitioner was promoted to the post of SRCS and ARCS w.e.f. 01.02. 1995 and 06.12.1999 and accordingly when the Government fixed the pay of the pet itioner as SRCS at Rs.7850/- under provision of Rule 9(iv) ROP Rules 1998 which according to AG, Assam was total incorrect application of Rule 9(iv) ROP Rule 19 98 and the pay fixed by AG is according to the Rule which is not required to be interfered with in the case in hand. 21. Mr. Barua, would further submit that relating to equalization of pay of the petitioner with Shri B.R. Purkayastha, the Registrar of Cooperative Societie s may examine the matter keeping in mind the Office Memorandum dated 10.09.1997 and submits separate proposal to the Government for equalization of pay with Shr i B.R. Purkayastha along with service book, gradation list, comparisation statem ent of pay for consideration at the Government level. However, the AG, Assam has not received any further order from the Government, and if the Government appro ves the equalization of pay of the petitioner with Shri B.R. Purkayastha with th e approval of the Finance Department then the office of AG would act accordingly . 22. Mrs. V.L. Singh, learned State counsel appearing for the respondent Nos. 1 and 4 would contend that the inter se seniority of the petitioner has been fi xed above Shri B.R. Purkayastha in the cadre of Senior Inspectors/Auditor of Coo perative Societies and accordingly promoted to the post of SRCS and ARCS and ac cordingly the financial benefit was awarded to him relaxing FR 17(1) of the Rule s and other benefits as claimed by the petitioner would be decided by the resp ondents Nos. 2 and 3 who are competent to do so. 23. Considered the arguments advanced by the parties. Perused the pleadings of the parties along with the annexure appended thereto. The following facts are admitted by the parties - a) The petitioner approached this Court earlier by filing a writ petition b eing WP(C) No. 1860/2002 seeking determination of his seniority in the cadre of Senior Inspectors/Auditor of Cooperative Societies; b) The Court directed to re-determine the seniority without disturbing the settled position in the department with further direction that the Department wo uld consider the petitioner’s case for promotion to next higher grade after fixa tion of his seniority for financial benefit only; c) By Notification dated 26.08.2004, the petitioner was promoted to the pos t of ARCS from the post of SRCS on the recommendation of the Selection Committee under Regulation 4(d) of the APSC (Limitation and Function) Regulation 1951 mak ing it clear that a separate notification would be issued in respect of retrospe ctive promotional benefit; d) As per order dated 28.01.2005, the seniority position of the petitioner, the then Senior Inspector of Cooperative Societies (now ARCS) shall have to be re-fixed above all the Sr. Inspector of Cooperative Societies promoted in the ye ar 1983 from the Junior Inspector of Cooperative Societies including Bivash Ranj an Purkayastha and accordingly the petitioner Shri Satyabrata Chakraborty shall be treated as senior in the cadre of Senior Inspector of Cooperative Societies as well as in the cadre of Sub-registrar of Cooperative Societies above Shri B.R . Purkayastha and by the above order dated 28.01.2005 the petitioner’s seniority was fixed above Shri B.R. Purkayastha and others as directed by the Court and accordingly he is entitled to get promotion to the post of Sub-registrar of Co operative Societies on 19.12.1994 i.e. from the date of his immediate junior S hri B.R. Purkayastha got promotion and subsequently to the post of ARCS from 21. 10.1999 on the basis of gradation list of SRCS published vide Government Notific ation No. COOP. 170/97/77 dated 11.12.1997 wherein the name of Shri B.R. Purkaya stha appeared at Sl. No. 59 and while juniors of Shri B.R. Purkayastha,