WP(C) 8368/2002 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI The petitioner is a recognized Association of Diploma Engineers working in the P ublic Works, Public Health Engineering, Flood Control (now Water Resources) and Irrigation Departments of the State of Assam. In the present writ petition, the Association seeks to espouse the grievances of its members holding the post of J unior Engineer (Senior Grade) with regard to the fixation of pay upon appointmen t in the Senior Grade. 2. With a view to remove stagnation in the cadre of Junior Engineer s, the Assam Pay Commission, 1988 recommended creation of a Senior Grade in the post of Junior Engineer in the revised scale of pay of Rs. 1475/- to 3825/-. The Pay Commission also recommended that the posts in the aforesaid Senior Grade sh ould be restricted to 10% of the cadre strength of Junior Engineers and that the qualifying length of service for entitlement for appointment in the Senior Grad e should be eight years. Pursuant to the aforesaid recommendations of the Pay Co mmission, the Assam Services (Revision of Pay) Rules, 1990 were framed, inter al ia, containing the following provisions : Name of the Service or post Existing Scale Revised Scale Remarks Junior Engineer (Senior Grade) - 1475-40-1635-50-2035-EB-60-2395-80-2875- 100-3575-125-3825 The scale will be admissible to the Jr. Engineer on comp letion of 8 yrs. Of service vice &..on due selection Junior Engineer 620-25-745-EB-30-895-EB-35-1315. 1375-30-1435-40-1635-50- 1885-EB-50-2035-60-2395-80-2875-100-3375 3. In the aforesaid schedule to the ROP Rules, 1990, the recommenda tion of the Pay Commission that the cadre strength of Junior Engineer (Senior Gr ade) would be limited to 10% of the cadre strength of the Junior Engineers was, however, omitted. The said omission was subsequently inserted by notification da ted 20.3.93. Thereafter, the pay of 255 Nos. of Junior Engineers (Senior Grade) in the Flood Control Department and another 191 Nos. of Junior Engineers (Senio r Grade) in the Public Works Department was fixed under the provisions of F.R. 2 2 (1)(a)(1) with the concurrence of the Finance Department. Thereafter, an Offic e Memorandum was issued by the Finance Department on 2.4.98 to the effect that a s already stipulated by the Finance Department’s earlier Office Memorandum dated 25.9.95, the pay of an incumbent promoted/ appointed to the Selection Grade/ Se nior Grade is required to be regulated by the provisions of F.R. 22(I)(a)(2). In the Memorandum dated 2.4.98, it was also stipulated that though by the earlier Office Memorandum dated 25.9.95, recovery between 1.1.89 to 7.8.92 was not to be made, such recovery would now not be required to be made from the period 1.1.89 upto 24.9.95. Following the Office Memorandum dated 2.4.98, a communication dat ed 28.4.98 was issued by the Finance Department to the Accountant General to the effect that on appointment to the Senior Grade, Junior Engineers do not assume any higher duties and responsibilities. Their initial pay in the Senior Grade is , therefore, required to be regulated under F.R.22(I)(a)(2) and not F.R.22(I)(a) (1) as earlier decided. 4. Challenging the aforesaid Office Memoranda and the actions propo sed on that basis, the petitioner Association instituted a writ proceeding befor e this Court registered and numbered as Civil Rule No. 4244 of 1998. The said wr it petition was disposed of by this Court on 26.3.2002. While rendering its fina l orders in the aforesaid writ petition, this Court took note of the fact that t he actions impugned in the writ petition had emanated from the Finance Departmen t’s Office Memorandum dated 25.9.95 wherein a view was recorded that appointment in the Senior Grade did not involve any promotion to a higher post so as to jus tify fixation of pay in the Senior Grade under F.R. 22 (1)(a)(1). Reading the pr ovisions of F.R. 22(I)(a)(1), this Court took the view that the aforesaid provis ion would apply not only in a situation where a Government servant is promoted b ut would equally apply where the Government servant is appointed in another post of higher duties and responsibilities. Therefore, the provisions of F.R. 22(I)( a)(1) cannot be restricted only to cases of promotion to a higher post. Taking n ote of a letter dated 11.1.95 of the then Secretary to the Govt. of Assam, Flood Control Department addressed to the Finance Department wherein it was mentioned that the Junior Engineers in the Senior Grade are performing duties and respons ibilities higher than other Junior Engineers as well as the contrary stand taken by the Finance Department in its letter dated 28.4.98 addressed to the Accounta nt General, this Court had constituted a High Level Committee to go into the ma tter. The said High Level Committee was to comprise of the Chief Secretary and t he Commissioner & Secretary, Finance, Irrigation, Flood Control, Public Health E ngineering Departments of the Govt. of Assam. The Committee was required to deci de the matter within the time frame stipulated in the above order dated 26.3.200 2 passed by this Court. 5. Pursuant to the aforesaid order of the Court, the High Powered C ommittee, as directed, was notified by the State Government on 20.5.2002. The mi nutes of the meetings of the High Powered Committee, which are available on reco rd, would go to show that in the meeting of the said Committee held on 14.6.2002 , the representatives of the Works Department were requested to examine the matt er and apprise the High Powered Committee as to whether specific duties and resp onsibilities have been entrusted to the Senior Grade Junior Engineers and other Junior Engineers. Accordingly, a meeting of the representatives of the four depa rtments was held on 29.6.2002 and a record of the minutes of the discussion was drawn up. There is some controversy between the parties as to whether the duties and responsibilities of the two categories of Junior Engineers, as reflected in the minutes of the said meeting had reflected the existing situation as on date or the same was contemplated to be put into action later. The language appearin g in the said minutes is highly suggestive of either of the views being correct. However, the same representatives of the Works Department held another meeting on 19.7.2002 and decided that the existing duties and responsibilities of the Se nior Grade Junior Engineers and other Junior Engineers are virtually the same wi th no difference at all. Thereafter, the views of the representatives of the Wor ks Department were considered by the High Powered Committee in its meeting held on 22.8.2002 and a decision was arrived at that there is no difference of the du ties and responsibilities amongst the Senior Grade Junior Engineers and other Ju nior Engineers. The High Powered Committee, therefore, concluded that there is n o justification for fixation of pay of the Senior Grade Junior Engineers under F .R. 22 (1)(a)(1). The Committee was, consequently, of the view that such fixatio n of pay should be under the provisions of F.R. 22 (1)(a)(2). Pursuant to the af oresaid decision of the High Powered Committee, a communication dated 6.9.2002 w as addressed by the Commissioner & Secretary to the Govt. of Assam, Finance Depa rtment informing the above decision to the Secretary of the Association. Aggriev ed, the present writ petition was filed on 22.12.2002. 6. While the aforesaid developments were going on, the petitioner A ssociation had submitted a memorandum on 28.6.2002 to the Hon’ble Chief Minister of the State raising manifold grievances including the question of fixation of pay of the Senior Grade Junior Engineers on their appointment to the said grade. Thereafter, it appears that a meeting took place between the office bearers of the Association with the Chief Minister in the presence of the Minister, P.W.D. wherein a decision was taken that the Additional Chief Secretary of the State wi ll be directed to look into all the grievances of the Association. Accordingly, on 11.2.2003, one Sri J.P.Rajkhowa, the then Additional Chief Secretary, Govt. o f Assam was requested to undertake a detailed examination of the demands/ grieva nces of the petitioner Association as addressed by the Association in its memora ndum to the Chief Minister. Thereafter, on 3.3.2003, another memorandum highligh ting the specific grievances with more facts was submitted by the Association to Sri Rajkhowa. On 5.4.2003, a meeting in this regard was held between the Additi onal Chief Secretary Sri J.P. Rajkhowa and the members of the petitioner Associa tion which was also attended by the representatives of the Works Department. Ano ther meeting was held on 10.6.2003 wherein several decisions were arrived at on the basis of which, the Additional Chief Secretary submitted his recommendations in the matter. On the basis of the said recommendations, a notification dated 1 .9.2003 was issued by the Personnel Department to the effect that the recommenda tions made by the Additional Chief Secretary, Sri Rajkhowa have been accepted by the Government and that the Administrative Reforms and Training Department has been nominated as the nodal department to monitor implementation of the said re commendations. Subsequently, on 27.10.2003, an addendum was added to the notific ation dated 1.9.2003 including within the fold of the said notification certain additional recommendations with regard to the grievances of the petitioner Assoc iation which were inadvertently omitted in the earlier notification dated 1.9.20 03. Among the said recommendations mentioned in the addendum dated 27.10.2003, i s the specific recommendation of Sri Rajkhowa that the Junior Engineers appoin ted in the senior scale should be given benefit as per F.R. 22 (1)(a)(1) . The s aid recommendation, by virtue of the addendum dated 27.10.2003, came to be inclu ded within the scope of the recommendations accepted by the State Government by the earlier notification dated 1.9.2003. Based on the Government Notification da ted 1.9.2003 and the addendum dated 27.10.2003 of the Personnel Department, a no tification dated 28.11.2003 was issued by the Secretary of the Irrigation Depar tment whereby the recommendation in respect of fixation of pay under F.R 22 (1) (a)(i) was implemented in the Irrigation Department. 7. In the aforesaid circumstances, the petitioner Association filed a Misc. application in the present writ petition being M.C. No. 371/2004 seekin g an order from the Court disposing of the writ petition with a direction to the Government to take necessary follow up action in terms of the notification date d 1.9.2003, the addendum dated 27.10.2003 and the Irrigation Department’s notifi cation dated 28.11.2003. On consideration of the aforesaid Misc. Case, a learned Single Judge of this Court by order dated 13.2.2004 granted the prayer made the rein and ordered the writ petition to be treated as closed. 8. Against the order dated 13.2.2004, the Finance Department of the State filed an appeal being Writ Appeal No. 261/04. By order dated 8.11.2005, o n the grounds and reasons assigned, a Division Bench of this Court set aside the order dated 13.2.2004 passed in Misc. Case No. 371/04 and remanded the matter f or a de novo consideration of the writ petition on merits. It is in pursuance of the said order of the Division Bench that this writ petition has been posted fo r hearing. It may be noticed at this stage that after the matter was remanded fo r re-consideration, the Finance Department has filed an elaborate affidavit date d 28.3.2006, which has been replied to by the petitioner on 25.4.2006. There is a supplementary affidavit of the Finance Department available on record which is dated 4.9.2006. 9. It must also be noticed that in the course of hearing of the wri t petition this Court having again noticed the conflicting stands of the differe nt departments in the matter, had directed the Chief Secretary to inform the Cou rt which of the aforesaid conflicting stands actually reflect the stand of the S tate. Accordingly, the Chief Secretary has filed an affidavit dated 15.5.2007 as serting that Writ Appeal No. 261/04 filed by the Finance Department was with the approval of the Chief Secretary and that the stand taken in the said Writ Appea l as well as in the affidavit filed by the Finance Department reflects the stand of the State Government in the matter. The Chief Secretary, in the affidavit fi led, has further informed the Court that after the order dated 26.4.2007 was rec eived by him the whole matter was reviewed once again and the unanimous view of the concerned Departments is to the following effect : (1) there is absolutely no difference in the nature of duties performed and the responsibilities shouldered by the Junior Engineers (Senior Grade) and the Juni or Engineers of the said Works Departments and, (2) in view of that, the pay of the Sr. Grade Junior Engineers should be fixed u nder FR 22(I)(a)(2). 10. Having recited the facts of the case in some details and before setting out the rival contentions advanced on behalf of the parties, it will be necessary for the Court to notice the provisions of F.R. 22(1)(a)(I) and 22(I)( a)(2) which are set out below : 22(1) The initial pay of a Government servant who is appointed to a post on a t ime scale of pay is regulated as follows: (a) (I) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary of officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant recr uitment Rules, to another post carrying duties and responsibilities of greater i mportance than those attaching to the post held by him, his initial pay in the t ime-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him r egularly by an increment at the stage at which such pay has accrued. Save in cas es of appointment on deputation to an ex-cadre post, or to a post on ad hoc basi s, the Government servant shall have the option, to be exercised within one mont h from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time scale of the new post above th e pay in the lower grade or post from which he is promoted on regular basis, whi ch may be refixed in accordance with this rule on the date of accrual of next in crement in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is a dmissible as from the date of initial appointment/ promotion, to be exercised wi thin one month from the date of such regular appointment: Provided that where a Government servant is immediately before his promotion or appointment on regular basis to a higher post drawing pay at the maximum of the time scale of the lower post, his initial pay in the time scale of the higher po st shall be fixed at the stage next above the pay notionally arrived at by incre asing his pay in respect of the lower post held by him on regular basis by an am ount equal to the last increment in the time scale of the lower post. (2) When the appointment to the new post does not involve such assumption of dut ies and responsibilities of greater importance, he shall draw as initial pay, th e stage of the time scale which is equal to his pay in respect of the old post h eld by him on regular basis, or, if there is no such stage next above the stage equal to his pay in respect of the old post held by him on regular basis: Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall drawn the mi nimum as the initial pay : Provided further that in a case where pay is fixed at the same stage, he shall c ontinue to draw that pay until such time as he would have received an increment in the time scale of the old post in cases where pay is fixed at the higher stag e he shall get his next increment on completion of the period when an increment is earned in the time scale of the new post. On appointment on regular basis to such a new post, other than to an ex-cadre po st on deputation, the Government servant shall have the option to be exercised w ithin one month from the date of such appointment for fixation of his pay in the new post with effect from the date of appointment to the new post or with effec t from the date of increment in the old post. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 11. The provisions contained in F.R. 22(I)(a)(1) and 22(I)(a)(2) lay down the manner in which the pay of an incumbent in the higher scale of pay is to be fixed in a situation where such an incumbent is promoted to a higher post or appointed in any other post carrying duties and responsibilities of greater i mportance than those attached to the post earlier held by him and on the other h and how pay is to be fixed in case an incumbent is appointed to a new post which , however, does not involve assumption of duties and responsibilities of greater importance. There is no dispute between the parties with regard to the scale of pay to which the Senior Grade Junior Engineers are entitled. The dispute is wit h regard to the fixation of pay in the higher scale which may result in certain incremental benefits if the provisions of F.R. 22(I)(a)(1) are to be applied or absence of such incremental benefits if the provisions of F.R.22(I)(a)(2) are to be made applicable. 12. Mr. N. Dutta, learned senior counsel for the petitioner had elab orately and painstakingly argued the case of the petitioner. Mr. Dutta has conte nded that two questions are required to be determined in the present case. The f irst is whether appointment in the Senior Grade involves a promotion, in which e vent, the Senior Grade Junior Engineers would straightway be entitled to have th eir pay fixed under F.R.22(I)(a)(1). Even if no promotion is involved, after app ointment of a Junior Engineer in the Senior Grade, if the duties and responsibil ities in the Senior Grade are higher than the other Junior Engineers, the provis ions of F.R. 22(I)(a)(1) will still apply. Only if neither of the aforesaid two situations exist, the provisions of F.R.22(I)(a)(2) will apply. Referring to the recommendations of the Pay Commission, Mr. Dutta has pointed out that the Pay C ommission had recommended creation of a Senior Grade to remove stagnation and al so to provide reasonable prospects to the Junior Engineers at least for promoti on in the pay scale . Referring to the decision of the Apex Court in the case of State of Rajasthan -vs- Fateh Chand Soni, reported in (1996) 1 SCC 562, Mr. Dut ta has contended that promotion can be either to a higher post or to a higher pa y scale. Mr. Dutta has also submitted that it has been held by the Apex Court in the aforesaid case that promotion not only covers advancement to higher post o r rank, but also implies advancement to higher grade . In this regard, Mr. Dutta has also drawn the attention of the Court to para 9 of the aforesaid judgment w herein the Apex Court had taken the view that in Lalit Mohan Deb -vs- Union of I ndia & Ors.[(1973) 3 SCC 862] involving appointments in the Selection Grade of A ssistants in Civil Secretariat in Tripura, the Court had also proceeded on the b asis that such appointments in the Selection Grade amounted to promotion. Mr. Du tta has further argued that the appointment in a Senior Grade without any select ion of the incumbents has been held by the Apex Court in the case of Dayaram As anand Gursahani -vs- State of Maharashtra & Ors., reported in (1984) 3 SCC 36 to be an appointment in the extended scale of pay in the same post. In the present case, as appointment in the Senior Grade involves selection, according to Mr. D utta, by virtue of the aforesaid decisions of the Apex Court, the appointment of the Junior Engineers in the Senior Grade must be held to be a promotion at leas t to a higher scale if not to a higher post. Mr. Dutta has further submitted tha t in either situation the requirements spelt out by F.R. 22(I)(a)(1) will stand satisfied. Pointing out the fact that it is only 10% of the cadre strength of Ju nior Engineers that is earmarked to be available for appointment in the Senior G rade as also the fact that appointment in the Senior Grade involves a selection, Mr. Dutta has contended that there can be no manner of doubt that appointment i n the Senior Grade is by way of promotion at least to a higher scale. Mr. Dutta has also pointed to the relevant documents enclosed to the affidavit of the peti tioner dated 25.4.2006 to indicate that appointments in the Senior Grade had bee n made by selection conducted by a duly constituted selection committee. Hence, according to Mr Dutta, there can be no manner of doubt that the Senior Grade Jun ior Engineers are entitled to have their pay fixed under F.R. 22(I)(a)(1). 13. Mr. Dutta has further argued that in the present case, in any ev ent, there will be little doubt that the duties and responsibilities attached to the post of Senior Grade Junior Engineers are higher than those attached to oth er Junior Engineers. In this regard, Mr. Dutta has placed before the Court the l etter of the Secretary of the Flood Control Department dated 11.1.95 wherein it has been clearly mentioned that the Junior Engineers who have served for eight y ears or more in the Flood Control Department are performing higher duties and r esponsibilities in view of their experience in service. Mr. Dutta has contended that in the order dated 26.3.2002 disposing of Civil Rule No. 4244 of 1998 by co nstituting a High Powered Committee, this Court had specifically referred to the letter dated 11.1.95 of the Secretary of the Flood Control Department. Mr. Dutt a has further argued that in the meeting dated 29.6.2002 of the representatives of the Works Department it had been decided and recorded that some of the duties performed by the Senior Grade Junior Engineers are higher in responsibility and importance than those performed by the other Junior Engineers. Conferment of ga zetted status to the Senior Grade Junior Engineers in the Public Works Departmen t with effect from 2.9.93 and to the Senior Grade Junior Engineers in the Public Health Engineering Department by the notification dated 29.8.97 whereas grant o f such gazetted status to all Junior Engineers in the year 2000 has been cited b y Mr. Dutta to be a relevant fact to arrive at the conclusion that the Senior Gr ade Junior Engineers perform/ carry out higher duties and responsibilities. 14. Mr. Dutta has further argued that the recommendations of Sri J.P . Rajkhowa, Additional Chief Secretary with regard to the