WP(C) 597/2008 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. S. Chauhan, learned counsel for the petitioner and Ms. M. Gosw ami, learned State Counsel. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks equalization of pay with that of her junior in the post of Uppe r Division Assistant (UDA) in terms of the Office Memorandum dated 12.03.2002 of the Personnel Department, Government of Assam. 3. Case of the petitioner is that she belongs to the Scheduled Tribe (Hills ) Community. She was appointed as Lower Division Assistant (LDA) in the Office o f the Additional Chief Public Health Engineer (Hills), Assam, Haflong on 25.03.1 987. By applying the reservation principle, the petitioner was promoted to the n ext higher rank of Upper Division Assistant (UDA) on 5.9.1991, which promotion w as regularized on 19.11.1991. 4. One Shri Jiban Chandra Nath had entered service in the Public Health Eng ineering Department as ’Typist’ on 30.12.1978. Though the post of Typist and the post of LDA belonged to different cadres, the two cadres were amalgamated in th e year 1981 and re-designated as ’LDA-cum-Typist’. Thus, Shri Jiban Chandra Nath became ’LDA-cum-Typist’ on and from 1981. He was promoted to the post of UDA wi th effect from 30.08.1998 after that of the petitioner, who, as noticed above, w as promoted on 5.9.1991. 5. By virtue of Article 16(4A) of the Constitution of India, Govern ment of Assam in the Personnel Department had issued an Office Memorandum dated 12.03.2002 taking note of the constitutional provision for grant of consequentia l seniority to reserved category candidates on their promotion by virtue of the ’Rule of Reservation’ and provided that consequential benefits like pay, pension , etc. shall be allowed to reserved categories candidates. 6. Because of his longer service in the feeder cadre of LDA-cum-Typ ist, Shri Jiban Chandra Nath was receiving higher pay scale than the petitioner even in the promoted post of UDA though petitioner was promoted much earlier tha n Shri Nath. To remove this anomaly, petitioner moved the respondents for equali zation of pay with that of Shri Nath. It appears that the Chief Engineer (PHE) p assed an order dated 9.4.1999 stepping up the date of increment in respect of th e petitioner to ensure equalization of her pay with that of Shri Jiban Chandra N ath, which was equalized at Rs.6075/- effective from 1.3.1999. 7. It appears that the Finance Department raised objection to such pay equalization granted in favour of the petitioner by contending that such equ alization was carried out without the concurrence of the Finance Department. Rel iance was placed on the Finance Department’s Office Memorandum dated 10.9.1997. 8. In the meanwhile, annual increment was granted to the petitioner on 30.3.2005 raising her basic pay. However, by order dated 5.4.2005 issued by the Additional Chief Engineer (PHE), Barak Valley and A.C.(G) Zone, the annual i ncrement granted to the petitioner on 30.3.2005 was cancelled for administrative reason. 9. Aggrieved, petitioner has moved this Court by filing the present writ petition seeking the relief, as indicated above. 10. Separate affidavits have been filed by the PHE Department as wel l as by the Finance Department. 11. In its affidavit, PHE Department has stated that though the view of the Department was that petitioner is entitled to equalization of pay, the s ame should be given in consultation with the Finance Department since it is an e xercise under FR-27 which involves the Finance Department. When the matter was e ndorsed to the Finance Department, it was turned down. 12. The Finance Department in its affidavit has taken the stand that as per Finance Department’s Office Memorandum dated 10.9.1997, equalization of pay is permissible subject to the conditions laid down therein. Two of the condi tions, which are relevant to the present case, are as follows :- (1) Both the senior and junior Government Employee whose equalization/steppi ng up of pay is proposed must be recruited in the same cadre post initially and should be promoted from the same source; and (2) Equalization of pay must be claimed within the specified time of one yea r of promotion. It is stated that the petitioner had joined as LDA on 30.3.1987 whereas Shri Jiban Chandra Nath was appointed as Typist on 30.12.1978. Thus, th ey were initially appointed in two different cadres. Therefore, equalization is not permissible as per Finance Department’s Office Memorandum dated 10.9.1997. S econdly, Shri Jiban Chandra Nath became LDA in the year 1981 after amalgamation of LDA and Typist i.e. after three years of his initial appointment. Prior to th at, both the petitioner and Shri Jiban Chandra Nath were appointed in two differ ent cadres of LDA and Typist. 13. Article 16(4A) of the Constitution provides that - ’Nothing in t he said Article shall prevent the State from making any provision for reservatio n in matters of promotion with consequential seniority to any class or classes o f posts in the services under the State in favour of the Scheduled Castes and Sc heduled Tribes, which, in the opinion of the State, are not adequately represent ed in the services under the State’. 14. Thereafter, the Government of Assam in the Personnel Department issued the Office Memorandum dated 12.3.2002 which provides that Scheduled Caste and Schedule Tribe Government servants on promotion by virtue of Rule of Reserv ation/Roster will be entitled to consequential seniority also effective from 17. 6.1995. This Court in Bhogeswar Saikia and ors -Vs.- State of Assam and ors, re ported in 2010(3) GLT 377 has rejected the challenge made to the constitutional ity of the said Office Memorandum dated 12.3.2002. 15. If a reserved category candidate is entitled to promotion on the strength of Rule of Reservation/Roster and consequential seniority, it would in deed be an anomalous situation if he/she receives pay lower than a person in the cadre promoted subsequently. 16. In the present case, Shri Jiban Chandra Nath, by virtue of his l onger service in the feeder cadre of LDA-cum-Typist, was drawing higher pay than the petitioner. As noticed above, on the strength of reservation, the petitione r was promoted earlier than Shri Jiban Chandra Nath to the post of UDA in the ye ar 1991. Shri Nath was promoted in the year 1998. After his promotion, it transp ires that he was drawing higher pay than the petitioner. It was at this stage th at the petitioner moved the authorities in the PHE Department for equalization o f pay which was granted in the year 1999. 17. Reverting back to the two objections raised by the Finance Depar tment, the first being that the petitioner and Shri Jiban Chandra Nath belong to two different feeder cadres and, therefore, question of equalization or steppin g-up of pay did not arise and the second being that equalization of pay was not claimed by the petitioner within one year of promotion, the said objections do n ot appear to be tenable at all. In so far the first objection is concerned, thou gh initially the petitioner and Shri Jiban Chandra Nath were appointed in two di fferent cadres of LDA and Typist, later on, the two cadres were amalgamated into one cadre of LDA-cum-Typist. Thereafter, Shri Jiban Chandra Nath was promoted f rom LDA-cum-Typist to UDA. As already noticed, petitioner was promoted from LDA to UDA earlier. In such circumstances, it cannot be said that the two of them be longed to two different feeder cadres. In so far the second objection is concern ed, the question of equalization of pay arose only on the promotion of Shri Jiba n Chandra Nath to the higher post of UDA. Petitioner being a reserved category c andidate was promoted earlier by applying the principle of accelerated promotion with consequential seniority. Only when Shri Jiban Chandra Nath was promoted in the year 1998 to the rank of UDA, the discrepancy in the pay between the two co uld be noticed. It was at this stage that the petitioner moved the PHE Departmen t for equalization of the pay which was granted on 9.4.1999. Therefore, equaliza tion of pay was claimed by the petitioner within one year of promotion of Shri J iban Chandra Nath. Both the objections of the Finance Department, therefore, are untenable and the view taken by the PHE Department based on the Office Memorand um of the Personnel Department dated 12.03.2002 appears to be correct. 18. Accordingly and in view of above, order dated 5.4.2005 cancellin g the annual increment granted to the petitioner with effect from 1.3.2005 is he reby set aside and quashed. Petitioner would be entitled to equalization of pay with that of Shri Jiban Chandra Nath in the rank of UDA w.e.f. the date of promo tion of Shri Nath to the rank of UDA in terms of the Office Memorandum of the Pe rsonnel Department dated 12.03.2002. 19. The writ petition is, accordingly, allowed, but without any orde r as to cost.