Bidyut Kumar Deb vs State Of Tripura And Ors

[1] The petitioner has challenged an order dated 17.07.2017 passed by the respondents by which the benefit of stepping up of pay granted to the petitioner came to be withdrawn.

[2] Brief facts are as under:

The petitioner joined the Department of Economics & Statistics, Government of Tripura as an Assistant Investigator on 22.12.1997. In the seniority list of the said cadre published by the department as on 31.07.2002, the petitioner was placed at serial No.7. The petitioner belonged to the General (un-reserved) category. The petitioner received the benefit of Career Advancement Scheme-1 (CAS-1 for short) in the year 2007 when he was still holding the post of Assistant Investigator. Eventually, the petitioner was promoted to the post of Investigator on 09.03.2010. Persons placed at serial Nos.14 to 18 in the said seniority list belonged to Scheduled Tribes (ST) category. In the promotional quota for Scheduled Tribes, the said persons placed at serial Nos.14 to 18 were promoted to the next higher post of Investigator on 04.09.2004. Incidentally, these employees who were junior to the petitioner in the cadre of Assistant Investigators, were promoted to the post of Investigators without getting benefit of CAS-1. They got the benefit of CAS-2 upon completion of 7 years of service in the promotional post. Since the petitioner had received the benefit of CAS-1 in the year 2007 and was promoted in the year 2010, it was treated that the petitioner received the benefit of two pay up-gradations. The petitioner would, therefore, not receive the benefit of CAS-2.

[3] On account of this situation, the petitioner felt that he was drawing less pay than his juniors and that as per the departmental rules, a case for removal of such anomaly by stepping up the pay of the petitioner to the level of his juniors, had arisen. The petitioner, therefore, made a representation dated 29.07.2015 to the department. In such representation, the petitioner pointed out that on 04.09.2004 persons junior to him in the cadre of Assistant Investigator got promoted to the post of Investigator in the reservation quota. At that time, the available vacancies in the cadre of Investigator (un-reserved) were allotted to direct recruitment quota. He further contended that since the last 11 years he is getting less pay than his juniors. He, therefore, requested that his pay may be stepped up to the level of his juniors.

[4] The department accepted the request of the petitioner and issued a memorandum dated 18.08.2015 granting the benefit of stepping up of pay to the petitioner. In this order it was noticed that as on 01.07.2015 the basic pay of the petitioner was fixed at Rs.14,830/- as against persons junior to him in the initial grade which was fixed at Rs.16,400/- in the grade of Investigators. Accordingly, the pay of the petitioner was stepped up to the level of his juniors to Rs.16,490/- as per the provisions of Rule-14(6) of Revision of Pay Rules, 2009 (ROP 2009, for short).

[5] The petitioner thus received the benefit of stepping up of pay by virtue of the said order. The department, thereafter, passed the impugned order dated 14.07.2017 and withdrew the order dated 18.08.2015. Recovery of excess pay was also ordered. This was on the basis that the Government had inserted sub-rule-(6B) in Rule-14 of ROP 2009 by a notification dated 23.07.2013 with retrospective effect from 01.01.2006. As per this rule, the benefit of stepping up of pay would be available to a senior only if both senior and junior employees were born in the same cadre and the posts under the same department with the same line of promotion. According to the department, in case of the petitioner these conditions were not fulfilled. This order the petitioner has challenged in the present petition.

[6] Mr. Arijit Bhaumik, learned counsel appearing for the petitioner raised following contentions :

(i) The case of the petitioner fell squarely within Rule-14(6) of the ROP 2009. All the conditions of the said sub-rule were satisfied. The petitioner was, therefore, correctly granted the benefit of stepping up of pay. Insertion of sub-rule-6B of Rule-14 in no manner changes his position. The petitioner satisfies the conditions of sub-rule 6B also.

(ii) The impugned order was passed without affording any opportunity of hearing to the petitioner. There was, thus, a clear case of breach of natural justice.

(iii) In any case, there was no fraud or misrepresentation on part of the petitioner leading to the fixation of higher pay. The department had interpreted the rule position and found that the petitioner was entitled to the benefit of upgradation of pay. In such circumstances, recovery of excess payment, if at all, would be wholly inequitable and should not be permitted.

[7] On the other hand, Mr. D. Bhattacharya, learned Government Advocate opposed the petition contending that the persons with whom the petitioner is comparing his pay were senior to him in the promotional cadre of Investigator. The benefit of stepping up of pay in terms of Rule-14(6) of ROP 2009 in such a situation was not available. By inserting sub-rule-6B to the said rule, this position was merely made clear. The petitioner cannot retain the benefit flowing from higher pay fixation erroneously done.

[8] In the present case, we are concerned with the interpretation of Rule-14(6) of ROP 2009 as well as Rule-14(6B) thereof. Rule-14(6) of ROP 2009 reads as under :

(6) Stepping up of pay :- Where pay of a junior become higher than that of his senior as result of providing the benefit of promotion followed by CAS-2 under TSCS (Revised Pay) Rules, 1999 in comparison with his senior who was provided benefit of CAS-1 followed by promotion as per example cited below, the pay scale of the senior shall be stepped up to the higher pay scale provided to his junior from the same date junior got the higher pay.

Example: On completion of 10 years of service as LDC without promotion a senior LDC in the Department first got CAS benefit (from pay scale of Rs.3300-7100 to Rs.4000-7890/-) and then got promotion to the post of UDC in the pay scale of Rs.4200-8650/-. Under the provision of CAS he consumed two up-gradations. On the other hand, his junior first got promotion to the post of UDC (Rs.4200-8650/-) from the post of LDC (Rs.3300-7100/-) and thereafter on completion of 7 years of service as UDC without promotion he got CAS-2 benefit and moved to pay scale of Rs.5000-10,300/- taking analogy that he had consumed CAS-1 while getting promotion to the post of UDC and thereafter on completion of 7 years of service as UDC without any further promotion he got benefit of CAS-2 in the pay scale of Rs.5000-10300/-. As a result, pay scale of the senior UDC in the same Department became lower than his junior. To remove this anomaly, the pay scale of the senior shall be stepped up to the pay scale of Rs.5000-10300/- with re-fixation of pay notionally from the date of arising such anomaly but with financial benefit from 01-01-2009."

[9] By virtue of Tripura State Civil Services (Revised Pay)(Eighth Amendment) Rules, 2013, the Government inserted certain sub-rules in Rule-14 of ROP 2009. The amending rules were framed under notification dated 23.07.2013 but was given retrospective effect from 01.01.2006. We are concerned with sub-rule (6B) inserted by virtue of the said amending rules which reads as under :

"6B. The stepping up of Pay in the Pay Band/Grade Pay shall be done subject to the condition that both the senior and junior employees should borne in the same cadre and the posts under same Department with same line of promotion."

[10] We need to interpret these provisions in the backdrop of facts on hand which can be summarized thus. The petitioner was senior in the cadre of Assistant Investigator than some of the employees who belonged to Scheduled Tribes. The junior Scheduled Tribe employees were promoted to the post of Investigator nearly 6 years before the petitioner received his promotion in the said cadre. Before his promotion the petitioner had received the benefit of CAS-1 in the year 2007. His colleagues belonging to the Scheduled Tribe category got promotion without the benefit of CAS-1. They got the benefit of CAS-2 after completion of 7 years in the promotional posts. Since the petitioner had received the benefit of CAS-1 before his promotion and his promotion to the post of Investigator was considered as second pay upgradation, he was not entitled to the benefit of CAS-2. According to the petitioner, the pay anomaly between him and his juniors was on account of this phenomena and, therefore, his case fell within sub-rule-6 of Rule-14 of ROP 2009.

[11] In my opinion, the stand of the petitioner is not backed by the statutory provisions. The pay anomaly between the petitioner and his juniors did not arise on account of the juniors getting promotion without receiving the benefit of CAS-1 and the petitioner a senior in the feeder cadre first receiving the benefit of CAS-1 and then promotion. Had this been the situation, perhaps the petitioner was justified in contending that case fell within the four corners of sub-rule-6 of Rule-14 and was not harmed in any manner by virtue of insertion of sub-rule (6B). The crux of the issue is that the pay anomaly arose not when the juniors were granted the benefit of CAS-2 in the promotional cadre. The disparity in the pay between the juniors and the petitioner, a senior, arose on account of the juniors getting promotion ahead of the petitioner since they belonged to the ST category and the promotional posts in the reserved category of ST were available at the relevant time they were promoted to the post of Investigator. As against this, as pointed out by the petitioner in his representation to the department, when the ST candidates were so promoted, there were no vacancies for promotion in the un-reserved category. The vacancies in the un-reserved category were for direct recruitment.

[12] Under the circumstances, the persons junior to the petitioner in the cadre of Assistant Investigator received promotions earlier than the petitioner to the post of Investigator. Since 04.09.2004 when they were so promoted, they started drawing the pay in the promotional cadre. When the petitioner was eventually promoted to the same post on 09.03.2010, his pay was fixed in the promotional grade in due course. However, by then, persons who were junior to him in the feeder cadre of Assistant Investigators, were holding the promotional posts since close to 6 years. In the process, they would have earned their increments. Naturally therefore the pay of the petitioner in the promotional post can never match to that of the ST employees.

[13] In this background we may refer to the sub-rule-6 of Rule-14 of ROP 2009. This rule basically provides that where pay of a junior is higher than that of a senior as a result of providing benefit of promotion followed by CAS-2 under ROP 2009 in comparison to his senior who is granted benefit of CAS-1 followed by promotion, the pay of a senior would be stepped up to that of the junior from the day the junior started receiving higher pay. This sub-rule 6 of Rule-14 would apply only if there is a comparison of pay between a senior and junior, junior drawing more pay than the senior. The other conditions that such pay anomaly should have arisen on account of junior getting promotion before being granted CAS-1 whereas senior getting promotion after getting CAS-1 can be kept out of consideration for the time being. Primary requirement of application of sub-rule 6 of Rule-14 is that a senior is complaining of a junior receiving higher pay than him. When one is, therefore, referring to a senior getting less pay than the junior, one is necessarily comparing the position of the two employees in the related cadre. Sub-rule 6 of Rule-14 will apply if an employee senior to his colleague in the promotional post is drawing less pay than the junior. Sub-rule 6 of Rule-14 will not apply if a person who was junior in the feeder cadre, has for any reason become senior in the promotional post and is drawing more pay than a colleague who was his junior in the feeder cadre. In other words, comparison of pay between a senior and a junior can be done only if in the cadre in which such comparison is being made the person complaining of lesser pay is senior to whom he is comparing his pay with.

[14] In the present case, the petitioner though senior to the Scheduled Tribe employees in the feeder cadre of Assistant Investigator, was their junior in the promotional post of investigator. Fundamentally this altered the position of seniority in the promotional post. In plain terms therefore sub-rule 6 of Rule-14 had no applicability. The example given below sub-rule 6 of Rule-14 would not change this position. The example merely explains the situation where sub-rule 6 would be applicable but does not address the situation where a person, though senior in a feeder cadre, has for whatever reason lost seniority to his erstwhile junior colleague in the promotional cadre. Even the petitioner in his representation made to the department in the year 2015 had complained that he was drawing less pay than his juniors since 11 years. Thus, the grievance of the petitioner was that he was drawing less pay than his juniors since the year 2004 when they were promoted in the reserved quota. The primary reason, therefore, for arising of the pay anomaly was earlier promotion enjoyed by the reserved category employees ahead of the petitioner.

[15] In my opinion, sub-rule (6B) of Rule-14 merely amplifies and clarifies his position when it provides that the benefit of stepping up of pay would be available if certain conditions are satisfied, namely, both senior and junior employees should be borne in the same cadre and posts under the same department with same line of promotion. When the persons belonged to ST category got accelerated promotion in reserved quota and the un-reserved category candidate had to wait for availability of vacancy in his quota, even this additional condition contending sub-rule (6B) of both the senior and junior enjoying promotion in the same line cannot be said to have been satisfied. I, therefore, do not find any error in the impugned order dated 14.07.2017 quashing the previous memorandum and withdrawing the benefit of stepping up of pay of the petitioner.

[16] It is true that the said order was passed without any notice or granting any form of hearing to the petitioner. This order was thus in breach of the principles of natural justice. When the department was withdrawing the benefit of stepping up of pay granted to the petitioner it was necessary that the petitioner ought to have been given a hearing since any such order would result in adverse civil consequences against the petitioner. However the petitioner has challenged the order on substantive grounds. His counsel has argued such substantive challenges and invited the decision from the Court. It would be wholly futile to place back the proceedings before the departmental authorities for completing which now remains an empty formality.

[17] The question of recovery of excess pay however remains. In this context it is undisputable that the erroneous pay fixation and consequent higher salary paid to the petitioner was not on account of any fraud or misrepresentation on part of the petitioner. The department itself was of the opinion that by virtue of the sub-rule 6 of Rule-14 the petitioner was entitled to the benefit of stepping up of pay. Sub-rule (6B) was already inserted in Rule-14 on a department granted the benefit of stepping up of pay to the petitioner. As discussed earlier, in case of the petitioner such benefit was not available on the basis of sub-rule 6 itself insertion of sub-rule (6B) to Rule-14 did not materially alter this position.

Thus, the department had at one stage on the basis of bona fide interpretation of sub-rule 6 of Rule-14 hardened beliefs that the petitioner was entitled to benefit of stepping up of pay. The department, therefore, granted such benefit without there being any contribution in the form of misrepresentation on part of the petitioner. It would, therefore, be wholly inequitable to permit the department to recover excess pay at this point of time. In this context we may refer to the decision of the Supreme Court as cited by the counsel for the petitioner in case of State of Punjab and Others versus Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 in which following observations were made :

"It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

[18] In the result, petition is allowed in part. The impugned order dated 14.07.2017 insofar as it relates to withdrawal of the benefit of stepping up of pay in favour of the petitioner is concerned, is upheld. However, when this order provides for recovery of excess pay, the same is set aside. Petition is disposed of accordingly.

[19] Pending application(s), if any, also stands disposed of.