Bina Debbarma vs State Of Tripura

Petitioner is a retired Government servant. She disputes her pay fixation while she was in service. This would obviously have an impact on her pension. She has, therefore, filed this petition seeking correction in the pay fixation with consequential effect.

Brief facts are as under:

Petitioner joined as an Assistant Nurse in the Health and Family Welfare Department of the Government of Tripura on 23.04.1973. She was promoted to the post of Staff Nurse on 10.08.1983. Upon implementation of Tripura State Civil Services (Revised Pay) Rules, 1988 (ROP 1988, for short), the petitioner‟s pay had to be refixed in the revised scale on the post of Staff Nurse which she held at that time. According to the petitioner, while carrying out such pay fixation her pay as on 10.08.1983 on the promotional post of Staff Nurse should have been fixed at Rs.810/- instead of Rs.740/-which was done by the department. On account of such erroneous pay fixation, according to the petitioner, she has been granted less pay and allowances right up to her retirement on 30.06.2009 and thereafter she has also been paid pension less than her entitlement. In this context, the petitioner placed heavy reliance on Rule 7(1)(A)(1)(b)(i) and (ii) of ROP, 1988.

On the other hand, the Government of Tripura as well as the Accountant General have filed replies opposing the petition. They contend that petitioner‟s pay fixation was done from time to time perfectly in accordance with rules and regulations. The petitioner has not cited any reason for claiming pay anomaly. It is also contended that the petition suffers from gross delay and laches.

In the writ petition, the petitioner has fleetingly referred to her colleagues drawing more pay than her, indirectly hinting at a case of removal of anomaly by stepping up the pay of the petitioner. However, during oral arguments learned counsel for the petitioner clarified that petitioner‟s case is not for stepping up of pay but of incorrect pay fixation upon implementation of ROP, 1988. In this context, counsel placed heavy reliance on sub-clauses (i) and (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988. He submitted that since the petitioner held two different posts namely of Assistant Nurse and Staff Nurse, her case was covered by sub-clause (ii) of the said rule and consequently, her pay as on 10.08.1983 ought to have been fixed at Rs.810/- by giving the benefit of an additional increment as provided under the said rule. The petitioner came to know about such errors in pay fixation only after her retirement. She made a detailed representation to the department which was rejected by the impugned order dated 31.03.2018 after which the present petition has been filed. He, therefore, submitted that there is no delay in filing the writ petition. Further, erroneous pay fixation is a continuous cause of action which would arise month to month. It also has adversely affected the petitioner‟s pension. Even if, therefore, benefits for the past period were to be denied due to long passage of time, the petitioner cannot be deprived of her rightful pension after her retirement.

On the other hand, learned Government Advocate strongly urged that the petition suffers from gross delay, laches and inaction on part of the petitioner. She wishes that her pay fixation as on 10.08.1983 be corrected. She retired from service on 30.06.2009. She made her first representation to the department alleging erroneous pay fixation in the year 2017. Present petition which is filed in the year 2018 is thus grossly belated. Counsel further submitted that there is no error in the petitioner‟s pay fixation. Petitioner‟s reliance on sub-clauses (i) and (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988 is wholly misplaced. The petitioner did not hold the post of Staff Nurse for a minimum of 5(five) years on the date when her pay was to be refixed as per ROP, 1988. She was, therefore, not entitled to an additional increment as per the said rules.

In the present case, there has been considerable delay in filing the present petition. However, the petitioner‟s cause of action did not arise in the year 1983 but according to her, her pay in the cadre of Staff Nurse was incorrectly fixed as on 10.08.1983. This happened on account of implementation of ROP, 1988. The delay, therefore, if at all must be viewed from such an angle. Further, as per settled law, erroneous pay fixation is a continuous cause and would give rise to a fresh cause of action month to month and pursuant to such erroneous pay fixation, pay and allowances are paid to the Government servant. Such erroneous pay fixation, if so established, would also have its adverse impact on the pensionary benefits of a retiree. The case of the petitioner, therefore, cannot be dismissed on the grounds of delay and laches without examination of her grievances on merits.

Short question that calls for consideration is was the petitioner‟s pay fixation in the revised scale as per ROP, 1988 correctly done or was the petitioner deprived of the benefit of sub-clause (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988. In order to decide this, we may have a look at the relevant statutory provisions. In exercise of powers under Article 309 of the Constitution of India, the State of Tripura had framed the said ROP, 1988 under a notification dated 15.09.1988. These rules were brought into effect from 01.01.1986. As per these rules, pay scales of the employees of the Government had to be revised as per the provisions contained therein. Rule 7 of the said rules pertain to fixation of pay in the revised scale. Relevant portion of this rule reads as under:

"Fixation of pay in the revised scale.

7.(1) The initial pay of a Government servant-

(i) Who elects or is deemed to have elected under sub-rule (3) of Rule 6 to be governed by the revised scale on and from the 1st January, 1986.

Or

(ii) who elects under the proviso to Rule 5 to be governed by the revised scale and on from the date on which he earns in the existing scale his next or any subsequent increment after 1-1-86 but not later than 31-12-87 in respect of the post held by him on 1-1-86, shall, unless in any case the Governor by a special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien had his lien not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:-

(A) In cases of all employees, the following components of emoluments shall be determined first:

(A)(1) Basic Pay:

The basic pay of the Government servant in the existing scale on the 1st day of January, 1986, or where the Government servant elects under Rule 5 to be governed by the Revised pay on and from the date on which he earns in the existing scale his next or any subsequent increment falling after 1-1-86 but not later than 31-12-87 in respect of the post held by him on 1-1-86, the basic pay of the Government servant on such later date, shall be determined as follows:

(a)(i) Where the post in which the pay of the Government servant shall be fixed under these rules is the one and the same post in which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982,

Or,

(a)(ii) Where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982 upto the date from which his pay shall be fixed under these rules,

And

where no „modified present scale‟ is specified in column 5 of Schedule III in relation to any of the posts aforesaid, the basic pay of the Government servant for the purpose of Sub-clause (A)(1) shall be the pay and the personal pay, if any, in the existing scale on the date of his coming over to the revised scale under these rules.

Provided that if the Government servant earns his normal yearly increment on the date of his coming over to the revised scale, the basic pay shall be inclusive of such increment.

(b)(i) Where a „modified present scale‟ is specified in column 5 of Schedule III in relation to the post referred to in (a)(i), the basic pay of the Government servant shall be notionally refixed in the „modified present scale‟ at the stage next above the pay earlier fixed in the existing scale under the Tripura Government Services (Revised Pay) Rules, 1982 (17th Amendment) or otherwise and regulated thereafter upto the date of his coming over to the revised scale under these rules. The pay thus notionally refixed shall be the basic pay for the purpose of sub-clause (A)(1).

Provided that if the Government servant earns his normal yearly increment on the date of his coming over to the revised scale, the basic pay shall be inclusive of such increment.

(b)(ii) Where a Government servant held more than one post on promotion or otherwise, after his pay was initially fixed under the Tripura Government Services (Revised Pay) Rules, 1982 (17th Amendment) or otherwise, including the post in respect of which pay shall be fixed in the revised scale under these Rules, the basic pay of the Government servant shall be notionally refixed in the „modified present scale‟ in the manner prescribed in (b)(i) in respect of the first post, in order of the date of appointment, in relation to which a modified present scale is specified. Thereafter, the pay shall be regulated upto the date on which the Government servant comes over to the revised scale under these rules granting normal yearly increments and refixing notionally his pay in the modified present scales or the existing scales, as the case may be, of the posts to which he was subsequently appointed, including the post in respect of which his pay shall be fixed in the revised scale under these rules.

Provided that notional regulation of pay in respect of different posts to which the Government servant was subsequently appointed on promotion or otherwise, shall be made with reference to the pay plus the personal pay, if any, admissible to the Government servant applying the rules and orders including the provisions of Tripura Govt. Services (Revised Pay) Rules, 1982, which applied to the Government servant earlier.

Provided further that where a personal pay in addition to pay is admissible on the date on which the Govt. servant comes over to the revised scale under these rules as a result of such notional refixation, the basic pay for the purpose of sub-clause (A)(1) shall be inclusive of such personal pay.

Provided further that where the Government servant earns his normal yearly increment on the date of his coming over to the revised scale, the basic pay shall be inclusive of such increment.

Note:-The personal pay referred to in (a) and (b) of this sub-clause shall mean personal pay other than the personal pay referred to in sub-clause (A)(2) of this Rule."

As per sub-rule (1) of Rule 7 thus the initial pay of a Government servant would be fixed separately in respect of substantive pay in the permanent post on which he holds a lien as provided thereafter. As per sub-clause (A)(1) the basic pay of the Government servant in the existing scale as on 01.01.1986 or on a deferred date if so elected by the Government servant under Rule 5 would be determined as per the sub-clauses provided therein. In this context, this rule envisages two situations. First situation is where the post in which the pay of the Government servant is to be fixed is the one and the same post in which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982 (hereinafter to be referred to as ROP, 1982). Second situation is where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under ROP, 1982. These different situations noted above would be governed by the provisions of pay fixations provided in sub-clauses (i) and (ii) respectively of Rule 7 (1)(A)(1)(b) of ROP, 1988. As noted, according to the petitioner and her counsel, the petitioner‟s case would fall under the second category and consequently her pay ought to have been fixed in terms of sub-clause (ii) of Rule 7(1)(A)(1)(b) of the said rules. I do not find that this is a correct position. As noted, the first situation envisaged in sub-clause (i) of Rule 7(1)(A)(1)(a) is where the post in which the pay of the Government servant is to be fixed is the one and the same post in which he was brought over to the revised scale under ROP, 1982. The second situation covered under sub-clause (ii) is where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under ROP, 1982 up to the date of fixation of his pay under ROP, 1988. The petitioner was promoted to the post of Staff Nurse on 10.08.1983. Her pay was thus fixed in the said promotional post under ROP, 1982. Thus, she held only one post during the entire period from the implementation of ROP, 1982 till the occasion arose to refix her pay in the revised scale as per ROP, 1988. Her case thus clearly fell within sub-clause (i) of Rule 7(1)(A)(1)(a) of ROP, 1988. The petitioner did hold two positions during her service career namely that of Assistant Nurse and Staff Nurse. However, for the purpose of application of Rule 7(1) of ROP, 1988, this was not of any consequence. What was important was, did the petitioner serve on two different posts after being brought over to the revised scales as per ROP, 1982 till the time of her pay fixation as per ROP, 1988. The answer clearly is in the negative. The petitioner‟s pay fixation, therefore, was not to be done under sub-clause (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988.

In the result, I do not find any merits in the petition. The same is dismissed.

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