Dhananjoy Das And Ors vs State Of Tripura And Ors

[1] Heard Ms. S. Deb (Gupta), learned counsel appearing for the petitioners as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

[2] The grievance of the writ petitioners emerges in the conspectus of the resembling facts. The reliefs sought in these writ petitions are also identical. The petitioners seek quashment of the order under No.F.75/TSR-V(IR-1)/Estt/Pay fixation/17/8050 dated 24.06.2017 and the order under No.F.75/TSR-V(IR-I)/Estt/Pay Fix/ROP-17/12652 dated 02.12.2017.

[3] Further, the petitioners have urged this court for directing the respondents to grant them the scale up gradation under Assured Career Progression (ACP) on completion of 7 years of service in the grade of Havildar (Clerk), the post, the petitioners are occupying in the State Rifles to the scale of Rs.5000-10,300/- corresponding to the pay scale of Rs.5700-24000 (Pay Band-2) with grade pay of Rs.4200/- and further, to allow them the consequential outstanding dues. For these reasons, all the writ petitions are combined for disposal by a common judgment.

[4] The relevant fact stated briefly is that the petitioners were appointed initially in the rank of Riflemen (GD) in the scale of pay of Rs.3200-6030/- under ROP Rules, 1999. The petitioners were promoted to the post of Havildar (Clerk) in the pay scale of Rs.3300-7100/- after the first financial up gradation ACP-1 was due to them.

[5] The petitioners got the first financial up gradation in the scale of Rs.3300-7100/- corresponding to the revised pay scale of Rs.5700-24000/- (PB-2) with Grade Pay Rs.2200/-. On completion of 7 years from the day of getting the first ACP, the petitioner was moved to the scale of Rs.5700-24000/- with Grade Pay of Rs.2400/-. The petitioners, in terms of Rule 37 of the Tripura State Rifles (Recruitment) Rules, 1984 was appointed / promoted the post of Havildar (Clerk) is equated to the post of Assistant Sub-Inspector.

[6] The next promotion post from Havildar (Clerk) is Naib Subedar (Clerk), which is equated to Sub-Inspector of Police, whereas the post of Subedar is equated to the post of Inspector of Police. Under Rule 19 of Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986, the said equivalence has been provided.

[7] For making the references more specific, the facts in WP(C) No.97 of 2019 is taken note. The petitioner in the said writ petition namely Dhananjoy Das got ACP-1 on 01.07.2010 where as he was appointed to the post of Havilder (Clerk) on 10.06.2010. He had completed 17 years of continuous service on 30.06.2017 and he was given the up graded Grade Pay of Rs.2400/- w.e.f. 01.07.2017, but according to him, he is entitled to grade pay of Rs.4200/-.

[8] Elaborate reference has been made to the provisions of ROP Rules, 1988 and ROP Rules, 1999 for purpose of relying on a decision of the Guahati High Court dated 10.01.2006 delivered in No.RSA 44/2003 and No.RSA 47/2003, where it has been declared that the Sub-Inspector of Police without any promotion would get pre-revised pay scale of Rs.1700-3980/- as the scale upgradation after 10 years of service in the said grade without any promotion. The said scale is the pre-revised scale of Inspector of Police.

[9] By virtue of the said judgment, the petitioners have submitted that Rule 4 of ROP Rules, 1999 has defined the scale of pay of the post and how the particular scale would be available to the employee.

[10] According to the petitioners, Rule 4 of ROP Rules 1999 makes it abundantly clear that the Government employees would be entitled to opt for fixation of pay in the corresponding pay scale as provided in Annexure-C.

[11] The petitioners have asserted that the pay scale of Rs.5000-10300/- is to be fitted against the pay scale of Rs.5700-24000/- with Grade Pay of Rs.4200/-, instead of Rs.4000-7890/-corresponding to the revised pay scale of Rs.5700-24000/- with Grade Pay Rs.2400/- as caused by the order dated 24.06.2017, Annexure-3 to the writ petition and the order dated 02.12.2017, Annexure-5 to the writ petition. According to the petitioners, the respondents have arbitrarily fixed the pay of the petitioners in the scale of Rs.5700-24000/- with Grade Pay of Rs.2400/-. The petitioners filed the representations to lay the demand for the Grade Pay of Rs.4200/- in the scale of pay of Rs.5700-24000/-(PB-2). But the respondents have not responded positively.

[12] Ms. S. Deb (Gupta), learned counsel has submitted that this court in Harisadhan Adhikari Vs. State of Tripura and Others (Judgment and Order dated 29.05.2015) has observed as follows:

"Let us give here an example. The petitioners while got promotion from the post of Junior Engineer to Assistant Engineer during the period of first 10 years of service they consumed one ACP and therefore were not entitled to the first ACP. Suppose, during the next seven years, i.e. total seventeen years, they get second promotion in usual course they would be definetly entitled to the pay Scale No.17 and they cannot be placed in pay scale No.16. In case, they get promotion they would not be entitled to the second ACP. Therefore, the intermediate pay scales prescribed in Part-D of the ROP Rules is of no consequence for consideration while considering the grant of ACP to the petitioners."

[13] Ms. S. Deb (Gupta), learned counsel has further submitted that this interpretation relates to Rule 10(2) of the ROP Rules, 2009 ACP has been introduced by the ROP Rules, 2009 by abolishing the Career Advancement Scheme (CAS) as was introduced by ROP Rules, 1999.

[14] Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has categorically submitted that the claim made by the petitioners is bereft of any foundation. They have admitted the basic facts regarding appointments and promotions of the petitioners, as adverted in the writ petition. In the reply, the respondents have stated that ROP Rules, 1999 got repelled by the ROP Rules, 2009. Under ROP Rules, 2009 the system of pay band and grade pay has been introduced by the subsequent change. The revised pay band and Grade Pay corresponding to Rs.3300-7100/- is PB-2 [Rs.5700-24000/-] with Grade Pay of Rs.2200/-. The revised pay band and the grade pay of Rs.4710-7890/- is PB-2 [Rs.5700-2400/-] with Grade Pay of Rs.2400/-. Thus, the fixation of pay of the petitioners in terms of ROP Rules, 1999 and ROP Rules, 2009 cannot be faulted with. The petitioners are not entitled to the pay scale of Rs.5700/- - 24000/- (PB-2) with the Grade Pay of Rs.4200/-.Such pay scale has been nowhere prescribed by the ROP Rules, 2009 or the change as brought therein.

[15] True it is that ACP-1 was granted to the petitioners under the ROP Rules, 2009 in w.e.f. 01.07.2010.

[16] Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has further submitted that as per Rule 10(7) of ROP Rules, 2009 the petitioners' pay has been fixed by allowing them an increase of one increment in the existing pay band along with the next available Grade Pay i.e. Rs.2400/-. For purpose of reference, Rule 10 of the ROP Rules, 2009 the relevant parts are reproduced here under:

"10. Introduction of a new scheme titled „Assured Career Progression‟ (ACP) Scheme with effect from 1st January, 2006 in replacement of existing CAS introduced under TSCS (Revised Pay) Rules, 1999.-

(1) Under the new scheme (A.C.P), all Government employees in the PB-1, PB-2 & PB-3 shall be entitled to get a maximum of three financial up gradations, the first after 10 years of service under regular scale, 2nd after another 7 years of service (total 17 years) and 3rd after further 8 years of service (total 25 years) in their service career provided the concerned employee had not got up to three numbers of benefits of scale up gradations including promotions already. In case of PB-4, the employees borne under Grade Pay Rs.3700/- (against pre-revised scale of Rs.7800-15,100/-), under Grade pay Rs.4500/- (against pre-revised scale of Rs.10,000-15,100/-) and Grade Pay Rs.4800/- (against pre-revised scale of Rs.10,650-15,850/-) would be entitled to get 3, 2 and 1 financial up gradations respectively under the scheme provided the concerned employee had not got scale upgradation including promotion up to 3,2 & 1 respectively already.

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(4) those Government employees who had completed 10 years of service before 1.1.2006 but had not got or consumed any benefit of promotion/scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 1st Act from the date of his coming over to the revised pay structure under these rules. Similarly those Government employees who had completed 17 years of service before 1.1.2006 but had got/consumed no benefit or got/consumed one benefit promotion or scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 2nd ACP directly from the date of his coming over to the revised pay structure under these rules. In respect of Government employees who had completed 25 years of service before 1.1.2006 but had not got/consumed any benefit of promotion/scale upgradation or got/consumed up to two benefits of promotion/scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 3rd ACP directly from the date of his coming over to the revised pay structure under these rules. The benefit under this provision should be allowed subject to fulfillment of all conditions stipulated in this rule.

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(7) Only the benefit of fixation of pay will be available at the time of financial upgradation under this scheme. For this, an increase of one increment in the existing pay in his/her Pay Band (i.e. 2.5% of Band Pay plus Grade Pay) along with next available Grade Pay shall be admissible as benefit of financial upgradation under this scheme. However, in cases where financial up-gradation and promotion fall in the same Grade Pay, in that case if any employee has already got the benefit of financial upgradation under ACP, he will not get any further financial benefit of increment etc for his promotion in the same Grade Pay. He will, however, thereafter be entitled to the higher designation and all the functional responsibilities and facilities available for the higher post.

(8) Besides providing one increment @ 2.5% and the next available Grade Pay under the ACP, the concerned employee will continue to remain in his existing Pay Band. However, in the event of his crossing the maximum of the Pay Band as a result of this upgradation, she/he will move to the next higher Pay Band but without any change in the earlier Grade Pay.

Provided, those Government employees who had got the benefit of CAS under TSCS (Revised Pay) rules, 1999 between period 1.1.1999 to 31.12.2005 moving to the promotion scale without having benefit of FR 22(I)(a)(1) but got/will get functional promotion in the same pre-revised pay scale or to the revised pay structure corresponding to the same pre-revised pay scale after coming over to the revised pay scale, will be entitled to get the benefit of one increment under revised pay structure at the time of functional promotion in the same pay scale."

[17] Rule 10(4) has clearly provided that the employees who have completed 17 years of service before 01.01.2006 but had got/ consumed no benefit or got / consumed benefit of promotion or scale up-gradation under the revised pay rules framed in the past by the State Government, from time to time, they will now be provided the benefit of second ACP directly from the date of his coming over to the revised pay structure under these rules.

[18] In this respect the Rule 10(7) may be referred inasmuch as that rule provides the fixation formula. The formula is unambiguous and requires no further interpretation.

[19] It appears that, the petitioner admittedly got the ACP-1 on 01.07.2010 and accordingly all financial benefits were released. Since, ROP Rules, 1999 got repealed w.e.f. 01.01.2006 and Rule 10(4) of the ROP Rules, 2009 has accommodated express provision how to carry forward for the past benefits to the present system of ACP. Hence, Act will govern the up-gradation of scale after 17 years, so far the petitioners are concerned.

[20] Rule 10(1) of the ROP Rules, 2009 provides that in the entire career an employee can get 3 scale up-gradations including promotion. Rule 10(2) of the ROP Rules, 2009 has provided clarification how to cause the up-gradation in certain cases.

[21] For all purposes, scale up-gradation would mean up-gradation to the next pay band meaning the pay band scale with the prescribed Grade Pay in terms of Part-B of Schedule-1 (Pre-revised) of the ROP Rules, 2009. Having noticed the fact and appreciated the submission made by the learned counsel for the parties, this court is of the view that, the decision in Harisadhan Adhikari has no relevance in the present context as the case which has been projected before this court is completely different. The sheet-anchor of the controversy is whether the petitioners would get the revised pay scale of Rs.5700-24000/- with Grade Pay of Rs.2400/- or the Grade Pay of Rs.5700-24000/- with Grade Pay of Rs.4200/-.

[22] In terms of the Rule as reproduced, in the said Part-B, the Grade Pay of Rs.4200/- in the pay band scale of Rs.5700-24000/-does not exist.

Hence, the petitioners' claim is devoid of any merit.

In the result, the writ petitions are dismissed. No order as to costs.