Dulal Dey vs State Of Tripura And Ors

The petitioner has challenged an order dated 23.12.2016 issued by the Additional Secretary & Director, Food & Civil Supplies and Consumer Affairs Department, Government of Tripura by which the 3rd Assured Career Progression Scheme which was previously granted to the petitioner has been withdrawn.

Brief facts are as under:

The petitioner joined the service of the State Government on 08.03.1989 in the post of Store keeper Grade-II in the pay scale of Rs.1250-2890/-. Pursuant to order dated 06.02.1999 issued by the Finance Department, Government of Tripura, the pay of the petitioner was fixed in the scale of Rs.4000-7890/- in the post of Store Keeper as per the Revision of Pay Rules, 1999. Upon completion of 10 years of service without promotion, the petitioner was allowed the benefit of first Career Advancement Scheme (CAS-I) w.e.f. 08.03.1999 as per ROP, 1999 which was done in the scale of pay of Rs.4200-8650/- by virtue of an order dated 31.07.2001.

As per the provisions of Tripura State Civil Services (Revised Pay) 15th Amendment Rules, 2004, vide notification dated 17.11.2004 the pay of the petitioner was refixed in the modified scale of Rs.5,000-10,300 w.e.f. 01.09.2004 under a memorandum dated 18.01.2006. Vide memo dated 31.03.2014 the petitioner was granted the benefit of 3rd ACP after completion of 25 years of service on the same post w.e.f. 08.03.2014 in the pay scale of Rs.5,310-24,000/- in Pay Band No.2 with a Grade Pay of Rs.2600/-. This was as per the ROP, 2009.

Thereafter, by impugned order dated 23.12.2016 the benefit of 3rd ACP granted to the petitioner under order dated 31.03.2014 was withdrawn. His pay was ordered to be refixed and excess pay ordered to be recovered. This order the petitioner has challenged in the present petition.

Appearing for the petitioner, counsel Mr. P. Roy Barman submitted that the petitioner was correctly granted the benefit of 3rd ACP by the order dated 31.03.2014 because the petitioner had completed 25 years of continuous service in the same post without any benefit of promotion. The respondents committed a serious error in withdrawing such benefit, that too without granting any hearing to the petitioner. Learned counsel for the petitioner placed heavy reliance on a decision of learned Single Judge of this Court in the case of Sri Manabendra Bhattacharjee vrs. The State of Tripura & others, in WP(C) No.129 of 1998 & another connected matter decided on 27.07.2007. He pointed out that the learned Judge has relied on a previous decision of Division Bench of Gauhati High Court in which under identical fact situation it was held that the benefit of 3rd ACP was correctly granted to the petitioners therein. Counsel pointed out that the respondents have not brought any material distinction between the case of the petitioner and the petitioners in the said decision. He submitted that the pay of the petitioner was refixed in the modified scale of Rs.5000-10,300/- w.e.f. 01.09.2004 by virtue of memorandum dated 18.01.2006. The respondents erroneously treated this pay fixation as a benefit of upgradation of pay.

On the other hand, learned Government counsel Mr. D.C. Saha opposed the petition contending that the petitioner had already availed of the benefit of three pay upgradations. He was, therefore, not entitled to one more ACP which was erroneously granted to him in the year 2014. The same was, therefore, corrected by the impugned order. He submitted that the case of the petitioner is not covered by the decision of this Court.

I do not find that the respondents have made out any point of distinction between the facts of the petitioner and those involved in a decision of Agartala Bench of Gauhati High Court in the above mentioned case of Manabendra Bhattacharjee (supra). In the said decision, the learned Single Judge had referred to and relied upon a decision of Division Bench of Gauhati High Court rendered in WP(C) No.105 of 2001 and other connected matters. The Division Bench had held and observed as under:

"8. Though the learned Single Judge has observed that the ROP, 1988 contains no provision in Part „C‟ about the period required for movement where only two graded pay scales have been provided we have noticed that such a provision exists in the proviso to clause (b) under (iii) in Note 3 of Part „C‟ of the said Rules, which reads:

"Provided further that where only two posts/grades are provided in a category of graded scale, the provision in (i) shall only apply"

The provision in (i) under clause (a) of note 2 of that Part provides that subject to the seniority and fitness a Government servant holding a post in the lowest post/grade shall be allowed to move to the first higher post/grade on completion of 10 years of service in the lowest post/grade. Though the Graded Pay Scale No.1 relating to Auditors contains three graded scales and only petitioners were fitted in the intermediate grade, the learned Single Judge has correctly held that they shall certainly move to the highest grade on completion of 10 years of service and in our view, such decision is consistent with the above proviso. We are also in agreement with the observation of the learned Single Judge that the ROP, 1988 having been published in the official Gazette every interpretation or clarification thereto must also be published in the official Gazette as such clarification or interpretation forms part of the said Rules.

The validity of the memorandum impugned may also be examined from another angle. Rule 13 of ROP, 1988 provides that if any question arises relating to the interpretation of any of the provisions of these rules, it shall be referred to the Government of Tripura in the Finance Department. Nothing more regarding finality of the decision so rendered by the Finance Department or in what manner such a decision is required to be taken and communicated to all concerned have been provided. It can never be in dispute that the interpretation of the Finance Department on any question arisen out of the said Rules can have the effect of altering or modifying any of the provisions contained therein. Part „C‟ has clearly provided how the movement will take place from the lowest Grade to the intermediate grade and from the intermediate grade to the highest grade or how, in case where there are only two grades, from the lower to the higher. There exists no provision in Part „C‟ that under any circumstances an employee is required to render 18 years of service in any particular grade or in more than one grade to reach the highest post/grade. The memorandum impugned by providing that unless an employee puts 18 years of service cannot reach the highest grade is, in effect, modification or provisions contained in Part „C‟ of the said Rules, which is not permissible in law. Considering from that view, the memorandum impugned is not legally sustainable."

In fact, before the learned Single Judge both sides agreed that the case of the petitioner therein was fully covered by the decision of the Division Bench and accordingly, the petition was allowed.

I do not find any material distinction in facts between the case of the petitioner and above mentioned decided cases. In fact, in the context of the petitioner‟s assertion that facts of both the cases are identical, curiously the respondents in their affidavit-in-reply have averred that as under:

"15. That in reply to the averment made in Para 13 of the petition I beg to say Government had appealed against the judgment dated 27.7.2007 in W.P.(C) No.285 of 2003 vide Writ Appeal No.14/2008. Finance Department as Competent Authority in connection with the Judgment & Order dated 11.09.2009 of said Writ Appeal No.14/2008 informed vide its Note No.67 that the above benefit will remain confined only among the writ petitioners as a part of compliance of the judgment. This will not be accepted as an instance for providing identical benefit to their similarly situated employees who were not a party in this case, a copy of which is enclosed herein and is marked as Annexure R/4 of the affidavit."

The only reason cited by the respondents for not following the decisions of the Gauhati High Court is that the Government decided to confine the benefits of the said decisions to the petitioners who were before the Court alone. The decision would not be accepted for other employees who may be similarly situated but were not parties before the Court. To me, it appears to be a strange logic. Once the High Court lays down the law, it would apply equally to all similarly situated employees. In fact, as a model employer the Government should not drive other similarly situated employees to start a litigation. Ideally the Government should have on its own applied the law laid down by the High Court to all similarly situated employees, unless of course on account of gross delay, laches or some other similar reason, such benefits could not be made available to other employees.

Nevertheless, when the petitioner himself has approached the Court well in time and also taken up the challenge to the impugned order in full earnest, the law laid down by the High Court in identical fact situations would apply to the petitioner also.

In the result, impugned order dated 23.12.2016 (Annexure-6) is set aside. Petitioner‟s pay fixation by virtue of memorandum dated 09.04.2014 (Annexure-5) is restored. If any recovery is already made from the pay of the petitioner, the same shall be reversed. This shall be done within a period of 2(two) months from today.

Petition is disposed of accordingly.

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