Ganadip Chakraborty vs State Of Tripura

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

[2] By means of this petition, the petitioner who is serving as the Lower Division Clerk [LDC] under the respondents No.1 to 4 urges this court (i) to allow him the benefit of the ACP-2 in the pre-revised scale of pay of Rs.10000-15100/- corresponding to the revised pay scale of Rs.13575-37000/-, PB-4 as per the pay scale No.15 of the Part-D of the ROP Rules, 2009 and (ii) to grant the equal pay as drawn by the respondent No.5 who is junior to the petitioner but getting more pay than the petitioner. There is no dispute regarding the basic facts that the petitioner was appointed as the Group-D employee on 15.07.1988 in the scale of pay of Rs.775-1130/-corresponding to the revised scale of pay of Rs.2600-3545/-under the ROP Rule, 1999. On 15.07.1998, the petitioner was moved to the scale of pay of Rs.2650-4350/- on completion of his 10 years of service at the level of Group-D. Thereafter, the petitioner was promoted to the post of LDC on 01.09.2001 in the scale of pay of Rs.3300-7100/- and the petitioner got stagnated in that post and no further up-gradation was given to the petitioner on the ground that by way of his promotion the petitioner has consumed 5[five] pay scales viz. 2750-4925/-, Rs.2900-5660/-, Rs.3050-5910/-, Rs.3200-6030/- and Rs.3300- 7100/-.He will not, therefore, be entitled to further financial up-gradation. The petitioner has challenged that decision of the official respondents by filing this petition.

The other grievance as expressed in this writ petition is that one of the direct recruitees who is admittedly junior to the petitioner, for giving effect to the financial up-gradation has been getting the higher pay than the petitioner. The petitioner has urged this court to direct the respondents to step up the said pay.

[3] Ms. Deb Gupta, learned counsel appearing for the petitioner has submitted that the plea that has been raised by the official respondents is that by the memorandum under No.F.6(1)-FIN(PC)/2008 dated 14.09.2009 [Annexure-3 to the writ petition] the Finance Department issued the following direction:

Sl. No

Point of which clarification sought

Clarifications

10

It is noticed that in a few isolated cases in certain Departments as employee entered in the pay scale of Rs.3300-7100/- got promotion to the scale of Rs.4200-8650/-. Thereafter he got CAS benefit and moved to the scale of Rs.5000-10300/-. After revision under TSCS (RP) Rules, 2009, and on completion of 25 years of service without further promotion, if he claims to get the benefit of 3rd ACP for moving to the Grade Pay corresponding to pre-revised pay scale of Rs.5500-10700/-, whether it is permissible

The claim of 3rd ACP in the instant case for moving to Grade Pay against pre-revised scale of Rs.5500-10700/- is not admissible on the ground that while entering in the prerevised pay scale of Rs.5000- 10300/-, he had consumed 3 scale upliftment i.e.4000- 7890/-, Rs.4200-8650/-, Rs.5000-10300/-

[4] Ms. Deb Gupta, learned counsel appearing for the petitioner has submitted that this court has decided this controversy in Harisadhan Adhikari vs. State of Tripura and others [judgment and order dated 29.05.2015 delivered in W.P.(C) No.371 of 2014] where it has been categorically observed as follows:

"The above clarification issued by the Finance Department of the Government of Tripura cannot override the provisions of Rule 10(2) of the ROP Rules, 2009. Rule 10(2), has a force of law but the clarification as mentioned above in Annexure-II to the counter affidavit has not force of law. The clarification, therefore cannot take away the right of the petitioners which is prescribed by rules. Rule 10(2) clearly prescribes that one ACP or one promotion should be considered as one unit and because of one promotion the petitioners jumped one pay scale they cannot be said that they got the benefit of two scale upgradation and therefore they shall be deprived of the second ACP."

[5] Further, by the judgment dated 17.04.2019 delivered in W.P.(C) No.962 of 2018 [Bipul Ranjan De vs. State of Tripura & Ors.] this court had occasion to observe thus:

"11. On appreciation of the submissions as advanced by the learned counsel for the parties and having verified the records produced in the proceeding, the solitary question that emerges in this writ petition is that whether Rule 10(2) which provides the mode of determining the eligibility of the government employee under ACP has been encroached by the clarificatory note at serial No.10 [as reproduced above] or in other words, whether there can be any "deemed consumption" of financial benefits under ACP. Sub-rule-2 of Rule 10 of the ROP Rules, 2009 it has been unambiguously provided that each case of promotion or scale upgradation availed by the employee after his direct entry in the cadre where he is serving or as the case may be in the post/service of a department will be treated as consumption of one ACP. That shall invariably mean that for those employees who entered the cadre service through promotion, the benefit of that promotion along with promotion/scale up-gradation availed by him before entry into cadre service will be counted as consumption of ACP. By the said clarificatory note it has been illustrated that an employee who entered in the service in the pay scale of Rs.3,300-7,100/- and got promotion to the scale of Rs.4,200-8650/- and thereafter he got CAS benefits moving to the scale of Rs.5,000-10,300/-, whether after revision of the scales by ROP Rules, 2009, on completion of 25 years of service without further promotion, the employee can get ACP-3 by moving to the grade corresponding to prerevised pay scale of Rs.5500-10700/-? Such claim of ACP-3 according to the clarification is not admissible on the ground that while entering into the pre-revised pay scale of Rs.5,000-10,300/- he had „consumed‟ three scale advancement i.e. Rs.4,000-7,890/-, Rs.4,200-8,650/-, Rs.5,000- 10,300/-. This definitely comes in conflict with the mode as prescribed under Rule 10 of the ROP Rules, 2009. By clarification, substantive provision cannot be made otiose. Even the respondents did not assert that while fixing the pay of the petitioners in the scale of pay of Rs.5000-10,300/- for the post of Naib-Subedar, they were given the benefit of intermediate scales as referred in their reply. In view of Rule 10(2) of the ROP Rules, 2009 there cannot be any proposition of "deemed consumption‟. That should be actual consumption by carrying forward the benefit for all purposes. The intermediate scales between Rs.3,300-7,100/- and Rs.5,000-10,300/- were not consumed by the petitioners. They did not carry forward any benefit of those pay scales intermediate of Rs.4,000-7,890/- and Rs.4,200-8,650/-. Thus the clarificatory note is read down. By virtue of promotion to the post of Nayeb Subeder the petitioners have consumed one unit of financial up-gradation and thus, they are entitled to further benefits in terms of Rule 10 of the ROP Rules, 2009."

[6] This observation made in Bipul Ranjan Dey (supra) is squarely applicable in the present controversy. For purpose of reference, Rules 10(1) & 10(2) of the said ROP Rules are reproduced below:

"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 up-gradation including promotion up to 3, 2 & 1 respectively already.

(2) While determining eligibility of the Government employees under this ACP, it should be considered how many times the concerned employee got the benefit of scale up-gradation including promotion after his direct entry into the service in the State Govt. or, as the case may be, after his direct entry into the cadre service of the State Govt. in which he is presently serving. Each case of promotion or scale up-gradation availed by him after his direct entry into cadre where he is presently serving or, as the case may be, in the post/service of a Department will be treated as consumption of one ACP. This will mean that for those employees who entered the cadre service through promotion, the benefit of this promotion along with promotion/scale up-gradation availed by him before entry into the cadre service will also be counted as consumption of ACP." [Emphasis added]

[7] This court does not have any amount of hesitation to hold that the stand taken by the official respondents in the reply is grossly absurd within the arrangement of the ROP Rules, 2009. However, Mr. Debbarma, learned Addl. G.A. has submitted that those intermediate scales be treated as the consumed of the ACP and as such, no scale advancement is due to the petitioner. This court can hardly accept such analogy in view of the decision taken by this court in respect of the applicability of the clarificatory memorandum dated 14.09.2009 [Annexure-3 to the writ petition] and hence, the contention as raised by the official respondents stand discarded. Since the petitioner is now in the scale of pay of Rs.5310-24000/-, Pay Band-2 with Grade Pay Rs.1800/-[pre-revised], it has to be deemed that the petitioner is, for his scale advancement on 15.07.1998 and the promotion on 01.09.2000, on completion of 25 years of service entitled to get 3rd ACP to the next grade pay in the same pay band. Since Ms. Deb Gupta, learned counsel appearing for the petitioner has submitted that if 3rd ACP is released in favour of the petitioner, there would be no disparity of pay with his junior, the respondent No.5., this court has inclined to not make any observation on the prayer of stepping up. However, in any event, if the said issue revisits the petitioner, he will be at liberty to approach this court or to the competent authority for purpose of stepping up.

Having observed thus, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.