Kalyani Saha vs State Of Tripura And Ors

The petitioner has prayed for a direction to step up her pay to the level of the respondent No.4 from the date pay anomaly had arisen.

Brief facts are as under:

The petitioner joined the service under respondent No.3, the Director of Health Services, Government of Tripura as a Multipurpose Worker (Female) on 03.12.1986. She was thereafter promoted to the post of Multipurpose Supervisor (Female) on 04.02.2011. In comparison, the respondent No.4, who also joined the same department as Multipurpose Health Worker (Female) and was junior to the petitioner in the said cadre has so far not been promoted till date.

As per the Government policy and the relevant Rules, the petitioner as well as the respondent No.4 have been granted the benefits of Career Advancement Scheme („CAS‟, for short) / Assured Career Progression („ACP‟, for short) from time to time. The petitioner as well as respondent No.4 were both granted the benefit of ACP after completion of 10 years of the respective services. The petitioner and respondent No.4 both received benefits of ACP II on completion of a further period of 7 years without promotion. If no further promotion is granted, the employee would be entitled to the benefit of 3rd ACP. In case of the petitioner, however, she was promoted to the post of Multipurpose Supervisor on 04.02.2011, before the period of 8 years after grant of ACP II was over. In view of such promotion, the petitioner was not entitled to 3rd ACP. On the other hand, the respondent No.4 did not receive promotion before completion of period of 8 years and she was therefore granted the benefit of 3rd ACP upon completion of total service of 25 years. The petitioner would point out that on account of this, the basic pay of the respondent No.4 upon grant of ACP III, was fixed at Rs.19,930/- whereas at the same stage, basic pay of the petitioner was Rs.18,450/-. According to the petitioner, since the junior is drawing more pay than her, this is a case for removal of anomaly by stepping up of pay. It is in this context, the petitioner has prayed for above noted directions.

The respondents have appeared and filed reply in which it is pointed out that since the petitioner and respondent No.4 are not holding the same post, the principal of stepping up of pay would not apply. It is pointed out that upon her promotion to the post of Multipurpose Supervisor, she ceased to belong to the cadre of Multipurpose Health Worker, which cadre the respondent No.4 belongs to. In fact, it is also disputed that the basic pay of respondent No.4 was fixed at Rs.19,930/- immediately upon grant of ACP III. It is clarified that the pay of respondent No.4 itself was upgraded to bring at par with her junior one Mira Rani Ghosh with effect from 01.09.2014, in terms of Second Proviso to sub-Rule 6A of Rule 14 of Tripura Civil Services (Revised Pay) Rules, 2013. In any case, the respondents contended that this is not a case where the pay of the petitioner can be stepped up to the level of respondent No.4.

Having heard learned counsel for the parties, I find that the relevant facts are not seriously in dispute. The petitioner and respondent No.4 joined the same cadre of Multipurpose Worker in which cadre, the respondent No.4 was junior to the petitioner. Both of them received the benefits of ACP I and II upon completion of 10 and 7 years of service respectively without promotion. Before the petitioner became eligible for 3rd ACP after completion of further 8 years of service, in the year 2011, she was promoted to the post of Multipurpose Supervisor. As against this, the respondent No.4 continued to be in the cadre of Multipurpose Worker. She was therefore granted the benefit of 3rd ACP. I do not think this is a case where the benefit of stepping up of the pay can be granted to the petitioner. The very basic requirement of both senior as well as junior must be holding the same promotional posts for consideration of stepping up of pay is not satisfied in the present case. Sub-Rule (6) of Rule 14 of ROP, 2009 pertains to stepping up of pay and 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 refixation of pay notionally from the date of arising such anomaly but with financial benefit from 01-01-2009."

In fact, it appears that the pay of the respondent No.4 herself was stepped up to the level of her junior on account of arising of pay anomaly as for the reply of the respondents. This was grant on the basis of the second clause to sub-Rule 6A to Rule 14 of the Tripura State Civil Services (Revised Pay) Rules, 2009 inserted by virtue of Tripura State Civil Services (Revised Pay) (Eighth Amendment) Rules, 2013. The said Clause reads as under:

"(ii) Where in the fixation of pay under Rule 10(7) & 12, senior employee, who gets his pay fixed in the revised pay structure with increment @ 2.5% along with available Grade Pay on ACP/promotion/both during the period from 01-01-2006 to 30-06-2010, is drawing lesser pay compared to his junior who gets his pay fixed in the revised pay structure with increment @ 3% and available Grade Pay on the same occasion on or after 01-07-2010;"

Thus there were reasons other than those specified in Sub Rule 6 of Rule 14 which was the cause of pay anomaly. Each and every case of anomaly in pay cannot be removed by stepping up of the pay of the senior. Such a request must fall within the four corners of statutory provision.

At this stage, we may refer to a decision of this Court in case of Sri Bidyut Kumar Deb vs. The State of Tripura and another, W.P. (C) No.1303 of 2017. In the said case, the petitioner, who belonged to the unreserved category, was granted the benefit of CAS 1 in the year 2007 on the post of Assistant Investigators. The petitioner was promoted to the post of Investigators on 09.03.2010. Some of the juniors in his cadre but who belonged to ST category were promoted to the post of Investigators in the year 2004 i.e. ahead of the petitioner. They got such promotion without getting the benefit of CAS I. They directly got CAS 2 upon completion of 7 years of service in the promotional post. On the other hand, the petitioner who had received the benefit of CAS 1 in 2007 and promotion in the year 2010 was held not entitled to receive independent benefit of CAS 2. On account of this situation, the petitioner, who was drawing less pay than his juniors, first applied to the department for stepping up of his pay. His request was initially granted but thereafter, the benefit of stepping up of pay was withdrawn. At this stage, the petitioner approached the High Court. In this context, interpreting Rule 14 of ROP, 2009, it was observed as under:

"[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 subrule (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."

Under the circumstances, the petition is dismissed. Pending application, if any, also stands disposed of.