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Judgment
[1] Petitioners seek the benefit of one advance increment as per Rule 13(1)(ii) of Tripura State Civil Services(Revised Pay) Rules, 2009 ("ROP 2009" for short).
[2] This petition arises in following background :
All the petitioners were appointed as Post Graduate Teachers on different dates in Government schools. The petitioner No.1 was appointed on 1st August 2007, petitioner No.2 on 10th August 2006, petitioner No.3 on 21st November 2005, petitioner No.4 on 1st August, 2007 and petitioner No.5 on 30th March, 2007. As per the Government policy, they were granted fixed pay for the initial 5 years of their service by keeping regular posts in abeyance. Upon completion of the period of 5 years they were brought over to the regular pay scales. At the time of their initial entry as Post Graduate Teachers, all the petitioners had the degree of B. Ed. which was a qualification higher than the entry level qualification for the post in question.
[3] Under Tripura State Civil Services(Revised Pay) Rules, 1999 ("ROP 1999" for short), the Tripura Government had made rules for granting incentive for Teachers taking in-service training of prescribed nature which included the degree of B.Ed. ROP 1999 were replaced by ROP 2009. The rules were promulgated on 1st January, 2009 but were brought in effect w.e.f 1st January, 2006. Rule 13 of ROP, 2009 pertained to training incentive. Relevant portion of this rule reads as under :
"13. Training Incentive :- (1) In supersession/modifications of existing circulars, notifications issued from the State Government relating to training incentives, the following provisions are made :
(i) Those teachers who had obtained B.Ed degree/UGBT certificate between the period from 01.01.1986 to 31.12.1995 after expiry of 7(seven) years of service but did not get any benefit of training incentive shall be provided one increment in the pre-revised scale on 01.01.2006 or from the date of coming over to these rules for the purpose of revision of their pay under these rules.
(ii) Those teachers who had obtained B.Ed/UGBT certificate before entry in the service and had not got any other form of training incentive shall also be provided one increment in the pre- revised scale as incentive on 01-01-2006 or from the date of coming over to these rules or from the date of his appointment whichever is later for the purpose of revision under these rules.
.............................
(v) In respect of following categories of employees the existing system of providing training incentive in the form of one increment is replaced with lump sum incentive grant indicated in table below :
Category of training
Category of employee
involved
Duration of training
Lump sum incentive
amount.
B.Ed.
Teacher
One year
Rs.3000/-
T.Ed
Teacher
Six months
Rs.2000/-
CETE
Teacher
Six months
Rs.2000/-
UGBT
Teacher
One year
Rs.2500/-
CPE
Teacher
Six months
Rs.1500/-
VLW training
Agri Asst.
1+1 = 2 years
Rs.2500/-
Forestry training
Forester
One year
Rs.2500/-
B.P.Ed.
PI(recruited
under old RR)
One year
Rs.3000/-
Accounts
Clerks
Six months
Rs.2000/-
Note : This system of providing lump sum incentive grant will take effect from 1st January, 2009 for all cases who have completed training on or after 1.1.2009."
[3] A cursory perusal of this rule would show that it replaced the earlier system of granting training incentives, that the rule provided a complete code for consideration of any question of training incentive and was a standalone rule.
[4] The case of the petitioners is that having entered the Government service as Teachers with B.Ed degree, their cases were covered under Rule 13(1)(ii) and accordingly, they should have been granted one advance increment.
[5] According to the petitioners, clause (v) of Rule 13(1) of ROP 1999 would apply only to Teachers taking higher training while in service. In any case, all the petitioners were already in service prior to 1st January, 2009 which is the cut-off date for applicability of sub-rule (v). The petitioners have disputed the Government clarification contained in memorandum dated 6th July, 2011 in which it is provided that an employee who had obtained training after 1996 and thereafter was appointed on fixed pay basis during the period between 1st January, 1996 to 31st December, 1998 but brought over to regular appointment after 31st December 2008, in his case, training incentive will not be payable. Instead they would be entitled to lump sum payment as and when brought over to regular scales after 1st January, 2009.
[6] On the other hand, the case of the Government is that all the petitioners were engaged on fixed salary basis when ROP 2009 were promulgated. In terms of Rule 2(d) of ROP 2009, such employees would not be covered by the said Rules. They would be governed by the rules only upon being brought over to regular scales. In case of the petitioners, this happened only after 1st January, 2009 and therefore, they were entitled to lump sum payment in terms of Rule 13(1)(v) of ROP 2009. They have been paid such lump sum which they have accepted without protest.
[7] Learned counsel for the petitioners clarified that only petitioners No.1 and 3 have been paid such lump sum, that too without informing them directly remitting the amounts in their accounts. The Government, therefore, cannot raise the issue of estoppel against the petitioners.
[8] The petition throws up an interesting question of interpretation and interplay of clauses (ii) and (v) sub-rule (1) of Rule 13 of ROP 2009. The language used in both sub-rules is open to interpretation. We shall therefore have to take external aid for interpreting these rules. If one traces the origin of granting training incentive to Teachers, it would appear that by Tripura State Civil Services(Revised Pay)(First Amendment) Rules, 1999 promulgated under notification dated 5th March 1999, the concept of training incentive for the Teachers was introduced by amending Rule 10 of ROP 1999. Rule 10 pertained to Carrier Advancement Scheme(Modified) which would be brought into effect from 1st January, 1999. This Rule envisaged grant of carrier advancement to those employees who stagnated for specified number of years of service in the cadre for want of promotional vacancies. This rule contained two notes clarifying the situation under which such benefits shall be granted. Note - 3 was added to below existing Note - 2 by the said first amendment in the ROP 1999 which reads as under :
"Training Incentive - The Asstt. Teachers, Foresters, Agriculture Asstt./V.L.W., Fisheries Asstt., Junior Physical Instructor, Junior Coach of Sports Department and A.R. Development Asstt. will be granted one advance increment (instead of higher scale, if exist now) on successful completion of prescribed departmental training. However, the higher scale will be granted under CAS like others. Those who availed themselves of the benefit of higher scale on completion of training, will not be entitled for further training incentive on the date of completion of training."
[9] Under this amendment thus, the Government of Tripura introduced a concept of granting one advance increment on successful completion of prescribed departmental training. Thus, this incentive was available only to the Teachers who obtained prescribed qualification while in service and had no reference to those teachers who may already be possessing the qualification while entering the service. ROP 1999, as noted, were replaced by ROP 2009. Rule 13 of ROP 2009 made detailed provisions for training incentive. Clause (ii) of sub-rule (1) of Rule 13, it appears, introduced for the first time the concept of advance increment to a Teacher who entered the service with higher qualification. Such incentive would be available even to a teacher already existing in service at the time of promulgation of ROP 2009 or even on 1st January, 2006 but the actual benefit would be available from 1st January, 2006 or from the date coming over to the ROP 2009 or from the date of the initial appointment of the teacher whichever is later.
[10] Clause (v) of sub-rule (1) of Rule 13, on the other hand, refers to lump sum training incentive replacing the provision for one increment for the specified categories of the employees which included teachers with B.Ed, T.Ed., CETED degrees etc. The note below clause (v) is also significant and provides that the system of providing lump sum incentive will take effect from 1st January, 2009 for all cases who have completed training on or after 1st January, 2009.
[11] Insofar as the stand of the Government that as on 1st January 2006 the petitioners were not covered by ROP 2009 is concerned, I find no difficulty in accepting it. Rule 2 of ROP 2009 pertains to its applicability. Sub-rule (1) of Rule 2 provides that unless otherwise provided under the rules, the said rules shall apply to persons appointed in regular scales of pay to services and posts in connection with the affairs of the State of Tripura. Sub-rule (2) of Rule 2 provides that unless specifically extended under the express order of the Government, the said rules shall not apply to various category of persons mentioned in clauses (a) to (h) of the said sub-rule. Clause (d) pertains to persons paid on monthly fixed pay basis including those paid only on piece rate basis. As on 1st January 2006 all the petitioners were engaged on fixed pay basis and thus, by virtue of clause (d) of sub-rule (2) of ROP 2009 the said rules did not apply to them. Considering the initial date of engagement of these petitioners, they had not completed 5 years till 1st January, 2009 and thus, as on 1st January, 2009 also these petitioners were not covered by ROP 2009. It is in this context, question of applicability of clause (ii) or clause (v) of sub-rule (1) of Rule 13 has arisen. All these petitioners having completed 5 years of service on fixed salary after 1st January, 2009 and accordingly, having been brought over to regular scales after the said date, can claim advance increment only if even post 1st January, 2009 clause (ii) of sub-rule (1) of Rule 13 continued to apply. On the other hand, if the Government's interpretation is correct and post 1st January, 2009 the entire scheme including one envisaged in clause (ii) was replaced, the petitioners can only claim lump sum payment and not advance increment.
[12] One may recall, clause (ii) of Rule 13(1) introduced the concept of granting one advance increment to those teachers who entered the service with higher qualification of B.Ed. Such increment would be available even to existing employees who may not have got such benefit in the past. The date from which the benefit would be available was 1st January, 2006(which obviously will cover existing teachers) or from the date of coming over to the rules or from the date of appointment of the teacher whichever is later. In other words, even if a teacher is appointed after 1st January, 2006 but possessed qualification of B.Ed at the time of the entry in service, he would be entitled to advance increment in terms of the said clause from their date of appointment. The third situation of being brought over to ROP 2009 can have reference only for those who may have been appointed after 1st January, 2006 but before 1st January, 2009. Thus, the third category of cases where the effective date of grant of the benefit which is the date of appointment, must have a reference to those who are appointed after 1st January, 2009 since, in their cases, there will be no question of a choice of being brought over to the new rules. To my mind, thus there is a clear indication in this rule itself that the same will continue to have effect even after 1st January, 2009.
[13] Let us now juxtapose this position with clause (v) of sub-rule (1) of Rule 13. This clause essentially provides that in respect of the categories mentioned in the said clause of employees existing system of providing training incentive in the form of one increment would be replaced by a lump sum incentive of different sizes depending on the nature of qualification and duration of the training. The note below clause (v) provides that the system of providing lump sum incentive will take effect form 1st January, 2009 for all cases who have completed training on or after 1st January, 2009. If, as is argued by the Government, clause (v) was meant to replace all provisions for training incentives including one provided in clause (ii), the note below clause (v) was redundant. This note includes only those cases where training has been obtained after 1st January, 2009. To elaborate, if the main body of clause (v) were to include every case where the claim for advance increment arises after 1st January 2009, the clarification contained in the note was wholly redundant since it provides that the system of providing lump sum incentive will take effect from 1st January, 2009 for those persons who complete training on or after 1st January, 2009.
[14] Sum total of this discussion is that in my view, the provision for grant of advance increment by way of training incentive to those teachers who entered the service with higher qualifications would continue to operate even after 1st January 2009, however, those who obtained such training after 1st January, 2009 will only be entitled to lump sum payment. The case of the petitioners would fall under clause (ii) since they had obtained B.Ed degrees long before 1st January, 2009. They possessed such degrees when they joined the service. They were brought over under ROP 2009 upon completion of 5 years period from respective dates of initial engagement. They would, therefore, be entitled to the benefit under Rule 13(1)(ii) of ROP 2009, notwithstanding the fact that the event of being brought over Rule 13(1)(ii) of ROP 2009 happened after 1st January, 2009 in each of their cases.
[15] Two issues need to be sorted out before final directions can be issued. Firstly, in facts of the case, the principle of estoppel cannot be applied since it is stated by the petitioner that only 2 out of the 5 petitioners have received even the lump sum payment and in their cases also the same was granted unilaterally by the Government. Second is the question of delay and laches. It is true that these petitions were filed long after the rights of the petitioners to claim increment arose. However, being a matter of correct pay fixation, would have recurring effect. Subject to limiting their past rights, their prayer for grant of advance increment cannot be rejected only on this ground.
[16] In the result, it is provided that all the petitioners would be entitled to one advance increment in terms of Rule 13(1)(ii) of ROP 2009 from the respective dates when they were brought over to regular pay scales. This pay fixation would, however, be for notional purpose till the date of filing of the petition after which they would be entitled to arrears of salary. These directions shall be carried out within a period of 4(four) months from today.
Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.