Karabi Debnath And Ors vs Tripura Legislative Assembly And Ors

[1] The petitioner is a former employee of the Tripura Legislative Assembly. He has filed this petition with multiple prayers which can be summarised as thus:

(i) For revision of his pay for the period between 01.01.2006 to 31.08.2009, pursuant to office memorandum dated 19.12.2012 issued by the Finance Department of Government of Tripura as adopted by the Tripura Legislative Assembly (for short, TLA).

(ii) To direct the respondents to re-fix the pension of the petitioner after taking into account additional increment of Rs.560/- which was granted to the petitioner till his retirement.

(iii) To revise the pension of the petitioner on the basis of revision of pay pursuant to the said office memorandum dated 19.12.2012.

(iv) To set aside an order dated 04.08.2016 under which it has been decided to place the petitioner in revised pay fixation in the scale of Rs.5,500 - 10,700/- w.e.f 14th March, 1996.

(v) To prevent the respondents from making recovery of any excess payment of salary of pension paid to the petitioner.

[2] Briefly stated the facts are as under:

The case of the petitioner is that he was appointed as a Librarian in the Tripura Legislative Assembly Secretariat on 08.06.1990. He was thereafter promoted to the post of Senior Librarian and Senior Research Assistant and thereafter as Head Librarian-cum-Research and Reference Officer, which promotion he was granted on 31.07.2006. He retired on superannuation w.e.f. 31.08.2009.

[3] According to the petitioner as per the rules, he was granted an additional increment of Rs.560/- w.e.f. 01.01.1992 since he had acquired additional qualification of Post Graduation Degree in Bachelor of Library & Information Science. However, at the time of fixation of the pension of the petitioner, the respondents considered his basic pay at Rs.30,350/-instead of Rs.30,910/- by ignoring the increment of Rs.560/-. Despite representations from the petitioner, the respondents did not rectify this error. Instead, the respondents made inquiries about the source of granting this additional increment. The Senior Accounts Officer wrote to the Deputy Secretary, TLA on 01.01.2010 in which it was stated that in the service book of the petitioner there is an entry that he has been granted one additional increment, however, no supporting document from the Government is found in the service book. The Finance Department may, therefore, furnish the order on the basis of which such additional increment had been granted.

[4] According to the petitioner the Tripura State Civil Services (Revised Pay)(Sixth amendment) Rules, 2012 issued by the Government of Tripura which provided that the pay of the employees would be re-fixed w.e.f. 01.01.2006 by applying multiplier of 1.86. These Rules were adopted by TLA despite which the petitioner was not given the benefit of revision of his pay from 01.01.2006 till his retirement on 31.08.2009.

[5] It appears that the respondents carried out a vigilance inquiry which culminated into passing of the impugned order dated 04.08.2016. This order was passed after the petition was filed. The petitioner has been allowed to amend the petition and include challenge to this order also. In this order, the Secretary of TLA has recorded that pay fixation done in case of the petitioner was on the basis of fabricated Government gazette notification which has been cancelled and his pay would be fixed in a scale of Rs.5,500 - 10,700/- w.e.f the date of his joining the post as Senior Librarian on promotion.

[6] In brief, the grievances of the petitioner are that he was granted an additional increment of Rs.560/- since he acquired the qualification of Post Graduation in Library Science. This increment which was granted in the year 1992 continued throughout his service till retirement. At the time of fixation of pension this increment was not taken into account. His second grievance is that the respondents have not granted benefit of revision of pay w.e.f 01.01.2006 till his retirement. His last grievance is with respect to the order dated 04.08.2016 by which on the ground that his pay fixation was on the basis of fabricated Government gazette notification, the same has been modified with retrospective effect of his date of promotion as Senior Librarian.

[7] The case of the respondents on the other hand is that additional increment was granted to the petitioner w.e.f 01.01.1992 without any supporting government order. Since no government order was found on record, it was decided that this additional increment should be withdrawn. Despite directives being issued to this effect to the Office Superintendent and dealing assistant, no steps were taken. Disciplinary action is, therefore, initiated against such erring officials. Further, the respondents do not dispute that the petitioner is entitled to revision of pay w.e.f 01.01.2006 as per the amendments in the Rules made by the Finance Department as adopted by the TLA. However, it is contended that there was dispute about the petitioner's pay fixation in the existing scales. His pay was fixed in the scale of Rs.6,500 - 12,300/- which was meant for a gazetted post. Since the petitioner did not hold the gazetted post, his pay ought to have been fixed in the scale of Rs.5,500 - 10,700/-. According to the respondents, the pay of the petitioner was fixed in the higher scale on the basis of fabricated documents. When this came to light, an internal inquiry was carried out which culminated into passing of the said order dated 04.08.2016. In this context, it is stated as under:

"10 (b). That, as per Tripura Civil Service (Revised) Sixth amendments Rule, 2012 issued under Memo. No.-F.6(1)-FIN(PC)/92(PI) dated 19-12-1992 of the Finance Department the pay of all employees were re-fixed by multiplying with a factor of 1.86 to the existing basic pay as on 01.01.2006. But since a confusion has been arisen as regards drawal of excess salary & allowances by Sri Debnath the then Head Liabrarian-cum-Research & Ref. Officer in the scale of Rs.6,500/- - Rs.12,300/- instead of Rs.5,500/- - Rs.10,700/- revised pay Band-3 allowing Notification No.-F.6(1)-FIN(PC) dated 17-11-2004 which does not show the post as Gazetted. Accordingly the Superintendent of Police (Vigilance) West Tripura Agartala has been requested to make an enquiry into the matter. With a view to fix the responsibility of concern employee for providing the pay scale of Rs.6,500 - 12,300/- by showing Notification received on 25-11-2014 which was not genuine and on the basis of which financial benefit had been given to him on misrepresentation of fact on fake Notification. The logic behind initiating action against Sri Satish Debnath, Head Liabrarian-cum-Research & Ref. Officer (now retired) after a lapse of 10(ten) years is that on receipt of Notification No.-F.6(1)-FIN(PC) dated 17-11-2004 allegedly from the Finance Department, he was promoted to the post of Senior Librarian from the post of Liabrarian and his salary and allowances was fixed in the pay scale of Rs.6,500 - 12,300/- as adopted by the authority of this Secretariat Vide Notification No. F.1(886)-LA/99-A dated 27-01-2005. But as per Recruitment Rule the post of Senior Librarian is Non-Gazetted and the pay scale has been prescribed Rs.5,500 - 10,700/- (Pre-Revised) and Revised pay Band-3 in the pay Scale of Rs.9,570- 30,000/- (Grade Pay Rs.2600/-).

10 (c). That, the original Gazette was consulted by this Secretariat and the Notification was collected from the Finance Department, Government of Tripura. It appears that the post of Senior Librarian earmarked as Gazetted wherein the Notification No.-F.6(1)-FIN(PC) dated 17-11-2004 received by our Receipt section on 25.11.2004 does not show the post as Gazetted. It is clear that the Salary and allowances of Sri Debnath was re-fixed to the post of Senior Librarian in the scale of Rs.6,500 - Rs.12,300/- (pre-revised) as adopted by the authority of this Secretariat which is found not admissible as per Rules. The Finance Department, Government of Tripura also expressed their valuable opinion stating that the said Notification received by our Receipt Section on 25-11-2004 is not genuine.

Since the matter was referred to Vigilance Department for enquiry and after receipt of Vigilance Enquiry Report, the answering respondent have already taken steps for updating the Service Book for re-fixation of pay in the pay Band of the petitioner by multiplying with a factor of 1.86 to the existing basic as on 01.01.2006.

10 (d). That, it appears that under its Note No.83 dated 29-01-2005 the Tripura Legislative Assembly Secretariat adopted Notification No.-F.6(1)-FIN(PC)/98 dated 17-11-2004 of the Finance Department, Government of Tripura Vide Notification No. F.1(886)-LA/99-A dated 27-01-2005 on the basis of Notification No.-F.6(1)-FIN(PC) dated 17-11-2004 allegedly received from the Finance department and the salary and allowances of Sri Debnath, the then Head Librarian-cum-Research & Reference Officer was fixed in the Rs.6,500 - 12,300/- showing as non-Gazetted though the post of Sr. Librarian earmarked as Gazetted wherein the Notification No.-F.6(1)-FIN(PC)/98 dated 17-11-2009 received by our Receipt Section on 25.11.2004 does not show the post Gazetted. It is clear that there was some manipulation on the Notification received by this Secretariat on 25.11.2004 on the basis of which the salary & allowance of Sri Debnath was re-fixed to the post Sr. Liabrian in the pay scale of Rs.6,500 - 12,300/-."

[8] We may deal with the petitioner's three separate grievances in seriatim. Insofar as not counting the additional increment of Rs.560/- for pensionary benefits is concerned, we may recall, such additional increment was granted to the petitioner w.e.f. 01.01.1992. According to the petitioner, such increment was released since he had acquired the higher educational qualification of Post Graduation degree in Bachelor of Library & Information Science. Undisputedly, this increment was never withdrawn till the petitioner retired w.e.f. 31st August, 2009. Right from the year 1992 till the August, 2009 thus the petitioner received the said benefit of additional increment. The only ground now raised by the respondents for not giving benefit of this increment in petitioner's pension is that there was no matching order passed by the Government which was available in the service book of the petitioner. For several reasons, this defence of the respondents cannot be accepted. Firstly, the respondents in the reply have nowhere stated that the petitioner did not acquire the higher qualification or that there was no Government policy for grant of an additional increment in favour of those who acquired such qualification. The additional increment which was granted to the petitioner in the year 1992 and which continued to be reflected in his pay fixations all throughout till he retired on 31st August, 2009, cannot be ignored on this flimsy ground. The petitioner cannot be asked to produce a Government order in his service book on the basis of which such additional increment was granted, that too more than two decades after the same was allowed. The respondents have not alleged any misrepresentation or fraud on the part of the petitioner in claiming such additional increment. Merely because, the Government order clearing such increment is not found in the petitioner's service book cannot be the reasons for ignoring the benefit for the fixation of the pension of the petitioner.

[9] Coming to the question of revision in the petitioner's pay from 01.01.2006 till his retirement and thereafter his pension on the basis of revision of pay scales, the respondents also do not dispute that the petitioner is entitled to such benefits. However, it appears that the same could not be done on account of serious dispute with respect to the petitioner's pre-revised pay fixation. As noted, according to the department, the pay of the petitioner was wrongly fixed in the scale of Rs.6,500 - 12,300/- instead of Rs.5,500 - 10,700/-. It appears that the respondents, therefore, have fixed the pay of the petitioner in revised scale corresponding to the lower scale of pay which has aggrieved the petitioner.

[10] This issue overlaps with the question of correct pay fixation of the petitioner in the pre-revised scale. As noted, according to the respondents he was wrongly granted the scale of Rs.6,500 - 12,300/- (pre-revised) on the post of Senior Librarian which was not a gazetted post and, therefore, ought to have carried the pay scale of Rs.5,500 - 10,700/-. In this context, the respondents claimed that fixation of the pay of the petitioner in the higher scale was not a mere error but was of forged document incorrectly showing that the post was a gazetted post whereas in reality being a non-gazetted post the pay prescribed to the same was to the lower scale of Rs.5,500 - 10,700/-.

[11] In this respect, the respondents have passed the said order dated 04.08.2016 which is not only stigmatic, but also results in serious adverse civil consequences to the petitioner. The order alleges that the fixation of pay of the petitioner in the higher scale on fabricated Government gazette notification. The same was, therefore, cancelled. The pay of the petitioner would be fixed to the scale of Rs.5,500 - 10,700/-. The order also provides for recovery of the excess payment. All these adverse consequences would fall on the petitioner on the basis of the allegations that he was granted higher pay scale on the basis of fabricated documents, without a semblance of hearing being granted to him. The respondents in the affidavit have stated that the issue was extremely confusing and assistance had to be sought from the Finance Department of the Government. Thus factually, the issue was far from being clear.

[12] While such a factually contested issue is decided by the respondents and the decision results into a stigmatic order carrying adverse civil consequences is passed, it was absolutely necessary that the petitioner should have been given a hearing before passing any such order. Admittedly, this is not being done in the present case.

[13] Under the circumstances, the petition is disposed of with following directions:

(i) The respondents shall count the petitioner's additional increment of Rs.560/- for the purpose of his pensionary benefits. There shall be no recovery of salary and allowances in relation to such increment.

(ii) The impugned order dated 04.08.2016 is set aside. The respondent No.1 shall issue a notice to the petitioner indicating briefly the reasons why it proposes to re-fix the salary of the petitioner in the lower scale of Rs.5,500 - 10,700/- giving reasonable time to the petitioner to respond to such proposal. After considering the representation that the petitioner may file in response to such a notice, it would be open for the State respondents to pass a fresh order in accordance with law. Once, this order is passed, the question of grant of revision of pay w.e.f. 01.01.2006 would be addressed by the respondents on the basis of the conclusion arrived in such order.

(iii) After this exercise is completed, the respondents shall re-fix the pension of the petitioner from inception by granting additional increment which has been so far ignored. While doing so, the fresh order pursuant to the directions contained in above sub-para (ii) may also be given effect to. Entire exercise may be completed within a period of six months from today.

[14] The petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.