Mamata Singha Roy vs State Of Tripura And Ors

Heard Ms. S. Debgupta, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharya, learned G.A. appearing for the respondents.

By means of this writ petition, the petitioner who had retired as Upper Division Clerk(UDC) on 31.01.2017 on attaining the age of superannuation has urged this court for directing the respondents to implement the Tripura State Civil Services (Revised Pay) Rules, 2009, ROP Rules, 2009 in short, having due regard to the letter under No.F.6(5)-FIN(PC)/10 dated 20.07.2010 [Annexure-8 to the writ petition]. For purpose of reference, the entire text of the said letter dated 20.07.2010 is reproduced hereunder :

"No.F.6(5)-FIN(PC)/10 GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE Dated, Agartala the 20th July, 2010

The Executive Officer, Tripura Apex Fishery Co-operative Society Ltd./Tripura Apex Marketing Co-operative Society Ltd,; The Managing Director, Tripura-Co-operative Milk Producers‟ Union Ltd,; The Chief Executive Officer Tripura State Co-operative Consumers‟ Federation Ltd./The General Manager, Tripura ST Co-operative Development Corporation Ltd;/ Tripura SC Co-operative Development Corporation Ltd./Tripura OBC Co-operative Development Corporation Ltd./Tripura Minorities Co-operative Development Corporation Ltd.

Subject : Revision of pay structure of employees and workers of 8(eight) State Level Apex Co-operative Societies-guidelines regarding.

Sir/Madam,

I am directed to refer to this Department‟s letter No.F.6(5)-FIN(PC)/2009/239, dated 30.05.2009 and letter No.F.6(5)-FIN(PC)/2008/747, dated 09.10.2009 and to say that under these letters benefit for scale to scale to revision was provided to the PSUs/Cooperative Banks/Apex Cooperative Societies/Autonomous Organizations etc. There was general grievance of the employees of these Organizations for providing revised pay structure in the form of Pay Band and Grade Pay like State Government employees in place of scale to scale revision as provided. Now the State Government feels that the pay and allowances of the employees/workers of your Organizations may be revised under the revised pay structure model of Pay Band and Grade Pay by computing revision of pay structure notionally with effect from 01.01.2006 and giving financial effect from 01.08.2010 onwards i.e. for the salary of August 2010 payable in first September 2010, in strict adherence of terms and conditions including Band Pay and Grade Pay structure incorporated in the Annexure enclosed with this letter. In this respect it is clarified that whatever benefits of scale to scale revision already drawn and due to be drawn for the current month‟s salary i.e. salary of July 2010, payable in 1st August 2010 will be treated as availed. This will not have any relevance to claim for any difference as arrear with proposed revision under Pay Bank and Grade Pay structure.

i) Annexure-A containing existing and revised pay structure as per TSCS (Revised Pay), Rules, 2009;

ii) Annexure-B containing entry pay in the revised pay structure for direct recruits appointed on or after 01.01.2006;

iii) Annexure-C containing existing pay scales and corresponding revised pay structure under the format of band pay and grade pay with Post wise and Organization wise position;

iv) Annexure-D containing Form of option;

v) Annexure-E containing fixation of initial pay in the revised pay structure;

vi) Annexure-F containing Terms and Conditions;

vii) Annexure-G containing Allowances;

In view of the above, I am directed to request you to place the above proposal for revision of pay structure before the Board of Directors/Governing Body/Executive Committee of your Organization for consideration and adoption of the enclosed Annexure. I am further directed to inform you that no deviation under any circumstances should be made in the enclosed Annexures while considering the revision without obtaining prior concurrence from the Finance Department.

In respect of revision of remuneration of fixed pay employees who were recruited in the fixed pay posts created by keeping, abeyance regular posts and wages of DRWs, MRWs, Contingent Workers, Part Time Workers, I am directed to inform further that year Organization may adopt the Memorandum issued from the Finance Department vide No.F.34(2)-FIN(G)/2006 dated 11th May, 2009 subject to condition that financial benefits would be admissible w.e.f. 01.08.2010 onwards.

Illegible

(A.Roy) Joint Secretary to the Government of Tripura"

The said letter was followed by the letter under F.6(5)-FIN(PC)/2008/747 dated 09.10.2009 [Annexure-7 to the writ petition]. By the said letter, the Finance Department had informed that on subsequent consideration and the communications received from the different Public sector units, Co-operative Societies, Autonomous Organization etc., it has been decided that the financial benefit in terms of the revision of pay structure would be available to the employees w.e.f. 01.01.2009 in place of 01.04.2009. It was provided that the bunching benefit of one increment would firstly be available on completion of ten years of service and further benefit would be available on completion of twenty years of service in the form of one increment in the pre-revised pay scale, in terms of the fixation formula. In para-(iii) of the said letter, the Finance Department has provided as under :

"iii) To provide revised pay scale against pre-revised pay scales being enjoyed by some employees/workers by way of CAS, an annexure reflecting complete picture of scale to scale revision covering pay scales of all the PSUs/Cooperative Banks/Apex Cooperative Societies/Autonomous Organizations is enclosed. As stated, the Annexure shows all the scales of all the above mentioned organizations. Since, individually each such organization is not likely to have employees enjoying all the corresponding pre-revised scales, hence the concerned organization shall provide revised pay scales as per the Annexure only to those employees who are borne against the corresponding pre-revised scale."

Having regard to the prayer made in this writ petition, this court would not traverse beyond the revision as carried out in terms of ROP Rules, 2009. No doubt, irrespective of the merit, the challenge is belated one.

There was no controversy that the petitioner was initially appointed in the post of LDC on 07.09.1982 in a scale of pay of Rs.240-440/- which was revised by way of multiple revisions carried out time to time by the respondent No.2 to Rs.8700-17,160/- w.e.f. 01.07.2006. According to the petitioner, on completion of twenty five years of continuous service without promotion in the post of LDC the petitioner was given the benefit of up-gradation in that pay scale taking her scale to Rs.10,400-20,340/-. The petitioner was thereafter promoted to the post of UDC and as stated, she has retired from that post on 31.01.2017. The petitioner has asserted that she was entitled to get the scale of pay of Rs.5,700-24,000/- (pay band-2) with the grade pay of Rs.2,800/- w.e.f. 01.01.2006 as per ROP Rules, 2009 and further she was entitled to get the pay scale of Rs.5,700-24,000/-(pay band-2) with higher grade pay of Rs.4,200/- w.e.f. 07.09.2007 as per ROP Rules, 2009. The petitioner had approached the respondent No.2 on numerous occasions and finally by the notice dated 20.10.2017 [Annexure-10 to the writ petition] the petitioner had placed the demand for release of those two benefits. In response to the said notice dated 20.10.2017 the respondent No.2 by the communication under No.F.185/FFDA/(WT)/2017-18/338 dated 22.11.2017 [Anenxure-11 to the writ petition] has apprised the petitioner, crux of which is reproduced hereunder:

"As there is no concurrence from the Finance Department, Government of Tripura for introducing ROP, 2009 benefit could not be provided to Smt. Mamata Singha Ray."

The Department of Fisheries, the nodal department, by their communication under No.F.2(7)-FISH(ESTT)/2015-16/35,252-56 dated 21.10.2016 [Annexure-12 to the writ petition] had communicated the respondent No.2 as under :

"In reference to the above, this is to inform you that earlier the Finance Department has regretted the matter/proposal for adopting Grade Pay + Pay Bank under ROP 2009 of the employees working under West Tripura Fish Farmers' Development Agency. So the matter are not being entertained by the Department as there is no such concurrence of the Finance Department."

The respondents by filing the reply on 12.10.2018 have reiterated that the decision of the Finance Department as was communicated by the nodal department to the petitioner. That apart, they have asserted that the formation of the Fish Farmers‟ Development Agencies (FFDA, in short) in 1978, 1979 and 1982 in three districts was carried out under Central Sector Scheme (CSS) on 50:50 share basis. The Central Government used to bear 50% of the total fund required for managing the FFDAs. The respondents have admitted that "the staff of the FFDA were allowed revised pay scale as like the State Govt. employees. But in the year, 2005 the Central Govt. declined to bear the expenses of salary etc. of FFDA staff and then onwards the entire burden of the salary of FFDA staff fell upon the State Government."

Thus, it became difficult to cope with the additional financial burden and that deterred the state government in implementing the revision of pay scale in terms of ROP Rules, 2009.

Mr. D. Bhattacharya, learned G.A. appearing for the state government has drawn notice of this court towards the letter dated 20.07.2010 to show that the said letter did not include FFDAs as a matter of policy as the state government had allowed them a revised pay scale (scale to scale) separately, instead of revision of pay structure under the pay band system.

Ms. S. Debgupta, learned counsel appearing for the petitioner has contested claim that the state government has no capacity to provide such benefit. According to her, the petitioner is entitled to get all such benefit like the employees of the other bodies or PSUs whose names are catalogued in the letter dated 20.07.2010. FFDAs according to her are entitled to 100% grant in aid from the Government of Tripura.

There is no dispute that FFDAs are societies funded by the Central Government and the State Government. Even though the petitioner has denied that the Central Government has stopped funding FFDAs since 2005, but no records in this regard has been placed before us. As such, this cannot brush aside the statement of the state government for any reason.

The pertinent question that arises in this writ petition is whether this court can issue a direction upon the respondents to give the petitioner the benefits of revision of pay structure under the pay band system and its subsequent benefits as brought about by the subsequent revisions.

Per se the employees of FFDAs cannot be treated as the state government employees. Even this court cannot direct the state government or the respondent No.2 to release the benefit to the petitioner in terms of ROP Rules, 2009 or under pay revision introduced by the pay band system, inasmuch as that would be an intrusion to the fiscal management. The respondents have taken a stand that to provide the fund for introducing the scale to scale revision was an uphill task. To take a decision involving an additional financial burden falls within the exclusive executive domain. In this regard, a decision of the apex court would gainfully be referred. In A.K. Bindal and Another versus Union of India and Others reported in (2003) 5 SCC 163, the apex court has held that the identity of the government company remains distinct from the government those are brought under a special system of control. Even the employees of the government companies are not civil servant and hence they are not entitled to protection afforded by Article 311 of the Constitution [see Pyare Lal Sharma versus Managing Director : (1989 3 SCC 443)] . Thereafter, it has been succinctly held as under :

"Since employees of government companies are not government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be met by the Government. Being employees of the companies it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale, the petitioners cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales."

The contention of Ms. Debgupta, learned counsel is that the FFDA is bound by the state government„s action to revise the pay scale of the petitioner. According to her, the revision of the pay structure introducing the pay band system or the further revisions as made thereafter be implemented in FFDAs. The financial hardship cannot be a plea when the revision of pay scale of the employees has caused in other organizations by waiving that plea of hardship, the same plea cannot be taken to disentitle the employees of FFDAs. As in A.K. Bindal (supra) this question has been answered, this court is bound by the said law as expounded by the apex court. For purpose of reference, the following passages are reproduced from A.K. Bindal (supra) :

"19. The contention that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees, does not appeal to us. The question of revision of wages of workmen was examined by a Constitution Bench in Express Newspapers Ltd. & Ors. v. Union of India & Ors : AIR 1958 SC 578 having regard to the provisions of Industrial Disputes Act and Minimum Wages Act and the following principles for fixation of rates of wages were laid down :

"(1) that in the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstance to be taken into consideration except in cases of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity ;

(2) that the capacity of the industry to pay is to be considered on an industry-cum-region basis after taking a fair cross section of the industry; and

(3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product - no doubt against the ultimate back-ground that the burden of the increased rate should not be such as to drive the employer out of business."

The same question was again examined in Hindustan Times Ltd. v. Their Workmen : AIR 1963 SC 1332 and the Court recorded its conclusion in following words in para 7 of the Report :

"7. While industrial adjudication will be happy to fix a wage structure which would give the workmen generally a living wage, economic considerations make that only dream for the future. That is why the Industrial Tribunals in this country generally confine their horizon to the target of fixing a fair wage. But there again, the economic factors have to be carefully considered. For these reasons, this Court has repeatedly emphasised the need of considering the problem on an industry-cum-region basis, and of giving careful consideration to the ability of the industry to pay."

Hence, this court cannot exercise its jurisdiction to direct the respondents to provide the benefits as sought by the petitioner inasmuch as that would be amounting to intrusion in the policy making domain of the executive as regards the fiscal management.

Having observed thus, the writ petition stands dismissed. There shall be no order as to costs.