Nikhil Sarma And Ors vs State Of Tripura And Ors

Heard Mr. C. S. Sinha, learned counsel appearing for the petitioner as well as Mr. D. Sarma, learned Addl. GA appearing for the respondents.

The Petitioner is unfortunately not alive to see the outcome of his writ petition which was filed by him urging for setting aside the memorandum No.F.2(85-ESTT)-MS/2008/2188/(V-I) dated 22.06.2015 and to give him the benefits of 3rd ACP even though such relief though is consequential in nature.

The petitioner is indisputably appointed on 28.01.1981 as a Lower Division Clerk (LDC) under the Health & Family Welfare Department, Government of Tripura in the scale of pay of Rs.970-2400. After completion of 10 years of service, he received the first scale upgradation in the scale of pay of Rs.1020-2620/- which has been treated later on as CAS-I under the Tripura State Civil Services (Revised Pay) Rules, 1999 (ROP Rules, 1999 in short).

Thereafter, in terms of Rule 10(1) of the said ROP Rules, 1999, the petitioner was allowed the further scale upgradation to the scale of pay of Rs.4200-8650/- as CAS-2 w.e.f. 01.01.1996, though the actual benefit was granted from the subsequent date in terms of Rule 10 of ROP Rules, 1999. Thereafter, on 24.11.2006 the petitioner was offered promotion to the post of UDC but the petitioner was not in a position to accept the promotion order for mitigating family circumstances. The respondents by the order No.F.1(266-ESTT)-MS/81/1810(V-I) dated 28.04.2007 cancelled the promotion of the petitioner of their own. The petitioner was, however, promoted w.e.f. 05.12.2007 by the order No.F.2(57-ESTT)-MS/2000 dated 05.12.2007. The petitioner on that day was made Upper Division Clerk (UDC) on promotion. As such, it is apparent on the face of the records that within 25 years of his service from the date of his appointment as LDC on 28.01.1991, the petitioner did not get any promotion. Thus, the petitioner was entitled to get ACP-3 on completion of his 25 years of service. Even though the petitioner was given that benefit, but by the impugned order dated 18.03.2015, Annexure-8 to the writ petition, the Director of Health Services, Government of Tripura has stated that the petitioner was not entitled to ACP-3 as he had refused, the regular promotion and it has been also stated that the order allowing the ACP-3 w.e.f. 01.01.2007 was not in order.

Having challenged that order dated 18.03.2015 as referred earlier, the present writ petition has been filed. The petitioner made the representation for withdrawal of the said order, but that was not acceded to and the petitioner's pay was re-fixed showing that the petitioner has drawn the excess payment. Mr. Sinha, learned counsel for the petitioner has submitted that the said order is grossly illegal in the resume of facts as narrated above.

However, Mr. D. Sarma, learned Addl. GA has submitted that there is no illegality in the impugned order and he has quite emphatically submitted that the petitioner was first promoted before completion of 25 years of his service i.e. on 24.11.2006, before a month his completion of 25 years of his service. Mr. Sarma, learned Addl. GA has, having referred the Rule 10(1) and Rule 10(10) of the Tripura Civil Services (Revised Pay) Rules, 2009, contended that the petitioner cannot get the financial upgradation on completion of 25 years of service inasmuch as he had refused the said promotion order which was issued on 24.11.2006. He has strongly supported the impugned order stating that in terms of those Rule 10(1) and Rule 10(10) the petitioner cannot get the scale upgradation on completion of 25 years of service. For purpose of reference, Rule 10(1) and Rule 10(10) of the ROP Rules, 2009 are extracted hereunder:

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 prerevised 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 upgradation including promotion up to 3,2 & 1 respectively already.

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(10) If a Government employee, after availing the financial upgradation under the ACP Scheme subsequently refuses to accept the regular promotion, the financial up gradation already granted will not be withdrawn. However, the subsequent financial up-gradations will get postponed suitably by the Administrative Department.

Those rules do not cover the controversy raised in this writ petition. At the same time there is no dispute that the promotion order which was issued on 24.11.2006 was cancelled and a fresh promotion order was issued in favour of the petitioner on 05.12.2007. True it is that when the first promotion order was issued on 24.11.2006, the petitioner did not complete 25 years of service. True, it is that, he did not accept the promotion and that promotion order was subsequently cancelled by the respondents. Later on, on 05.12.2007 a fresh promotion order promoting the petitioner from the post of LDC to UDC was issued when the fresh promotion order, on cancellation of the earlier promotion order, was issued the petitioner by that time had completed 25 years of service and for not getting the promotion he was given the benefits of ACP-3. Mr. Sarma, learned Addl. GA has submitted that on 24.11.2006 the petitioner could have accepted the promotion. But his refusal has created an embargo. Mr. Sinha, learned counsel for the petitioner in his rejoinder has categorically submitted that on the representation of the petitioner the promotion order was cancelled and the fresh promotion order was issued without stigma on the petitioner. On taking into consideration, it has to be deemed that the petitioner got before his promotion and after completion of 25 years of service. It may be noted that the original petitioner has not only retired from the service during pendency of the writ petition but had expired and in his place his wife has been substituted as the petitioner and pursuing the claim of the original petitioner.

Having appreciated the submission made by the learned counsel for the parties, this court is of the view that the benefit as granted to the original petitioner (the husband of the petitioner) under ACP-3 should not be disturbed. Consequently, the writ petition stands allowed. The impugned order dated 18.03.2015, Annexure-8 to the writ petition, is set aside and quashed. For setting aside the order dated 18.03.2015, any amount that has been recovered from the petitioner as excess payment in terms of the order dated 18.03.2015, that shall be refunded within a period of three months from the day when the present petitioner (the wife of the original petitioner) shall furnish a copy of this order to the concerned respondent.

In terms of the above, this writ petition stands disposed of.

There shall be no order as to costs.