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Judgment
[1] Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. B. Chakraborty, learned counsel appearing for the petitioners as well as Mr. M. Debbarma, learned Addl. G.A appearing for the respondents.
[2] It is an admitted position that the petitioners were appointed directly as the Headmaster/Headmistress of Higher Secondary School, pursuant to the advertisement No.5/2004 dated 01.10.2004, issued by the Tripura Public Service Commission. All the petitioners were appointed after 01.01.2006, the day on which Tripura State Civil Services (Revise Pay) Rules, 2009 was given effect to. True it is that at the time of publication of the said advertisement dated 01.10.2004, a provision under the service rule called Headmaster/Headmistress,Higher Secondary Schools/District Inspector of Schools Recruitment Rules published under Notification No.F.2A(5-2)-DSE/2003(L-3) dated 28th July, 2004 (Annexure-2 to the writ petition) is available providing as follows:
"Rs. 10,000-300-15,100/- (in case of direct recruitment, the entry scale will be Rs.7,800-275-10,00-300-15,100/- and shall move to the pay scale of Rs.10,000-15,100/- after completion of 4 years of service in the post) subject to revision by the State Government from time to time."
[3] There is no dispute that in Tripura State Civil Services (Revised Pay) Rules, 1999, in short ROP Rules, 1999 where one scale has been prescribed for the Headmaster/Headmistress Higher Secondary School and that pay scale is Rs.10,000-15,100/- corresponding to the pre-revised pay scale of Rs.3000-5000/- . But, by the said recruitment rules, there came to exist two separate pay scales for the same category of post discharging the same duties. But, since there is no challenge, even not in this writ petition, this court cannot examine the constitutionality of the said provisions engrafted in the recruitment rules. But the unique turn that has taken place for enactment of ROP Rules, 1999, vide Rule 2 is that the service rules has faced a new situation for operation of ROP Rules, 2009, which provides as hereunder:
"Unless otherwise provided in any provision hereinafter, by or under these rules, these rules shall apply to persons appointed in regular scales of pay to services and posts in connection with affairs of State Government of Tripura except members of All India Service, Tripura Judicial Service, members of the Services to whom UGC and AICTE scales of pay apply."
[4] Admittedly, the exception clause does not apply for the post where the petitioners were appointed. The petitioners by means of this writ petition have urged this court to direct the respondents to extend the benefit of scale of pay of Rs.15,100 after completion of four years of continuous service in the post of Headmaster, in terms of the recruitment rules (supra). In ROP Rules, 2009, the scale to scale revision has been made. The existing scale of pay of Rs.7800-15,100 (PB-4) has been revised to Rs.13575-37000 (PB-4) with Grade Pay of Rs.3700/- and the pay scale of Rs.10,000-300-15100/- has been revised to Rs.13575-37000 (PB-4) with Grade Pay of Rs.4500/- As such, the differentiation at least in the pay scale does not exist but there is difference in the Grade Pay between the two relevant pay scales, as found in the recruitment rules. The respondents while opposing the relief sought by the writ petitioners have stated that the petitioners have 'opted' for coming over to the pay structure under ROP Rules, 2009 which came into effect from 01.01.2006 and thus they would be entitled to benefits of Assured Career Progression (ACP) under Rule 10 of the ROP Rules, 2009. They have further referred to Notification No. F.6(1)-FIN(PC)/98 dated 24.03.2000 which is called Tripura State Civil Services (Revised Pay)(Fifth Amendment) Rules, 1999 by which the following provision has been incorporated:
"The posts outside cadre service who were directly recruited in the un-revised pay scale of Rs.2100-3000(SL)-5000/- (revised to Rs.7,000-15,000/-) shall get revised pay scale of Rs.10,000-15,100 as CAS-1 after completion of 4 (four) years of service in the respective post as applicable to the Cadre Services."
[5] According to the respondents, the evolution of the said pay scale by way of revision can be gathered from that provision. But that provision cannot be applied in these posts as the relevant post was not bracketed with the similar kind of post which was given that benefit. Mr. S.M. Chakraborty, learned senior counsel appearing for the petitioners has submitted that the petitioners do not have any objection, if for four years, the revised scale of pay of Rs.7,800-15,100/-is given to the petitioners and after completion of another four years they are given the pay scale of Rs.10,000-15,100/-. But Mr. M. Debbarma, learned Addl. G.A. has quite robustly submitted that benefit of movement to the senior level [revised] pay scale of Rs.10,000 - 15,100/- on completion of 4 years of service was introduced under ROP Rules, 1999 and that had been given effect from 01.01.1999 vide Note No.1 of Rule 10 of ROP Rules, 1999. Note 1 of Rules 10 of the ROP Rules, 1999 reads as follows:
The Career Advancement Scheme replaces the existing system of gradation under Part-B or C of Schedule-III of TSCS (Revised Pay) Rules, 1988 as per Rule 5 (3) thereof and hence benefit under existing gradation system will cease to be admissible with effect from 01.01.1999.
[6] If that was so, it was expected that the State Government would not have framed the recruitment rules in 2004 by incorporating the purported grade system for the same post.
[7] Mr. Debbarma, learned Addl. G.A. has finally submitted that since the petitioners are directly recruited to the post of Headmaster/Headmistress Higher Secondary School in the year 2006, He/She would get scale of pay of Rs.7,800-15,100/- and if an incumbent got promotion to the post of Headmaster/Headmistress Higher Secondary School from the feeder post in the year 2006, he/she would get scale of pay of Rs.10,000-15,100/-.
[8] Having appreciated the submission made by the counsel for the parties, this court is of the view that a serious anomaly in the evolution of the pay scale or in determining the scale against that can be located. The revision of pay rules, in the opinion of this court, is in complete contrast to provision to Article 14 of the Constitution of India inasmuch as two persons, one is appointed by the direct recruitment mode and another is appointed by promotion mode cannot be given two different pay scales, inasmuch as both the persons are discharging similar duties attached to the post of Headmasters/Headmistress. However, the petitioner did not challenge the said rules. It would be equitious, if the recruitment rules are revised. Apart from the question relating to the financial upgradation, as provided in the recruitment rules for Headmaster/Headmistress in Higher Secondary Schools after four years, the petitioners have claimed to have the pay scale of Rs.10,000-15,100/-(revised), but the respondents denied that evolution of the pay scale on the reasons of eclipse by ROP Rules, 2009. Had the petitioners opted the pay scale for the post of Headmaster/Headmistress, they were entitled to the pay scale of Rs.10,000-15,100. From the day of appointment, the petitioners are entitled, as manifestly surfaces from the records, to get the pay scale of Rs.10,000-15,100/-uniformly with persons who are promoted. Accordingly, the effect of the further revision in the pay-band will be entitled to the petitioners. Since the petitioners have comfortably waited for the long years, this court is not inclined to give them the entire financial benefit. Their financial benefit would be restricted from the date, three years prior to the day of institution of the writ petition which is 15.07.2014.
[9] Mr. Chakraborty, learned counsel has drawn attention of this court that some of the petitioners have already retired from the service. Those who have retired, their pension payment order be accordingly revised by the competent authority and the respondents shall take the responsibility for expediting such revision in the pension payment order while implementing the pay scale that has been granted by this court. Financial benefits shall be paid to the petitioners within the period of six months from the date when the petitioners shall furnish a copy of this order to the respondents.
In view of above, this writ petition stands allowed to the extent as indicated and disposed of.