Pradip Kumar Pal vs State Of Tripura And Ors

Heard Mr. Samar Das, learned counsel appearing for the petitioner. Also heard Mr. D. Sharma, Addl. G.A. appearing for the State respondents.

The controversy of the present writ petition is covered by a judgment of this Court in Writ Petition No.317 of 1997, titled as Tripura Physical Education Employees Association (represented by its General Secretary, Sri Swapan Saha & Ors. vs. The State of Tripura & 3 Ors., which was affirmed by the Division Bench of this Court in Writ Appeal No.27 of 2007.

The facts of the case, in brief, are that the petitioner was initially appointed as an Assistant Teacher by appointment letter No.F.2(80)-DE/65-EA dated 21.11.1965. Later on, the petitioner underwent full-course of physical training at Central Training Institute, Barwah, Madhya Pradesh and had successfully completed the said training course. On submission of certificate, the designation of the petitioner has been changed as Physical Instructor, being appointed with the approval of Director of School Education, Government of Tripura as at the relevant point of time there was no separate Directorate for the Physical Education personnel or Physical Instructor.

Subsequently, by operation of Memorandum No.F.7(199)-E/75 dated 03.12.1975 the petitioner was given the revised scale of pay of Rs.325-665/- which was subsequently revised to the scale of Rs.560-1300/- with effect from 01.01.1982 as per Tripura Government Services(Pay) Rules, 1982.

On promotion to the post of Senior Physical Instructor, the petitioner was allowed the benefits of Selection Grade Scale, having scale of pay of Rs.1700-3980/- by Memorandum No.F.4(62)-FIN(PC)/92 dated 07.12.1992 with effect from 27.12.1988, when the petitioner completed 10 years of service in the scale of pay of Rs.1450-3710/-.

The scale of the petitioner was further revised under Tripura Civil Service(Revised Pay) Rules, 1999 to the scale of pay of Rs.5500-10700/- w.e.f. 01.01.1996 as per the Fixation Rules.

The petitioner was retired from service on 31.10.2004. At the time of retirement, the petitioner was provided a Due Drawn Statement issued by the State respondent i.e. the Drawing & Disbursement Officer, wherein the petitioner found that he was paid with excess payment of Rs.52,185/- and the said amount was adjusted with the disbursement of the retiral benefits of the petitioner.

From the Due Drawn Statement it has been revealed that the respondents No.3 and 4 disentitled the petitioner from the benefit of pay scale of Rs.1700-3980/- which was granted to him by operation of Memorandum dated 07.12.1992 on the purported ground that the petitioner was not directly recruited to the post of Senior Physical Instructor for which he is not entitled to the said scale by operation of the Memorandum of respondent No.3 dated 28.04.1997. According to respondents No.3 and 4, the persons who have been directly recruited as Senior Physical Instructor and completed 10 years of service in the said grade are only entitled to movement to the scale of pay of Rs.1700-3980/- by operation of the Memorandum dated 07.12.1992.

The petitioner contended that during the tenure of his service, the Memorandum dated 28.04.1997 was never pressed into service, but, all on a sudden, the respondents have been trying to unsettle the settled position of pay and allowances of the petitioner, which is illegal and arbitrary.

The Memorandum dated 28.04.1997 issued by the respondents was challenged by some of the Physical Instructors by way of filing writ petition which was registered as WP(C) No.317 of 1997, titled as Tripura Physical Education Employees Association (represented by its General Secretary, Sri Swapan Saha & Ors. vs. The State of Tripura & 3 Ors. While allowing the aforesaid writ petition, the learned Single Judge observed thus:

"4. While considering the Memorandum, dated 28.04.1997, what is pertinent recall is that the Memorandum, dated 07.12.1992, whereby the graded pay scale of Rs.1700-3980/- was made available to the Senior Physical Instructors, who have completed 10 years of continuous service in the grade of Senior Physical Instructor, does not stipulate that the pay scale of Rs.1700-3980/- shall be made available to only those persons, who are directly recruited to the post of Senior Physical Instructor and/or that the pay scale of Rs.1700-3980/- shall not be available to those persons, who became Senior Physical Instructor by promotion from the grade of Physical Instructor Grade-II or Junior Physical Instructor. It is, therefore, abundantly clear that what had been granted and guaranteed under the Office Memorandum, dated 07.12.1992, is sought to be withdrawn and taken away by the Memorandum, dated 28.04.1987. In this regard, it is also of great significance to note that the Office Memorandum, dated 07.12.1992, was published in the name of the Governor of Tripura; whereas the Memorandum, dated 28.04.1997, which is clarificatory in nature, has not been issued in the name of the Governor of Tripura. In the absence of anything showing to the contrary, the Office Memorandum, dated 07.12.1992, has to be held as an order published by the Governor of Tripura in exercise of powers under the proviso to Article 301 of the Constitution of India and what has been granted and guaranteed thereunder cannot be fulfilled or withdrawn on the strength of a mere departmental clarificatory memorandum issued by the Department of Finance, Government of Tripura. This apart, the Office Memorandum, dated 28.04.1997, gives no indication at all as to why, while granting the pay scale of Rs.1700-3980/- to those persons, who have, on being directly recruited to the posts of Senior Physical Instructor, completed 10 years of continuous service in the grade of Senior Physical Instructor, the respondents have, at the same time, denied the said pay scale to those persons, who have put in, on being promoted to the grade of Senior Physical Instructor. In the absence of any explanation offered by the respondents in this regard and in the complete absence of any plausible explanation discernible from the materials on record, in this regard, one cannot help, but hold the Memorandum, dated 28.04.1997, as arbitrary as well as discriminatory.

It may also be pointed out that nothing could be submitted, on behalf of the respondents, at the time of hearing of the present writ petition, to show that the service conditions of the present petitioners have rendered them ineligible to receive the graded pay scale of Rs.1700-3890/-. In these circumstances, the pay scale of Rs.1700-3890/- shall be treated to be available to every Senior Physical Instructors, who completes 10 years of continuous service in the grade of Senior Physical Instructor irrespective of the fact whether the service so put in be as a direct recruit or as a promote.

Because of what have been pointed out and discussed above, I am firmly of the view that the Office Memorandum, dated 28.04.1997, cannot to the extent that the same adversely affects the rights of the present petitioners, be allowed to survive.

In the result and for the foregoing reasons, this writ petition succeeds. The respondents are hereby directed that the graded pay scale of Rs.1700-3890/- shall be made available to the petitioners with effect from 01.01.1995, i.e. the date on which the petitioners have become entitled to receive the said scale as indicated hereinbefore. So far as the present petitioner Nos.2 to 9 are concerned, the impugned Memorandum, dated 28.04.1997, shall have no bearing or effect. The benefits granted to the petitioners aforementioned shall remain confined to the present petitioners only.

Before parting with this writ petition, it is made clear that the respondents shall make available the arrears, in the payment of dues of the petitioners, within a period of six months from today."

The said judgment dated 14.06.2006 was further affirmed by the Division Bench of this Court, being challenged by the State respondents. Be that as it may, the Memorandum dated 28.04.1997 has/had no force in the eye of law.

In view of the above, the instant petition is fully covered by the judgment, passed by the learned Single Judge of this Court in WP(C) No.317 of 1997. Thus, I find that the recovery of Rs.52,185/- is illegal and arbitrary and the petitioner was entitled to enjoy the benefit of pay scale of Rs.1700-3980 by virtue of memorandum dated 07.12.1992 so far the present petitioner is concerned, the impugned memorandum dated 28.04.1997, shall have no bearing or effect.

Accordingly, the recovery of Rs.52,185/- is illegal and arbitrary and the impugned "due drawn statement" by virtue of which the said amount of Rs.52,1865/- was recovered from the petitioner is liable to be quashed. The respondents are directed to refund the amount so recovered from the petitioner within a period of two months from the date of receipt of a copy of this order.

With the aforesaid observations and directions, this writ petition is allowed, and accordingly, the same stands disposed.