Prasenjit Paul And Ors vs State Of Tripura And Ors

Heard Ms. S. Debgupta, learned counsel appearing for the petitioners as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents No.1, 3 and 4 and Ms. P. Dhar, learned counsel appearing for the respondents No.2 & 5, High Court of Tripura.

Indisputably, the petitioners are holding the post of System Officer in the scale of Rs.9,570-30,000/-(PB-III) with grade pay of Rs.2,600/- being directly recruited in the said post by the respondent No.5. The petitioners joined in the said post on 10.12.2013 in the office of the District and Session Judges or in the other stations. However, the official records will prevail, in this respect if not contested by the petitioners.

The petitioners have asserted that on 31.03.2015 Tripura State Civil Services (Revised Pay)(12th Amendment), Rules, 2015 came into effect by revising PB-III as Rs.10,230-34,800/- with grade pay of Rs.4,400/-. According to the petitioners, the qualification for recruitment to the post of Programmer under High Court of Tripura are same and identical to the qualification and recruitment to the post of System Officer, E-court services. But the programmer under High Court of Tripura has been given the scale of Rs.9,570-30,000/-(PB-III) with grade pay of Rs.3,100/- (corresponding to the pre-revised scale of Rs.6500-12,300/-). PB-III with grade pay of Rs.3,100/- was amended to Rs.10,230-34,800/- with grade pay of Rs.4,600/- according to Table-12 appended to the 12th Amendment Rules, 2015. Thus, there emerged a difference of scales for the post of Programmer under High Court of Tripura and the System Officers under e-Court Services qua the grade pay. The System Officers are getting less grade pay even after the said amendment i.e. Rs.4,400/- and the Programmers under High Court services are getting the grade pay of Rs.4,600/-. According to the petitioner, there is no reasonable classification in respect of duties and responsibilities, discharged by the Programmer under the High Court of Tripura and the System Officers. As such, the petitioners submitted a joint representation to the respondent No.2 for enhancing their grade pay for the post of System Officers to Rs.4,600/- under the 12th Amendment Rules, 2015. The said representation dated 01.02.2016 [Annexure-6 to the writ petition] was responded to by the respondent No.4 by the communication dated 24.06.2016 [Annexure-7 to the writ petition]. Considering the relevance, of the said communication dated 24.06.2016, the entire test thereof is extracted hereunder :

Government of Tripura Law Department Secretariat: Agartala

No.F.1(4)-Law/Est-1/2014(Shadow)/3709 Dated, Agartala the 24th June, 2016

To

The Registrar(Admn., P & M), High Court of Tripura, Agartala.

Subject :- Join representation of 4(four) System Officers, e-Court Services under High Court of Tripura for enhancement of their Grade Pay from Rs.4,400/- to Rs.4,600/-.

Sir,

With reference to your letter bearing No. F.4(22)(a)-HC/2016/8356 dated 3rd May, 2016 on the subject cited above, I am directed to inform you that we had moved with the above cited proposal to the Govt. in the Finance Department and in turn, they under their U.O.No.231/Fin(PC)/16 dated 17.06.2016 has requested to re-submit the proposal with the following information for proper examination of the case in F.D.:-

i) Whether the incumbents concerned were appointed through open advertisement. If so, an authentic copy of the open advertisement be also be furnished.

ii) Copies of Recruitment Rules of the posts of System Officer and Programmer of the High Court of Tripura.

iii) Comparison of nature of work between System Officer and Programmer of the High Court of Tripura in tabular format.

iv) Authentic copy of the Second Schedule(B) of the „High Court of

Tripura e-Courts Services (appointment, condition of services & conduct) Rules, 2013‟ in connection with the existing pay structure of

System Officer being PB-3(Rs.10,230/- - Rs.34,800/-) + GP Rs.4,400/-under the TSCS (RP) (Twelfth Amendment) Rules, 2015.

So, you are requested to furnish above cited information to re-submit the proposal in the Govt. in the Finance Department.

The file bearing No.F.4(22)(a)-HC/2016/8356 is returned herewith for further necessary action.

Enclo:- As stated.

Yours faithfully,

Not illegible

(Sopan Chaudhuri) Deputy Secretary, Law, Government of Tripura (Head of Office)

While processing the self-same representation submitted by the petitioners, the respondent No.5 furnished the relevant information in a separate sheet [Enclosure-A] with their communication made to the Secretary, Law Department under No.F.4(22)(a)-HC/2016/13759 dated 01.08.2016 [Annexure-8 to the writ petition] where it has been categorically proposed as under :

"With reference to the subject noted above, I am directed to send herewith the information in a separate sheet (Enclosure-A) in connection with the queries made by you, in order to re-submit the proposal for enhancement of Grade Pay from Rs.4,400/- to Rs.4,600/- in the post of System Officers, e-Court Services, High Court of Tripura to the Finance Department, Government of Tripura, along with the File bearing No.F.4(22)(a)-HC/2016/8356 for doing the needful from your end."

Even, though the Enclosure-A, which is evidently the reply to the queries made by the Law Department by their letter dated 24.06.2016 addressed the Registrar (Adm.,P & M)[Annexure-7 to the writ petition] is a bit longish, but considering its importance, the text of Enclosure-A, as a whole, is reproduced hereinbelow :

ENCLOSURE-A

i) Whether the incumbents concerned were appointed through open advertisement, if so, an authentic copy of the open advertisement be also be furnished.

No, the incumbents concerned were appointed by absorption as per the Rule 11 of the High Court of Tripura e-Courts Services (ACC) Rules, 2013.

There were 4(four) System Officers and they were recruited on contractual basis as per guidelines laid down in the „National Policy & Action Plan for implementation of IC in the Indian Judiciary‟ as prepared by E-Committee, Supreme Court of India, New Delhi. The Officers are continuing in the service till the end of 31.03.2014. The guideline also laid down that "The technical manpower so created will be absorbed in the regular cadre of the courts for which the concerned State Governments, in consultation with the High Court, should make appropriate provisions."

On the proposal of the High Court, the State Government had created 4(four) System Officers for the High Court and Subordinate Courts.

Thereafter, as per Rule 11 of the High Court of Tripura eCourts Services (ACC) Rules, 2013, with kind approval of the Hon‟ble the Chief Justice 4(four) existing System Officers were appointed by absorption in the post of System Officer in PB-3 Rs.9570-30000/- with Grade Pay Rs.2600/- now revised to PB-3 of Rs.10,230-34,800/- with Grade Pay of Rs.4400/- under the TSCS (RP) (Twelfth Amendment) Rules, 2015.

It is pertinent to mention here that in the existing Rule, it is clearly mentioned that any fresh recruitment of System Officer other than the 4(four) System Officer in service will be by direct recruitment.

(ii) Copies of Recruitment Rules of the posts of System Officer and Programmer of the High Court of Tripura.

Copies of Recruitment Rules of the posts of System Officer and Programmer of the High Court of Tripura are enclosed.

(iii) Comparison of nature of work between System Officer and Programmer of the High Court of Tripura in tabular format.

System Officer

Programmer

Controlling/performing the technical works/System of e-Courts Project with other documentation works in the respective establishment and also the works from time to time as assigned by Central Project Coordinator (CPC), High Court of Tripura.

The System Officers who posted in District Head Quarter and looking after the works of all the Sub-Divisional Court complex establishments for the progress of the e-Courts Project.

Controlling/performing technical as well as other documentation works as assigned by the Nodal Officers of each establishments including SubDivisions.

Handling and management of Computer Networks (LAN, WAN etc.) in the whole District Judiciary including Sub-Divisions.

Handling and development of Judiciary Application software (CISCase Information System) with Periphery Development and other Office Automation FOSS Applications deployment exercise in respect of Judicial establishments as assigned by CPC, High Court of Tripura, Agartala.

Resolving day-to-day technology related issues and day-to-day troubleshooting of the ICT infrastructure including networking issues.

Arrangement & providing training programs for the staffs of District Judiciary Court establishment as assigned by the Central Project Coordinator (CPC), High Court of Tripura.

Management and handling of different types of District Judiciary database in the Customized Ubuntu server under the e-Courts Mission Mode Project.

Replication of database from Court establishments to NJDG (National Judicial Data Grid)

Assisting System Analyst in Controlling & Administrating of the technical works.

Designing & developing software, write programs in a variety of computer languages and operating manuals.

Debug programs by testing and fixing errors-Programmers must debug the programs- that is, test them to ensure that they produce the expected results.

Update and expand existing programs.

Training users, providing support and responding to feed back.

Programmers work closely with software developers.

Ensuring the implementation of the centralized software provided by the e-Committee, Supreme Court of India.

They also perform all administrative jobs relating to the IT in the State Judiciary.

iv) Authentic copy of the Second Schedule (B) of the 'High Court of Tripura' e-Courts Services (appointment, condition of services & conduct) Rules, 2013 in connection with the existing pay structure of System Officer being PB-3 (Rs.10,230/-Rs.34,800/-) + GP Rs.4400/-under the TSCS (RP) (Twelfth Amendment) Rules, 2015.

Copy enclosed.

Part of Enclosure

Tripura Gazette, Extraordinary Issue, August 2, 2013 A.D.

SECOND SCHEDULE (B)

Name of the Post(s) - System Officer

No. of Post(s) - 4(four) (01 for High Court and 03 for District Courts) plus additional post(s) as and when created.

Classification - Group-B Non Gazetted.

Grade & Scale - Rs.9,570-30,000/-(PB-3), G.P.-Rs.2,600/-

Job description - Controlling/performing of the Technical Works/System of eCourts with other documentation works in the respective establishment and also the works from time to time as assigned by Central Project Coordinator (CPC), High Court of Tripura, Agartala.

Method of recruitments whether by direct recruitments or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods - Presently there are 4(four) System Officers and they were recruited on contractual basis as per the guidelines laid down in the National Policy & Action Plan for implementation of ICT in the Indian Judiciary as prepared by the E-Committee, Supreme Court of India, New Delhi (1st August, 2005) for a period of 2(two) years through selection service after a period of 2(two) years till the end of the project on 31.03.2014. The guidelines also talks about absorbing the engaged officers permanently in the establishment as of necessity. The officers presently engaged are required to be absorbed permanently since the E-Court Mission Mode Project is expanding and there is need of technical manpower to act as troubleshooters for various technical issues.

The guideline also says that "The technical manpower so created will be absorbed in the regular cadre of the courts for which the concerned State Governments, in consultation with the High Courts, should make appropriate provisions."

Any fresh recruitment of System Officer other than the 4(four) System Officer in service will be by direct recruitment."

After the respondents No.1, 3 and 4 received the said communication dated 08.05.2017 [Annexure-9 to the writ petition], the state-respondents through the Deputy Secretary Law, Government of Tripura by the letter No.F.1(4)-Law/Estt-1/2014(Shadow)/7466 dated 19.12.2016 informed the Registrar General, High Court of Tripura, that they had moved "the aforesaid proposal to the government in the Finance Department and in turn, they under their U.O. No.361/Fin(PC)/16 dated 15.12.2016 apprised them as follows :

"It is requested to send the proposal before the next Pay Commission/Pay Review Committee, as and when constituted by the Government. Copy of the said letter dated 19.12.2016 is Annexure-4 to the writ petition."

The respondent No.2 i.e. the Registrar General by his letter No.F.25(3)(a)-HC/2017/9108-09 dated 08.05.2017 [Annexure-9 to the writ petition] submitted the proposal to the Chairman, Pension Review Committee, Agartala. The proposal, in respect of the System Officer e-Court Services, High Court of Tripura, advanced that System Officers discharge the same nature of services, as the Programmers of the High Court service do, but the Grade Pay of System Officer is Rs.4,400/-whereas the Grade Pay of Programmer is Rs.4,600/-. 4(four) System Officers of e-Court Services under the High Court of Tripura submitted the joint representation for enhancement of their Grade Pay from Rs.4,400 to Rs.4,600/-. The said proposal was sent to the government through the Secretary, Law Department, Government of Tripura.

In the reply filed by the respondents No.2 and 5, it has been stated as under :

"Thereafter vide Notification No.F.7(2)-FIN(PC)/2017 dated 11.07.2017, the Finance Department, Government of Tripura had published the "Tripura State Civil Services (Revised Pay) Rules, 2017" but it appears that in the said ROP, 2017 the proposal submitted by the answering respondent No.2 has not been considered."

Thus, it surfaces that the proposal sent by High Court of Tripura was not considered by the Pay Review Committee. Even though, the proposal was duly sent by the Law Department to the Pay Review Committee.

This writ petition has been filed on 16.04.2018 for directing the respondents, particularly, the state-respondents to upgrade the scale of the petitioners to Rs.10,230-34,800/- with grade pay of Rs.4,7600/- as drawn by the Programmer of the High Court services. The state-respondents by filing a separate reply have stated that the Law Department took-up the matter of up-gradation of the pay scale of the System Officer under the e-Court Services with the state government in Finance Department and the Finance Department vide their communication under No.U.O.No.1128/Fin/(G)/13 dated 28.10.2013 has not acceded to the proposal and the same was communicated to the Registrar General, High Court of Tripura. After stating that, in para-11 of their reply they have stated that the post of System Officer is quite different from the post of Programmer under the High Court of Tripura and hence, the petitioners cannot, as a matter of right, claim equal pay. Those respondents have referred to the statement made in para-10 of the writ petition which is exactly identical to the statement incorporated in the proposal [Enclosure-A(iii)] under heading comparison of nature of work between System Officer and Programmer of the High Court of Tripura in the tabular form.

The respondents No.1, 3 and 4 have in their reply stated that the System Officers duly is confined to e-Court Project, whereas the Programmer has to design and develop software, write programmes in various computer languages. The programmer's work is more complex, sophisticated and time bound. Thus, the case of the petitioners cannot be determined under principle of equal pay for equal work.

In this turn, it is pertinent to mention that even though, the High Court of Tripura-respondents sent the proposal for consideration of upgrading the pay scale of System Officers working under e-Court Services, but there is no clear-cut rationality why the said proposal was forwarded to the state government through the Law Department. From reading of the proposal, it would be apparent that the High Court of Tripura has been supporting the said up-gradation. But the entire matter was left to the state government to decide. Though by filing the reply, the respondents No.1, 3 and 4 have opposed the prayer, it is apparent that the Pay Review Committee, which is the expert committee, did not consider the reasons assigned by the petitioner seeking up-gradation of their pay. Those reasons are available in para-10 of the writ petition.

Ms. S. Debgupta, learned counsel appearing for the petitioners has submitted that the procedure that has been followed by the High Court, is inappropriate on the face of the records inasmuch as under Article 229 of the Constitution of India, appointment of the officer and employees of the High Court shall be made by the Chief Justice or such other Judge or Officer of the Court as he may direct. Clause-3 of Article 229 is pertinent in the context and that provides as follows :

"(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."

Clause-2 of Article 229 has laid the procedure quite succinctly. Subject to the provisions of any law made by the Legislature of the state, the conditions of service of Officers and Servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officers of the Court authorized by the Chief Justice to make rules for the purpose :

Provided that the rules made under this clause shall so far it relates to salaries, allowances, leave or pension require the approval of the Governor of the state.

On a plain reading, it transpires clearly that the Chief Justice shall consider determinatively in the matter relating to the salaries, allowances etc. first and thereafter in terms of the proviso to Clause-2 of Article 229 of the Constitution, the said proposal be sent for approval of the Governor of the state meaning the appropriate department as authorized by the Governor to deal with such fiscal matters.

Ms. Debgupta, learned counsel appearing for the petitioners has quite emphatically submitted that even though such approval is required but considering the high office of the Chief Justice, the apex court has observed that it will be rule to accept the proposal of the Chief Justice and if, it is not possible, the reason for such disagreement shall be remitted to the Chief Justice for his opinion but the proposal shall not be rejected brazenly.

Ms. P. Dhar, learned counsel appearing for the respondent No.5 has submitted that the High Court's proposal clearly stands for up-gradation of the pay scale of the petitioner as sought in this writ petition. However, Mr. D. Sharma, learned Addl. G.A. appearing for the respondents No.1, 3 and 4 has submitted that if the proposal is sent afresh, it will be re-appreciate without any reservation. But Mr. Sharma, learned Addl. G.A. has submitted as well that it is apparent on the face of particulars sent by the High Court that the post of Programmer under High Court Services and the post of System Officer under e-Court Services are not saddled with equal duties and responsibilities. Hence, the petitioners may not as a matter of right, get the equal pay.

Having appreciated the submissions of the counsel for the parties, this court finds substantive force in the submission of Ms. S. Debgupta, learned counsel appearing for the petitioners. Hence, the High Court-respondents are directed to place all the materials before the Hon'ble Chief Justice to appreciate the claim and consider whether the petitioners are entitled to the equal pay as claimed. In this context, it is to be noted that the System Officers, even though, they are posted in the Courts of the District and Session Judge or other offices but the e-Court Services is the service constituted by the High Court and its appointments etc. are done and governed under Article 229 of the Constitution of India. Thus, Hon'ble the Chief Justice has the authority to take a decision on salaries of the System Officers. If the Hon'ble Chief Justice on appreciation of the materials as has been placed by the High Court of Tripura by their communication dated 08.05.2017 [Annexure-9 of the writ petition] or the other relevant materials may come to a determination that up-gradation of the scale as sought by the petitioners is reasonable, then the said proposal shall be sent for approval of the Governor, by rule by the Finance Department with a clear note that the proposal is on the basis of the determination of Hon'ble the Chief Justice, High Court of Tripura. The Finance Department shall not shelf the proposal and embark on the exercise of according approval. It has to be noted that the proposal sent by Hon'ble the Chief Justice shall receive the highest regard, unless, there is any compelling reason to differ with the proposal, the proposal be accepted. If there appears compelling reasons, those reasons be sent for appreciation of Hon'ble the Chief Justice. Finance Department would only take the final decision having the opinion of Hon'ble the Chief Justice on their deferring note. It is noteworthy that the ordinary rule is to accept the proposal of Hon'ble the Chief Justice considering the importance of the high office of Hon'ble the Chief Justice of the High Court. It is expected that High Court of Tripura shall consider the matter relating to up-gradation of the pay scale to Rs.10,230-34,800/- with grade pay of Rs.4,600/-(PB-3). If Hon'ble the Chief Justice may find it appropriate to recommend the up-gradation, the Finance Department shall take their decision within 30(thirty) days from the day of receiving such proposal considering the meager strength of the cadre of System Officers working in the e-Court Services.

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

There shall be no order as to costs.

A copy of this order be supplied to the counsel for the parties.