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Judgment
[1] Heard Mr. Samarjeet Bhattacharjee, learned counsel appearing for the petitioners as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.
[2] Both these writ petitions being W.P.(C) No.637 of 2017 [Rajendra Majumder vs. State of Tripura & Ors.], W.P.(C) No.638 of 2017 [Swapan Chakraborty vs. State of Tripura & Ors.] and W.P.(C) No.639 of 2017 [Surya Kr. Das vs. State of Tripura & Ors.] are consolidated for disposal by a common judgment inasmuch the identical questions wade through in these writ petitions and those questions are broadly as under:
(i) Whether the petitioners who were appointed as the Surveyor under the Public Works Department, Government of Tripura in the scale of pay of Rs.560- 1300 [pre-revised] before the Tripura State Civil Services [Revised Pay] Rules, 1988, hereinafter referred to as the ROP Rules, 1988 was given effect to, can be fitted in the lowest grade of Jr. Surveyor as provided under Part-C, Graded Scale No. 9 of the ROP Rules, 1988. If not, whether they are entitled to be fitted against the grade of Surveyor, borne in the scale of pay of Rs.1450-3710/- [pre-revised] and
(ii) Whether the petitioners by bringing the action after more than two decades, were entitled to be fitted in the grade of Surveyor, borne in the scale of pay of Rs.1450-3710 [pre-revised] with the arrears of pay and allowances?
[3] Since this court is dealing with 3[three] writ petitions, it would be appropriate to lay the brief facts, besides the fundamental questions, those are involved in these writ petitions.
In W.P.(C) No.637 of 2017, the petitioners were initially appointed in the post of Surveyor under the Public Works Department, Government of Tripura in the scale of pay or Rs.325-665/- with other admissible allowances and the said scale was revised to Rs.560-1300/- in terms of the ROP Rules, 1982 and in this regard, there is no dispute.
In W.P.(C) No.638 of 2017, the petitioners were appointed in the year 1978 and 1982 in the post of Surveyor under the Public Works Department, Government of Tripura in the scale of pay of Rs.325-665/- with other admissible allowances and the said pay scale was revised to Rs.560-1300/- in terms of the said ROP Rules, 1982.
In W.P.(C) No.639 of 2017, the petitioners were appointed on various dates in the year 1984, 1986 and 1988 . The petitioners No.2,4,9 and 11 were appointed in the post of Surveyor under the Public Works Department, Government of Tripura before the ROP Rules, 1988, meaning before 01.01.1986, but the other petitioners in W.P.(C) No.639 of 2017 were appointed after 01.01.1986 but in their order of appointment the scale of pay is shown as Rs.560-1300/-.
[4] It is apparent on the face of records that all the orders of the appointment of the petitioners in the writ petition being W.P.(C) No.639 of 2017 were issued in terms of the pre-revised pay. That is also the case of the other petitioners of two other writ petitions under consideration. By the ROP Rules, 1988 the post of Surveyor was provided with the Graded Scale No.9 and all the posts of Surveyor in other departments were also given the same graded pay scale No.9. The graded pay scale No.9 provides as follows:
Senior Surveyor
Surveyor
Junior Surveyor
Rs.1700-3980/-
Rs.1450-3710/-
Rs.1300-3220/-
It also be noted that the previous pay scale attached to the post of Surveyor was also modified and given the modified scale of Rs.600-1440/- by way of making necessary amendment in the ROP Rules, 1982. Now, the fundamental question that has been raised in all the writ petitions is that whether the action of the respondents by not giving all the petitioners the pay scale of Rs.1300-3220/- is in terms of the ROP Rules, 1988.
[5] Mr. Bhattacharjee, learned counsel appearing for the petitioners has submitted that the scale of pay of Rs.560-1300/- by a general revision was modified to Rs.1450-3710/- and as such, Mr. Bhattacharjee, learned counsel has submitted that if the petitioners are fitted against the post of Jr. Surveyor, their pay scale would be degraded. Moreover, their substantive pay scale in the post of Surveyor would see the loss of wage value. Further, Mr. Bhattacharjee, learned counsel has submitted that when this kind of anomalies were located, the Finance Department by the memorandum under No.F.4(6)- FIN(PC)/88(L) dated 28.04.1990, Annexure-4 to the writ petitions, has provided a clarification purportedly to remove these kind of anomalies. It has been clearly provided in the said memorandum dated 28.04.1990 that no employee should get a scale lower than the revised pay scale of the grade in which he falls by virtue of holding a particular existing scale. According to Mr. Bhattacharjee, learned counsel since the pay scale of Rs.560-1300/- has been revised to Rs.1450-3710/- the petitioners shall be fitted against the grade of Surveyor and the appropriate fixation be made in that grade. Thereafter, Mr. Bhattacharjee, learned counsel has submitted that a similar issue had fallen for consideration before the Gauhati High Court, which had then the territorial jurisdiction. In the writ appeal being W.A. No.48 of 1999 [Nimai Chandra Das vs. State of Tripura & Ors.] the Gauhati High Court having considered the objection as raised by the respondents that the pay scale of Jr. Surveyor was correctly given by denying the pay scale of Rs.1450-3710/- to the appellant as on the date of coming into the force of ROP Rules, 1988 they were drawing the pay scale of Rs.560-1300/- under the ROP Rules, 1988 and the said pay scale has been revised to Rs.1300-3200/-. The Gauhati High Court having referred to the memorandum dated 28.04.1990 as referred above, has observed as under:
"7. From the above memorandum, it is abundantly clear that an employee, who was appointed during the period from 01.01.86 to the date of publication of the ROP Rules, 1988, in the existing pay scale of Rs.560-1300/-, his revised pay sale would be Rs.1450-3710/-. In the case at hand, since the appellant came to appointed, on promotion, to the post of Surveyor by order, dated 14.05.1986, and was already granted the pay scale of Rs.500-1300/- before the ROP Rules, 1988, came into force, he could not have been the re- designated as, or brought down to the level of, Junior Surveyor with the scale of pay of Rs.1300-3220/-. In terms of the memorandum, dated 28.04.1990 aforementioned, the appellant sought to have been kept retained and designated as a Surveyor and he ought to have been allowed the pay scale of Rs.1450-3700/-, which has the pay scale meant for the post of Surveyor and which pay scale the appellant had demanded. On careful perusal of the impugned judgment, we notice that the learned Single Judge has not taken into account at all the Memorandum, dated 28.04.1990, aforementioned and it was, perhaps, as a result of his omission to note the contents of the said Memorandum that the learned Single Judge concluded that the post of Surveyor had been re-designated under the ROP Rules, 1988, as a Junior Surveyor.
Because of what have been discussed and pointed out above, we are of the view that the State- respondents/authorities concerned have illegally and unjustifiably not given the benefit of revised pay scale of Rs.1450-3710/- to the appellant and brought him down to the grade of Junior Surveyor, whereas he ought to have been retained in the grade of Surveyor and he ought to have been given the revised sale of pay meant for the post of Surveyor."
There is no dispute at the bar that the said judgment by efflux of time had reached to its finality and the state has implemented the same.
[6] Mr. Bhattacharjee, learned counsel has further submitted that following that decision of the Gauhati High Court in Nimai Chandra Das vs. State of Tripura & Ors. [the judgment and order dated 27.04.2005 delivered in W.A. No.48 of 1999], this High Court has passed similar order in Sunil Baran Datta vs. State of Tripura & Ors. [the judgment and order dated 19.08.2013 delivered in W.P.(C) No.66 of 2008]. It has been observed in Sunil Baran Datta (supra) as under:
"9. In view of the above discussion, the writ petition is allowed. The petitioners are directed to be treated as Surveyors with the date on promulgation of the ROP Rules, 1988 and they be placed in the pay scale of Rs.1450-3710 for all intense and purposes i.e. for the purpose of fixation of pay, grant of increment, interest, etc. However, as far as actual arrears of pay are concerned, the same shall be paid to the petitioners only w.e.f. 1st February, 2005, i.e. 3 (three) years prior to the date of filing of the writ petition."
[7] When Mr. Bhattacharjee, learned counsel was confronted on laches in filing the writ petitions, he has clarified that the perennial loss of pay allows the petitioners survive the scourge of laches. In this regard, he has referred a few decisions of the apex court in M.R. Gupta vs. Union of India & Ors., reported in (1995) 5 SCC 628, Union Of India & Anr. vs. Tarsem Singh, reported in (2008) 8 SCC 648 and State of Madhya Pradesh & Ors. vs. Yogendra Srivastava, reported in (2010) 12 SCC 538. In Yogendra Srivastava (supra), the cases of M.R. Gupta (supra) and Tarsem Singh (supra) have been elaborately referred and discussed and on the basis of these precedents, the apex court has observed as under:
".........Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India : (1995) 5 SCC 628, and Union of India vs. Tarsem Singh : (2008) 8 SCC 648."
[8] From the other side, Mr. M. Debbarma, learned Addl. G.A appearing for the respondents has projected a robust opposition against the prayer made by the petitioners for granting them the pay scale of Rs.1450-3710/- from the date when they moved to the pay scale under the ROP Rules, 1988, meaning either from 01.01.1986 or from the date of their appointment inasmuch as some of the petitioners were appointed after 01.01.1986. Mr. Debbarma, learned Addl. G.A. has submitted that the pay scale of Rs.560-1300/- [the pre-revised scale of the Surveyor] has been revised in terms of the graded scale No.9. He has taken this court to the said structured pay scales vice the grades and submitted that the pay scale of Rs.560-1300/- has been revised to Rs.1300-3220/-. Thus, there cannot any question of the consequential of loss of pay, by way of revision. However, Mr. Debbarma, learned Addl. G.A. has further submitted that the petitioners can be categorized in two groups viz. (i) those who are appointed before 01.01.1986 and (ii) those who are appointed on or after 01.01.1986. The next revision of pay had, admittedly, taken place by way of ROP Rules, 1999. According to Mr. Debbarma, learned Addl. G.A. the first category of the petitioners who were appointed before 01.01.1986 may be covered by the decision of Gauhati High Court and of this High Court in Nimai Ch. Das (supra) and Sunil Baran Datta (supra) but those who are appointed after 01.01.1986 cannot be even governed by the said two decisions. He has taken this court again and again to impress that the entry grade is the Jr. Surveyor and all the petitioners were appointed in the entry grade and they did not get any promotion and as such, it is only natural that they will be fitted against the entry grade. Moreover, the pre-revised scale is equal for the entry. Therefore, there is no infirmity in fixation of their pay scale at Rs.1300-3220/-. Mr. Debbarma, learned Addl. G.A. has further submitted that the memorandum dated 28.04.1990 has given an illustration that an employee who was appointed during the period from 01.01.1986 up to the date of publication of ROP Rules, 1988 in the existing scale of Rs.560-1300/-, that scale was placed in the intermediate grade with the up-graded revised scale of Rs.1450-3710/-. But the employee, in that illustration, revised scale of the lowest grade. This was perhaps done in view of the stipulation in Part-C of the rules that no new appointment should be made except in the lowest grade. For this reason, the referred rule may also be reproduced:
"2(f) No new appointment under any of these categories of posts shall be made at a level other than the lowest:"
It is apparent that the petitioners were not appointed in terms of the graded scale No.9. The petitioners were appointed in the pre-revised scale of pay of Rs.560-1300/-.
[9] Mr. Debbarma, learned Addl. G.A. has further submitted that there is no infirmity in designating the petitioners to the post of Jr. Surveyor. In Nimai Ch. Das (supra), the Gauhati High Court in this regard has observed that the conclusion so reached by the learned Single Judge is contrary to the ROP Rules, 1988, inasmuch as the post of Surveyor has not been re-designated as Junior Surveyor. What has been done in the ROP Rules, 1988, is that in addition to the post of Surveyor, two posts have been created, one being junior to the post of Surveyor and the same being designated as Junior Surveyor and the other being senior to the post of Surveyor and the same being designated as Senior Surveyor. Since the appellant was already a Surveyor, he could not have been degraded to the level of Junior Surveyor merely because his pre-revised pay scale was meant for the post of Junior Surveyor. As the effect of granting of the benefit of revised pay scale to a person might make him junior in his grade, the Department of Finance, Government of Tripura, had, in fact, issued the Memorandum No.F.4(6)/FIN(PC)/88(L), dated 28.04.1990 and clinched that issue.
[10] Finally, Mr. Bhattacharjee, learned counsel has submitted that some of the petitioners, particularly the petitioners in W.P.(C) No.638 of 2017 have retired from the service before filing of the writ petition. Thus, an additional direction this court may issue is that their pension payment order be revised and the pension may be determined in terms of the direction to fix their pay in the scale of pay of Rs.1450- 3710/- which has been admittedly revised to Rs.5000-10300/-. Mr. Bhattacharjee, learned counsel has further submitted that the grant of upgraded pay scale for their occupying the post of Surveyor would also be the basis of their Career Advance Scheme [CAS] after the postulated period. If any of the petitioners would have reached the grade of Sr. Surveyor, then the corresponding revised pay scale shall also be entitled to them. Accordingly, their pay should be fixed and wherever required pension should be determined on the basis of the last pay as would be calculated on the basis of the new matrix as indicated above.
[11] Having appreciated the submissions made by the learned counsel appearing for the parties and scrutinized the records placed before this court, this court finds that these petitions are covered by the decision of the Gauhati High Court Nimai Ch. Das (supra). So far the question of laches is concerned, the field is be well governed by the principle laid down in Yogendra Srivastava (supra). Further, those who are appointed as the Surveyor, even after the ROP Rules, 1988 is notified, they will also be entitled to the similar benefit alike the petitioners who wer appointed before 01.01.1986. Thus, all the writ petitions are allowed with the following directions:
The petitioners will be fitted against the post of Surveyor in the Graded Scale No.9, Part-C of the ROP Rules, 1988 and their pay shall be fixed in terms of the fixation rules as provided in ROP Rules, 1988 or as modified subsequently, in the scale of pay of Rs.1450-3710/- and if they are to move to the higher graded scale of the Sr. Surveyor, they will also be entitled to the pay scale of Rs.5000-10300/- and in the event of their having moved to the grade of Sr. Surveyor within the currency of the ROP Rules, 1988, their pay shall be fixed in the scale of pay Rs.1700-3980/-. Regarding this, no dispute has been raised by the petitioners. However, per chance, if any of the petitioners had reached that level, their pay scale by virtue of the operation of the Tripura Civil Services (ROP) Rules, 1999 be raised to the corresponding scale as corollary. Accordingly, their pay shall be determined. However, the petitioners will not be get the financial benefit of the entire arrear. The payment of arrears shall be restricted to 3[three] years preceding from the date of filing of the writ petitions. For purpose of reference, though all the writ petitions were filed on 02.06.2017 and as such, the actual arrear shall be paid from 02.06.2014 and for the period subsequent thereto. So far the petitioners, who have retired from the service are concerned, their last pay be re- determined and their pension be revised accordingly. The arrears of pension be paid from 02.06.2014. Such payment of arrear in terms of this direction shall be made to the petitioners by the respondents within a period of 6[six] months from the date of receipt of the copy of this judgment and order. The petitioners shall file the copy of the order to the respondents.
There shall be no order as to costs.
It is needless to say that the pay scale as directed to be provided hereunder be revised by the subsequent pay revision rules.