Rama Debbarma (Sinha) And Ors. vs State Of Tripura And Ors.

Heard Mr. K. Nath, learned counsel appearing for the petitioners as well as Mr. TD Majumder, learned Government Advocate, Mr. S. Mahajan, learned counsel and Ms. R. Purkayastha, learned counsel appearing for the respondents.

All these petitions being WP (C) No. 913 of 2016 [Smt. Rama Debbarma (Sinha) vs. The State of Tripura and others] ; WP (C) No. 921 of 2016 [Smt. Kajal Acharjee vs. The State of Tripura and others]; WP (C) No. 922 of 2016 [ Smt. Chandana Saha vs. The State of Tripura and others]; WP (C) No. 923 of 2016 [ Smt. Shibani Bhattacharjee vs. The State of Tripura and others]; WP (C) No. 1036 of 2016 [Smt. Bhagya Sinha vs. The State of Tripura and others]; WP (C) No. 1038 of 2016 [Smt. Labanya Biswas vs. The State of Tripura and others]; WP (C) No. 1041 of 2016 [Smt. Priti Majumder vs. The State of Tripura and others]; WP (C) No. 1051 of 2016 [Smt. Himani Dasgupta vs. The State of Tripura and others]; WP (C) No. 1052 of 2016 [ Smt. Bani Das vs. The State of Tripura and others]; WP (C) No. 1060 of 2016 [ Smt. Minati Dey vs. The State of Tripura and others]; WP (C) No. 1058 of 2016 [ Smt. Kalyani Choudhury vs. The State of Tripura and others]; WP (C) No. 914 of 2016 [ Smt. Pramila Debnath vs. The State of Tripura and others]; WP (C) No. 721 of 2016 [ Smt. Putulrani Majumder vs. The State of Tripura and others]; WP (C) No. 912 of 2016 [Smt. Kana Majumder vs. The State of Tripura and others]; WP (C) No. 920 of 2016 [ Smt. Smriti Kana Laskar vs. The State of Tripura and others]; WP (C) No. 919 of 2016 [Smt. Purnima Bhowmik (Debnath) vs. The State of Tripura and others]; WP (C) No. 726 of 2016 [ Smt. Archana Saha vs. The State of Tripura and others]; WP (C) No. 725 of 2016 [ Smt. Sathi Rani Dey vs. The State of Tripura and others]; WP (C) No. 724 of 2016 [ Smt. Ivy Roy vs. The State of Tripura and others]; WP (C) No. 723 of 2016 [ Smt. Sarmila Gope vs. The State of Tripura and others]; WP (C) No. 722 of 2016 [ Smt. Bimala Sinha vs. The State of Tripura and others]; WP (C) No. 788 of 2016 [Smt. Sandhya Rani Das vs. The State of Tripura and others]; WP (C) No. 787 of 2016 [Smt. Amita Chakraborty vs. The State of Tripura and others]; WP (C) No. 728 of 2016 [ Smt. Mina Rani Paul vs. The State of Tripura and others]; WP (C) No. 793 of 2016 [ Smt. Tulshi Rani Debnath vs. The State of Tripura and others]; WP (C) No. 784 of 2016 [ Smt. Sikha Rani Bhowmik (Gupta) vs. The State of Tripura and others]; WP (C) No. 1040 of 2016 [ Smt. Archana Shil vs. The State of Tripura and others]; WP (C) No. 776 of 2016 [ Smt. Bana Rani Choudhury vs. The State of Tripura and others]; WP (C) No. 1043 of 2016 [ Smt. Anjana Gope vs. The State of Tripura and others]; WP (C) No. 789 of 2016 [ Smt. Pranati Bhowmik vs. The State of Tripura and others]; WP (C) No. 917 of 2016 [ Smt. Nidra Bhowmik vs. The State of Tripura and others]; WP (C) No. 918 of 2016 [ Smt. Manju Pal vs. The State of Tripura and others]; WP (C) No. 1039 of 2016 [ Smt. Sutapa Roy vs. The State of Tripura and others]; WP (C) No. 916 of 2016 [ Smt. Jhunu Roy Choudhury vs. The State of Tripura and others]; WP (C) No. 985 of 2016 [ Smt. Priti Chowdhury vs. The State of Tripura and others];WP (C) No. 986 of 2016 [ Smt. Sefali Bhowmik vs. The State of Tripura and others]; WP (C) No. 727 of 2016 [ Smt. Gita Karmakar vs. The State of Tripura and others]; WP (C) No. 1042 of 2016 [ Smt. Shikha Chakraborty vs. The State of Tripura and others]; WP (C) No. 915 of 2016 [ Smt. Sefali Pal vs. The State of Tripura and others]; WP (C) No. 1046 of 2016 [ Smt. Parul Das (Sutradhar) vs. The State of Tripura and others]; WP (C) No. 1045 of 2016 [ Smt. Krishna Chakraborty vs. The State of Tripura and others]; WP (C) No. 1044 of 2016 [ Smt. Mukul Deb vs. The State of Tripura and others]; WP (C) No. 794 of 2016 [Ismatara Begum vs. The State of Tripura and others]; WP (C) No. 1049 of 2016 [ Smt. Maya Nag vs. The State of Tripura and others]; WP (C) No. 1047 of 2016 [ Smt. Lilabati Bhowmik vs. The State of Tripura and others]; WP (C) No. 1037 of 2016 [ Smt. Archana Chakraborty vs. The State of Tripura and others]; WP (C) No. 777 of 2016 [ Smt. Mallika Datta vs. The State of Tripura and others]; WP (C) No. 1059 of 2016 [ Smt. Ranga Debnath vs. The State of Tripura and others]; WP (C) No. 1050 of 2016 [ Smt. Dipali Debnath vs. The State of Tripura and others]; WP (C) No. 791 of 2016 [ Smt. Padmabati Sinha vs. The State of Tripura and others]; WP (C) No. 790 of 2016 [ Smt. Iti Saha (Das) vs. The State of Tripura and others]; WP (C) No. 779 of 2016 [ Smt. Bijay Laxmi Deb vs. The State of Tripura and others] and WP (C) No. 778 of 2016 [ Smt. Sefali Majumder vs. The State of Tripura and others] are clustered for disposal by a common judgment as all the petitioners are similarly circumstanced and they have approached this court for identical reliefs.

The petitioners are all working under the Directorate of Family Welfare and Preventive Medicine, Government of Tripura as the Multipurpose Supervisor (Female) [for short MPS(F)]. After ten years of satisfactory service, the petitioners were allowed the pay scale of Rs. 1,300 - 3,200/- under the Tripura State Civil Services (Revised pay) Rules, 1988 (ROP Rules 1988, in short). The said scale was revised to Rs. 4,200 - 8,650/- when the Tripura State Civil Services (Revised pay) Rules, 1999 (for short ROP Rules 1999) was given effect to. As per Rule 10 of the ROP Rules, 1999, on completion of 17 (seventeen) years of service (10+7) in the same post/grade without any promotion the petitioners were entitled to ACP 2. On completion of further 8 years of service, the petitioners became entitled to ACP 3. Thus, the petitioners were entitled to the scale of pay of Rs. 5310 - 24,000/- on completion of 25 years of service (10+7+8) as ACP 3. By the order dated 12.08.2011 (Annexure P-3 to the writ petition being WP(C) 913 of 2016) the Director of Family Welfare and Preventive Medicine, Government of Tripura had withdrawn the said benefit of ACP 3. By the said order it was observed that the petitioners would continue their pay in the pay band-2 of Rs. 5310-24,000/- with Grade Pay of Rs.2,100/-. The petitioners completed 25 years of service and became entitled to CAS 3 for continuous and satisfactory service in the same post and grade. The petitioners were denied CAS 2 on completion of 17 years of service. Thereafter on completion of 25 years of service in the same grade/post without any promotion, the petitioners were further denied the benefit of CAS 3 [see para 13 of the writ petition being WP(C) 913 of 2016]. The said order dated 12.08.2011 (Annexure P-3 to the writ petition) is, according to the petitioner, grossly arbitrary and oppressive. The petitioners were promoted to the post of MPS (F) on regular basis in the same pay structure of pay band 2 [Rs.5310-24,000/-] with Grade Pay of Rs. 2100/-. It has been clearly stated in the said order dated 25.01.2011 (Annexure P-4 to the writ petition) that the said order was issued consequent upon the recommendation of the DPC held on 17.01.2011.

The petitioners submitted representation for corrective measure by stating that the petitioners are entitled to both CAS 2 and CAS 3 respectively on completion of their 17 and 25 years of service in the same post and grade without any promotion. The petitioners have also asserted that ROP Rules, 1988 has clearly provided that the persons serving under the Health and Family Welfare Department, Government of Tripura in the Sanitary and Field Services will be entitled to the grade pay scale of Rs.970- Rs.2400, Rs. 1300-Rs.3220 and Rs. 1450-Rs.3710 on their conforming to the conditions. The ROP Rules, 1999 further provides that MPWs/MPSs are entitled to the grade pay scale i.e. Rs. 3300- Rs.7010, Rs. 4200-Rs.8650 and Rs. 5000-Rs.10300. The petitioners have further asserted that the grade pay of Rs. 2400/- in the existing pay scale of Rs. 5000-Rs.10300 (PB-2) were allowed to 19 MPWs (F) but subsequently the grade pay of Rs. 2400/- in the pay scale of Rs. 5000-Rs. 10300/- was withdrawn and the grade pay of Rs. 2400/- was given in the pay scale of Rs. 4200-Rs.8650/- with benefit of one increment after completion of 17 years of service in the same scale. So, the petitioners and other similarly situated MPW(F)/ MPS(F) have been deprived from the benefit of the scale advancement after completion of 25 years of satisfactory service to Rs. 5000 - Rs. 10300/-. The petitioners have further stated that the MPW(F) who were junior to them have been provided with the grade pay of Rs. 2400/- in the pay scale of Rs. 5000 - Rs. 10300/-.

In the said representation, the petitioners gave reference to the order dated 14.09.2009 of the Finance Department, Government of India where it has been stated that an employee whose initial appointment was in the scale of Rs. 3300-7010 will be entitled to 3 scale advancements i.e. Rs. 4000 -7890/-, Rs. 4200-8650 and Rs. 5000-10300. In the representation, the petitioners had stated that the Pharmacist under the Health and Family Welfare Department, Government of Tripura were allowed the scale of Rs. 5500-10700/-. The petitioners are similarly situated like the pharmacists working under the Health and Family Welfare Department, Government of Tripura and the pharmacists working under the Department of Health have been provided with the said pay scale with the grade pay.

Thereafter, the petitioners made prayer to provide them the benefit of CAS 2 after completion of 17 years (10+7) of service and the benefit of CAS 3 after completion of 25 years (10+7+8) of service.

The respondents did not make any response to the representations filed by the petitioner.

In this perspective-fact, the petitioners have urged before this court for directing the respondents to provide the petitioners the benefit of CAS 2 after completion of 17 years of service and benefit of CAS 3 after completion of 25 years of service in the same post without promotion.

For paving the way for the said benefit, the order dated 12.08.2011 (Annexure P-3 to the writ petition) has been sought to be quashed by this court.

In the reply to the said allegations, the respondents no. 1 to 4 and 8 filed a joint reply by asserting that initially the petitioners were appointed in the scale of pay of Rs. 970-2400/- under the ROP Rules, 1988. On completion of 10 years of service in the same post of Health Worker (Female) renamed as MPW(F) under ROP Rules, 1988, the petitioners were moved to the scale of pay of Rs. 1300- 3220/- which is next higher scale in the grade 2 of Junior Grade Sanitary Services as per part 'C' of the ROP Rules, 1988 on 14.01.1996. The petitioners also got the scale advancement in terms of Note no. 1 below proviso to Rule 10 of the ROP Rules, 1999 which came into effect on 01.01.1996. Thus, on completion of further 7 years of service, the petitioners were allowed an increment w.e.f. 14.01.2003 in the same pay scale of Rs. 4200-8650/- as CAS 2 under the provision of Rule 10(b) read with Clause VII of the ROP Rules, 1999 and the Finance Department's notification no. F.6(1)-FIN(PC)/ 98 dated 05.03.1999. The said notification is enclosed with the writ petition being WP(C) 913 of 2016 as Annexure R-1.

The scheme of CAS clearly provides that by way of CAS one cannot cross the promotion scale of the post, here Multipurpose Worker (Female). The promotion post of the petitioners is Multipurpose Supervisor, Grade III, scale of post is also same as Rs. 4200-8650/-. Therefore, an additional increment was provided to combat the situation under the scheme of ROP Rules. This has been treated as one scale advancement. The pay scale of Rs. 4200-8650 of the petitioner has been revised under the pay band 2 in the scale of Rs. 5310-24000/- with grade pay of Rs. 2100/-.

By a clarification, the Finance Department, Government of Tripura issued a notification to make it abundantly clear that in the various departments, the authorities have taken steps with a view to suppress the mischief in the ROP Rules, 2009. Therefore, the intention of the government was to allow three scales advancement in the whole service life of an employee without any promotion. It will be apt to note that the paramount consideration is whether the employee concerned would receive three scale advancement including promotion by any means or not.

By giving an illustration, those respondents have stated that the petitioners while moving to pay scale of Rs. 4200-8650/- had crossed the intermediate scale of Rs. 4000-7890/- and thus availed two scale advancements i.e. first one in the scale of Rs. 4000-7890 and the second one was in the scale of Rs. 4200-8650. Therefore, when they had completed total 17 years of service they were allowed further one additional increment in the same scale of Rs. 4200-8650/- as the promotion scale of the petitioner in the post of Multipurpose Supervisor in the same scale of Rs. 4200-8650/- which the petitioners cannot cross having availed of the CAS 2 in view of the provision of Rule 10(b) and proviso to Rule 10(vii) of the ROP Rules, 1999. Similarly on completion of total 25 years of service the petitioners are not entitled to any further CAS as they had already got three scale advancements. Keeping this in view, the administrative authority has rejected the claim by the petitioners.

According to the respondents, the petitioners had given a distorted version of the entire situation. Those respondents have categorically stated that the CAS envisaged a scheme of scale advancements without promotion, but the beneficiaries, the petitioners herein, cannot be allowed to cross the limit of the next promotional post and in such eventualities only one increment is to be provided under the scheme. Furthermore, the petitioners have completely ignored the clarification provided by the Finance Department dated 14.09.2009 which clearly lays the procedure about movement. The Finance Department, Government of Tripura by the memorandum under no. F.6(1)-FIN(PC)/2008 dated 14.09.2009 has clarified how the consumption of ACP would be treated. By the said memorandum, the respondents have withdrawn the benefits given to the petitioners, as reflected in the order dated 12.08.2011 (Annexure P-3 to the writ petition). The respondents have vehemently denied that the petitioners have any right to claim the higher pay scale for ACP. The petitioners were given ACPs on erroneous understanding and misconstruction of the provisions of the ROP Rules, 1999. When the said mistake was located, the said benefit was withdrawn. Those respondents have taken the said action under the provision of sub-rule 7 and 8 of Rule 10 along with the proviso to sub-rule 8 of the ROP Rules, 2009.

By way of illustration, those respondents have stated that the petitioner [Smt. Rama Debbarma (Sinha) of WP(C) 913 of 2016] was appointed on 13.01.1986 in the pay scale of Rs. 430-850. Thereafter on completion of 10 years of service she was allowed next higher scale of pay of Rs. 4200-8650/- which is revised pay scale of Rs. 1300-3220/- w.e.f. 14.01.1996 and on completion of 17 years(10+7) of service in the same post she had been allowed one increment of pay of Rs. 120/- in the pay scale of Rs. 4200-8650/- w.e.f. 13.01.2004. This was in fact her third scale advancement in view of the clarification of the Finance Department, Government of Tripura dated 14.09.2009.

The respondents have further submitted that the petitioner and other similarly situated MPW(F)/MPS(F) were entitled to scale of Rs. 5000-10300/- with grade pay of Rs. 2400 as per ROP Rules, 1999 as their scale advancement were prior to 31.12.2005. The said illegal scale advancement was withdrawn and the petitioners were provided with the grade pay of Rs. 2100/- in the pay scale of Rs. 4200-8650/- with one additional increment as benefit after completion of 17 years of service. So far, the junior MPS are concerned, they are getting the grade pay of Rs. 2400/- in the pay scale of Rs. 5000-10300/-. The juniors who have completed 25 years of service on 01.01.2006, their CAS has been considered under the provision of Rule 10(1) of the TSCS (RP) Rules, 2009. As those juniors to the petitioners did not have three scale advancement upto 31.12.2005, they were allowed the benefit of CAS 3 by operation of ROP Rules, 2009 by upgrading their grade pay from Rs. 2100 to Rs. 2400/-.

By the memorandum issued by the Finance Department, Government of Tripura under no. F.6(1)-FIN(PC)/2008 dated 14.09.2009, against the point raised for clarification, the following clarifications were provided:

Sl.No.

Point on which clarification sought

Clarification

1.

Under TSCS (RP) Rules, 2009 the benefit of ACP (in place of earlier CAS) is admissible with effect from 1.1.2006. It is observed that in a number of cases in many departments certain employees who had served over 10 years or as the case may be over 17 years in the same post/grade without promotion before 1.1.2006 but did not get benefit of CAS for want of promotion post or on other restriction imposed under CAS. But now when such restriction which were in existence under CAS have been removed under ACP, clarification required for dealing with following cases in respect of providing ACP benefit:

As per TSCS (RP) Rules, 2009 the benefit of ACP cannot be stretched before 1.1.2006. So to deal with the instant examples, it is clarified that the incumbent must fulfill both the conditions i.e. completing further 8 years of service with effect from 1.1.2006 without promotion to become eligible for getting 3rd ACP. To remove the confusion and misunderstanding, a general clarification is given to the effect that for getting benefit of ACP (1st/2nd/3rd) both the criteria of 10 years, 7 years and 8 years of service in each stage without promotion and criteria of completion of total years of service i.e. 10 years, 17 years and 25 years must be fulfilled.

[Emphasis added]

Mr. S. Bhattacharji and Mr. K. Nath, learned counsel appearing for the petitioners have strenuously argued that the petitioners are entitled to get the upgraded scale notwithstanding the release of the increment. Learned counsel appearing for the petitioners have submitted that the petitioners shall be provided with CAS 2 after completion of 17 years of service and CAS 3 after completion of 25 years of service as they continued in the same post/grade without promotion.

Mr. TD Majumder, learned Government Advocate appearing for the respondents has categorically stated that the CAS or ACP is a special measure to extend the stagnation benefit and to get the stagnation benefit is subject to the policy, as framed by the State. While determining the policy, the State has to consider the fiscal factors. He has further submitted that the policies are not challenged in this case. The stagnation reliefs has been given under Rule 10 of the ROP Rules, 1999. Proviso (ii) of Rule 10 of the ROP Rules, 1999 provides as under:

"If the post has been upgraded or modified after entry in the service, it will not be treated as scale advancement. The service period in the pre- revised scale will be counted taking into account service both in modified/upgraded scale and corresponding earlier scale".

It has been further provided under proviso (vii) of Rule 10 of the ROP Rules 1999 that by way of scale aDVANCEment in this scheme, the CAS scale cannot exceed the promotion scale. (HoweVer, CAS scale can become same as promotion scale). In such cases, the scale aDVANCEment will not take place at the prescribed period till actual promotion is done. HoweVEr, on completion of the prescribed period in this scheme, he will earn an increment on 1.1.99 or later if any aDVANCEment is due. The earning of increment will be counted as on aDVANCEment of scale. This restriction will not be applicable to existing Group-D employees.

Thus, Mr. Majumder, learned Government Advocate has submitted that the petitioners are not entitled to the benefit as prayed as that would be beyond what has been prescribed by the Rules as stated.

It cannot be denied that the petitioners' claim is not supported by any statutory provision nor by the contract of service which can obligate the State to provide such benefit to them. It wholly falls within the domain of the executive to decide to what extent and how they would give the stagnation relief to an employee who continues to serve for long period without any promotion in the same post or grade. Even the provision restricting the advancement beyond the pay scale of the promotion post is not under challenge. Hence, there cannot be any exercise to determine the constitutionality of the said provision as stated.

Having observed thus, these writ petitions are dismissed being bereft of merit. There shall be no order as to costs.