Shipra Debnath And Ors vs State Of Tripura And Ors

[1] All these writ petitions being W.P.(C) No.1449 of 2019 [Smt. Shipra Debnath and others vs. State of Tripura and others], W.P.(C) No.1450 of 2019 [Smt. Mili Debnath and another vs. State of Tripura and others] and W.P.(C) No.1450 of 2019 [Sri Manoranjan Deb vs. State of Tripura and others] are consolidated for disposal by common judgment inasmuch as in the similar perspective-fact, the petitioners have prayed for identical reliefs viz. quashing of the decision contained in the letter No.F.6(74)/4/PWD(E)/09(S) dated 07.05.2013 [Anexure-6 to the writ petitions being W.P.(C) 1449 of 2019 and W.P.(C) No.1450 of 2019 & Annexure-4 to the writ petition being W.P.(C) No.1451 of 2019] and for directing the respondents to release 3rd ACP to the petitioner and to the deceased employees, namely Priyalal Debnath and Jadav Kumar Debnath represented by the petitioners of W.P.(C) No.1449 of 2019 and W.P.(C) No.1450 of 2019 on completion of 25 years of the service. That apart, the petitioners have stated that the controversy raised in these petitions is squarely covered by a decision of this court in Dilip Kumar Guha vs. State of Tripura & Ors. [the common judgment and order dated 03.05.2016 delivered in W.P.(C) No.386 of 2016 and other writ petitions]. It is also to be noted that the said judgment and order dated 03.05.2016 was challenged in the writ appeal being W.A. No.78 of 2016 [the State of Tripura & Ors. vs. Dilip Kumar Guha], but that has been affirmed by a Division Bench of this court by the judgment and order dated 17.07.2019.

[2] Priyalal Debnath since deceased and represented by the petitioners of W.P.(C) No.1449 of 2019 was initially appointed as the Helper in the scale of pay of Rs.370-650/-under the Tripura Government Services [Revised Pay] Rules, 1982. For introduction of Tripura State Civil Services [Revised Pay] Rules, 1988 [in short, the ROP Rules]. Priyalal Debnath was entitled to get the Graded Pay Scale No.28 in the re-designated post of Jr. Electrician. Thus, he was moved to the scale of pay of Rs.970-2400/- w.e.f. 01.01.1986. Priyalal Debnath was entitled to move to the next graded scale on completion of 10 years of service. Therefore, Priyalal Debnath was granted the next higher graded scale of Rs.1250-2890/- in the re-designated post of the Electrician. The said pay scales were again revised by the Tripura State Civil Services [Revised Pay] Rules, 1999. The scale of pay of Rs.1250-2890/- was revised to Rs.4000-7890/-. On completion of 17 years of service, in terms of Rule 10 of Tripura State Civil Services [Revised Pay] Rules, 1999, Priyalal Debnath was moved to the next higher scale of pay of Rs.4200-8650/- on 21.09.2004 for his stagnation in the same post. While moving to the graded scale of pay of Rs.1250-2890/- corresponding revised scale of pay of Rs.4000-7890/- Priyalal Debnath had overtaken the scale of pay of Rs.1020-2620/- corresponding to the revised scale of pay of Rs.3300-7100/- as per ROP Rules, 1999. Thus, he had consumed, according to the respondents, 3[three] scale upgradation in the career. As per Rule 10(2) of the ROP Rules, 2009 each scale upgradation availed by an employee after his direct entry into the post of a department shall be treated as consumption of one Assured Career Progression [ACP, in short]. The said Rule 10(2) of ROP Rules, 2009 came into force w.e.f. 01.01.2006. Priyalal Debnath had completed 25 years of service as on 21.09.2012. But his demand for releasing 3rd ACP was not acceded to. According to the respondents, such claim was not justified.

[3] The respondents by the letter dated 07.05.2013 [Annexure-6 to the writ petition being W.P.(C) No.1449 of 2019] had communicated that Priyalal Debnath was not entitled to get 3rd ACP because he had consumed 3[three] scale upliftments in view of the clarification given at point No.10 of the Finance Department's Memorandum No.F.6(1)FIN(PC)/08 dated 14.09.09 followed by the decision of the Finance Department vide U.O. No.189/FIN(PC)/13 dated 12.04.2013.

[4] The similar claim and rejection are also the subject matters of other two writ petitions.

In W.P.(C) No.1450 of 2019, the petitioners represent the interests of the deceased employee, namely Jadav Kumar Debnath who was initially appointed in the post of Helper under the respondents and with introduction of the ROP Rules, 1988 he was re-designated as Jr. Electrician. He was granted the graded pay scale No.28 i.e. 970-2400/- from the day of his appointment. On completion of 10 years of service he was moved to the scale pay of Rs.1250-2890/- w.e.f. 21.09.1997. As stated, the said scale of pay of Rs.1250-2890/- was revised to Rs.4000-7890/- in the re-designated post of Electrician. Further, on completion of 17 years of service Jadav Kr. Debnath was granted the scale of pay of Rs.4200-8650/-w.e.f. 21.09.2007 in the re-designated post of Sr. Electrician. By ROP Rules, 2009 a new career advancement scheme titled Assured Career Progression [ACP] was introduced w.e.f. 01.01.2006 by repealing the earlier scheme. Under the new scheme, the Government employees can get maximum of 3 financial upgradations including the promotion. The first upgradation will come into effect after 10 years, 2nd upgradation after 17 years and 3rd upgradation after 25 years of the service. Jadav Kumar Debnath did not get any promotion according to the respondents. As such, on his completion of 25 years of service on 21.09.2012, he was entitled to move to Rs.5000-8700/- with Grade Pay of Rs.2400/-. But for the similar reason as noted before, the said benefit was not released to Jadav Kumar Debnath. For that purpose, the decision on the letter dated 07.05.2013 [Annxure-6 to the writ petition being W.P.(C) No.1450 of 2019] was pressed in the service.

[5] In the writ petition being W.P.(C) No.1451 of 2019, the petitioner was initially appointed as the Helper on 21.09.1987. With introduction of the ROP Rules, 1988 he was accommodated in the scale of Rs.970-2400/- w.e.f. 01.01.1986 against the re-designated post of Jr. Electrician. He was entitled to get next higher scale on completion of 10 years of service in terms of the graded pay scale No.28. The said scale of Rs.1250-2890/- was allowed to the petitioners w.e.f. 21.09.1997 against the re-designated post of Electrician. The said scale of Rs.1250-2890/- was revised to Rs.4000-7890/- under ROP Rules, 1999. On completion of further 7 years of service he was given the further financial up-gradation to the scale of Rs.4200-8650/- w.e.f. 21.09.2004 against the re-designated post of Sr. Electrician. Thereafter, the petitioner did not get any scale upgradation or promotion. After completion of 25 years of service, the petitioner represented before the respondents to release his 3rd ACP under the newly introduced ACP Scheme vide the ROP Rules, 2009, but the said claim was not acceded to in terms of the decision contained in the letter dated 07.05.2013 [Annexure-4 to the writ petition being W.P.(C) No.1451 of 2019].

[6] Mr. R. Datta, learned counsel appearing for the petitioners has submitted that by the decision in Dilip Guha (supra) the said controversy has been settled holding, inter alia, that Para-10 of the clarificatory memorandum dated 14.09.2009 cannot stand in the way of releasing 3rd ACP in favour of the similarly situated persons. The relevant passages from Dilip Guha (supra) is reproduced hereunder:

"22. As already stated hereinbefore the petitioners were in the lowest pay scale of Rs.970-2400/- as prescribed under ROP Rules, 1988 and on their completion of 10 years of service they were moved to the next higher scale of Rs.1250-2890/- as per graded scale No.28 of ROP Rules, 1988. Thereafter as per ROP Rules, 1999, the second CAS was allowed to the petitioners in accordance with the provisions prescribed in Rule 10 of ROP rules, 1999 and the petitioners were allowed the scale of Rs.4200-8650/-. As per Annexure-A of ROP Rules, 1999, the scale of Rs.4200-8650/- is the next higher scale of the corresponding revised scale of Rs.1250-2890/-. So, I find nothing to comprehend that the petitioners jumped one intermediate pay scale at the time when the pay scale of Rs.4200-8650/- was allowed to them.

As per ROP Rules, 2009 the petitioners are entitled to get 3rd ACP on their completion of 25 years of service w.e.f. 21.09.2012. As prescribed in Part C of ROP Rules, 2009 since the petitioners were already in the existing pay scale of Rs.4200-8650/-, i.e. the scale No.9 of Part C, on their completion of 25 years of service they were entitled to move to the next higher scale of Rs.5000-10,300/- i.e. the scale No.10 of Part C which was revised to Rs.5,310-24,000/- with grade pay of Rs.2400/-."

[7] While affirming the finding of the said judgment dated 03.05.2016, it was further observed by a Division Bench of this court is as follows:

We have given our anxious consideration to the submission made by the learned GA, but from reading of the relevant clarification as reproduced above, it appears that the case of the petitioner cannot be encompassed by the illustration/clarification as provided by the said memorandum dated 14.09.2009 (Annexure-R/1 to the reply filed by the appellant herein). The said clarification provides that an employee who entered in the pay scale of Rs.3300-7100/- got promotion to the scale of Rs.4200-8650 and thereafter got CAS benefit and moved to the scale of Rs.5000-10300/- and after revision under ROP Rules, 2009 if on completion of 25 years of his service, claims to get the benefit of 3rd ACP for moving to the grade pay corresponding to the revised pay scale of Rs.5500-1700/- whether he would be entitled to the same. What has been clarified is that the claim of 3rd ACP in such cases is not admissible on the ground that while entering into the pre-revised pay scale of Rs.5300-10700/- the employee has consumed three scale upgradations, i.e. Rs.4000- 7090/-, Rs.4200-8650/-and Rs.5000-10300/-.

This illustration cannot be applied or imposed on the petitioner's case, inasmuch as the petitioner entered into the service in the scale of pay of Rs.970-2400/- as revised under ROP Rules 1988. Thereafter, the petitioner was moved to the scale of Rs.1250-2890/- by the office order dated 01.07.1998 (Annexure-2 to the writ petition) w.e.f. 21.05.1998 as the first scale up gradation for his completion of 10 years of service.

Thereafter, by the office order dated 08.04.2005 (Annexure-3 to the writ petition), the petitioner was given 2nd scale up-gradation to the scale of pay of Rs.4200-8650/- under Rule 10B of ROP Rules,1999. It may be elucidated that the said upgradation was made as per Annexure-A to ROP Rules, 1999. The said scale of pay of Rs.1250-2890/- was revised Rs.4000-7890/-and the next scale above the said pay scale was Rs.4200-8650/- as per Annexure-A of ROP Rules, 1999.

Thus, it is apparent that as the writ petitioner (the respondent herein) did not get any promotion in the post, the said clarification as reproduced above cannot be applied in this case. The learned Single Judge was absolutely right in holding that on completion of 25 years of service, the petitioner was entitled to move to the scale of Rs.5310-24000/- with grade pay of Rs.2400/-.

[8] Mr. Datta, learned counsel has further submitted that the deprivation still continues as the pecuniary loss is occasioned when the family pension or the salary of the petitioner in the writ petition being W.P.(C) No.1451 of 2019 is released. Thus, the laches cannot stand in the way of adjudication.

[9] Mr. D. Sharma, learned Addl. G.A. appearing for the respondents have candidly submitted that the interest of the employees are identical with the interest of the petitioner in Dilip Guha (supra). In Para-9 of the counter affidavit, the respondents have clearly admitted that the judgment and order dated 17.07.2019 as delivered in W.A. No.78 of 2016 had not been further challenged. The direction by the court to the respondents to release 3rd ACP from the date when the petitioners had completed 25 years of service has been complied with with the concurrence of the Finance Department, Government of Tripura vide the office order No.F.4(37)-PWD(LC)/2015/1162-26 dated 31.10.2019 [Annexure-10 to the writ petition].

[10] On meticulous scrutiny of the factual matrix as shortly reflected hereinbefore, this court does not find any distinguishable element between the case of Dilip Guha (supra) and the preset batch of writ petitions. Thus, this court does not find any difficulty to hold that these writ petitions are wholly covered by the decision of this court in Dilip Guha (supra).

[11] Having observed thus, the respondents are directed to release 3rd ACP in favour of the employees, since deceased, represented by their legal heirs in the writ petitions being W.P.(C) No.1449 of 2019 and W.P.(C) No.1450 of 2019 and to the petitioner in the writ petition being W.P.(C) No.1451 of 2019 from the date of completion of 25 years of the service. The respondents are further directed to release 3rd ACP and to refix their last pay and on that basis to take steps to modify the pension or the family pension as claimed in the writ petitions being W.P.(C) No.1449 of 2019 and W.P.(C) No.1450 of 2019. The consequential payment be made within a period of 3 months from the date when the petitioners shall produce a copy of this order taking note of the observation made hereinafter. The financial benefit shall be released from the date 3 years prior to the date of filing of the writ petitions i.e. 20.12.2019. To be more precise, from the date of the release of 3rd ACP on completion of 25 years of the service till 20.12.2016, the benefit shall be carried forward notionally and the actual financial benefit shall be accounted from 20.12.2016.

With these observation and directions, these writ petitions are allowed.

There shall be no order as to costs.