Smt. Mira Datta vs The State Of Tripura

This writ petition is filed seeking the following reliefs by the petitioner:-

Heard Learned Counsel, Mr. A. Bhaumik appearing on behalf of the petitioners and also heard Learned Senior G.A., Mr. P. Gautam appearing on behalf of the State-respondents.

At the time of hearing, Learned Counsel for the petitioners drawn the attention of the Court that the petitioners were appointed as Lower Division Clerk (LDC) vide Memo dated 15.02.1992 on consolidated pay/fixed pay at the rate of Rs.600/-per month. In the same memo it was provided that the petitioners were appointed against vacant posts shown at Column No.3 of the Annexure-I to the Memo dated 15.02.1992 and in the same list the name of the petitioners were in Serial Nos.9, 15, 2 & 3 in the list of persons appointed as Lower Division Clerk.

It was further submitted by Learned Counsel for the petitioners that, pursuant to the Memo dated 15.02.1992, the petitioners joined in service w.e.f. 17.02.1992, 05.03.1992 & 20.02.1992 respectively. Later on another memorandum dated 01.08.1992 was issued and by the said memorandum regular pay scale for the post of LDC was extended in favour of the petitioners in the scale of Rs.(970-2400)/- for a period of 12 months w.e.f. 01.08.1992 / from the date of joining whichever is later. According to Learned Counsel, it is clear that the memo dated 01.08.1992 was a continuation of the Memo dated 15.02.1992 and it was provided by the said memorandum that the petitioners would be entitled to the regular pay scale admissible to the post of LDC w.e.f. 01.08.1992 or from the date of joining whichever is later. As the petitioners had joined as LDC prior to 01.08.1992 so the petitioners were extended with the benefit of regular pay scale w.e.f. 01.08.1992 as the said date was later than the date of joining of the petitioners. Thus, according to Learned Counsel, it is by a triggering clause that the extension of regular pay scale has been deferred w.e.f. 01.08.1992 as the said date was a later date than the date of joining of the petitioners.

Later on, by another Memo dated 22.03.1994 [Annexure-3] the appointment of the petitioners was extended until further orders with effect from the date of joining.

Learned Counsel for the petitioners thereafter submitted that the petitioners continued in service without any break. The petitioners completed 10 years of continuous service without promotion and thereafter vide Memo dated 17.09.2002 the petitioners were granted the next higher scale as Career Advancement Scheme w.e.f. 31.07.2002 [Annexures-4, 5 & 6].

It was further submitted that while extending the benefit of Career Advancement Scheme the services of the petitioners have been counted w.e.f. 01.08.1992 but the service rendered by the petitioners on consolidated pay/fixed pay was not counted.

Thereafter, vide Memo dated 22.01.2010 on completion of 17 years of continuous satisfactory service without promotion, the petitioners were extended the benefit of 2^nd ACP w.e.f. 01.08.2009. At the time of extension of 2^nd ACP also the services of the petitioners was counted from 01.08.1992. After that, vide another memo dated 20.09.2017 and 25.09.2017 on completion of 25 years of continuous and satisfactory service without promotion, the petitioners were extended the benefit of 3^rd MACP w.e.f. 20.02.1992 and for the purpose of extension of 3^rd MACP, the service of the petitioners was counted w.e.f. 01.08.1992 [Annexures-10, 11, 12 & 13].

Learned Counsel for the petitioners thereafter submitted that in all purpose the service of the petitioners have been counted w.e.f. 01.08.1992 i.e. from the date of extension of regular pay scale which was totally illegal and perverse. So, according to the Learned Counsel the respondents cannot deny the counting of the said period of service for the purpose of CAS/ACP/MACP.

It was further submitted that when the petitioners were appointed that time there was no policy regarding appointment of Group-C and Group-D employees on fixed pay basis. Subsequently in the year 2001 the council of Ministers took a decision to appoint Group-C and Group-D employees initially on fixed pay basis keeping the regular pay scale in abeyance. Later on by another memorandum dated 16.10.2007 issued by the Finance Department, Government of Tripura it was provided that the fixed pay period of service will be counted for all purposes.

Thereafter, vide notification dated 12.08.2013 issued by the Finance Department, Govt. of Tripura Sub-Rule 1 of Rule 10 of Tripura State Civil Services (Revised Pay) Rules, 2009 was amended by way of its 9^th amendment and it was provided that the fixed pay period of service rendered by an employee recruited on fixed pay by keeping the regular pay scale posts in abeyance and observing all formalities including observance of recruitment Rules shall be taken into consideration for the purpose of extension of ACP/MACP benefit [Annexure-15].

It was also submitted that before appointment of the petitioners 9 (nine) Lower Division Clerks were appointed by the respondents vide Memo dated 26.06.1991 in the regular pay scale from the date of initial joining in service. Again vide memorandum dated 16.11.1992, 07 (seven) numbers of Lower Division Clerks were appointed in the regular pay scale from the date of their initial joining in service. Thus, according to the Learned Counsel, the petitioners were discriminated with respect to extension of regular pay scale from the initial date of joining vis-à-vis the Lower Division Clerks appointed vide Memorandum dated 26.06.1991 and 16.11.1992 [Annexures-16 & 17]. In this regard, the petitioners were submitted representations to the authority but that was not considered.

So, in summing up Learned Counsel appearing on behalf of the petitioners urged before this Court to allow the writ petition and to extend the benefit of past service to the petitioners in counting ACP and MACP.

The State-respondents have contested the writ petition by filing counter-affidavit. However, in Para Nos.6 and 8 of the counter-affidavit, the State-respondents have asserted as under:-

However, at the time of hearing Learned Senior G.A., Mr. P. Gautam appearing on behalf of the State-respondents submitted that the present petitioners could not make out any case for issuing any mandamus and urged for dismissal of the writ petition.

It was further submitted by Learned Senior G.A. that all the benefits were extended to the petitioners by the department in proper course of time and at this stage the petitioners are not entitled to get any relief in this writ petition.

To counter the submission made by the Learned Senior G.A. it was further submitted that the case of the petitioners is squarely covered by Rule 13 of the Pension Rules and also it was submitted that in pursuance of Memo dated 16.10.2017 [Annexure-14] and subsequent Notification dated 12.08.2013 [Annexure-15] there is no scope to deny the said benefit to the petitioners as because in both the notifications it has been specifically mentioned that at the time of counting the required period of service the fixed pay period of service rendered by an employee on fixed pay shall be taken into consideration. So, according to Learned Counsel, as all the petitioners were appointed on 15.02.1992 and the benefit was extended to them w.e.f. 01.08.1992, so, the aforesaid gap would be taken into consideration at the time of counting of service.

Heard both the sides at length and perused the writ petition as well as the documents herein annexed with the same and the counter-affidavit filed by the State-respondents.

The respondents save and except simple denial of the case of the writ petitioners did not raise any other points to defend the writ petition filed by the petitioners nor projected any grounds as to why the petitioners are not entitled to get any benefit as prayed for. It is the admitted position that, in pursuance of Memo dated 15.02.1992 the petitioners were appointed by the State-respondents department and thereafter by another Memorandum dated 01.08.1992 they were extended the benefit of regular pay scale and it is also the admitted position that the petitioners were appointed against the sanctioned posts. Further, it is also the admitted position that, prior to the appointment of the petitioners those who were appointed and thereafter also were extended the benefit of regular pay scale.

At the time of hearing Learned Counsel for the petitioners referred Annexure-14 wherein in Clause 3(i) it has been provided as under:-

Thereafter, a further amendment was introduced through the Tripura State Civil Services (Revised Pay) 9^th Amendment Rules, whereby Rule 10(1) of the principal Rules was amended. Consequently, the following assertions have been made:-

From the aforesaid Notifications and Rules it appears that at the time of counting of required period of service, the employees who were recruited on fixed pay consolidated pay would be taken into consideration. Here, in this case, the petitioners have been granted the benefit of ACP and MACP on completion of rendering 10, 17 and 25 years of service but the benefit of the said period in pursuance of the initial appointment of 15.02.1992 was not taken into consideration rather their services were counted w.e.f. 01.08.1992. As already stated, the respondents by their counter-affidavit did not raise any ground as to why the service of the petitioners was not counted from the date of their initial joining. Thus, it appears that while counting the period of service the respondent authority did not consider the memorandum of the Finance Department dated 16.10.2017 [Annexure-14] as well as the Notification dated 12.08.2013 [Annexure-15]. Rather, the respondents admitted that they were provided the regular pay scale w.e.f. 01.08.1992 but could not assign any ground while the initial date of joining was not considered for the purpose of providing ACP and MACP, as such, in the considered opinion of this Court that the present petitioners are entitled to get the benefit of the initial date of joining in their service w.e.f. 17.02.1992, 05.03.1992 and 20.02.1992 instead of 01.08.1992.

Further, let us reproduce herein below Rule 13 of the Pension Rules which provides as under:-

From the aforesaid Rule also it appears that, qualifying service of a Government Servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Further, it appears that in determining the qualifying period of service rendered as temporary capacity also shall be taken into consideration.

In the result, the writ petition is allowed.

The respondents are directed to provide the benefits of initial period of service to the petitioners from the respective dates of their joining i.e. w.e.f. 17.02.1992, 05.03.1992 and 20.02.1992 in place of 01.08.1992 and accordingly, the benefits accrued to the petitioners shall be ensured to them within a period of 4 (four) months from the date of passing of this judgment.

With this observation, this present writ petition accordingly stands disposed of.

Pending application(s), if any, also stands disposed of.