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Judgment
These petitions arise in common background. They have been heard together and would be disposed of by this common judgment. Relevant facts being similar we may notice those arising in WP(C) No.99/2019 which is treated as a lead matter.
The petitioner herein has challenged an office order dated 28.11.2013 granting the benefit of Assured Career Progression (ACP)-I to the petitioner on completion of 10 years of service as per the provisions of Rule 10 of Tripura State Civil Services (Revised Pay) Rules, 2009 (hereinafter to be referred to as ROP, 2009). Under the said pay fixation order the Government has fixed the pay of the petitioner at Rs.9,660 (which would comprise of Pay Band of Rs.7,380 + increment of Rs.280 + Grade Pay of Rs.2,000) w.e.f. 19.11.2013. The petitioner is not satisfied with this pay fixation and claims higher pay fixation primarily on the ground that the same is not in consonance with the Tripura State Civil Services (Revised Pay) Rules, 1999 (hereinafter to be referred to as ROP, 1999).
The petitioner was appointed as a Lower Division Clerk (LDC, for short) in the Police Department of the State of Tripura on 19.11.2003 in the pay scale of Rs.3,300-7,100. The petitioner would point out that under the then prevailing ROP of 1999, the Government had framed Career Advancement Scheme which would be applicable from 01.01.1999. As per this scheme upon completion of 10 years of service by an employee without promotion he would be granted higher gradation or advancement to the higher pay scale. According to the petitioner, such benefit was not granted upon completion of 10 years of service and instead the petitioner‟s pay fixation was regulated by the ROP of 2009. Even with this pay fixation, the petitioner has a dispute.
The respondents have filed affidavit in reply dated 14.05.2019 of one Arup Deb, Under Secretary to the Government of Tripura, Department of Home in which while opposing the petition it is contended that when the petitioner was appointed as an LDC, ROP of 1999 were in force. The Government thereafter promulgated ROP, 2009 under notification dated 05.05.2009 which came to effect on 01.01.2006. Since the petitioner had completed 10 years of service during the period when ROP, 2009 were in force, the petitioner‟s entitlement for financial upgradation can be regulated only in terms of the ROP, 2009 and not in terms of ROP, 1999. It is pointed out that the petitioner completed 10 years of service only in the year 2013. Even the ROP of 1999 did not envisage grant of the pay scale of UDC but only the financial upgradation in the immediate next higher pay scale as per the scales of pay contained in Annexure-A to ROP, 1999. It is further stated that the petitioner was granted the benefit of Career Advancement Scheme (CAS-I) on 19.11.2013 in the pay scale of Rs.4,000-7,890 from the scale of Rs.3,300-7,100. It is also stated that:
"Further claim of the petitioner regarding entitlement of pay of Rs.4200-8650/- which is the pay scale of promotion post of UDC is not correct because the petitioner is not holding the post of UDC, but he is working as a LDC. Even under Rule 10(b) of ROP 1999, the petitioner is entitled to get the pay scale of Rs.4000-7890/- as a result of financial up-gradation, after 10 years under CAS because under CAS financial up-gradation is allowed in the immediate next higher pay scale as per pay scale mentioned in Annexure-A of the ROP, 1999."
The respondents in the said affidavit have also pointed out that upon implementation of the ROP of 2009 the petitioner had opted to be governed by the said rules.
ROP, 1999 contained detailed provisions for Career Advancement Scheme (Modified) in Rule 10. Relevant provision of this rule reads as under:
"10. CAREER ADVANCEMENT SCHEME (MODIFIED) WITH EFFECT FROM 01-01-1999.
The State Government employees will have scale advancement by way of promotion, failing which by time bound movement in a higher scale as per table in Annexure A‟ after entry into service in the whole service life in the following manner:
(a) The employees entering by direct recruitment in scale no. 1 as per statement at Annexure-A or corresponding scale earlier will have 3 scale advancement at the end of 10, 7 and 7 years of continuous and satisfactory service in the scale 1, 2 & 3 to the scale 2, 3 and 4 respectively unless they get promoted to a post of higher scale before the period at each stage.
(b) The employees entering by direct recruitment in the existing scales no.4 to 10 or revised scale no.5 to 11 or corresponding earlier scale will have 2 scale advancement in next higher scales as per table in Annexure A‟ at the end of 10 and 7 years of continuous & satisfactory service in the entry scale and higher scale of promotion/ gradation or advancement respectively, as the case may be, to the higher scales unless they get promoted to higher scale before the prescribed period at each stage.
(c) The employees entering by direct recruitment in the scale above 5500-10700 (pre-1996 scale of 1700-3980 or pre-1986 scale of 780-1780 or corresponding earlier scale) will have one scale advancement in the next higher scale as per table in Annexure A‟ at the end of 10 years of continuous & satisfactory service in the entry scale unless they get promoted to higher scale before the prescribed period.
(d) The employees of Cadre service will have scale advancement as prescribed in the Annexure-B. This will also be effective from 01-01-1999.
(e) In the case of time bound advancement to higher scale pay will be fixed under FR 22(a)(i)."
With introduction of the ROP of 2009 w.e.f. 01.01.2006 new pay scales came to be implemented for the State Government employees. ROP, 2009 contained Assured Career Progression Scheme under Rule 10. Relevant portion of this rule reads as under:
"10. Introduction of a new scheme titled 'Assured Career Progression' (ACP) Scheme with effect from 1st January, 2006 in replacement of existing CAS introduced under TSCS( Revised Pay) Rules, 1999.-
(1) Under the new scheme (A.C.P), all Government employees in the PB-1, PB-2 & PB-3 shall be entitled to get a maximum of three financial up gradations, the first after 10 years of service
under regular scale, 2nd after another 7 years of service ( total 17 years) and 3rd after further 8 years of service( total 25 years) in their service career provided the concerned employee had not got up to three numbers of benefits of scale up gradations including promotions already. In case of PB-4, the employees borne under Grade Pay Rs.3700/-(against pre-revised scale of Rs.7800-15,100/-), under Grade Pay Rs. 4500/- (against pre-revised scale of Rs.10,000-15,100/) and Grade Pay Rs. 4800/- (against pre-revised scale of Rs.10,650-15,850/-) would be entitled to get 3, 2 and 1 financial up gradations respectively under the scheme provided the concerned employee had not got scale upgradation including promotion up to 3,2 & 1 respectively already.
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(4) Those Government employees who had completed 10 years of service before 1.1.2006 but had not got or consumed any benefit of promotion/ scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 1st ACP from the date of his coming over to the revised pay structure under these rules. Similarly those Government employees who had completed 17 years of service before 1.1.2006 but had got/consumed no benefit or got/consumed one benefit promotion or scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 2nd ACP directly from the date of his coming over to the revised pay structure under these rules. In respect of Government employees who had completed 25 years of service before 1.1.2006 but had not got/ consumed any benefit of promotion/scale upgradation or got/consumed up to two benefits of promotion/scale upgradation under revised pay rules framed in the past by the State Government from time to time, they will now be provided the benefit of 3rd ACP directly from the date of his coming over to the revised pay structure under these rules. The benefit under this provision should be allowed subject to fulfillment of all conditions stipulated in this rule.
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(7) Only the benefit of fixation of pay will be available at the time of financial upgradation under this scheme. For this, an increase of one increment in the existing pay in his/her Pay Band (i.e. 2.5% of Band Pay plus Grade Pay) along with next available Grade Pay shall be admissible as benefit of financial upgradation under this scheme. However, in cases where financial up-gradation and promotion fall in the same Grade Pay, in that case if any employee has already got the benefit of financial upgradation under ACP, he will not get any further financial benefit of increment etc for his promotion in the same Grade Pay. He will, however, thereafter be entitled to the higher designation and all the functional responsibilities and facilities available for the higher post.
(8) Besides providing one increment @ 2.5 % and the next available Grade Pay under the ACP, the concerned employee will continue to remain in his existing Pay Band. However, in the event of his crossing the maximum of the Pay Band as a result of this upgradation, she/he will move to the next higher Pay Band but without any change in the earlier Grade Pay.
Provided, those Government employees who had got the benefit of CAS under TSCS ( Revised Pay) Rules, 1999 between period 1.1.1999 to 31.12.2005 moving to the promotion scale without having benefit of FR 22(I)(a)(1) but got/ will get functional promotion in the same pre-revised pay scale or to the revised pay structure corresponding to the same pre-revised pay scale after coming over to the revised pay scale, will be entitled to get the benefit of one increment under revised pay structure at the time of functional promotion in the same pay scale."
It can thus be seen that the ROP, 2009 provided an entirely different scheme of Assured Career Progression replacing earlier modified Career Advancement Scheme contained in ROP, 1999. The admitted fact is that none of the petitioners completed the minimum qualifying service of 10 years for claiming the benefit of modified Career Advancement Scheme under the ROP of 1999 till 01.01.2006. All the petitioners completed 10 years of service as LDCs long after 01.01.2006. We have noticed that petitioner of WP(C) No.99 of 2019 completed such 10 years of service only in the year 2013. By the time, therefore, these petitioners had completed 10 years of service, ROP of 1999 no longer held the field. The ROP of 2009 were brought into existence, revised pay scales as per the said revision were implemented, petitioners had opted for being governed by the ROP of 2009.
Under the circumstances, the petitioners cannot claim to enjoy the continued benefit of modified Career Advancement Scheme as per the Rules of 1999. Their entitlements of pay and other allowances as well as the career progression benefits would be traced only to the ROP of 2009. Any other view would bring about an anomalous situation. The employees such as the petitioners would be governed by the revised pay scales as per ROP, 2009 and corresponding pay fixations whereas they would receive benefit of career advancement as per the scheme contained in the ROP, 1999. Such a hybrid situation is neither envisaged under the rules, nor can be interpreted.
Quite apart from the plain defect of introduction of the fresh ROP, 2009 replacing the earlier ROP, 1999 even intrinsically there are indication in Rule 10 of ROP, 2009 where the benefits would be available to all existing employees who complete the qualifying service after 01.01.2006. For example, under sub-rule (4) it is provided that those Government employees who had completed 10 years of service before 01.01.2006 but had not got or consumed any benefit of promotion or scale upgradation under revised pay rules framed in the past, they will now be provided the benefit of first ACP from the date of their coming over to the revised pay structure under these rules. All emoluments such as pay scales, pay fixation and allowances would thus be governed by the ROP of 2009 upon its promulgation.
Under the circumstances, having agreed to and having been governed by the ROP of 2009 for the purpose of revised pay scale and pay fixations, the petitioners can claim benefit of Assured Career Progression as per Rule 10 of the said ROP, 2009 only. In other words, the petitioners‟ expectation that upon completion of
10 years of service in the cadre of LDC without promotion, they must get the benefit of modified Career Advancement Scheme contained in the ROP of 1999, simply cannot be accepted.
With respect to their pay fixations from the due dates of completion of 10 years of service by granting the benefit of Assured Career Progression as per Rule 10 of the ROP of 2009, I find no justifiable grievance having been raised. Sub-rule (1) of Rule 10 envisages a maximum 3(three) financial upgradations in the career of a Government employee, first after 10 years of service under a regular scale, second after 7 years of service and third after further 8 years of service provided the employee has not got three benefits of scale upgradation including promotion. Sub-rule (7) of Rule 10 provides that only the benefit of fixation of pay would be available at the time of financial upgradation under the scheme for which an increase of one increment in the existing pay in the Pay Band of the employee (i.e. 2.5% of Band Pay plus Grade Pay) along with next available Grade Pay will be admissible as benefit of financial upgradation. Sub-rule (8) of Rule 10 clarifies that besides granting the said benefit the concerned employee will continue to remain in his existing Pay Band. Only in the event of his/her crossing the maximum of the Pay Band as a result of the upgradation he or she will move to the next higher Pay Band without any change in the earlier Grade Pay.
This is precisely what the set of benefits the petitioner has received pursuant to the impugned pay fixation order dated 28.11.2013. No further benefits can be granted.
For on all material aspects facts in the rest of the petitions are similar without recording separate reasons, therefore, these petitions are dismissed.
Pending application(s), if any, also stands disposed of.