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All these writ petitions being WP(C)No.1170 of 2018 [Sri Tarun Kumar Bhattacharjee and Others versus State of Tripura and Others], WP(C)No.34 of 2019 [Sri Ashish Chakraborty versus State of Tripura and Others], WP(C)No.64 of 2019 [Sri Biswajit Majumder versus State of Tripura and Others], WP(C)No.65 of 2019 [Sri Subir Chandra Sen versus State of Tripura and Others], WP(C)No.66 of 2019 [Sri Chitta Ranjan Debroy versus State of Tripura and Others], WP(C)No.75 of 2019 [Sri Nirmal Kanti Ray versus State of Tripura and Others], WP(C)No.44 of 2019 [Sri Mrityunjoy Bhowmik and Others versus State of Tripura and Others], WP(C)No.126 of 2019 [Sri Sunil Sutradhar versus State of Tripura and Others], WP(C)No.289 of 2019 [Sri Prabir Dey versus State of Tripura and Others], WP(C)No.290 of 2019 [Sri Shyamal Chandra Dey versus State of Tripura and Others], WP(C)No.291 of 2019 [Sri Dulal Chakraborty versus State of Tripura and Others], WP(C)No.162 of 2019 [Sri Amitabha Bhattacharjee and Others versus State of Tripura and Others], WP(C)No.292 of 2019 [Sri Kamalendu Majumder versus State of Tripura and Others] and WP(C)No.293 of 2019 [Sri Kanu Ranjan Das versus State of Tripura and Others] are clustered for disposal by a common judgment, inasmuch as, the reliefs as sought by means of these writ petitions are common. There is no dispute that the petitioners are directly recruited either as Radio Technician(ASI) or as Wireless Operator (ASI) or as Radio Operator (ASI) or as Radio Technician(ASI) which posts were born in the pre-revised scale of pay of Rs.1250-2890/-, shown as the existing pay scale in the Annexure-A of the ROP Rules, 1999 and after their appointment, all of them had passed the Grade-III, Proficiency Standard within the stipulated period, the petitioners have urged this court by means of these writ petitions for quashing the departmental order under No. DO-1213 dated 01.11.2001 (Annexure 14 to the writ petition) along with the subsequent departmental order under DO No.1116 dated on 04.11.2008 (Annexure 15 to the writ petition) and the departmental order under DO No.1124 dated on 06.11.2008 (Annexure 16 to the writ petition).
Further, the petitioners have urged for quashing the departmental order under DO No.307 dated 17.04.2018 (Annexure 17 to the writ petition) along with the departmental order under DO No.1417 dated on 22.11.1996 (Annexure 19 to the writ petition).
The writ petitioners have fundamentally urged this court to grant them the scale of pay of Rs-1450-3710/-, corresponding to the revised scale of pay of Rs.5000-10,300/- on completion of 10 years of service in the grade of Radio Technician (ASI) of Police and to pay them the arrears of salary and further, to fix their pay in the scale of Rs.1700- 3980/-, corresponding to the revised scale of Rs.7450-13000/-, on completion of 17 years of uninterrupted service in the grade of Radio Technician (ASI) of Police and finally, to fix their scale in the scale of pay of Rs.2100-5000/- corresponding to the revised pay scale of Rs.10,000-15000/- on completion of 25 years of uninterrupted service in the said grade.
On such fixation, the petitioners have urged to release their outstanding dues without delay and within a time frame to be stipulated by this court. The facts are not much disputed, and the dispute hovers around the interpretation of the relevant provisions of ROP rules and consequence of the judgment dated 10.01.2006 delivered in RSA 44 of 2003 and RSA 47 of 2003 by the Gauhati High Court which had jurisdiction over the territory of Tripura at the relevant point of time. The said judgments have indisputably, reached its finality when the apex court dismissed the challenge of the state.
The petitioners have stated that, by the order No.545 dated 25.05.2001, they were confirmed by the respondent No.4, the Superintendant of Police (Communication), Government of Tripura. It is to be noted that at the time of issuing the appointment letter dated 07.04.1990 (Annexure 1 to the writ petition), as example it was stipulated that the post of the petitioners No.1-2 is Wireless Operators Stipendiary and so far the petitioners No.3-5 are concerned, their post was stated to be Stipendiary Radio Technicians. But at that point of time, no such post was available under the police organization.
One of the petitioners (the petitioner No.1) sought disclosure from the office of the respondent No.4 under the Right to Information Act, 2005 (RTI Act, in short) for gathering information about the Recruitment Rules for the post of Wireless Operator Stipendiary or the sanctioned posts. The respondent No.4 by making disclosure, as asked for, has passed the information to the petitioner No.1 that there was no recruitment rules for the post of Stipendiary Wireless Operator, even no such post was sanctioned.
In the year 1988, Tripura State Civil Services (Revised Pay Rules, 1988, in short, ROP Rules, 1988) was introduced by the memorandum No. F.4(6)-(FIN)/PC/88 dated on 15.09.1988, which was published in the extra ordinary issue of Tripura Gazette on 16.09.1988. By the said ROP, it was provided that the said recruitment rules will have effect from 01.01.1986. By operation of the said ROP Rules, the scale of pay of Radio Technician (ASI) of Police was revised to Rs. 1250-2890/- from the pre-revised scale of pay of Rs.430-850/. Similarly, the pay scale of Wireless Operator (ASI) was also revised to Rs.1250-2890/- qua the modified scale of Rs. 560-1300/-.
In the writ petition, the petitioners have asserted that by the said ROP Rules, 1988, the pay scale of Supervisor (SI of Police) and the said scale has been equated for all purposes and the said act was revised to Rs.1300-3220/- from the pre-revised scale of pay of Rs.560-1300/-. For purpose of reference the relevant pay scales of the various posts, relevant in the context, are shown in a tabular form:
Sl.
Name of the posts
Pre revised
Re-designation
Modified scale, if
Revised scale
Selection
No.
scale
of the post, if
any
Grade shall
any
be
1.
Inspector of Police
650-1595/-
-
750-1750/-
1700-
admissible
(Wireless)
3980/-
after 10
2.
Supervisor Gr. I
560-1300/-
(i)Selection
600-1440/-
1450-
years, of
(SI)
Grade
3710/-
service in the
Supervisor
basic Grade,
(SI)
subject to
fitness.
In case of
Supervisor Gr. II
560-1300/-
(ii)Supervisor
1300-
(SI)
(SI)
3220/-
existing
3.
Radio Technician
430-850/-
(i)Selection
560-1300/-
1300-
employees
(ASI)
Grade Radio
3220/-
who have
Technician
completed
(ASI)
10 years of
(ii)Radio
Service on
1.1.86 or on
Technician
the date of
(ASI)
1250-
coming over
2890/-
to the
***
***
***
***
***
***
***
revised scale,
7.
Wireless Operator
430-850/-
(i)Selection
560-1300/-
1300-
(ASI)
Grade Radio
3220/-
pay shall be
Technician
fixed directly
(ASI)
in the
(ii)Radio
Selection
grade scale.
Technician
(ASI)
1250-
2890/-
See Page No-97 of ROP Rules, 1988
It has been further asserted that in part B, Schedule 3 of ROP Rules, 1988, the modified scale of the re-designated Radio Technician has been shown. The said modified scale was Rs.560-1300/- and that scale was the pre-revised scale of Supervisor (SI). Thus, it is apparent that one identical pay scale was provided both for the promotion posts as well as for the re-designated feeder post with effect from 01.01.1986. The pay of the petitioners had been fixed in the modified scale of pay of Rs. 560-1300/- in the re-designated post of Radio Technician (ASI) i.e. Selection Grade Radio Technician (ASI) as per provision of rule 7(1)(A) (1)(b)(i) of the said ROP Rules. The said rule provides as follows:
(A) (1)Basic Pay:
The basic pay of the Government servant in the existing scale on the 1st day of January, 1986, or where the Government servant elects under Rule 5 to be governed by the Revised pay on and from the date on which he earns in the existing scale his next or nay subsequent increment falling after 1-1-86 but not later than 31-12-87 in respect of the post held by him on 1-1-86, the basic pay of the Government servant on such later date, shall be determined as follows:
(a)(i) Where the post in which the pay of the Government servant shall be fixed under these rules is the one and the same post in which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982,
(a)(ii) Where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under the Tripura Government Services (Revised pay) Rules, 1982 up to the date from which his pay shall be fixed under these rules,
(b)(i) Where a modified present scale‟ is specified in column 5 of Schedule III in relation to the post referred to in (a)(i), the basic pay of the Government servant shall be notionally refixed in the modified present scale‟ at the stage next above the pay earlier fixed in the existing scale under the Tripura Government Services (Revised Pay) Rules, 1982 (17th Amendment) or otherwise and regulated thereafter upto the date of his coming over to the revised scale under these rules. The pay thus notionally refixed shall be the basic pay for the purpose of sub-clause(A(1). [Emphasis added]
By sub clause A (1) under Rule 7 (supra) it is provided that on the basic pay of the government servant in the existing scale on 01.01.1986 or where the government servant elected under Rule 5, to be covered by the revised pay on and from the date on which he would earn next or any subsequent increment in the existing scale after 01.01.1986, but not later than 30.01.1997 in respect of post held by him on 01.01.1986 and thus in the revised pay, the pay was to be fixed.
The basic pay of the government servant on such later date, be determined, in the following manner :
"(a)(i) where the post in which the pay of the government servant shall be fix under this rules is the one and the same post in which he was brought to the revised scale under the Tripura government services (revised pay rules, 1982).
(ii) whether the government servant held more than one post during the period from the date on which he was brought over the revised scale under the government services (revised pay rules, 1982) after the date of which the pay shall be fixed under these rules."
It further provides that where no modified scale was specified in column 5 of the Schedule 3 in relation to any of the posts aforesaid, the basic pay of the government servant for that purpose, be determined with regard to the personal pay, if any, in the existing scale on the date of his coming over to his revised scale under the rules, provided that if the government servant earned his normal early increment on the date of his coming over to the revised scale, the basic pay should be inclusive of such increment.
On 01.01.1986, the scale of the Supervisor (ASI) and the modified scale of Radio Technician (ASI), as stated, were equal in correspondence to the revised scale of Supervisor (SI) and the modified scale of the re-designated post of Radio Technician (ASI) were also identical.
A Radio Technician (ASI) is entitled to the revised pay scale of Rs. 1300-3220/- with effect from 01.01.1986 as per ROP Rules, 1988. The revised pay scale of Rs. 1300-3220/-, in the re-designated post of Radio Technician, has been given effect from 01.01.1986 as per ROP Rules, 1988. The said pay scale has been allowed as the gradation scale to the Radio Technician (ASI) after 10 years of their service.
When the Tripura State Civil Services (Revised Pay) Rules, 1999 (in short, ROP Rules, 1999) was given effect to, the pre-revised gradation scale of Supervisor was Rs. 1700-3900/- from the pre- revised scale of Rs.1450-3710/-, which is equal to the promotion scale gradation scale of Radio Technician (ASI). The petitioners, in terms thereof, were entitled to the pay scale of Rs.1450-3710/- or to the corresponding revised scale of Rs.5000-10300/-. But that was not allowed to them while providing the benefit of the upgraded scale (CAS 1) in 1997. From the ROP Rules, 1988 it further appears that the revised scale of the re-designated Radio Technician (ASI) is Rs.1300-3220/- and the revised scale of Supervisor (SI) is Rs.1300-3220/- on 01.01.1986. Thus, it is apparent that the pay scale of the promotional post was revised, and the revised scale of the re-designated feeder posts became identical. ROP Rules, 1999 particularly, Rule 10(e) provides as under:
Rule 10(e). In the case of time bound advancement to higher scale pay will be fixed under FR 22 (a)(i).
Provided that
(i) If scale advancement takes place by way of promotion prior to the period mentioned above at each stage (i.e. at the end of 10,7,7 years of service as the case may be), no further advancement will be admissible at the end of period mentioned at that stage.
[e.g. if an LDC is promoted to UDC before 10 years of service, he will not get advancement at the end of 10 years of service under this scheme. However he will be eligible to get one advancement at the end of 7 years of service in UDC scale in case he does not get promoted by that time.]
(ii) 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.
(iii) The existing employees who have already availed the prescribed no. of scale advancements by way of promotion or gradation under part B or C of TSCS (Revised pay) rules 1988 as per Rule 5(3) thereof as on 01.01.1999 after entry in the service, will not be eligible for any further advancement.
(iv) The existing employees who have not availed prescribed no. of scale advancement by way promotion or gradation in part B or C of TSCS (Revised Pay) rules, 1988, will have opportunity to avail the remaining no. of scale advancements under the scheme. If the gradation scale and promotion scale is same of any stage, they will be counted as single movement.
(v) In future, if the employee moves, in the prescribed time bound manner, to the scale same as promotion scale, on promotion it will be counted as single movement and on the day of actual promotion, pay will be fixed in the same scale under FR 22(a)(i).
(vi) If the promotion is before prescribed no. of years or after time bound movement(s) to higher scale under this scheme and the promotion scale is higher than scale to which he moves under this scheme, the pay will be fixed under FR 22(C).
[e.g. an LDC gets promoted to UDC before 10 years of service, pay will be fixed in FR 22(C). In another case, a LDC completes 12 years of service without promotion and is in the first Career Advancement Scale which is lower that the scale of promotion post of UDC, again pay will be fixed in FR 22(C) on promotion to UDC]
(vii) 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 01.01.1999 or later if any advancement is due. The earning of increment will be counted as an advancement of scale. This restriction will not be applicable to existing Group-D employees.
(viii) Beyond the prescribed no. of scale advancements in the scheme, further movement to higher scales will depend on actual promotion.
(ix) For the posts which did not appear in part B‟ or C‟ of the TSCS (Revised pay) Rules 1988 or for which graded scales were not prescribed and if the holders have completed prescribed no. of years or more of service as on 01.01.1999 for career advancement at that stage, the pay will be fixed in the next higher scale as per table in Annexure A‟ on
01.01.1999 with Pay Fixation Under FR 22(a)(i) provided he had not received prescribed no. of advancement by promotions earlier. This will be applicable for direct recruits in Cadre Services also, who did not have time bound promotion under existing Cadre Service Rules.
[e.g. A Constable has 20 years of service as on 01.01.1999 and he did not receive any promotion up to 01.01.1999, his pay will be fixed in 3200-6030/-on the date of option and in 3300-7100/- on 01.01.1999 under F.F. 22(a)(i). Similarly a Jr. Grade Stenographer with 15 years of service as on 01.01.1999 without promotion, will have his pay fixed in 5000-10300/- on 01.01.1999 under F.R. 22 (a)(i) with DNI 01.01.1999. The next advancement will be due 7 years after 01.01.1999 except if he gets promoted earlier.
(x) If any employee has pay fixed before 01.01.199, as per column 4 in table under Note-4 of Part-B (Schedule III) of TSCS (Revised Pay) rules 1988 or to the 2nd higher grade as per provision under Part-C (Schedule-III) of TSCS (Revised Pay) rules 1988, the movement will be considered equivalent to two advancements in the higher scales and benefit under the scheme will not be admissible except for existing Group-D, employees who can have one more movement.
(xi) If an employee has completed more than 7 years of service in the scale of 850-2130/- before 01.01.1999, his pay will be fixed in 2900-5660/- on 01.01.1999 with the pay fixation under FR-22(a)(i).
(xii) The date of next increment will be on completion of one year after any benefit in this scheme.
(xiii) If a Government employee is ordered to officiate in a higher post of higher scale on a regular basis, the employee will be treated to have availed one advancement from the date of officiating the higher post or higher scale.
(xiv) In case of doubt regarding admissibility of benefit under the scheme, the matter shall be referred to the Finance Department before taking action of granting the benefit.
NOTE-1-The Career Advancement Scheme replaces the existing system of gradation under Part-B or C of Schedule-III of TSCS (Revised pay) Rules, 1988 as per Rule 5(3) thereof and hence benefit under existing gradation system will cease to be admissible with effect from 01.01.1999.
NOTE-2-The employee holding posts having gradation as prescribed in Part-C of Schedule-III of TSCS (Revised pay) Rules, 1988 will move to higher grades after 01.01.1999 only on actual promotion. The higher grades prescribed for the post may be treated as promotion grades. However the benefit of the Career Advancement Scheme will be admissible as per principles laid down above. The recruitment rules may be amended accordingly." [Emphasis added]
It has been provided that if the gradation scale and the promotion scale is same at any stage, they will be counted as a single movement. The scale of Supervisor (SI)/ Sub Inspector of Police was Rs.1300-3200/- corresponding to the pre-revised scale of Rs.560-1400/-. Subsequently, the Finance Department had enhanced the revised scale to Rs.1450-3710/- from Rs.1300-3200/- w.e.f. 01.11.1992 by the memorandum dated 07.11.1992 and 21.09.1995.
Thus, the initial pay of Supervisor (SI) and Sup Inspector of Police was fixed in the pay scale of Rs.1450-3710/- and they were supposed to get the benefit of the revised scales from 01.01.1986. The date of effect for the revised scales as was introduced by the memorandum dated 07.11.1992 and 21.09.1995. The date of effect was 01.11.1992 and that decision was put under challenge in a Title Suit. It was decreed that the date of effect of the said pay scale of Rs.1450-3710/- would be from 01.01.1986 for the Supervisor (SI) and Sub Inspector of Police.
In the first appeal, as preferred by the state, the said finding of the Civil Court of the first instance was affirmed. The judgment of the first appellate court was challenged in RSA No. 44 of 2003 & RSA No.47 of 2003. Finally, by the judgment dated 10.01.2006 both these appeals were dismissed affirming the findings of the courts below.
In RSA No. 44 of 2003 & RSA No. 47 of 2003, it has been declared that the initial scale of Supervisor (SI)/Sub Inspector of Police would be Rs.1450-3710/- w.e.f. 01.01.1986 and after 10 years Supervisor (SI)/Sub Inspector of police, without any promotion, would get the pre-revised pay scale of Rs. 1700-3980/which was the pre-revised scale of Inspector of police. Even though, the said judgment was challenged before the apex court, but the apex court did not interfere as stated before, and as a result, the said declaration became final and finding against the respondents. Even though, the said pay scale of Rs.1450-3710/- was given effect from 01.01.1986, but the said pay scale was not given to the petitioners as CAS 1 for observing principle of equal pay-scale vide the gradation scale and the scale of the promotion post [see Rule 10(e)(v)].
By the notification No. F.4(6)-FIN(PC)/95 dated 06.02.1999, the ROP Rules, 1999 came into force with retrospective effect from 01.01.1996. The petitioners have asserted that under the ROP Rules, 1988, the pay scales of Assistant Sub Inspector of Police and Sub Inspector of Police were respectively Rs.1250-2890/- and Rs. 1300-3220/- [the up-gradation which was revised to Rs.1450-3710/-].
Under the ROP Rules, 1988 the scale of the Sub-Inspector of Police was revised to Rs.1450-3710/- but in the case of Assistant Sub-Inspector of Police, they would rendered 10 years uninterrupted service without promotion, would get Rs.1300-3220 as the gradation scale [not modified]. But this scale of pay of Rs.1300-3220/- got revised to Rule 3(d) defines the "revised scale" as follows :
"Rule 3(d): Revised Scale" means the corresponding revised scale of pay in relation to the existing scale of pay, introduced from 01.01.1996 as indicated Col-4 of Annexure-C‟ or the revised scale corresponding to the existing gradation scale applicable to the post as per Annexure "A" (except State Cadre services). For State Cadre Services, Col-3 of Annexure "B" shall be applicable w.e.f. 01.01.1996 and Col-5 w.e.f. 01.01.1996."
The petitioners have, in the context, further asserted that a reading of the said definition of revised scale would make it amply clear that a revised scale means the corresponding revised scale of pay in relation to the existing scale of pay or the gradation scale. The incumbent employees were given the scope of exercising their option in respect of acceptance of the revised pay scale and in respect of fixation from a particular date within the framework of the rules.
The petitioners have quite succinctly submitted that the pay scale of Sub-Inspector of Police was revised from Rs. 1300-3220/-to Rs. 1450-3710/- corresponding to revised pay scale of Rs. 5000-10,300/- as per ROP Rules, 1999. Hence, CAS 1 of petitioners ought to have been Rs.1450-3710/- being equal to the promotion post, corresponding to the pay scale of Rs.5000-10,300/-.
Under ROP Rules, 1988 an ASI of Police on having rendered 10 years uninterrupted service without any promotion would be entitled to the movement to the up-graded scale, which scale was equivalent scale of the Sub-Inspector of Police. But surprisingly when the scale of Sub-Inspector of Police was enhanced from Rs.1300-3220/-, the pay scale of CAS 1, the upgraded scale vis-à-vis CAS 1 was not enhanced to Rs.1450-3710/-, but it clogged the same scale of Rs.1300-3220/-, corresponding revised pay scale of Rs.4020-8650/-. The petitioners have further referred to Rule 4 of ROP Rules, 1999 which provides as follows:
"4. Scale of Pay of Posts- From the date of commencement of these rules, the scale of pay of every post/grade whose existing scale is specified in column (3) of Annexure-C‟ shall be as specified in column (4) thereof with effect from 01.01.1996. For cadre services, the scale of every post/grade whose existing scale is specified in column (3) thereof with effect from 01.01.1996 except senior level posts/grades of Rs.2100-3000/- (SL)-5000 (i.e. Rs. 3000-5000/-) will be as specified in Column (2) of Annexure-A against the existing scale of Rs. 3000-5000/- again for cadre services, the scale of every post/grade whose existing scale is specified in Column (2) of Annexure-B shall be as specified in column 5 thereof with effect from 01.01.1996.
Provided that where a post and its promotion post carry the same revised scale of pay, the Government may, having regard to the recruitment rules for the promotion post, distinguish it from its feeder post in such manner as may be deemed necessary.
Provided further that the Government employee who holds one or more posts in officiating or temporary basis as on 01.01.1996, he will also submit an option electing to draw the revised scale of substantive post on reversion to the substantive post either on 01.01.1996 or on next date of increment between 01.01.1996 and 31.12.1996 both days, inclusive."
According to the petitioners, a conjoint reading of rule 3 and rule 4 of ROP Rules, 1999 makes it abundantly clear that a government servant is entitled to a fixation in the corresponding pay scale, as provided in Annexure C to the said ROP Rules, 1999. Thus, the petitioners have submitted that for their holding the post of Wireless Operator (ASI)/ Radio Technician (ASI), they are entitled to the pay scale of Rs.1450-3710/- (pre revised) as the gradation scale following analogy available in the rule and its corresponding pre-revised pay scale of Rs.5000-10,300/- as CAS 1. That scale was not granted to the petitioners for absence of appropriate modification which is imminent to arrest the delink.
Contrary to what was expected from the respondents, the respondent No.4 has arbitrarily and illegally issued the departmental orders dated 01.11.2001, 04.11.2008, 06.11.2008, 17.04.2018 and 21.11.1996 to the serious prejudice of the petitioners, inasmuch as, the said analogy of the petitioners to have the scale of Rs.1450-3710/-as the CAS 1 was refused and hence, all these orders (Annexures 14, 15, 16, 17, 18 and 19) in the lead case have been challenged.
Despite the representation filed before the competent authority, no positive result has yielded. Hence, the petitioners have approached this court to challenge the action of the respondents and to have the appropriate scale from the date of completion of 10 years of service from the date of their initial appointment.
The respondents by filing their reply have made endeavour to explain why the Wireless Operator (ASI) and Radio Technician (ASI) who were appointed in the scale of pay of Rs. 1250-2890/- under ROP Rules, 1988 will not get the scale of Rs. 1450-3710/- on their completion of 10 years of uninterrupted service without promotion. The respondents have averred that Wireless Operator (ASI) used to get their pay in pay scale of Rs. 430-850/- and the pay scale of Supervisor (Grade II) (SI) at the relevant time was Rs.680-1300/-under ROP Rules, 1982.
Subsequently, the pay scale of Wireless Operator (ASI) was modified to Rs.560-1300/-, and, at the same time, the pay scale of Supervisor (Grade II) (SI) as re-designated as Supervisor (SI) was modified to Rs.600-1040/- under ROP Rules, 1982. Thus, the respondents have contended that when the pay scale of Wireless Operator (ASI) was Rs.430-850/-, the pay scale of Supervisor (Grade II) (SI) was Rs.560-1300/- and when the pay scale of Wireless Operator (ASI) was modified to Rs.560-1300/-, the pay scale of Supervisor (Grade II) (SI) was modified of Rs. 600-1440/-.Thus, the pay scale of Wireless Operator, according to the respondents, was never equal to the pay scale of Supervisor in the level of ASI.
This court is constrained to observe that in the entire writ petition, the petitioners have not made such claim. On the contrary, the petitioners have stated that the post of ASI and SI are in two different levels. SI is the promotional post for the category of post belonging to ASI. They have contended that the pre-revised scale of Rs.1250-2890, Rs.1300-3200/- and 1450-3710/- or Rs. 1700-3980/-under ROP Rules 1988 has ceased to exist after implementation of ROP Rules, 1999. Instead, the corresponding revised pay scales of Rs.4000-7890/- from Rs.1250-2890/-, Rs. 4200-8650/- from Rs.1300-3220, Rs.5000-10300 from Rs.1450-3710, Rs.5000-10,700/- from Rs.1450-3710/- and Rs.5500-10,700/- from Rs.1700-3980/- have come in force.
It has been further averred by the respondents that the concept of movement to the next higher pay scale equivalent to the promotional post has ceased to exist since 01.01.1996 after implementation of ROP Rules, 1999. Under ROP Rules 1999, an employee, if is entitled to, moves to the next higher pay scale as per Annexure A of the ROP Rules, 1999 by operation of Rule 10 of the ROP Rules, 1999.
Thus, according to the respondents, it has become obvious that the petitioners will not get the pay scale of the promotional post but the pay scale immediately above their pay scale, under Annexure A of the ROP Rules, 1999. Therefore, the petitioners are not entitled to the revised pay scale of Rs.5000-10,300/- as CAS-I. They are only entitled to the pay scale of Rs.4200-8650/- as CAS-I under ROP Rules 1999.
Further, the re-designated post of Radio Technician (ASI) was placed under the pay scale of Rs.1250-2890/- under ROP Rules, 1988, whereas the revised scale of Radio Technician(SI) was Rs.1300-3220/-. There is clear distinction in the pay scales. The selection grade is only admissible after 10 years of service.
The respondents have further contended that the memorandum dated 07.11.1992 and 21.09.1995 are not relevant in the context of the case, inasmuch as, the post of Wireless Operator(ASI)/Radio Technician (ASI) is not covered by the said memoranda. The petitioners are not entitled to the benefit in view of the ROP rules, as referred. Thus, the respondents have contended that the writ petition is bereft of merit, and consequentially, be dismissed.
The writ petitioners, however, have asserted that the petitioners who are holding the position of Wireless Operator(ASI/Radio Technician(ASI) is considered for promotion to the post of Supervisor (SI) borne in the pay scale of Rs.1450-3710/- under ROP Rules, 1988 the Radio Technician (ASI)/Wireless Operators(ASI) would be entitled to the pay scale of the promotion post i.e. Rs.1450-3710/- in terms of the arrangement made in the ROP Rules, 1988.
It has been further asserted in response that the pay scale for the Career Advancement Scheme(CAS) shall be guided by the ROP Rules, 1999 and not by any other rules. Since, the petitioners were drawing the scale of pay of Rs.4000-7890/- under ROP Rules, 1999. Thus, the next financial upgradation after completion of 10 years of service would be to the scale of Rs.4200-8650/-. The petitioners cannot claim the pay scale of Rs.5000-10,300/-.
There cannot be any amount of dispute that the posts of ASI and SI were even kept in the same level. On that premises, the respondents have further submitted that the petitioners have read the rule 3(d) of ROP rules 1999 in isolation and not as a whole.
The respondents have further stated that the up-gradation under the CAS would be made on the basis of the pay scale provided in Annexure A of the ROP Rules, 1999. As stated earlier, after 10 years of service the petitioners might be upgraded only to Rs.4200-8650/-.
The petitioners cannot be entitled to the scale of pay of Rs.5000-10,300/- according to the respondents. On the contrary, they are entitled to get scale of pay Rs. 4200-8650/-. The respondents, have thereafter, stated as follows in their reply:
"It is also stated herein that the petitioners have misinterpreted the Rules. Rule 4 of ROP 1999 is applicable only once that is at the time of switching over to the ROP Rules, 1999. Thereafter, the applicability of Rule 4 of the ROP Rules, 1999 ceases to exist. For any financial upgradation during ROP 1999, Rule 10 has to be followed. As per Rule 10 of ROP 1999, the financial upgradation shall be as per the pay scales reflected in Annexure-A of ROP Rules, 1999. Since the petitioners are drawing pay scale attached to the post of Wireless Operator (ASI)/ Radio Technician (ASI) at Rs. 4000-7890, so as per Annexure-A of ROP 1999 they will draw pay in the scale of Rs.4200-8650/- due to financial upgradation under Rule 10 of ROP Rules, 1999. I say that the petitioners were not denied of any vested rights by the respondent State."
In short, the contention of the respondents is that as per the ROP Rules, 1999 the financial upgradation shall be as per the pay scale reflected in Annexure A of the ROP Rules, 1999. Since the petitioners have been drawing the pay scale attached to the post of Wireless Operator (ASI)/ Radio Technician (ASI) at Rs.4000-7890/- so, as per Annexure A of the ROP Rules, 1999 they will draw the scale of Rs. 4200-8650/- due to financial up gradation under Rule 10 of ROP Rules, 1999.
The controversy can be rephrased by stating that whether the petitioners who have been holding the post of Wireless Operator (ASI)/Radio Technician (ASI) for 10 years un-interruptedly are entitled to get the pay scale of the Sub Inspector of police/Supervisor (SI) i.e. Rs.1450-3710/- and their corresponding scale of pay be revised to the scale of pay of Rs. 5000-10,300/-.
Ms. S. Debgupta, learned counsel has quite succinctly submitted that the petitioners were appointed as Wireless Operator (ASI) or Radio Technician (ASI) under Radio Organization, Home Department. Having referred to the ROP Rules, 1988 she has submitted that the pay scale of Radio Technician (ASI) was modified to pay scale of Rs.560-1300/- with effect from 01.01.1982 notionally and the same was revised to the pay scale of Rs.1250-2890/-. The similar revision had taken place in the pay scale of Wireless Operator(ASI). She has stated that after 10 years of service, Radio Technician (ASI) was to move to the selection grade Radio Technician (ASI) in the scale of pay of Rs.1300-3220/- by operation of the said ROP Rules, 1988. In the self same exercise, the pay scale of Supervisor (SI), [the promotion post of Radio Technician (ASI)] was revised from Rs.560-1300/- qua the modified scale of Rs.600-1440/-(w.e.f. 01.01.1982 notionally) to Rs.1300-3220/- and after 10 years, the Supervisor (SI) was to move to the Selection Grade Supervisor (SI) in the pay scale of Rs.1450-3710 as per the ROP Rules, 1988.
Ms. Debgupta, learned counsel has drawn attention of this court to the office memorandum under No.F.4(32)-FIN(GC92)(I) dated 07.11.1992 whereby the pay scale of selection grade supervisor (SI) and Supervisor (SI) was enhanced to Rs.1450-3710/- with re-designation as Supervisor (SI) w.e.f.01.11.1992. Ms. Debgupta, learned counsel was quite correct in her approach that the selection grade supervisor (SI) and Supervisor (SI) was re-designated as Supervisor (SI) by virtue of the office memorandum dated 07.11.1992. Thus, in the table as reproduced above the scale of Supervisor (SI) was enhanced to Rs.1450-3710/- with deletion of the selection grade Supervisor (SI) by virtue of the said memorandum dated 07.11.1992. Thereafter, the reference has been made to the judgment of the civil Court as referred above to contend that the Supervisor (SI) and the SI of Police Organization in all wings were declared to get the scale of pay of Rs.1450-3710/- w.e.f.01.01.1986 not from 01.11.1992. Ms. Debgupta, learned counsel has further submitted that Rule10(b) of the ROP Rules, 1999 enables the petitioners to get the higher scale upgradation after 10 years and 7 years of continuous and satisfactory service in the entry or the subsequent scale. As the Supervisor(SI) is the promotion post, the petitioners are entitled to get the pay scale of Rs.1450-3710/- [as modified from Rs.1300-3220/-] after completion of 10 years satisfactory service in the pay scale of Rs.1250-2890/- as CAS-I and later on to the pre-revised pay scale of Rs.1700-3980/-corresponding to the revised pay scale of Rs.7450-13000/- after completion of 17 years of continuous and satisfactory service. The petitioners who have completed 25 years of continuous service are entitled to get the pre-revised pay scale of Rs.2100-3000/-corresponding to the revised pay scale of Rs.10,000-15100/- in terms of the ROP Rules, 1999. It can be declared that such entitlement flows from the modified scale of Rs.1300-3220/- i.e. Rs.1450-3710/-. The respondents have not re-adjusted the scale of ROP Rules, 1999. A reference may be made to Rule-10(a)&(b) which read as under :
"Rule-10(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."
Before we proceed further, it is required to be noted that Rule-10(b) has provided that at the end of 10 and 7 years of continuous and satisfactory service, higher scale of promotion/gradation or advancement respectively as the case may be, would be entitled. A distinction has been made between Rule-10(a) and (b) on consideration of existing scale of pay. Rule-10(a) of ROP Rules, 1999 is applicable to the existing scales at Serial Nos.1, 2 and 3 of Annexure-A of the said Rules. But Rule-10(b) applies to existing scale at serial No.4 to 10. The existing pay scale of the Radio Technician and Wireless Operator was Rs.1250-2890/- (the scale at serial No.7 under existing pay scale in Annexure-A to ROP Rules, 1999). Ms. Debgupta, learned counsel is absolutely correct that Rule-10(b) would apply in the case of the petitioners. The relevant provision under Rule-10(b) has been reproduced. It provides that there would be two scale advancement. Thus, the submission that has been made that there can be three scale advancement cannot be sustained by this court.
The scale advancement in the next higher scale shall be made as per table in Annexure-A after the requisite years of continuous and satisfactory service in the entry scale. Thereafter, it has been specifically provided that advancement should be made to 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. Thus, it has been contended that pay scale of Supervisor (SI) shall be the next higher scale of the Radio Technician(ASI) and Wireless Operator(ASI) under Rule-10(b) of the ROP Rules, 1999. Supervisor (SI) was in the existing scale of pay of Rs.1450-3710/-, corresponding to revised pay scale under ROP Rules, 2009 is Rs.5000-10,300/-. On completion of 17 years of service, they would get the scale upgradation to the pre-revised scale of Rs.1700-3910/- corresponding to revised pay scale of Rs.5500-10700/-. The benefit of the ROP Rules, 1988 cannot be taken away. The enhanced scale of pay of Rs.1300-3220/- i.e. Rs.1450-3710/- was entitled to Radio Technician(ASI), Wire Operator(ASI) and Radio Operator(ASI) under ROP Rules, 1988 for reasons aforestated. That scale cannot face downward revision.
This contention has been contested by Mr. M. Debbarma, learned Addl. G.A. appearing for respondents. He has stated that the pay of the petitioners on their entry in the service in the post of Wireless Operator (ASI)/Radio Operator (ASI)/Radio Technician(ASI) was fixed in the scale of pay of Rs.1250-2890/- corresponding pre-revised pay scale of Rs.4030-1300/-. On completion of 10 years of service, the Radio Technician(ASI), Wireless Operator (ASI)/Radio Operator (ASI)/Radio Technician(ASI) was to move to the scale of Rs.1300-3220/- and later on, they would have been entitled to get the pay scale of the selection grade Supervisor (SI) i.e.Rs.1450-3710/-. Hence, the claim of the petitioner is grossly misconceived and liable to be dismissed.
Mr. Debbarma, learned Addl. G.A. has further stated that the petitioners have misinterpreted the rule, Rule-4 of ROP Rules, 1999 which is applicable only once, at the time of switching over to the ROP Rules, 1999. Thereafter, the applicability of Rule-4 of the ROP Rules, 1999 ceased to exist. On the basis of a note of a Finance Department, Mr. Debbarma, learned Addl. G.A. has strenuously contended as follows :
"For any financial upgradation during ROP 1999, Rule 10 has to be followed. As per Rule 10 of ROP 1999, the financial upgradation shall be guided by the pay scales as reflected at Annexure-A of ROP Rules, 1999. Since, the petitioner is drawing pay scale attached to the post of Wireless Operator (ASI)/Radio Technician(ASI) at Rs.4000-7890/-, so as per Annexure-A of ROP 1999 he will draw pay in the scale of Rs.4200-8650/- due to financial upgradation under Rule 10 of ROP Rules, 1999."
Mr. Debbarma, learned Addl. G.A. has placed his reliance to a decision of the apex court in Khoday Distilleries Ltd. versus Sri Mahadeshwara Sahakara [judgment dated 10.03.2019], but this court does not find any relevance of the said decision in the context of this case.
Having appreciated the submissions made by the learned counsel for the parties, this court infers conclusively that (i) the post of Supervisor (SI) was born in the scale of pay of Rs.1450-3710/- by virtue of office memorandum under No.F.4(32)-FIN(GC)92(L-I) dated 07.11.1992 with effect from 01.01.1986 and by virtue of the judgment of the civil Court as affirmed by the apex court by their judgment dated 24.08.2017, (ii) after 10 years of service as admitted by the respondents, the petitioner would move to pre-revised scale of pay of Rs.1300-3200/-. That very scale was modified and enhanced by the memorandum dated 07.11.1992 to Rs.1450-3710/-. The selection grade pay scale and the pay scale of Supervisor(SI) was equivalent to that for obvious reason, but no formal order had been issued to keep the analogy of the arrangement, as stated. Even, Mr. M. Debbarma, learned Addl. G.A. in his written submission has categorically asserted that after 10 years without promotion Radio Technician borne in the pay scale of Rs.1250-2890/- would move to the pay scale of Supervisor(SI) i.e. Rs.1300-3220/- which was modified to Rs.1450-3710/- by the said office memorandum dated 07.11.1992. The revised pay scale of the said scale, as per Annexure-A to the ROP Rules, 1999 is Rs.5000-10300/-, (iii) on reading of Rule-10(b) of the ROP Rules, 1999 it becomes crystal clear that the employees entering in the existing scale Nos.4 to 10 or revised scale Nos.5 to 100 or corresponding earlier scale will have two scale advancement. In the higher scale, as per table in Annexure-A at the end of 10 and 7 years of continuous and satisfactory service in the entry scale and higher scale of promotion, gradation or advancement respectively as the case may be, to the higher scale unless they get promoted to the higher scale before the prescribed period at each stage. Thus, the petitioners will get first scale advancement [CAS-I] at the end of 10 years of continuous and satisfactory service to the pay scale of Rs.1450-3710/-corresponding revised pay scale of Rs.5000-10,300/-. Unless the petitioners are promoted within 7 years thereafter they would get further scale advancement on completion of 7 years of service to the said higher scale. Hence, the petitioners would/will be entitled to get further advancement from the higher scale i.e. Rs.1450-3710/-corresponding to revised pay scale of Rs.5000-10,300/- under ROP Rules, 1999. Further higher scale shall be the pay scale of Rs.1700-3980/- corresponding to revised pay scale of Rs.5500-10,700/- under ROP Rules, 1999.
The respondents are therefore directed to refix the pay of the petitioners in terms of the above directions notionally till 31.10.2019 as the petitioner has approached this court quite belatedly, even though, they were entitled to the said financial benefits as declared hereunder. But actual financial benefit shall be released to the petitioner with effect from 01.11.2019 within a period of 6(six) months from the day when the petitioner shall furnish a copy of this judgment to the respondents.
In the result, this writ petitions stand allowed to the extent as noted above.
No order as to costs.