The State Of Tripura And Ors vs Sri Bikash Pal
2021 Latest Caselaw 769 Tri

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                       HIGH COURT OF TRIPURA
                                 AGARTALA
                                WA No.219/2021

The State of Tripura and Ors.
                                                   ............ Appellant(s).
             - Vs. -
Sri Bikash Pal.
                                                  ............ Respondent(s).

For Appellant(s) : Mr. Debalaya Bhattacharya, Govt. Adv., Mr. S Saha, Advocate.

For Respondent(s) : None.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE JUSTICE MR. S G CHATTOPADHYAY

_O_R_D_E_ R_

17/8/2021 (Akil Kureshi, CJ).

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge, dated 3rd May 2021, in WP(C)

No.1021/2018. The petitioner had prayed for the benefit of 3 rd Annual

Carrier Progression (ACP) upon completion of 25 years of service in the

State Government. The State Government had denied the benefit relying

on a clarificatory note, dated 14th September 2009, issued by the Finance

Department which reads as under :

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Sl. Pont on which clarification Clarification No. sought.

10. It is noticed that in a few The claim of 3rd ACP in isolated cases in certain the instant case for moving Departments an employee to Grade Pay against entered in the pay scale of prerevised scale of Rs.3300-7100/- got Rs.5500-10700/- is not promotion to the scale of admissible on the ground Rs.4200- 8650/-. Thereafter that while entering in the he got CAS benefit and prerevised pay scale of moved to the scale of Rs.5000-10,300/-, he has Rs.5000-10,300/-. After consumed 3 scale revision under TSCS(RP) upliftment i.e. Rs.4000- Rules, 2009, and on 7890/-, Rs.4200-8650/-, completion of 25 years of Rs.5000-10300/-.

                service    without         further
                promotion, if he claims to
                get the benefit of 3rd ACP
                for moving to the Grade Pay
                corresponding        to      pre-
                revised    pay       scale     of
                Rs.5500-10,700/-,         whether
                it is permissible.

The learned Single Judge relied on a decision of Single Judge of

this Court in case of Sri Harisadhan Adhikari and Ors. Vs. State of

Tripura in WP(C) No.371/2014, delivered on 29th May 2015 and a

decision of Division Bench in case of The State of Tripura Vs. Sri Bipul Page - 3 of 6

Ranjan Dey and Ors. in WA No.191/2020, delivered on 12th January

2021 in order to grant the relief to the petitioner.

Learned Government Advocate is unable to point out any factual

difference in the present case as compared to the above noted cases,

judgments of which are relied upon by the learned Single Judge. In case

of Sri Bipul Ranjan Dey(supra,) the Division Bench had held that the

said "clarificatory note" was invalid since it sought to disturb the statutory

rule position. Since the issues arising in this appeal are squarely covered

by the said judgment of the Division Bench in case of Sri Bipul Ranjan

Dey(supra), it is not necessary to elaborate the reasons for dismissal of

this appeal. We only reproduce the relevant portion of the judgment of

this Court.

"[7] Further, a Division Bench of this Court dealing with similar issue in WA. No. 191 of 2020 [titled as The State of Tripura & others v. Sri Bipul Ranjan De and Others] had further clarified the law in the manner as under:

"6. It is well settled that the subordinate legislation such as, statutory rules need not always cover every aspect of the subject. Often times these rules leave what is described as play in the joint where the executive can always issue circulars and directions to cover areas where the rules are silent. In that context, a clarificatory circular may have one of the two purposes to achieve. It may be in the nature of a Page - 4 of 6

clarification, making explicit what is otherwise implicit within the rules or may provide for filling a gap which is otherwise left in the rules. In either case, exercise of executive powers would be perfectly valid and legitimate. However, when such a clarification runs head on counter to the plain language used in statutory rules and the reasonable interpretation thereof, the circular would not have an effect of giving a different colour or meaning to the rules. In this context, we may notice the statutory provisions applicable.

7. The ROP, 1999 contained a Career Advancement Scheme (Modified) which was later on substituted by the Assured Career Progression Scheme provided in Rule 10 of ROP, 2009. Relevant portion of Rule 10 of ROP, 2009 reads as under: "10. Introduction of a new scheme titled Assured Career Progression (ACP) Scheme with effect from 1st January, 2006 replacement of existing CAS introduced under TSCS (Revised Pay) Rules, 1999.

*** *** ***

8. Under sub-rule (1) of Rule 10 thus all Government employees in Pay Bands 1 to 3 would be entitled to a maximum of three financial upgradations, after 10, 17 and 25 years of service provided he or she has not got up to three numbers of benefits of scale upgradations including promotion already. In other words, the thrust of sub-

rule (1) of Rule 10 is to grant the benefit of three number of scale upgradations which may also be embedded in promotion.

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9. Sub-rule (2) of Rule 10 further clarifies this position when it provides that while determining eligibility of the Government employees under the said ACP scheme, it would be considered how many times the concerned employee got the benefit of scale upgradation including promotion after his direct entry into the service of the State Government. Each case of promotion and scale upgradation availed by him after his direct entry in the cadre will be treated as consumption of one ACP.

10. A combined reading of sub-rules (1) and (2) of Rule 10 of ROP, 2009 would convince us that what is of relevance and importance for grant or denial of the benefit of ACP to an employee is a question whether he has already availed of a particular stage of scale upgradation or got the benefit of promotion. If answer to this question is in the affirmative, the employee cannot stake the claim for yet another scale upgradation under the said ACP. This is significant since in case of the petitioners they have admittedly received only one promotion since their direct entry on a post in Government service. It is wholly fortuitous that under the relevant rules between the scale attached to the promotional post and the feeder cadre there were two intermediatory scales. Resultantly, when the petitioners were promoted to the post of Naib-subedar, in plain terms they received one promotion. In the process if they have jumped over the intermediatory pay scales, the same would be of no consequence so far as their claim for the benefit of ACP under Rule 10 is Page - 6 of 6

concerned. What the sub-rules (1) and (2) of Rule 10 require in order to deny such benefit to the Government employee would be that he or she has availed of multiple scale upgradations. Under sub- rule (2) the legislature has specifically used the words "it should be considered how many times the concerned employee got the benefit of scale upgradation including promotion......." Thus, the emphasis on the number of times either the promotion or scale upgradation has been made available to the employee and not how many scale upgradations incidentally happened under one single promotion."

In the result, appeal is dismissed. Pending application(s), if any,

also stands disposed of.

( S G CHATTOPADHYAY, J ) ( AKIL KURESHI, CJ )

Sukhendu