Tripura High Court
The State Of Tripura And Others vs Sri Tapas Majumder And Others on 31 August, 2021
Page 1 of 4
HIGH COURT OF TRIPURA
AGARTALA
W.A. No.224/2021
The State of Tripura and others
----Appellant(s)
Versus
Sri Tapas Majumder and others
-----Respondent(s)
For Appellant(s) : Mr. S. Saha, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
31/08/2021
(Akil Kureshi, C.J.)
This appeal is filed by the State Government to challenge the
judgment of the learned Single Judge dated 03.05.2021 in WP(C) No.191 of
2020. The issue pertains to the grant of 3rd ACP to the State employee.
According to the Government, in the past the employee had already availed of
three pay upgradations and, therefore, additional benefit of ACP was not
available. The learned Single Judge allowed the petition and directed granting
of the 3rd ACP upon completion of 25 years of service. In the process, the
learned Judge relied on a judgment of Division Bench of this Court in case of
The State of Tripura vrs. Sri Bipul Ranjan Dey and others in W.A. No.191
of 2020 in which identical issue was involved. Since the issue is squarely
covered by the said decision in case of Bipul Ranjan Dey (supra), we dismiss
this appeal reproducing the relevant portion of the said judgment of the
Division Bench:
"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
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.
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 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
subrule (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."
Appeal is dismissed.
Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ
Pulak
