Tripura High Court

Shri Gautam Roy And 444 Others vs The State Of Tripura And Others on 4 February, 2021

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                      HIGH COURT OF TRIPURA
                            AGARTALA

                             WP(C) No.69/2015
Shri Gautam Roy and 444 others
                                                             ----Petitioner(s)
                                         Versus
The State of Tripura and others
                                                           -----Respondent(s)

For Petitioner(s) : Mr. Somik Deb, Advocate, Mr. Raju Datta, Advocate.

For Respondent(s) : Mr. Mangal Debbarma, Addl. G.A.

HON‟BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 4th February, 2021.

      Whether fit for reporting          : YES.


                    JUDGMENT & ORDER (ORAL)

Petitioners have prayed for directions to the respondents to

place them in the scale of pay of Rs.4,200-8,650/- by way of benefit of first

Career Advancement Scheme (CAS, for short) and thereafter in the scale of

pay of Rs.5,000-10,300/- by way of second CAS benefit.

2. Brief facts are as under:

All the petitioners were recruited as Junior Physical Instructors

by the Government during different periods. At the time of introduction of

Revision of Pay Rules, 1988 (ROP, 1988 for short) the pre-revised pay

scales for Junior Physical Instructors, Physical Instructors and Senior

Physical Instructors were as following:

Rs.430-850/- for Junior Physical Instructors;

No separate scale prescribed for Physical Instructors; &

Rs.560-1300/- for Senior Physical Instructors.

Upon introduction of ROP, 1988 these scales were revised to

Rs.970-2400/-, Rs.1250-2890/- and Rs.1450-3710/- respectively.

3. Government of Tripura thereafter introduced Revision of Pay

Rules, 1999 w.e.f. 01.01.1996. Rule 3 of ROP, 1999 was a definition clause.

Clause (d) of Rule 3 defined the term "Revised Scale" as under:

"(d) "REVISED SCALE" means the corresponding revised scale of pay in relation to the existing scale of pay, introduced from 1.1.1996 as indicated in 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 with effect from 01-01-1996 and column-5 with effect from 01-01-1999."

4. Annexure-„C‟ to the said rules contained prescriptions for

revision of scales for various posts for the cadre of Instructors in Education

Department. Entry-30 in the said Annexure-„C‟ provided as under:


30 Senior Physical Instructor/ Junior             970-2400       3300-7100
   Junior Physical Instructor    -                1250-2890      4200-8650
                               Senior             1450-3710      5000-10300

5. Annexure-„A‟ pertained to proposed revised scales of pay and

contained two columns; Existing scales of pay and corresponding revised

scales with effect from 01.01.1996. Entries 5, 7 and 9 of the annexure which

are relevant for our purpose read as under:

Existing Scales of Pay Revised Scales w.e.f. 01-01-1996

5. 970-40-1290-45-1650-50-2400/- 6. 3200-90-4280-100-5480-110-6030/-

7. 1250-45-1610-50-2010-55-2890/- 8. 4000-110-5650-120-6850-130-7890/-

9. 1450-60-1930-65-2450-70-3710/- 10. 5000-130-6690-150-8940-170-10300/-

6. All the petitioners have rendered more than 17 years of service

as Junior Physical Instructors without getting promotion. According to Rule

10 of ROP, 1999 under which they seek the benefits of CAS, upon a

Government servant completing 10 years of service without promotion, he

would be allowed first CAS benefit and thereafter upon completion of

further 7 years of service without promotion he would be granted benefit of

CAS-II. All the petitioners have been given benefits of CAS-I and CAS-II

from due dates, however, the dispute between the petitioners and the

Government is with respect to grant of correct scale of pay for such purpose.

This dispute revolves around a short question namely whether at the time of

carrying out pay fixation pursuant to CAS-I or CAS-II benefit, should the

pay of the concerned Government servant be fitted against the corresponding

entry in Annexure-C or in Annexure-A. According to the petitioners, the

Government has committed an error in fixing the pay of the petitioners

pursuant to CAS-I and CAS-II, by resorting to Annexure-A instead of

Annexure-C.

7. To appreciate this dispute, we may refresh the corresponding

entries. As noted, at Sl. No.30 in Annexure-C, the ROP prescribes revised

scales for the cadre of Instructors. The revised scales with implementation of

the said ROP would be Rs.3300-7100/-, Rs.4200-8650/- and Rs.5000-

10300/- for Junior Physical Instructors, Physical Instructors and Senior

Physical Instructors respectively. As against this, Annexure-A converts

existing scale of Rs.970-2400/- (pre-revised scale of Junior Physical

Instructors) to Rs.3200-6030/-, scale of Rs.1250-2890/- (pre-revised scale of

Physical Instructors) to Rs.4000-7890/- and Rs.1450-3710/- (pre-revised

scale of Senior Physical Instructors) to Rs.5000-10300/-.

8. To resolve this controversy, we may refer to the Career

Advancement Scheme contained in Rule 10 of ROP, 1999. Relevant portion

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).

Provided that

(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.

(vii) By way of scale advancement in this scheme, the CAS scale can not 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 1.1.99 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."

9. As per clause (d) of Rule 3 of ROP, 1999 revised scale would

mean the corresponding scale of pay in relation to the existing scale of pay

w.e.f. 01-01-1996 as indicated in column-4 of Annexure-„C‟ or revised scale

corresponding to existing gradation scale applicable to the post as per

Annexure-"A". Thus, for applying the revised scale for the existing scale,

the resort would first be had to Annexure-C and accordingly the scale of pay

of the existing staff would stand revised w.e.f. 01.01.1996 as provided in

Annexure-C and in case of Physical Instructors, as provided in entry-30

contained in Annexure-C. Learned counsel Mr. Somik Deb would, therefore,

be perfectly justified in contending that if the question of fitment of the

existing staff into revised scale arises, the same must be done for Instructors

as provided in entry-30 to Annexure-C and in such a case the administration

cannot rely on the two columns provided in Annexure-A. As per this entry

thus the revised scale of pay of a Junior Physical Instructor became Rs.3300-

7100/- w.e.f. 01.01.1996, that of Physical Instructor became Rs.4200-8650/-

and of Senior Physical Instructor Rs.5000-10300/-. It would be equally

correct to suggest that if any of the Instructors were to be actually promoted,

he or she would be placed in corresponding revised scale meant for the

higher post. In other words, a Junior Physical Instructor on promotion after

01.01.1996 to the post of Physical Instructor, would be placed in the pay

scale of Rs.4200-8650/- and likewise a Physical Instructor when promoted

as Senior Physical Instructor would be placed in the scale of Rs.5000-

10300/-. However, present is not a case of actual promotion of the

employees. Present case is the one where on account of stagnation for more

than 10 years and thereafter further 7 years without promotion, the

employees became entitled to career advancements. Such career

advancement must be within the four corners of the scheme framed by the

Government under the statutory rules. Rule 10 of ROP, 1999 in this context,

as noted, provides that the State Government employee would have scale

advancement by way of promotion, failing which by time bound movement

in a higher scale as per table in Annexure-A upon completion of requisite

number of years of service without promotion. Thus, this rule envisages

grant of benefit of career advancement by way of scale advancement to a

Government employee who stagnates without promotion for prescribed

number of years of service. In such a case, scale advancement would be in

terms of prescription made in Annexure-A to the rules. Clause (b) of Rule

10 further specifies that employees entering by direct recruitment in the

existing scales no.4 to 10 or revised scales no.5 to 11 or corresponding

earlier scale will have two scale advancements as per table in Annexure-A at

the end of 10 and 7 years of continuous and satisfactory service in the entry

scale unless they get promoted to higher scale before the prescribed period at

each stage. The scheme framed under Rule 10 of ROP, 1999 thus clearly

provides for career advancement by way of scale advancement and not by

way of granting promotional scale. This becomes further clear when one

peruses clause (vii) of the proviso which provides that by way of scale

advancement under the said scheme the CAS scale cannot exceed the

promotional scale. However, the CAS scale can become same as

promotional scale. Thus, the scheme itself makes a clear distinction between

a promotional scale and a "CAS scale". The term "CAS scale" is loosely

worded expression as to mean the scale advancement as per table provided

in Annexure-A. The contention of the counsel for the petitioners that by way

of such CAS benefit, the employees must be given the corresponding higher

scale prescribed in Annexure-C for promotional post, therefore, cannot be

accepted. This demand would run counter to the CAS scheme and granting

any such benefit would amount to assigning a promotional scale to an

employee by way of CAS benefit instead of allowing the next scale as

provided in Annexure-A.

10. In a recent decision in case of The State of Tripura & others

vrs. Sri Tarun Kumar Bhatta & others dated 05.01.2021 in W.A. No.196 of

2020 and connected appeals this distinction was considered and following

observations were made:

"17. What, therefore, happened by virtue of the office memoranda and the decision of Gauhati High Court was substitution of the scale of pay of Rs.1300-3220/- to Rs.1450- 3710/- for the post of Supervisor w.e.f. 1.1.19086. There was no such substitution either intended or ever granted by the Government or by the Gauhati High Court for the post of Wireless Operators/Radio Technicians. The pay scales remained the same which, as per ROP, 1988, provided that entry level scale for the said post would be Rs.1250-2890/- and the selection grade which would be available after completion of 10 years of service would be Rs.1300-3220/-. The Government, therefore, correctly placed the petitioners in the scale of Rs.4200-8650/- which was revised scale under ROP, 1999 corresponding to pre-revised scale of Rs.1300-

3220/- under ROP, 1988 after 10 years of service. Firstly, contrary to what was observed by the learned Single Judge the pre-revised scale of Rs.1300-3220/- was not modified to Rs.1450-3710/- for universal purpose. What was done by the office memorandum dated 07.11.1992 was to modify and enhance the pay scale of the Supervisors (Selection Grade) from Rs.1300-3220/- to Rs.1450-3710/-. Subsequently, under O.M. dated 21.9.1995 this was made the entry level scale for the post in question. This modification and enhancement thus

had a localized effect and did not have the effect of substituting the scale of pay of Rs.1300-3220/- to Rs.1450- 3710/- wherever it appeared for any post whatsoever. Secondly, granting this benefit to the petitioners and directing the Government to refix their pay in the revised scale corresponding to pre-revised scale of Rs.1450-3710/- would amount to granting benefit of pay fixation in the promotional post by way of career advancement. As correctly pointed out by the Government under ROP, 1999 the concept of fixation of pay in the next promotional post by way of Assured Career Progression was substituted by fixing the pay of the employee to the next higher scale by way of career advancement. In this context, we may refer to Rule 10 of ROP, 1999 which pertains to Career Advancement Scheme (Modified). The preamble of this rule reads as under:

"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.................."

Thus, under this scheme, an employee would get the benefit of movement in higher scale as prescribed and not the movement in next promotional scale. This distinction between scale advancement in the higher scale and not in the promotional scale also comes out in the proviso (vii) to the said rule which reads as under:

"(vii) By way of scale advancement in this scheme, the CAS scale can not 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 1.1.99 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."

18. In a recent decision in case of Union of India and others vrs. M.V. Mohanan Nair reported in (2020) 5 SCC 421 the Supreme Court discussed this major shift in the Government policy from previous Assured Career Progression Schemes which have been replaced by Modified Career Advancement or Career Progression Schemes. Following observations may be noted:

"29. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial upgradations are granted at three regular intervals on completion of 10-20-30 years of service without promotion. Hence, it is also

intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion for want of promotional avenue. The change in policy brought about by supersession of the ACP Scheme with the MACP Scheme is after well-

deliberated and well-documented recommendations of the Sixth Central Pay Commission. Considering the various issues in the implementation of the ACP Scheme, the Pay Commission expressed its views "the only other way is to bring systematic changes in the existing Scheme of ACP so that all the employees irrespective of the existing hierarchy structure in their organisations/cadres, get some benefit under it". The Commission therefore, recommended that the existing Scheme of ACP be continued with the modifications indicated thereon in the Report that the financial upgradation has to be in the next immediate Grade Pay. One of the reasons for the expert body recommending the MACP Scheme was that there were inter- departmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who stagnated for 12 years, was entitled to pay in the Pay Scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with a view to putting an end to the

problem ensuing from inter-departmental disparities.

xxx xxx xxx xxx

31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy Grade Pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration.

32. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and

the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body - Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer."

11. Learned counsel for the petitioners placed heavy reliance on a

decision of learned Single Judge of Gauhati High Court in case of Tripura

Physical Education Employees Association and others vrs. The State of

Tripura & 3 others dated 14.06.2006 and pointed out that the said decision

was confirmed by the Division Bench. However, it may be noted that the

said decision was rendered in the background of ROP, 1988. Thus, the

career advancement or career progression scheme as contained in ROP,

1999 with which we are concerned, was not under consideration for

interpretation. The career advancement scheme contained in the previous

rules was vastly different. The said decision, therefore, would have no

application.

12. In the result, petition is dismissed.