Tripura High Court
Bijay Kumar Chakraborty vs The State Of Tripura And 3 Ors on 15 February, 2021
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.96 of 2020
Bijay Kumar Chakraborty
----Petitioner(s)
Versus
The State of Tripura And 3 Ors.
----Respondent(s)
For Petitioner(s) : Mr. R. Datta, Adv.
For Respondent(s) : Mr. R. Saha, Adv.
Mr. B. Majumder, ASGI.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
15/02/2021
Heard Mr. R. Datta, learned counsel appearing for
the petitioner as well as Mr. R. Saha, learned counsel appearing
for the respondents No.1, 2 & 3 and Mr. B. Majumder, learned
ASGI appearing for the respondent No.4.
02. By means of this writ petition, the petitioner has
urged this court for quashing the decision contained in the letter
No.F.6(74)/PWD(E)/09(S) dated 07.05.2013 [Anexure-4 to the
writ petition] and for directing the respondents to release 3rd
ACP to the petitioner. That apart, the petitioner has stated that
the controversy as raised in this petition is squarely covered by
a decision of this court in Dilip Kumar Guha vs. State of
Tripura & Ors. [the common judgment and order dated
03.05.2016 delivered in W.P.(C) No.386 of 2016 and other
writ petitions]. It is also to be noted that the said judgment and
order dated 03.05.2016 was challenged in the writ appeal being
W.A. No.78 of 2016 [the State of Tripura & Ors. vs. Dilip Kumar
Guha], but the writ appeal has been dismissed on affirming the
judgment of the learned Single Judge by the judgment and
order dated 17.07.2019.
03. The petitioner was initially appointed as the Helper
in the scale of pay of Rs.370-650/- under Tripura Government
Services [Revised Pay] Rules, 1982. For introduction of Tripura
State Civil Services [Revised Pay] Rules, 1988 [in short, the
ROP Rules, 1988] the petitioner was entitled to get the graded
Pay Scale No.28 in the re-designated post of Junior Electrician.
Thus, he was moved to the scale of pay of Rs.970-2400/- w.e.f.
01.01.1986. The petitioner was entitled to move to the next
Graded Scale on completion of 10 years of service. Therefore,
he was granted the next higher graded scale of pay of Rs.1250-
2890/- in the re-designated post of the Senior Electrician. The
said pay scale was revised by the Tripura State Civil Services
[Revised Pay] Rules, 1999. The scale of pay of Rs.1250-2890/-
was revised to Rs.4000- 7890/- with effect from 21.09.1997.
On completion of 17 years of service, in terms of Rule 10 of
Tripura State Civil Services [Revised Pay] Rules, 1999, the
petitioner was moved to the next higher scale of pay of
Rs.4200-8650/- on 21.09.2004 for his being stagnated in the
same post without promotion. While moving to the graded scale
of pay of Rs.1250-2890/-, corresponding revised scale of pay of
Rs.4000-7890/-, he had overtaken the scale of pay of Rs.1300-
3220/- corresponding to the revised scale of pay of Rs.4000-
7890/- as per ROP Rules, 1999. Thus, he had consumed,
according to the respondents, 3[three] scale up-gradation in
the career. As per Rule 10(2) of the ROP Rules, 2009 each scale
up-gradation availed by an employee after his direct entry into
the post of a department shall be treated as consumption of
one Assured Career Progression [ACP, in short]. The said Rule
10(2) of ROP Rules, 2009 came into force w.e.f. 01.01.2006.
The petitioner had completed 25 years of service as on
21.09.2012. However, his demand for releasing 3rd ACP was not
acceded to. According to the respondents, such claim was not
justified.
04. The respondents by the letter dated 07.05.2013
[Annexure-4 to the writ petition] had communicated that Bijoy
Kr. Chakraborty [the petitioner] was not entitled to get 3rd ACP
because he had consumed 3[three] scale up-gradations in view
of the clarification given at point No.10 of the Finance
Department's Memorandum No.F.6(1)FIN(PC)/08 dated
14.09.2009 followed by the decision of the Finance Department
vide U.O. No.189/Fin(PC)/13 dated 12.04.2013.
05. Mr. R. Datta, learned counsel appearing for the
petitioners has submitted that by the decision in Dilip Guha
(supra), the said controversy has been settled holding, inter
alia, that Para-10 of the clarificatory memorandum dated
14.09.2009 cannot stand in the way of releasing 3rd ACP in
favour of the similarly situated persons. The relevant passages
from Dilip Guha (supra) is reproduced hereunder:
"22. As already stated hereinbefore the petitioners were in
the lowest pay scale of Rs.970-2400/- as prescribed under
ROP Rules, 1988 and on their completion of 10 years of
service they were moved to the next higher scale of
Rs.1250-2890/- as per graded scale No.28 of ROP Rules,
1988. Thereafter as per ROP Rules, 1999, the second CAS
was allowed to the petitioners in accordance with the
provisions prescribed in Rule 10 of ROP rules, 1999 and the
petitioners were allowed the scale of Rs.4200-8650/-. As
per Annexure-A of ROP Rules, 1999, the scale of Rs.4200-
8650/- is the next higher scale of the corresponding revised
scale of Rs.1250-2890/-. So, I find nothing to comprehend
that the petitioners jumped one intermediate pay scale at
the time when the pay scale of Rs.4200-8650/- was allowed
to them. As per ROP Rules, 2009 the petitioners are entitled
to get 3rd ACP on their completion of 25 years of service
w.e.f. 21.09.2012. As prescribed in Part C of ROP Rules,
2009 since the petitioners were already in the existing pay
scale of Rs.4200-8650/-, i.e. the scale No.9 of Part C, on
their completion of 25 years of service they were entitled to
move to the next higher scale of Rs.5000-10,300/- i.e. the
scale No.10 of Part C which was revised to Rs.5,310-
24,000/- with grade pay of Rs.2400/-."
06. While affirming the finding of the said judgment
dated 03.05.2016, it has been observed by a Division Bench of
this court as follows:
"15. We have given our anxious consideration to the
submission made by the learned GA, but from reading of the
relevant clarification as reproduced above, it appears that
the case of the petitioner cannot be encompassed by the
illustration/clarification as provided by the said
memorandum dated 14.09.2009 (Annexure-R/1 to the reply
filed by the appellant herein). The said clarification provides
that an employee who entered in the pay scale of Rs.3300-
7100/- got promotion to the scale of Rs.4200-8650 and
thereafter got CAS benefit and moved to the scale of
Rs.5000-10300/- and after revision under ROP Rules, 2009
if on completion of 25 years of his service, claims to get the
benefit of 3rd ACP for moving to the grade pay
corresponding to the revised pay scale of Rs.5500- 1700/-
whether he would be entitled to the same. What has been
clarified is that the claim of 3rd ACP in such cases is not
admissible on the ground that while entering into the pre-
revised pay scale of Rs.5300- 10700/- the employee has
consumed three scale upgradations, i.e. Rs.4000- 7090/-,
Rs.4200-8650/- and Rs.5000-10300/-.
16. This illustration cannot be applied or imposed on the
petitioner's case, inasmuch as the petitioner entered into the
service in the scale of pay of Rs.970- 2400/- as revised
under ROP Rules 1988. Thereafter, the petitioner was moved
to the scale of Rs.1250- 2890/- by the office order dated
01.07.1998 (Annexure-2 to the writ petition) w.e.f.
21.05.1998 as the first scale up gradation for his completion
of 10 years of service.
17. Thereafter, by the office order dated 08.04.2005
(Annexure-3 to the writ petition), the petitioner was given 2
nd scale up-gradation to the scale of pay of Rs.4200-8650/-
under Rule 10B of ROP Rules, 1999. It may be elucidated
that the said up-gradation was made as per Annexure-A to
ROP Rules, 1999. The said scale of pay of Rs.1250-2890/-
was revised Rs.4000-7890/- and the next scale above the
said pay scale was Rs.4200-8650/- as per Annexure-A of
ROP Rules, 1999.
18. Thus, it is apparent that as the writ petitioner (the
respondent herein) did not get any promotion in the post,
the said clarification as reproduced above cannot be applied
in this case. The learned Single Judge was absolutely right in
holding that on completion of 25 years of service, the
petitioner was entitled to move to the scale of Rs.5310-
24000/- with grade pay of Rs.2400/-."
07. Mr. D. Sharma, learned Addl. G.A. appearing for the
respondents have candidly submitted that the interest of the
employee [the petitioner] is identical with the interest of the
petitioner in Dilip Guha (supra). In Para-9 of the counter
affidavit, the respondents have clearly admitted that the
judgment and order dated 17.07.2019 as delivered in W.A.
No.78 of 2016 had not been further challenged. The direction
by the court to the respondents to release 3rd ACP from the
date when the petitioners had completed 25 years of service
has been complied with the concurrence of the Finance
Department, Government of Tripura vide the office order
No.F.4(37)-PWD(LC)/2015/11622-26 dated 31.10.2019
[Annexure-8 to the writ petition].
08. On meticulous scrutiny of the factual matrix as
shortly reflected hereinbefore, this court does not find any
distinguishable element between the case of Dilip Guha
(supra) and that of the preset writ petition. Thus, this court
does not find any difficulty to hold that this writ petition is
wholly covered by the decision of this court in Dilip Guha
(supra).
09. Having observed thus, the respondents are directed
to release 3rd ACP in favour of the petitioner from the date
when the petitioner has completed 25 years of the service. The
respondents are further directed to release 3rd ACP and also to
re-fix his last pay of the petitioner. The consequential payment
be made within a period of 3 months from the date when the
petitioners shall produce a copy of this order taking note of the
observation made hereinafter. The financial benefit shall be
released from the date 3 years prior to the date of filing of the
writ petitions [the date of filing is 04.02.2020]. To be more
precise, from the date of the release of 3rd ACP on completion
of 25 years of the service till 20.12.2016, the benefit shall be
carried forward notionally and the actual financial benefit shall
be accounted from 20.12.2016.
With these observation and direction, this writ
petition stands allowed.
There shall be no order as to costs.
JUDGE
Moumita
