Sri Dulal Datta vs The State Of Tripura
2021 Latest Caselaw 196 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA

                           WP(C) No.126/2016
Sri Dulal Datta, S/o. Late Kalipada Datta, Village-North Badharghat
(Madhya Para), P.O.-A.D. Nagar, Agartala, District-West Tripura, Pin-
799003.
                                                      ----Petitioner(s)
                                 Versus
1. The State of Tripura, (To be represented by the Secretary, Animal
Resource Development, Government of Tripura), New Secretariat Building,
New Capital Complex, Kunjaban, P.S.-New Capital Complex, Agartala,
West Tripura, PIN 799006.

2. The Director, Department of Animal Resource Development, Government
of Tripura, Directorate of Animal Resource Development, Deptt. P N
Complex, Agartala, West Tripura, PIN 799006.

3. The Joint Director, ARD (HQ), Department of Animal Resource
Development, Government of Tripura, Directorate of Animal Resource
Development, Deptt. P N Complex, Agartala, West Tripura, PIN 799006.
4. The Senior Accounts Officer (A & E), Office of the Accountant General
(A & E), Tripura, Agartala, PO Kunjaban, West Tripura, PIN 799006.
5. The Treasure Officer, Agartala Treasury No.1, West Tripura, Agartala,
PIN 799001.
                                                      -----Respondent(s)

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate, Mr. Kawsik Nath, Advocate.

For Respondent(s) : Mr. Debalay Bhattacharjee, G.A., Mr. Bidyut Majumder, Asstt. S.G.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 18th February, 2021.

      Whether fit for reporting         : NO.





                    JUDGMENT & ORDER (ORAL)

The petitioner has disputed his pension fixation and recovery

raised by the Government from the commuted value of the pension paid to

the petitioner. Though multiple prayers are made by the petitioner, the issue

revolves around simple question, whether the petitioner was rightly given

the benefit of third Assured Career Progression benefit or not.

2. Brief facts are as under:

The petitioner joined the service of the Government as a Store

Keeper on 17.12.1979 when the post carried a scale of Rs.240-440/-. Under

ROP, 1982 the scales were revised to Rs.430-850/-. Under subsequent ROP,

1988 the scales were further revised to Rs.970-2400/-. As per the then

prevailing Career Advancement Scheme, the petitioner was placed in the

next scale upon completion of 10 years of service and that is how w.e.f.

17.12.1989 the petitioner was placed in the scale of pay of Rs.1250-2890/-.

Second advancement benefit was granted upon completion of further 8 years

of service without promotion. The petitioner was placed in the higher scale

of Rs.1450-3710/- w.e.f. 17.12.1997. Under ROP, 1999 w.e.f. 01.01.1996

this scale was revised to Rs.5000-10,300/-. Upon introduction of ROP, 2009

w.e.f. 01.01.2006, a Government servant would get 3 rd Assured Career

Progression scheme benefit upon completion of 25 years of service without

promotion. The petitioner was actually granted 3rd ACP w.e.f. 01.01.2006

and his pay was fixed in the scale of pay of Rs.10,230-34,800/- with Grade

Pay of Rs.4,400/-. He retired on superannuation w.e.f. 30.04.2015. His

pension papers were prepared by his parent department on the basis of his

last pay drawn. The Accountant General, however, raised objection to his

pay fixations and consequent computation of his pension. According to the

Accountant General, the petitioner was not entitled to the benefit of 3 rd ACP

on 01.01.2006. The precise reason for this objection though is somewhat

obscure, from the affidavits filed by the Government departments and from

Note-10 of the clarificatory note issued by the Government under ROP,

2009 one can gather that pursuant to revision of pay rules, the scale of pay

which was attached to the post of Store Keeper which petitioner held, was

revised by giving a jump of two stages. This effect of implementation of the

revision of pay rules, according to the department, amounted to scale

upgradation. Thus, in addition to the upgradation which took place at the

end of 10 years and thereafter after further 7 years, the petitioner by virtue of

the implementation of the pay rules, received 3rd upgradation and, therefore,

was not entitled to ACP-III as on 01.01.2006 under ROP, 2009. This in the

nutshell is the objection of the respondents. In this context, Note-10 heavily

relied upon by the respondents which is part of a clarificatory memorandum

dated 14.09.2009 reads as under:

"The undersigned is directed to say that following notifications of the TSCS (Revised Pay) Rules, 2009, number of references and representations received from different Departments and Associations seeking clarifications in regard to various provisions of the Rules for fixation of pay in the revised pay structure, providing of different benefits etc. On consideration of each of those point clarifications thereto are issued as under:

Sl. Point on which clarification sought Clarification No.

10 It is noticed that in a few isolated cases The claim of 3rd ACP in the in certain Departments an employee instant case for moving to entered in the pay scale of Rs.3300- Grade Pay against pre-revised 7100/- got promotion to the scale of scale of Rs.5500-10700/- is not Rs.4200-8650/-. Thereafter he got CAS admissible on the ground that benefit and moved to the scale of while entering in the pre- Rs.5000-10,300/-. After revision under revised pay scale of Rs.5000- TSCS (RP) Rules, 2009, and on 10,300/-, he had consumed 3 completion of 25 years of service scale upliftment i.e. Rs.4000- without further promotion, if he claims 7890/-, Rs.4200-8650/-, to get the benefit of 3rd ACP for moving Rs.5000-10300/-. to the Grade Pay corresponding to pre-

revised pay scale of Rs.5500-10,700/-, whether it is permissible.

3. The issue as in the present case had come up for consideration

before Division Bench of this Court in Writ Appeal No.191 of 2020 in case

of The State of Tripura and others vrs. Sri Bipul Ranjan De and others. It

was a case in which the original petitioners-Government servants were

directly recruited as Havilders. In their case also the department had opposed

the claim for grant of 3rd ACP under ROP, 2009, placing heavy reliance on

Note-10 which is reproduced above. The learned Single Judge had allowed

the petition upon which the State was in appeal. This appeal was dismissed

with following observations:

"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 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.

11. We agree with the submissions of learned counsel Mr. Somik Deb for the original petitioners that on each occasion or instance of either scale upgradation under ACP scheme or at the time of grant of promotion to the next promotional post, the exercise of pay fixation under F.R. 22(1)(a)(i) would occur resulting into release of additional increment. Since in the case of the petitioners this did not happen more than once when they were granted promotion, they cannot now be told that in terms of Rule 10 of ROP Rules, 2009 the intermediatory scales would be treated as the petitioners having availed of financial upgradation.

12. In the result, we do not find any error in the view of the learned Single Judge. It is, however, clarified that such benefit of ACP would be made available to the petitioners as per the provisions contained in Rule 10 and particularly, above noted sub-rules (7) and (8) thereof. Appeal is dismissed. Interim relief granted earlier is vacated. The time limit for completing the exercise is, however, extended by a period of four months from today."

4. In the result, the objection of the Accountant General to the pay

fixation of the petitioner while he was in active service and calculation of his

payable pension on the basis of such pay fixation after retirement is turned

down. The respondents shall calculate the petitioner's pension on the basis

of his original pay fixation by taking into account the benefit of 3 rd ACP as

on 01.01.2006. Recoveries, if any, raised stand quashed. Arrears of pension

shall be paid within three months from today. If so done, there shall be no

liability to pay interest thereon failing which the respondents shall bear the

burden of simple interest @ 7% per annum from the completion of the

period of three months from today till actual payment.

5. Petition is allowed and disposed of accordingly.

6. Pending application(s), if any, also stands disposed of.

(AKIL KURESHI), CJ

Pulak