The State Of Tripura And Others vs Sri Bipul Ranjan De And Others
2021 Latest Caselaw 63 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA

                              W.A. No.191/2020
The State of Tripura and others
                                                              ----Appellant(s)
                                          Versus
Sri Bipul Ranjan De and others
                                                           -----Respondent(s)

For Appellant(s) : Mr. Dipankar Sharma, Addl. G.A.

For Respondent(s) : Mr. Somik Deb, Advocate.

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

Date of hearing and judgment : 12th January, 2021.

        Whether fit for reporting         : NO.

                       JUDGMENT & ORDER (ORAL)


(Akil Kureshi, C.J.)

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge dated 17.04.2019 in WP(C) No.962 of

2018.

2. Brief facts are as under:

The respondents original petitioners were directly recruited to

the post of Havilder in the year 1997 to the scale of pay of Rs.3,300-7,100/-

as revised under ROP, 1999. The Tripura State Rifles (Recruitment) Rules,

1984 envisages one of the modes of filling up the posts of Naib-Subedar by

way of promotion. All the petitioners were promoted to the said post on

different dates in the year 2003 and were placed in the promotional scale of

Rs.5,000-10,300/-. According to the petitioners, upon completion of total 17

years of service since their entry in the department, they were entitled to the

benefit of Assured Career Progression Scheme under ROP, 2009. The

department, however, holds the belief that in the process of being promoted

from the post of Havilder to Naib-Subedar the petitioners jumped two

intermediatory scales. The Government would point out that under ROP,

1999, the scale of pay at Sl. No.6 which was pre-revised scale of Rs.1020-

2620/- was revised to Rs.3,300-7,100/-. Thereafter, there were two higher

scales of Rs.4,000-7,890/- and Rs.4,200-8,650/- before the revised scale of

Rs.5,000-10,300/- was prescribed for the pre-revised scale of Rs.1450-

3710/-. According to the department, thus the petitioner had already availed

of multiple scale upgradations and, therefore, his claim for the ACP benefit

upon completion of 17 years of service was not justified. In this context, the

department placed heavy reliance on a clarification issued by the Finance

Department under office memorandum dated 14.09.2009, relevant portion of

which reads as under:

Sl. Point on which clarification sought Clarification No.

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

      of Rs.5500- 10,700/-, whether it is             liftment i.e.
      permissible.                                    Rs.4000-7890/-,
                                                      Rs.4200-8650/-,
                                                      Rs.5000-10300/-.

3. The learned Single Judge was of the opinion that in terms of

Rule 10 of ROP, 2009 all the petitioners were entitled to one benefit of ACP

after completion of 17 years of service and the clarification which ran

counter to the statutory rules would not deprive the petitioners of such

benefits.

4. Appearing for the Government, learned Addl. Government

Advocate Mr. Dipankar Sharma vehemently contended that the petitioners

had jumped two intermediatory scales at the time of their promotions from

the post of Havilder to Naib-Subedar. The petitioners had thus availed of

multiple scale upgradations. Their demand for further scale upgradation in

terms of ROP, 2009 was not justified.

5. On the other hand, learned counsel Mr. Somik Deb for the

original petitioners opposed the appeal contending that the learned Single

Judge has given cogent reasons. The fact that the fitment scale of the

promotional post was two stages higher than the intermediatory stages,

would not mean that the petitioners had availed of the financial

upgradations. The case of the petitioners was squarely covered by Rule 10

and the clarificatory circular cannot have the effect of amending the rule.

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.-

(1) Under the new scheme (A.C.P.), all Government employees in PB-1, PB-2 & PB-3 shall be entitled to get a maximum of three financial upgradations, the first after 10 years of service under regular scale, 2nd after another 7 years of service (total 17 years) and 3rd after further 8 years of service (total 25 years) in their service career provided the concerned employee had not got up to three numbers benefits of scale upgradations including promotions already. In case of PB-4, the employees borne under Grade Pay Rs.3700/- (against pre-revised scale of Rs.7800-15,100/-), under Grade Pay Rs.4500/- (against pre-revised scale of Rs.10,000-15,100/-) and Grade Pay Rs.4800/- (against pre-

revised scale of Rs.10,650-15,850/-) would be entitled to get 3, 2 and 1 financial upgradations respectively under the scheme provided the concerned employee had not got scale

upgradations including promotion up to 3, 2 & 1 respectively already.

(2) While determining eligibility of the Government employees under this ACP, it should be considered how many times the concerned employee got the benefit of scale upgradation including promotion after his direct entry into the service in the State Govt. or, as the case may be, after his direct entry into the cadre service of the State Govt. in which he is presently serving. Each case of promotion or scale upgradation availed by him after his direct entry into cadre where he is presently serving or, as the case may be, in the post/service of a Department will be treated as consumption of one ACP. This will mean that for those employees who entered the cadre service through promotion, the benefit of this promotion along with promotion/scale upgradation availed by him before entry into the cadre service will also be counted as consumption of ACP.

                ***            ***           ***
       (5)    The scheme envisages grant of only financial

benefits (through financial upgradation) to the Govt. servant concerned on a person basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose.

                ***            ***           ***
       (7)    Only the benefit of fixation of pay will be

available at the time of financial upgradation under this scheme. For this, an increase of one increment in the existing pay in his/her Pay Band (i.e. 2.5% of Band Pay plus Grade

Pay) along with next available Grade Pay shall be admissible as benefit of financial upgradation under this scheme. However, in cases where financial upgradation and promotion fall in the same Grade Pay, in that case if any employee has already got the benefit of financial upgradation under ACP, he will not get any further financial benefit of increment etc. for his promotion in the same Grade Pay. He will, however, thereafter be entitled to the higher designation and all the financial responsibilities and facilities available for the higher post.

(8) Besides providing one increment @ 2.5% and the next available Grade Pay under the ACP, the concerned employee will continue to remain in his existing Pay Band. However, in the event of his crossing the maximum of the Pay Band as a result of this upgradation, she/he will move to the next higher Pay Band but without any change in the earlier Grade Pay.

Provided, those Government employees who had got the benefit of CAS under TSCS (Revised Pay) Rules, 1999 between period 1.1.1999 to 31.12.2005 moving to the promotion scale without having benefit of FR 22(I)(a)(1) but got/will get functional promotion in the same pre-revised pay scale or to the revised pay structure corresponding to the same pre-revised pay scale after coming over to the revised pay scale, will be entitled to get the benefit of one increment under revised pay structure at the time of functional promotion in the same pay scale."

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.

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

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




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