Sri Bidyut Kr. Deb vs The State Of Tripura
2021 Latest Caselaw 742 Tri

                          IN THE HIGH COURT OF TRIPURA
                                   AGARTALA

                                 WA No.156 of 2020

     Sri Bidyut Kr. Deb,
     son of late Bhupendra Ch. Deb, resident
     of North Badharghat, Near Unnayan
     Sangha, P.O. & P.S. A.D. Nagar, District-
     West Tripura
                                                       ......... Appellant(s)
                                   -Versus-
1.   The State of Tripura,
     represented by its Principal Secretary to
     the Department of Economics and
     Statistics, Government of Tripura, P.O.
     Kunjaban, P.S. New Capital Complex,
     District- West Tripura

2.   The Director,
     Department of Economics and Statistics,
     Government of Tripura, P.O. Agartala,
     P.S. West Agartala, District- West
     Tripura
                                                      ........ Respondent(s)

     For the Appellant (s)          :   Mr. A. Bhowmik, Adv.
     For the Respondent (s)         :   Mr. D. Bhattacharjee, GA.
                                        Mr. P. Saha, Adv.
     Date of hearing                :   08.07.2021
     Date of delivery of            :   22.07.2021
     Judgment & order
                                         YES NO
     Whether fit for reporting      :    √


                         HON'BLE MR. JUSTICE S. TALAPATRA
                      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                 JUDGMENT & ORDER
     [Talapatra, J]

This intra-court appeal is directed against the judgment of the

learned Single Judge dated 10.07.2020 delivered in W.P.(C)

No.1303 of 2017 titled as Bidyut Kumar Deb vs. State of Tripura

and another.

[2] The appellant filed the writ petition challenging the

memorandum dated 17.07.2017 [Annexure-7 to the writ petition]

whereby the stepping up of pay as provided by the memorandum

under No.F.1(171)/STAT/ESTT/99/4693-4694 dated 18.08.2015

has been recalled by observing as follows:

Whereas, stepping of pay of Smt. Aparna Sarkar and 3(three) others have been examined with reference to the Notification No.F.6(1)-FIN(PC)/2008 dated 23.07.2013. Para 6(b) of the Notification clearly mentioned that the stepping up of pay in the Pay Band/Grade Pay shall be done subject to the condition that both the senior and junior employees should borne in the same Cadre and the post under the same department with same line of promotion.

It has been provided that the so called junior officers got

promotion earlier than that of the appellant by virtue of the

accelerated promotion. As consequence thereof, under the rule of

reservation, junior officers have become senior to the appellant or

the similarly situated other employees. Therefore, stepping up of

pay ought not have been provided under Para 6B of the Notification

of Finance Department dated 23.07.2013. Having observed thus,

the excess payment, made by that time, was directed to be

recovered in monthly instalments.

[3] The writ petition, challenging the directions in the

memorandum dated 17.07.2017, was structured on the provision of

Tripura State Civil Services [Revised Pay] Rules, 2009. Rule 14(6)

is relevant and that has been relied by the petitioner in order to

advance his challenge. The said rule provides for stepping up of

pay. It has been provided under Rule 14(6) of ROP Rules, 2009 that

'where pay of a junior become higher than that of his senior as

result of providing the benefit of promotion followed by CAS-2

under TSCS (Revised Pay) Rules,1999 in comparison with his senior

who was provided benefit of CAS-1 followed by promotion as per

example cited below, the pay scale of the senior shall be stepped

up to the higher pay scale provided to his junior from the same

date junior got the higher pay.' The example as cited below of that

rule is as under:

"Example: On completion of 10 years of service as LDC without promotion a senior LDC in the Department first got CAS benefit (from pay scale of Rs.3300-7100 to Rs.4000-7890/-) and then got promotion to the post of UDC in the pay scale of Rs.4200-8650/-. Under the provision of CAS he consumed two upgradations. On the other hand, his junior first got promotion to the post of UDC (Rs.4200-8650/-) from the post of LDC (Rs.3300-7100/-) and thereafter on completion of 7 years of service as UDC without promotion he got CAS-2 benefit and moved to the pay scale of Rs.5000-10300/- taking analogy that he had consumed CAS-1 while getting promotion to the post of UDC and thereafter on completion of 7 years of service as UDC without any further promotion he got benefit of CAS-2 in the pay scale of Rs.5000- 10300/-. As a result, pay scale of the senior UDC in the same Department became lower than his junior. To remove this anomaly, the pay scale of the senior shall be stepped up to the pay scale of Rs.5000-10300/- with re-fixation of pay notionally from the date of arising such anomaly but with financial benefit from 01.01.2009."

[4] Reading of the said example leads us to an

understanding that the pay of the senior UDC in the same

department became less than that of his juniors. To remove this

anomaly the pay scale of the senior employee shall be stepped up

in the pay scale of Rs.5000-10300/-, with fixation of pay notionally

from the date of arising such anomaly but with financial benefit

from 01.01.2009. On the basis of the said rule, by the

memorandum dated 18.08.2015 [Annexure-3 to the writ petition]

the appellant's seniority in the grade of Assistant Investigator was

considered for purpose of stepping up in terms of Rule 14(6) of the

ROP Rule, 2009 along other 3[three] officers. It is noteworthy that

no record has been produced to show that the appellant has been

declared senior to those junior officers in the grade of Investigator.

Even no such claim has been raised in the writ petition.

[5] It had been ordered that the appellant's pay in the post

of Investigator will be stepped up to the level of his junior officers,

namely Sri Rajib Debbarma, Smt. M. Debbarma, Sri Manoranjan

Debbarma, Sri R. Debbarma and Sri P. Debbarma. It is apparent

from the final seniority list that the appellant is senior to those

officers in the grade of Assistant Investigator as on 31.07.2020. In

the said list, the appellant's name has figured at Sl. No.7 whereas

those officers who got promotion to the post of Investigator have

been placed at Sl. No.14,15,16,17 and 18, but they got their

promotion much earlier against the vacancies which were

earmarked for the ST candidates. Thus, the appellant could not get

promotion even though he was senior to those officers in the inter

se seniority list of Assistant Investigator, which is the feeder post

for promotion to the post of Investigator. In this respect, there is

no controversy. The appellant was promoted to the post of

Investigator on 09.03.2010. Those officers belonging to the ST

community were junior to the appellant in the grade of Assistant

Investigator but they got promotion much earlier as the vacancies

as were available were earmarked for ST candidates. Those officers

did not get CAS-1 as they did not complete 10 years of service in

the grade of Assistant Investigator before they were promoted to

the post of Investigator. It is also an admitted fact that the

appellant got CAS-1 for completion of 10 years of service on

21.12.2007 as he was inducted in the service as Assistant

Investigator on 22.12.1997. After waiting for another 3 years of

getting CAS-1, as it appears form the records, the appellant was

promoted to the post of Investigator. Since those officers, termed

as the junior officers, had completed 7 years of service they got the

financial movement to CAS-2 on 04.09.2011 and they were moved

to the higher scale [CAS-2]. The appellant having noticed that his

juniors [those officers] were getting higher pay than his, he felt

aggrieved. Hence, he had made a representation on 29.07.2015 by

contending that a 'junior officer' cannot get the higher pay than his

senior officer in 'the same grade'.

[6] The memorandum dated 18.08.2015 was issued

apparently in response to the said representation filed by the

appellant on 29.07.2015 [Annexure-2 to the writ petition]. The

appellant's pay was enhanced equal to those junior officers from

the pay scale of Rs.5700-24000/- bringing his pay at Rs.16,490/-

which 'junior officers' were getting after they were moved to the

pay scale of Rs.5700-24000/- in terms of CAS-2. As stated, the

said benefit has been recalled in terms of sub-Rule 6B of Rule 14 of

ROP Rules, 2009 as incorporated in Tripura State Civil Services

[Revised Pay] [Eighth Amendment] Rules, 2013. The said sub-Rule

provides as follows:

"6B. The stepping up of Pay in the Pay Band/Grade Pay shall be done subject to the condition that both the senior and junior employees should borne in the same cadre and the posts under same Department with same lime of promotion."

[7] According to the appellant, that condition cannot be in

his case a hindrance and hence, the memorandum dated

17.07.2015 is not sustainable.

[8] Per contra, the respondents have stated in Para-6 of

their reply that sub Rule 6B of Rule 14 of Tripura State Civil

Services [Revised Pay] Rules, 2009, as amended, provides that

stepping up of Pay in the Pay Band/Grade Pay shall be done subject

to the condition that both the senior and the junior employees

should be borne in the same cadre and the posts shall be under the

same Department with the same line of promotion. In the case in

hand, the appellant was first appointed on 20.12.1997 as an

Assistant Investigator. The appellant got the benefit of CAS-1 in the

year 2008 and he got promoted to the post of Investigator by the

order dated 09.03.2010 in the pre-revised pay scale, now revised.

pay in the pay matrix, 2017. The junior of the appellant in the

cadre of Assistant Investigator got CAS-1 on completion of 7 years

of service in their promotional post. The appellant is admittedly not

senior to those junior officers in the grade of Investigator. But for

wrong committed by the concerned officer, by the memorandum

dated 18.08.2015, the appellant was given the benefit of stepping

up. When it has been discovered that such stepping up was grossly

erroneous, the authority withdrew the said benefit by the

memorandum dated 17.07.2017.

[9] The learned single Judge while discarding the contention

of the writ petitioner, the appellant herein, held that the appellant

is not backed by the statutory provisions. The pay 'anomaly' as

claimed to have existed between the appellant and his juniors did

not arise on account of the juniors promotion without receiving the

benefit of CAS-1 and the appellant, a senior in the feeder cadre,

had received the benefit of CAS-1 and then got promotion. Had this

been the situation, perhaps the petitioner was justified in

contending that the case fell within the four corners of sub-Rule 6

of Rule 14 of the said amended rules, 2013. The principal provision

has not been harmed in any manner insertion of sub-Rule 6B. Thus,

pay anomaly that has been identified did not arise when the juniors

were granted the benefit of CAS-2 in the promotional cadre. The

disparity in the pay between the 'juniors' and the appellant arose

on account of the juniors' getting promotion ahead of the appellant

since they belonged to the ST category and the promotional posts

were all in the reserved category for the ST candidates and

accordingly, they were promoted to the post of Investigator.

[10] Learned Single Judge has succinctly observed as

follows:

When one is, therefore, referring to a senior getting less pay than the junior, one is necessarily comparing the position of the two employees in the related cadre. Sub-rule 6 of Rule-14 will apply if an employee senior to his colleague in the promotional post is drawing less pay than the junior. Sub-rule 6 of Rule-14 will not apply if a person who was junior in the feeder cadre, has for any reason become senior in the promotional post and is drawing more pay than a colleague who was his junior in the feeder cadre. In other words, comparison of pay between a senior and a junior can be done only if in the cadre in which such comparison is being made the person complaining of lesser pay is senior to whom he is comparing his pay with.

[11] Mr. A. Bhowmik, learned counsel appearing for the

appellant has criticized that finding. According to him, that finding

is misconstruction of the Rule 14(6) of the ROP Rules, 2009 and

from bare reading of Rule 14(6), it is clear that where pay of a

junior become higher than that of his senior as result of providing

the benefit of promotion followed by CAS-2 under TSCS (Revised

Pay) Rules, 1999, compared with his senior who was provided

benefit of CAS-1 followed by promotion, the pay scale of the senior

shall be stepped up to the higher pay as provided to his junior from

the same date when juniors got that higher pay.

As consequence thereof, the memorandum dated

17.07.2017 is liable to be set aside as a whole.

[12] Mr. D. Bhattacharjee, learned GA appearing for the

respondents has at the beginning drawn attention of this court to

sub-Rule 6(B) of Tripura State Civil Services Revised Pay (8 th

Amendment) Rules, 2013. Sub-Rule 6(B) provides that the

stepping up of Pay in the Pay Band/Grade Pay shall be done subject

to the condition that both the senior and junior employees should

be borne in the same cadre /the posts under same Department

with same line of promotion. According to Mr. Bhattacharjee,

learned GA, the rule is unambiguous that the seniority of the

employee claiming stepping up shall be in the same post. The

appellant herein is not senior to those junior officers in the post of

Investigator. Admittedly, the so called junior officers who got

promotion before the appellant are senior in the post of the

Investigator. On their completion of 7[seven] years in the grade of

Investigator, those 'junior officers' had moved to the higher pay

scale and resultantly started getting higher pay. Whether the

appellant is entitled to stepping up of the pay to the level of the

junior officer? According to Mr. Bhattacharjee, learned GA, the

position of rule has been well explained in the memorandum dated

17.07.2017 where it has been unambiguously observed in Para-6B

of the notification, referring to sub-Rule 6B of the said Amendment

Rules has clearly mentioned that the stepping up of Pay in the Pay

Band/Grade Pay shall be done subject to the condition that both

the senior and junior employees should be borne in the same cadre

and the post under the same Department with the same line of

promotion. Therefore, there is no infirmity in the judgment of the

learned Single Judge calling for any intervention from this court.

[13] Mr. D. Bhattacharjee, learned GA appearing for the

respondents has referred a decision of the apex court in Union of

India and others vs. M.V. Mohanan Nair, reported in (2020) 5

SCC 421 for urging this court that the expert bodies do

recommend regulation and revision of the pay structure on taking

into consideration the relevant factors and suggest after due

examination to implement those recommendations within a

framework. Unless the court takes a view that the order/scheme

allowed by the government is not equitable one, ordinarily a

direction would be given to the government or the authority for

reexamination of the matter and taking a decision. According to

this court, this decision is not much relevant for the present

controversy.

[14] It may be noted that the learned Single Judge has

struck down the direction for recovery of excess pay that has been

paid to the appellant by operation of the said memorandum dated

17.07.2017. The state has not preferred any appeal but during

hearing of this appeal they have criticized the said direction of the

learned Single Judge. Therefore, the question that emerges in the

face of the records is whether withdrawal of the benefit, as was

granted by the memorandum dated 18.08.2015, by the impugned

memorandum dated 17.07.2017 is sustainable or not.

[15] We have given our anxious consideration to the grounds

raised for criticizing the judgment dated 10.07.2020 whereby the

learned Single Judge has held that the said withdrawal is perfect

and in tune with the provisions of sub-Rule 6B of the ROP Rule,

2009 which has been inserted by way of the said Amendment

Rules. Having read the Rule 14(6) with its example, this court has

failed to persuade themselves to accept the contention of Mr.

Bhowmik, learned counsel appearing for the appellant. On the

contrary, by inserting Rule 14(6B) in the ROP Rules, 2009, it has

been made more unambiguous. Unless the following conditions are

fulfilled the stepping up of pay as contemplated by Rule 14(6) of

the ROP Rules, 2009 cannot be granted:

[i] Both the employees shall be in the same post in the

same department.

[ii] The employee who is claiming stepping up of his pay

shall be senior to the employee who is getting higher pay

and

[iii] After the anomaly which led to a situation where the

senior employee is getting lesser pay shall be as a result

of fixation.

For this purpose, aid can be taken from the example

below Rule 14(6) of the ROP Rules, 2009.

[16] In this case, the appellant is not senior to the officers

who started getting the higher pay as they were granted CAS-2 for

their completion of 7 years in the post of Investigator. Moreover,

the appellant did not get the said upgradation of scale as he did not

complete 7 years of service when his so called junior officers were

granted the said upgradation of scale. Sine qua non of this rule is

that in the same post the employee claiming higher pay by way of

stepping up shall be the senior to the employee who has been

drawing higher pay than the said senior employee. As it has been

observed by this court that the appellant was not senior to the said

officers in the post of Investigator, he is not entitled to stepping up

of pay in terms of Rule 14(6) read with Rule 14(6B) of the ROP

Rules, 2009.

[17] The appeal, therefore, is devoid of merit. Accordingly,

the same is dismissed.

There shall be no order as to costs.

             JUDGE                                               JUDGE




Sujay