Tripura High Court
For vs The State Of Tripura And on 6 May, 2021
HIGH COURT OF TRIPURA
AGARTALA
WA 123 of 2021
For Appellant(s) : Mr. D. Bhattacharjee. GA.
Ms. N Chakma Saha, Adv.
For Respondent(s) : None.
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
06.05.2021
Heard Mr. D. Bhattacharjee, learned GA assisted by Ms. N.
Chakma Saha, learned counsel appearing for the appellant.
[2] This intra court appeal is directed against the judgment dated
19.11.2020 delivered in WP(C) No.492 of 2020 by a learned Single Judge of
this Court. The respondent filed the writ petition being WP(C) 490 of 2020
against the action of the respondent-appellant by denying him 3rd ACP in
terms of the Tripura State Civil Services (Revised Pay) Rules, 2009, ROP
Rules, 2009 in short.
[3] The ground for denial as shown was that since the petitioner
[the respondent herein] while granted the second upgradation to the scale
of Rs.4200-8650/-, he had crossed the scale of pay of Rs.4000-7890, he will
not get the further upgradation to the pay scale of Rs.5310-24000 (Pay
Band-2) with Grade Pay of Rs.2400 [which is the net higher scale] on his
completion of 25 years of service.
[4] According to the learned Single Judge this issue is no more res
integra. In view of the decision of this court in the judgment dated
03.05.2016 titled as Dilip Kumar Guha vs. The State of Tripura and
Others in WP(C) No. 386 of 2015 when this court has dealt with that
question and decided that clarification dated 14.09.2009 as referred by the
state-respondents is in contrast a substantive-provision of the ROP Rules,
2009 inasmuch as the ROP Rules 2009 clearly postulates that an employee
will get the first upgradation after completion of 10 years of service
and thereafter he will get the second upgradation after 17 years of service
unless he is put on a scale which restricts the second upgradation. In such
circumstances and on completion of 25 years of service he will be entitled to
the further upgradation. Rule 10 of the ROP Rules, 1999 was with slight
modification has been kept intact in Rule 10 of the ROP Rules, 2009.
[5] It had been noticed by this court that by the clarification it was
provided that in the illustrated case claim of 3rd ACP for moving to the next
higher scale meaning to the pre-revised scale of Rs.5500-10700, is not
admissible on the ground that on entering into the pre-revised pay scale of
Rs.5000-10300/-, the employee had consumed three scale upgradations i.e.
Rs.4000-7090/- Rs.4200-8650/- and Rs.5000-10300/-. The said analogy
was clearly struck down in Hari sadhan Adhikari vs. State of Tripura and
it was held in that judgment that as per Annexure A of ROP Rules, 1999 the
scale of Rs.4200-8650 is the next higher scale of corresponding pre-revised
scale of Rs.1250-2890/-. Hence, it was held that it cannot be held the
petitioner consumed one intermediate pay scale at the time when the said
pay scale was granted to him." As per ROP Rules, 2009, the petitioner is
entitled to get 3rd ACP on his completion of 25 years of service. As
illustrated in the part C of ROP Rules, 2009 the petitioner borne in the
existing pay scale of Rs.4200-8650/- [in the scale No.9 of part C] on their
completion of 25 years of service has received 3rd ACP as they are entitled
to the next higher scale i.e. the scale No.10 of part C which was revised to
Rs.5310- 24000/- with the Grade Pay of Rs.2400/-. [the pre-revised scale
being Rs.5000-10,300]
[6] Mr. Bhattacharjee, learned GA appearing for the appellant has
tried to impress us by stating that ROP Rules, 1999 itself provides the
authority to the Finance department to give clarification. We are unable to
accept this analogy as giving clarification is one thing but when the
clarification comes with conflict with the substantive provision of Rules, such
as Rule 10 of the ROP Rules,1999 or for ROP Rules, 2009, such clarification
has to be struck down inasmuch it is not a mere clarification, but, in fact, it
intends to repeal the substantive provision. For that purpose, the recourse
was available to the respondent. They could have carried out amendment in
the ROP rules, for taking away the rules, if that was so required by way of
truncating the scheme of Career Advancement Scheme on its subsequent
version i.e. Assured Career Progression. But the respondents have not done
so. In Hari sadhan Adhikari's case, this court has declared the said
clarification as ultra vires. How thereafter, the state-appellants are acting on
the said clarification, is a matter of concern.
As such, we do not find any infirmity in the judgment passed by
the learned single judge and hence the same stands affirmed by us.
In the result, the appeal stands dismissed.
There shall be no order as to costs.
JUDGE JUDGE
Dipak
