The State Of Tripura & Ors vs Sri Uggya Jai Mog & Ors
2021 Latest Caselaw 908 Tri

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                                 WA No. 211 of 2021
The State of Tripura & Ors.                                    .........Appellant(s)
                                    Versus
Sri Uggya Jai Mog & Ors.                                       .........Respondent(s)

For Appellant(s)            :       Mr. D. Sarma, Addl. G.A.
For Respondent(s)           :       Mrs. S. Deb (Gupta), Adv.

          HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
           HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                        Order
14/09/2021

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge dated 19.04.2021 passed in W.P (C) 41 of

2021.

The respondents-petitioners had claimed the benefit of second ACP

upon completion of 17 years of service. The department was of the view that this

benefit was not available since by the time the petitioners completed 17 years of

service they had already availed of two scale advancements. The opposition of the

department can be gathered from the following portion of the affidavit-in-reply

filed before the Single Judge:

"12. That, in reply to averments or contentions made in paragraph 6,7,10 & 11 of the writ petition it is stated that, the petitioner had joined in the Department as Co-operative Inspector on 03.08.1998 and after a period of 6 years 2 months (approx), the petitioners had got 1st promotion to the post of Co-operative Officer w.e.f. 16.10.2004 in the scale of pay Rs.6500-12,300/- (ROP, 1999) corresponding pay scale PB-3, Rs.10,230-34,800/- with grade pay Rs.4600/- (ROP, 2009). Since the scale up gradation had been Page - 2 of 7

availed by the petitioner by virtue of their promotion, therefore, one ACP may be treated to be consumed by the petitioner. With the passage of time, the petitioner had completed their 17(10+7) years of service on 03.08.2015.

In reference to the above, it is pertinent to mention here that the petitioners had availed upliftment from GP-Rs.4200 to GP- Rs.4600/- surpassing the GP-Rs.4400/-, which, as per clarification given in point no. 10 of Finance Department vide Memo No. F.6(1)-FIN(PC)/2008, Dated 14-09-2009 read with the rule 10(2) of the TSCS (RP) Rules, 2009, may be treated as 2 (two) scale upliftment.

A copy of the Memo No.F.6(1)-FIN(PC)/2008, Dated 14-09-2009 is enclosed and marked as Annexure R/C."

Similar issues have come up before this Court in the past and under

identical circumstances it has been held that this is not a case of availment of two

promotions or scale advancements and that the clarification relied upon by the

department runs counter to the statutory rules. Reference in one such judgment in

case of Bipul Rn. Dey (WA 191 of 2020) would be sufficient. In a judgment dated

12th January, 2021 while dismissing the writ appeal of the Government following

observations were made:

"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 Page - 3 of 7

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 Page - 4 of 7

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 Page - 5 of 7

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 Page - 6 of 7

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 Naibsubedar, 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 Page - 7 of 7

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."

In the result, this writ appeal is dismissed. The benefits flowing from

the decision of the learned Single Judge may be granted to the petitioners within

4(four) months from today.

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

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




Rudradeep