Tripura High Court
Sri Tejaram Khareshya vs The State Of Tripura Represented ... on 16 September, 2021
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.330/2019
Sri Tejaram Khareshya, son of Late Jagadish Prasad Khareshya, Regt. No.
92020738, resident of HQR, 2nd Battalion TSR, Village - R.K. Nagar, P.O -
Khas Noagaon, PS - Bodhjungnagar, District - West Tripura, PIN - 799008.
.............. Petitioner(s).
- Vs. -
1. The State of Tripura represented by the Secretary & Commissioner,
Department of Finance, Government of Tripura, having his office at
New Secretariat Complex, Gorkhabasti, Agartala, P.O - Kunjaban, PS -
New Capital Complex, Sub - Division - Sadar, District - West Tripura.
2. The Secretary & Commissioner, Department of Finance, Government of
Tripura, having his office at New Secretariat Complex, Gorkhabasti,
Agartala, P.O - Kunjaban, PS - New Capital Complex, Sub-Division -
Sadar, District - West Tripura.
3. The Commissioner & Secretary, Department of Home, Government of
Tripura, having his office at New Secretariat Complex, Gorkhabasti,
Agartala, P.O - Kunjaban, PS - New Capital Complex, Sub-Division -
Sadar, District - West Tripura.
4. The Under Secretary, Home Department, Government of Tripura, having
his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O -
Kunjaban, PS - New Capital Complex, Sub - Division - Sadar, District -
West Tripura.
5. The Director General of Police, Government of Tripura, having his office
at Police Head Quarters, P.O - Agartala, PS - West Agartala, Sub-
Division, Agartala, West Tripura.
6. The Assistant Inspector General of Police (Esstt.), Government of
Tripura, having his office at Police Head Quarters, P.O - Agartala, PS -
West Agartala, Sub-Division, Agartala, West Tripura.
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7. Sri Dulal Chandra Das, son of Amulya Chandra Das, Regd. No.
92020776, resident of HQR, 2nd Battalion, TSR, Village - R.K. Nagar,
P.O - Khas Noagaon, PS - Bodhjungnagar, District - West Tripura, PIN
- 799008.
.............. Respondent(s).
_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For Petitioner(s) : Mr. Somik Deb, Sr Advocate,
Mr. Abir Baran, Advocate.
For Respondent(s) : Mr. M Debbarma, Addl. Govt. Adv.
Date of hearing & judgment : 16th September 2021.
Whether fit for reporting : No.
JUDGMENT(ORAL)
The petitioner has challenged a communication, dated 27th August
2018, as at Annexure -11 to the petition by which his request for stepping up
of pay at the level of his junior, in order to remove pay anomaly, came to be
rejected.
[2] Brief facts are as under :
The petitioner and the private respondent No.7 Sri Dulal Chandra
Das were both appointed as Riflemen(GD) in Tripura State Rifles(TSR), on
31st July 1992, in the scale of pay of Rs.850-2,130/-. The petitioner was
senior to Dulal Chandra Das. Both got identical pay from time to time. As
on 1st July 1996, the basic pay of both of them was Rs.1,090/-. The
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Government of Tripura introduced Revision of Pay Rules, 1999 w.e.f 1st
January 1996. The pay of the petitioner and Dulal Chandra Das were re-
fixed in the revised scale of Rs.3,200-6,030/- at Rs.3,290 as on 1st July 1996.
The pay parity between the two continued till 1st July 2001 when they were
both drawing basic pay of Rs.3,740/-.
[3] On 23rd August 2001, the petitioner was appointed as a
Naik(Operator) and which led to the pay discrepancy between him and Dulal
Chandra Das at a later point of time. As per Rule 42 of Tripura State Rifles
(Recruitment) Rule, 1984 (hereinafter to be referred to as "the Recruitment
Rules"), the post of Naik(GD) or Naik(Operators) shall be filled by transfer
from amongst Naiks, failing which Lance Naiks, failing which Riflemen
who possess the qualifications of Matriculation or equivalent and Grade III
of Wireless Operator's proficiency standard. Under this Rule, the petitioner
was made the Naik(Operator), however, without any financial benefits since
the department considered this not as a promotion but merely a transfer,
though admittedly the post of Naik(Operator) carries higher pay scale than
that of Riflemen(GD).
[4] On the other hand, Dulal Chandra Das was promoted to the post of
Lance Naik(GD) which is a post one step lower in the hierarchy than that of
Naik(Operator) on 1st March 2002. Since Dulal Chandra Das was being
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promoted, he got the benefit of pay fixation in the promotional scale. As on
1st July 2002 i.e. shortly after his promotion, his pay was fixed at Rs.4,010/-
whereas on the same day, the petitioner was joined the basic of Rs.3,830/-.
This was the starting point of anomaly which continued from time to time.
Even after the petitioner got the benefit of Carrier Advancement
Scheme(CAS) - I w.e.f 31st July 2002 he was drawing less pay than that of
his junior. The petitioner was granted promotion to the post of
Havildar(Clerk), on 10th February 2004 and his pay was fixed at Rs.4,200/-
w.e.f 1st July 2004 and momentarily, he drew slightly higher pay than Dulal
Chandra Das who on the same day was drawing Rs.4,190/-. Soon enough,
the anomaly reappeared because Dulal Chandra Das was promoted as
Naik(GD) on 12th January 2005 and on account of a fresh pay fixation to the
promotional post, his pay became Rs.4,380/- as on 1st July 2005 whereas the
petitioner was drawing Rs.4,300/- on the same day. This anomaly continued
till the petitioner was promoted as Naib Subedar(Clerk), on 19th October
2009 and his pay as on 1st July 2010 was Rs.14,520/- whereas that of Dulal
Chandra Das remained at Rs.13,090/- on the post of Havildar(GD). It
appears that till date Dulal Chandra Das has not got the next promotion and
therefore, the petitioner since his promotion as Naib Subedar is drawing
higher pay than that of his junior. All this data I have taken from the
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Government reply in which in the form of a chart following details are
provided.
"
Rfn GD Tejaram Khareshya Rfn GD Dulal Ch Das (now
[now Nb/Sub(Clrk)]. Hav.GD).
Appointed as Rfn(GD) on Appointed as Rfn(GD) on
31.07.1992, pay scale pre-revised 31.07.1992, pay scale pre-
Rs.850-2130/- with DNI on revised Rs.850-2130/- with DNI
01.07.1993. on 01.07.1993.
Pay re-fixed at modified scale Pay re-fixed at modified scale
Rs.950/- w.e.f 01.11.1992, pre- Rs.950/- w.e.f 01.11.1992, pre-
revised scale Rs.970-2400/- with revised scale Rs.970-2400/-
DNI on 01.07.1993. with DNI on 01.07.1993.
Pay as on 01.07.1993 Rs.985/- Pay as on 01.07.1993 Rs.985/-
Pay as on 01.07.1994 Rs.1020/- Pay as on 01.07.1994 Rs.1020/-
Pay as on 01.07.1995 Rs.1050/- Pay as on 01.07.1995 Rs.1050/-
Pay as on 01.07.1996 Rs.1090/- Pay as on 01.07.1996 Rs.1090/-
Pay fixed under ROP, 1999 Pay fixed under ROP, 1999
As pay on 01.07.1996 Rs.1090.0 As pay on 01.07.1996 Rs.1090.0
DA 148% = Rs.1613.20 DA 148% = Rs.1613.20
I/R 10% + 100 = Rs. 205.00 I/R 10% + 100 = Rs. 205.00
FB 30% = Rs.327.00 FB 30% = Rs.327.00
Total = Rs.3235.20 Total = Rs.3235.20
Say Rs.3290/- in pre-revised Say Rs.3290/- in pre-revised
scale Rs.3200-6030/- with DNI scale Rs.3200-6030/- with DNI
on 01.07.1997 on 01.07.1997
Pay as on 01.07.1997 Rs.3380/- Pay as on 01.07.1997 Rs.3380/-
Pay as on 01.07.1998 Rs.3470/- Pay as on 01.07.1998 Rs.3470/-
Pay as on 01.07.1999 Rs.3560/ Pay as on 01.07.1999 Rs.3560/
Pay as on 01.07.2000 Rs.3650/ Pay as on 01.07.2000 Rs.3650/
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Pay as on 01.07.1997 Rs.3740/ Pay as on 01.07.1997 Rs.3740/
Appointed to NK(Opr) on -
23.08.2001 and no financial
benefits as per RR
Pay as on 01.07.2002 Rs.3830/- Promoted to LNK(GD) on
01.03.2002 and pay fixed at
Rs.4010/- w.e.f. 01.07.2002
(exercising option) in existing
pay scale with DNI on
01.07.2003.
Allowed CAS-1 pay fixed at -
Rs.3,920/- w.e.f. 31.07.2003 in
existing pay scale under ROP
1999 with DNI on 01.07.2003.
Pay as on 01.07.2003 Rs.4010/- Pay as on 01.07.2003 Rs.4100/-
Again appointed to Hav(Clerk) Pay as on 01.07.2004 Rs.4910/-
on 10.02.2004, pay fixed at
Rs.4200/- w.e.f 01.07.2004
(Exercising option), pre-revised
Rs.3300-7100/- under FR
22(1)(a)(2) with DNI on
01.07.2005.
Pay as on 01.07.2003 Rs.4300/- Promoted to NK(GD) on
12.01.2005 and pay fixed at
Rs.4380/- w.e.f. 01.07.2005 in
existing pay scale with DNI on
01.07.2006.
ROP(12th amendment 2015) pay ROP(12th amendment 2015) pay
fixed in PB-2, Rs.5700-24000/- fixed in PB-2, Rs.5700-24000/-
with GP Rs.2200/- as pay on with GP Rs.2200/- as pay on
01.01.2006 = Rs.4300.00 01.01.2006 = Rs.4300.00
Bunching benefit = Rs.100.00 Bunching benefit = Rs. 100.00
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Total = Rs.4400.00 Spl Pay holding post
Factor of 1.86 = Rs.8190.00 to NK = Rs. 120.00
GP = Rs.2200.00 Total = Rs.4700.00
Total = Rs.10390.00 Factor of 1.86 = Rs.8750.00
With DNI on 01.07.2006 GP = Rs. 2100.00
Total = Rs.10850.00
With DNI on 01.07.2006
Pay as on 01.07.2006 Rs.10710/- Pay as on 01.07.2006 Rs.11180/-
Pay as on 01.07.2007 Rs.11040/- Pay as on 01.07.2007 Rs.11520/-
Promoted to Hav(GD) on
27.09.2007, pay fixed at
Rs.11970/- (9420 + 350+2200)
w.e.f 27.09.2007 in existing PB
with GP Rs.2200/- pay scale
with DNI on 01.07.2008.
Pay as on 01.07.2008 Rs.11380/- Pay as on 01.07.2008 Rs.12330/-
Pay as on 01.07.2009 Rs.11730/- Pay as on 01.07.2009 Rs.12700/-
Promoted to Nb/Sub(Clerk), pay -
fixed at Rs.14090/-
(9530+360+4200) w.e.f
19.10.2009 (Exercising option),
in PB with GP Rs.4200/- with
DNI on 01.07.2010.
Pay as on 01.07.2010 Rs.14520/- Pay as on 01.07.2010 Rs.13090/-
Pay as on 01.07.2011 Rs.14960/- Pay as on 01.07.2011 Rs.13490/-
Pay as on 01.07.2012 Rs.15410/- Pay as on 01.07.2012 Rs.13900/-
Pay as on 01.07.2013 Rs.15880/- Pay as on 01.07.2013 Rs.14320/-
Pay as on 01.07.2014 Rs.16360/- Pay as on 01.07.2014 Rs.14750/-
Pay as on 01.07.2015 Rs.16850/- Pay as on 01.07.2015 Rs.15200/-
Pay as on 01.07.2016 Rs.17360/- Pay as on 01.07.2016 Rs.15660/-
with DNI 01.07.2017 with DNI 01.07.2017
Pay fixed under ROP 2017 in Pay fixed under ROP 2017 in
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new pay matrix new pay matrix
As on 01.04.2017 Rs.17360/- As on 01.04.2017 Rs.15660/-
Matrix of 2.25 Rs.39060/- Matrix of 2.25 Rs.35235/-
Say Rs.39680/- Say Rs.36140/-
Level - 19 Level - 07
Cell - 10 Cell - 23
With DNI 01.07.2017 With DNI 01.07.2017
Pay as on 01.07.2017 Rs.40880/- Pay as on 01.07.2017 Rs.37230/-
with DNI 01.07.2018. with DNI 01.07.2018.
Pay as on 01.07.2018 Rs.42110/- Pay as on 01.07.2018 Rs.38350/-
with DNI 01.07.2019. with DNI 01.07.2019.
Pay as on 01.07.2018 Rs.49400/- Pay as on 01.10.2018
Level-10, Cell-13 with DNI Rs.44800/- Level-7, Cell-26
01.07.2019. with DNI 01.07.2019.
"
[5] The question in such background arises is, whether the petitioner's
request for removal of pay anomaly is justified and if so, in facts of the
present case, what relief should be granted. Learned counsel for the
petitioner in addition to pointing out the peculiar facts of the case also relied
on the decisions of Supreme Court in cases of Union of India and Ors. Vs.
P Jagdish and Ors. reported in (1997) 3 SCC 176, Gurcharan Singh
Grewal and Anr. Vs. Punjab State Electricity Board and Ors. reported in
(2009) 3 SCC 94 and Commissioner and Secretary of Government of
Haryana and Ors. Vs. Ram Sarup Ganda and Ors. reported in (2011) 15
SCC 772 and argued that this is a classical case where the stepping up of pay
should be ordered.
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[6] On the other hand, learned Additional Government Advocate Mr.
M Debbarma for the department submitted that the petitioner was transferred
to the post of Naik and therefore, rightly not granted any benefit of higher
pay. As against this, Dulal Chandra Das was promoted to the post of Lance
Naik and therefore, got the benefit of incremental pay fixation. The
petitioner and Dulal Chandra Das did not belong to the same cadre and
therefore, their pay scales cannot be compared.
[7] In my view, the pay anomaly arises in the present case is required
to be removed by a judicial order. As noted, the petitioner who had joined
the service as a Riflemen(GD) was appointed to the post of Naik(Operator)
on 23rd August 2001. As per the Recruitment Rules, the post could be filled
by way of transfer from various cadres including that of the Riflemen.
Admittedly, the post of Naik(Operator) carries higher pay scale than that of
the Riflemen(GD). It is not the case of the respondents that the petitioner
had any option to refuse such transfer and appointment as Naik(Operator)
and that the petitioner voluntarily accepted such transfer so as to improve his
chances of promotion. It is not even the case of the department that by being
brought over to the post of a Naik(Operator), the petitioner improved his
chance of promotion ahead of his contemporaries. In plain terms, therefore,
the petitioner was made the Naik(Operator) on account of administrative
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exigencies and the petitioner had no option but to accept such order. If that
be so, the petitioner cannot be made to suffer in terms of his pay fixations.
His junior who was not brought over to the post of Naik(Operator), got
promotion to a lower post of Lance Naik and in the process, started drawing
more pay than the petitioner who was holding a higher post. This is a most
anomalous situation. Though occupying a higher post, the senior was
drawing less pay than the junior because in case of the junior, appointing
him as a Lance Naik was considered a promotion whereas in case of the
petitioner, appointing him to a higher post of Naik was considered not a
promotion but mere transfer. In the process, petitioner's pay remained the
same even after being brought over to a post carrying higher pay scale
whereas the junior got the benefit of pay fixation which goes along with
regular promotion.
[8] This anomaly manifested itself from time to time from the year
2002 right up to the year 2010. It was only in the year 2010 when the
petitioner was promoted to the post of Naib Subedar(Clerk) and Dulal
Chandra Das has not got any matching promotion that the petitioner started
drawing more pay than his junior. However, for entire span of eight years,
consistently the petitioner's junior made him the junior. The petitioner's pay
therefore, at all stages, must be stepped up to match that of his junior with
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consequential effect. However, this petition is filed in the year 2019. There
is a long delay in filing the petition. Only because the pay fixation has
recurring effect, petition cannot be thrown out on the ground of delay and
laches. However, the petitioner cannot claim benefit of the past without any
restrictions.
[9] Under the circumstances, petition is disposed of with following
directions :
(i) The pay of the petitioner shall be stepped up to the level of his
junior Dulal Chandra Das at different stages where such pay
anomaly has arisen. Such stepping up would have
consequential effect. In other words, on the basis of such
consequential effect his subsequent pay also shall be revised
accordingly.
(ii) The petitioner shall, however, not receive any arrears for the
past period except for one year prior to filing of the petition.
[10] Directions shall be carried out within 6(six) months. Pending
application(s), if any, also stands disposed of.
( AKIL KURESHI, CJ )
Sukehendu
