Sri Sanjan Das vs The State Of Tripura And 2 Ors
2022 Latest Caselaw 65 Tri

                  HIGH COURT OF TRIPURA
                         AGARTALA
                    W.P.(C)No.602 of 2021
Sri Sanjan Das
                                                 ----Petitioner(s)
                             Versus

The State of Tripura and 2 Ors.
                                               ----Respondent(s)

For Petitioner(s)     :    Mr. A. Bhowmik, Adv.
For Respondent(s)     :    Mr. P. K. Dhar, Sr. G.A.
                           Mr. A. De, Adv.

            HON'BLE MR. JUSTICE S. TALAPATRA

                             Order

19/01/2022

Heard Mr. A. Bhowmik, learned counsel appearing for

the petitioner as well as Mr. P. K. Dhar, learned Sr. G.A.

assisted by Mr. A. De, learned counsel appearing for the

respondents.

02. The petitioner who was appointed as the Post

Graduate Teacher under the Education [School] Department on

01.08.2007 on fixed pay basis keeping his regular scale of pay

in abeyance for five years has approached this court agitating

against denial of granting the advance increment as per Rule

13(1)(v) of the Tripura State Civil Services (Revised Pay) Rules,

2009, even though he had completed his B.Ed. degree prior to

01.01.2009. To be precise, the petitioner was awarded the B.Ed.

degree by Tripura University on 20.09.2007 [see Annexure-2 to

the writ petition]. The petitioner has, in these perspective fact,

urged this court for directing the respondents to release the said

advance increment in his favour and refix his pay in terms of

the Rule 13(1)(v) of Tripura State Civil Services (Revised Pay)

Rules, 2009. In addition, the petitioner has urged this court for

setting aside the memorandum dated 06.07.2011 issued by the

Finance Department [Annexure-6 to the writ petition]. By the

said memorandum it has been clarified that since as per Rule-

2(d) of TSCS(RP) Rules, 2009 fixed pay employees do not come

within the domain of the Rules, they are not entitled to the of

training incentive during the fixed pay period. However, the

employees under reference shall be entitled to get training

incentive in the form of lump-sum grant with effect from

01.01.2009 or from the date he/she would be brought to regular

appointment in service, if not got the same as per earlier

guidelines.

03. Mr. Bhowmik, learned counsel appearing for the

petitioner has succintly submitted that the clarification has been

interfered by this court in Kamanashis Das and Ors. vs. The

State of Tripura & Ors.[judgment dated 19.03.2021 delivered

in WP(C)No.703 of 2019] where this court in the similar context,

has observed under:

"........ it is provided that all the petitioners would be entitled to one advance increment in terms of Rule 13(1)(ii) of ROP 2009 from the respective dates when they were brought over to regular pay scales. This pay fixation would, however, be for notional purpose till the date of filing of the petition after which they would be entitled

to arrears of salary. These directions shall be carried out within a period of 4(four) months from today."

Mr. Bhowmik, learned counsel therefore has

contended that the present controversy is squarely covered by

that decision.

04. Mr. P. K. Dhar, learned senior G.A. has reiterated

what has been provided by the memorandum dated 06.07.2011

[Annexure-6 to the writ petition] that as per Rule 2(d) of the

ROP Rules, 2009, the person paid on a monthly fixed pay basis,

cannot get the benefit of these Rules. As the petitioner was

admittedly on fixed pay before 01.01.2009, he cannot get any

incentive. After 01.01.2009 he may be allowed the lump sum

benefit in the manner as provided by the said memorandum

dated 06.07.2011 [Annexure-6 to the writ petition].

05. Having appreciated the rival contentions as raised by

the counsel for the parties, it appears that two pertinent

questions surfaces for consideration, being:

(i) Whether the petitioner is entitled to get the training

incentive when he was on fixed pay? and

(ii) Whether the petitioner is only entitled to get the

lump sum incentive in terms of the said

memorandum dated 06.07.2011?

06. This court is in agreement with the submission of Mr.

Bhowmik, learned counsel that this court in Kamanasish Das

(supra) has settled the issue and as such this issue is no more

res integra. Even though the petitioner was on fixed pay basis

keeping his regular pay scale in abeyance, he will be entitled to

the training incentive of one advance increment when he will be

brought in the regular scale.

07. Mr. P. K. Dhar, learned Sr. G.A. has submitted that

the decision of Kamanasish Das (supra) has been challenged

in an inter-court appeal by the state and the said appeal is still

pending and as such this court may not take any decision based

on Kamanasish Das (supra). The petitioner is not a usual fixed

pay employee on contract basis. The petitioner has been

appointed against the regular post and his due pay and

allowances had been kept in abeyance for five years in

pursuance of a fiscal policy of the State Government. According

to that policy, whenever the petitioner would complete five

years of the fixed pay employment, he would get the regular

pay scales and all other benefits. In another litigation, a

question was raised before this court that whether the period of

five years, when the employees were on fixed pay basis keeping

their regular pay and allowances in abeyance, would be treated

as a regular service or not, this court has answered in

unequivocal words that five years will be the part of their

regular service and as such, they are not the fixed pay

employee of ordinary parlance. Now the question arises whether

they would get the increment on their fixed pay. There cannot

be any different opinion that increment cannot be determined or

added to the fixed pay. But the said increment be released when

the petitioner would get into the regular pay scale. In this case,

the petitioner has been given his regular scale of pay by the

memorandum dated 31.08.2012 [Annexure-3 to the writ

petition] with effect from 01.08.2012, when he had completed 5

years of service with the fixed pay for the day he was appointed

on fixed pay by keeping regular pay scale in abeyance i.e.

01.08.2007.

08. There is no dispute that the petitioner has obtained

the B.Ed degree while in service. As such, the petitioner will be

entitled to the benefit of the advance increment in terms of the

Rule 13(1)(v) of ROP Rules, 2009. However, the benefit of that

increment will be notional till the date of filing of the writ

petition as the cause arose long back but the petitioner has

waited till 31.08.2021 to approach this court. However, the

petitioner got the cause of action as the deprivation is perennial.

The petitioner will get benefits of that advance increment and

consequential fixation of pay. For fixation of pay with effect from

01.09.2021, arrears as would accrue to the petitioner shall be

paid within a period of three months from today by the

respondents.

09. Having observed thus, the clarification as given by

the memorandum dated 06.07.2011 [Annexure-6 to the writ

petition] is read down.

The writ petition stands allowed to the extent as

indicated above.

There shall be no order as to costs.

JUDGE

Moumita