Smt. Bina Debbarma(Ex-Staff ... vs The State Of Tripura
2022 Latest Caselaw 905 Tri

                               Page - 1 of 14

                        HIGH COURT OF TRIPURA
                              AGARTALA
                           W.A. No.212 of 2020

Smt. Bina Debbarma(Ex-Staff Nurse),
Wife of Sri Ramchandra Debbarma,
Resident of Old Kalibari Lane, Krishnanagar,
P.O-Agartala, P.S-West Agartala,
District-West Tripura, PIN-799001.
                                                          -----Appellant(s).
               Versus
1.    The State of Tripura,
Represented by the Secretary to the Government of
Tripura, Department of Health & Family Welfare, New
Secretariat Building, P.S & P.O- NCC Agartala, West
Tripura, PIN-799010.
2.   The Director of Health Services,
Government of Tripura, Pandit Nehru Complex,
Gurkhabasti, P.O-Kunjaban, Agartala, West Tripura,
PIN-799006.
3.   The Accountant General (A & E), Tripura,
Malancha Nivas, P.O-Kunjaban, Agartala, West Tripura,
PIN-799006.

                                                    ----- Respondent(s)

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For the Appellant (s) : Mr. S. K. Deb, Sr. Advocate.

Mr. S. Datta, Advocate.

For Respondent(s) : Mr. B. Majumder, Asstt. S. G.

Mr. D. Bhattacharya, Govt. Adv.

Mr. P. Saha, Advocate.

Date of hearing : 5th August, 2022.

Date of Judgment & Order : 11.10.2022.12th April, 2022. Whether fit for reporting : Yes.

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JUDGMENT AND ORDER

(S.G. Chattopadhyay, J)

This writ appeal is directed against the judgment and order

dated 26.06.2020 passed by the learned Single Judge in W.P(C) No.923 of

2018 whereby the learned Single Judge dismissed the writ petition which

was filed by the petitioner (appellant herein) challenging her erroneous

pay fixation in the post of Staff Nurse under the Health and Family

Welfare Department, Government of Tripura.

[2] The factual context of the case is as under:

Appellant, Smti. Bina Debbarma who has retired from service

on 30.06.2009 joined the service as an Assistant Nurse in the Health and

Family Welfare Department, Government of Tripura on 23.04.1973

pursuant to her selection and appointment in the post. After rendering

continuous service for about 10(ten) years in the post of Assistant Nurse,

she was promoted to the post of Staff Nurse on 10.08.1983. Her pay was

fixed in the promotional post in usual course. When the Tripura State Civil

Service (Revised Pay) Rules, 1988 (for short ROP Rules, 1988) came into

operation refixation of her pay in the revised scale as per ROP Rules, 1988

in the post of Staff Nurse was done. Accordingly, her pay as on 10.08.1983

in the promotional post of Staff Nurse was revised to Rs.740/- as per ROP

Rules, 1988 but the appellant has claimed that it should have been Rs.810/-

instead of Rs.740/- as per said ROP Rules, 1988. According to the

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appellant, her pay revision in the promotional post was grossly erroneous

and as a result of such erroneous pay fixation, she was given a lesser

amount of pay althrough and even after her retirement she is being paid

pension less than her entitlement. After her retirement, the appellant

realised that her pay fixation was erroneously done by the department

because she was getting lesser amount of pension than her colleague.

Immediately she filed representation to the department in the year 2017

alleging erroneous pay fixation which was turned down by the State

respondents. She then approached this Court seeking relief under Article

226 of the Constitution of India.

[3] The respondents filed counter affidavits before the learned

Single Judge. Respondents No.1 and 2 jointly filed counter affidavit on

09.01.2019 and respondent No.3 filed a separate counter affidavit on

20.12.2018. The respondents claimed that a thorough examination of her

service book and other service records revealed that her pay fixation in the

promotional post of Staff Nurse was correctly done by the department and

the Accountant General after verification of the entire service record

finally settled her retirement benefits including her pension. In their

affidavit respondents have given the details as to how the pay fixation of

the appellant was done.

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[4] In the counter affidavit submitted before the learned Single

Judge, the Accountant General who was arrayed as respondent No. 3 in the

writ petition asserted as under:

"3. That, in response to the averments made in paragraph 6 of the writ petition, I on behalf of the answering Respondent No.3 state that the office of the Respondent No.3 is discharging the duties of Authorizing Authority of pensionery benefits while the concerned DDOs are the pension Sanctioning Authorities. In discharging the duty of Authorizing Authority, the office of the Respondent No.3 is always duty bound to scrupulously follow the rules and regulations of CCS (pension) Rules alongwith the direction/orders issued by the Finance Department, Government of Tripura from time to time in the form of circular, office Memorandum etc.

That, the pensionery benefits in respect of the writ petitioner was authorized on the basis of regulation of pay made by the concerned department and the said last pay stood at Rs.20790/-. It is worthmentioning her that the said last pay was verified and found correct as per the calculation of the Respondent No.3 and tallied with the entry made in the Service Book by the concerned department. So, the question of anomaly regarding fixation of pay made in para 6 of the writ petition does not arise.

4. That, in response to the averments made in paragraph 7 of the writ petition, the answering Respondent No.3 state that on receipt pension proposal in respect of the writ petitioner from the Directorate of Health Services, Govt of Tripura, the pensionary benefits was authorised in favour of the writ petitioner vide PPO No.PEN- 3/TRIP/S/Sup/7425, GPO No.PEN-3/Sup/GPO/7507 and CPO No.PEN-3/Commtn/Non-Medl/7425 dated 02/2010 on the basis of regulation of pay last pay at Rs.20790/- which was at per with the calculation of concerned Department as well as last pay certificate furnished by the concerned department. Subsequently revised pension authority was also issued in favour of the petitioner vide this office authority No.PEN-3/Trip/Sup/Rev/5287/14290-92 dated 29-10-2013."

[5] The crux of the argument of the counsel of the appellant

before the learned Single Judge was that since the appellant held two

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different posts namely, Assistant Nurse and Staff Nurse after her initial

pay fixation under ROP Rules, 1982, her pay should have been fixed under

sub-clause (b)(ii) of Rule 7(1)(A)(1) of ROP Rules, 1988 and

consequently on the date of her promotion i.e. on 10.08.1083 her pay in

the promotional post of Staff Nurse ought to have been fixed at Rs.810/-

which was erroneously fixed at Rs.740/-. In response to the plea of the

State respondents that appellant's case suffered of delay and latches,

learned counsel of the appellant argued before the learned Single Judge

that question of delay and latches was irrelevant since erroneous pay

fixation was a continuous wrong which would give rise to fresh cause of

action from month to month and therefore, plea of delay and latches would

not apply to this case.

[6] The State counsel on the other hand argued before the learned

Single Judge that her pay fixation was done in the promotional post on

10.08.1983 and she approached the High Court seeking intervention under

Article 226 in 2018 which was grossly belated. Counsel contended that

there was no wrong in the fixation of pay and pension of the petitioner

which was also approved by the Accountant General. It was contended that

appellant's reliance on sub-clause (b)(ii) of Rule 7(1)(A)(1) of ROP

Rules, 1988 was totally misplaced. The State counsel also argued that the

appellant never held the post of Staff Nurse for the minimum period of

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5(five) years to be entitled to an additional increment as per ROP Rules,

1988.

[7] On appreciation of the pleadings of the parties and the

submissions of their counsel as well as the facts and circumstances of the

case, learned Single Judge viewed that even though the appellant held two

posts during her entire service carrier namely the post of Assistant Nurse

and that of the Staff Nurse, it was of no consequence because she held only

one post during the entire period from the implementation of ROP Rules,

1982 and refixation of her pay in the revised scale as per ROP Rules, 1988

and therefore, her case clearly fell within sub-clause (a) (i) of Rule

7(1)(A)(1) ROP Rules, 1988. Consequently, the learned Single Judge

dismissed her writ petition observing as under:

"7. Short question that calls for consideration is was the petitioner's pay fixation in the revised scale as per ROP, 1988 correctly done or was the petitioner deprived of the benefit of sub-clause (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988. In order to decide this, we may have a look at the relevant statutory provisions. In exercise of powers under Article 309 of the Constitution of India, the State of Tripura had framed the said ROP, 1988 under a notification dated 15.09.1988. These rules were brought into effect from 01.01.1986. As per these rules, pay scales of the employees of the Government had to be revised as per the provisions contained therein. Page 6 of 11 Rule 7 of the said rules pertain to fixation of pay in the revised scale. Relevant portion of this rule reads as under:

"Fixation of pay in the revised scale.

7.(1) The initial pay of a Government servant--

(i) Who elects or is deemed to have elected under sub- rule (3) of Rule 6 to be governed by the revised scale on and from the 1st January, 1986.

Or,

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(ii) who elects under the proviso to Rule 5 to be governed by the revised scale and on from the date on which he earns in the existing scale his next or any subsequent increment after 1-1-86 but not later than 31-12- 87 in respect of the post held by him on 1-1-86, shall, unless in any case the Governor by a special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien had his lien not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:- (A) In cases of all employees, the following components of emoluments shall be determined first:

(A)(1) Basic Pay:

The basic pay of the Government servant in the existing scale on the 1st day of January, 1986, or where the Government servant elects under Rule 5 to be governed by the Revised pay on and from the date on which he earns in the existing scale his next or any subsequent increment falling after 1-1-86 but not later than 31-12-87 in respect of the post Page 7 of 11 held by him on 1-1-86, the basic pay of the Government servant on such later date, shall be determined as follows:

(a)(i) Where the post in which the pay of the Government servant shall be fixed under these rules is the one and the same post in which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982, Or,

(a)(ii) Where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982 upto the date from which his pay shall be fixed under these rules, And where no "modified present scale" is specified in column 5 of Schedule III in relation to any of the posts aforesaid, the basic pay of the Government servant for the purpose of Sub-clause (A)(1) shall be the pay and the personal pay, if any, in the existing scale on the date of his coming over to the revised scale under these rules.

Provided that if the Government servant earns his normal yearly increment on the date of his coming over to the revised scale, the basic pay shall be inclusive of such increment.

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(b)(i) Where a "modified present scale" is specified in column 5 of Schedule III in relation to the post referred to in (a)(i), the basic pay of the Government servant shall be notionally refixed in the „modified present scale‟ at the stage Page 8 of 11 next above the pay earlier fixed in the existing scale under the Tripura Government Services (Revised Pay) Rules, 1982 (17th Amendment) or otherwise and regulated thereafter upto the date of his coming over to the revised scale under these rules. The pay thus notionally refixed shall be the basic pay for the purpose of sub-clause (A)(1).

Provided that if the Government servant earns his normal yearly increment on the date of his coming over to the revised scale, the basic pay shall be inclusive of such increment.

(b)(ii) Where a Government servant held more than one post on promotion or otherwise, after his pay was initially fixed under the Tripura Government Services (Revised Pay) Rules, 1982 (17th Amendment) or otherwise, including the post in respect of which pay shall be fixed in the revised scale under these Rules, the basic pay of the Government servant shall be notionally refixed in the "modified present scale" in the manner prescribed in (b)(i) in respect of the first post, in order of the date of appointment, in relation to which a modified present scale is specified. Thereafter, the pay shall be regulated upto the date on which the Government servant comes over to the revised scale under these rules granting normal yearly increments and refixing notionally his pay in the modified present scales or the existing scales, as the case may be, of the posts to which he was subsequently appointed, including the post in respect of which his pay shall be fixed in the revised scale under these rules.

Provided that notional regulation of pay in respect of different posts to which the Government servant was Page 9 of 11 subsequently appointed on promotion or otherwise, shall be made with reference to the pay plus the personal pay, if any, admissible to the Government servant applying the rules and orders including the provisions of Tripura Govt. Services (Revised Pay) Rules, 1982, which applied to the Government servant earlier.

Provided further that where a personal pay in addition to pay is admissible on the date on which the Govt. servant comes over to the revised scale under these rules as a result of such notional refixation, the basic pay for the purpose of sub clause (A)(1) shall be inclusive of such personal pay.

Provided further that where the Government servant earns his normal yearly increment on the date of W.A. No.212 of 2020 Page - 9 of 14

his coming over to the revised scale, the basic pay shall be inclusive of such increment.

Note:-The personal pay referred to in (a) and (b) of this sub-clause shall mean personal pay other than the personal pay referred to in sub-clause (A)(2) of this Rule."

8. As per sub-rule (1) of Rule 7 thus the initial pay of a Government servant would be fixed separately in respect of substantive pay in the permanent post on which he holds a lien as provided thereafter. As per sub-clause (A)(1) the basic pay of the Government servant in the existing scale as on 01.01.1986 or on a deferred date if so elected by the Government servant under Rule 5 would be determined as per the sub-clauses provided therein. In this context, this rule envisages two situations. First situation is Page 10 of 11 where the post in which the pay of the Government servant is to be fixed is the one and the same post in which he was brought over to the revised scale under the Tripura Government Services (Revised Pay) Rules, 1982 (hereinafter to be referred to as ROP, 1982). Second situation is where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under ROP, 1982. These different situations noted above would be governed by the provisions of pay fixations provided in sub-clauses (i) and (ii) respectively of Rule 7 (1)(A)(1)(b) of ROP, 1988. As noted, according to the petitioner and her counsel, the petitioner's case would fall under the second category and consequently her pay ought to have been fixed in terms of sub-clause (ii) of Rule 7(1)(A)(1)(b) of the said rules. I do not find that this is a correct position. As noted, the first situation envisaged in sub-clause (i) of Rule 7(1)(A)(1)(a) is where the post in which the pay of the Government servant is to be fixed is the one and the same post in which he was brought over to the revised scale under ROP, 1982. The second situation covered under sub clause (ii) is where the Government servant held more than one post during the period from the date on which he was brought over to the revised scale under ROP, 1982 up to the date of fixation of his pay under ROP, 1988. The petitioner was promoted to the post of Staff Nurse on 10.08.1983. Her pay Page 11 of 11 was thus fixed in the said promotional post under ROP, 1982. Thus, she held only one post during the entire period from the implementation of ROP, 1982 till the occasion arose to refix her pay in the revised scale as per ROP, 1988. Her case thus clearly fell within sub-clause (i) of Rule 7(1)(A)(1)(a) of ROP, 1988. The petitioner did hold two positions during her service career namely that of Assistant Nurse and Staff Nurse. However, for the purpose of application of Rule 7(1) of ROP, 1988, this was not of any consequence. What was important was, did the petitioner W.A. No.212 of 2020 Page - 10 of 14

serve on two different posts after being brought over to the revised scales as per ROP, 1982 till the time of her pay fixation as per ROP, 1988. The answer clearly is in the negative. The petitioner's pay fixation, therefore, was not to be done under sub-clause (ii) of Rule 7(1)(A)(1)(b) of ROP, 1988."

[8] Aggrieved by and dissatisfied with the judgment of the

learned Single Judge, the writ petitioner has approached this Court for

setting aside the judgment of the learned Single Judge. The basic stand of

the appellant (the original writ petitioner) is as under:

Fixation of her pay should have been done under sub-clause

(b) (ii) of Rule 7(1)(A)(1) of the ROP Rules, 1988 since she held two posts

namely Assistant Nurse and Staff Nurse during the implementation of

ROP Rules, 1982 till refixation of her pay under ROP Rules, 1988.

[9] Heard Mr. S. K. Deb, learned Sr. advocate appearing for the

appellant along with Mr. S. Datta, learned advocate. Also heard Mr. D.

Bhattacharya, learned Government Advocate appearing along with Mr. P.

Saha, learned advocate for the State respondents. Mr. B. Majumder,

learned Asstt. S. G. is representing respondent No.3. Examined the service

record of the appellant produced before us pursuant to our order dated

22.07.2022.

[10] Undisputedly, the refixation of the pay of the appellant in the

post of Staff Nurse was made by the department in the year 1983 after she

got promotion to the post of Staff Nurse from the position of Assistant

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Nurse but the appellant approached this Court seeking relief under Article

226 of the Constitution for erroneous refixation of pay by filing the writ

petition in the year 2018. The State counsel therefore, raised the plea of

delay and latches on the part of the appellant. Since it is a settled law that

erroneous fixation of pay is a continuous wrong, the plea of delay and

latches does not apply to this case and therefore, the issue does not require

any further examination.

[11] The short question which requires our consideration is

whether sub-clause (b)(ii) of Rule 7(1)(A)(1) of ROP Rules, 1988 would

apply to the case of the appellant. In this regard, the learned Single Judge

has quoted the entire Rule which have been reproduced by us in the

preceding paragraphs. Section 7 of the ROP Rules, 1988 as amended up to

date provides for fixation of pay of the employees of the State

Government. Under the said ROP Rules, sub-clause (b)(ii) of Rule

7(1)(A)(1) contemplates that where a Government Servant has held more

than one post on promotion or otherwise after initial fixation of his or her

pay under the ROP Rules of 1982 or otherwise, including the post in

respect of which pay would be revised under ROP Rules, 1988, the basic

of the Government servant shall be notionally fixed in the modified

present scale following the procedure provided in sub-clause (b)(i) of Rule

7(1)(A)(1) of the present ROP Rules, 1988. Thereafter the pay shall be

regulated up to date on which the Government servant comes over to the

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revised scale under the present ROP Rules, 1988 granting normal yearly

increments and refixing notionally his pay in the modified present scales

or the existing scales, as the case may be of the posts to which he was

subsequently appointed including the posts in respect of which his pay

shall be fixed in the revised scale under ROP Rules, 1988.

[12] Further question which arises in view of the above discussion

of sub-clause (b)(ii) is whether the appellant held two different posts after

being brought over to the revised scales as per ROP Rules, 1982 till her

pay fixation was done as per ROP Rules, 1988 so as to decide whether

sub-clause (b)(ii) of Rule 7(1)(A)(1) would apply to her case.

[13] The service record of the appellant clearly indicates that after

her appointment in 1973 in the post of Assistant Nurse in the Health and

Family Welfare Department, Government of Tripura her pay was modified

to Rs.470 - 1025/- from Rs.430 - 850/- w.e.f 1.1.82 notionally and by the

same entry in her service book (Vol.-II) her pay was revised to Rs.650/- on

1.1.82 with D.N.I on 1.3.82. The said entry with regard to revision of her

pay in terms of ROP Rules 1982 was signed by the Medical

Superintendent, V.M. Hospital, Agartala (as it was then).

[14] It is thus crystally clear that pay of the appellant was revised

w.e.f. 1.1.1982 as per ROP Rules of 1982 and at that time the appellant

was an Assistant Nurse.

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[15] Thereafter, she was promoted to the post of Staff Nurse on

10.08.1983 and her service book (Vol.-II) indicates that her pay was fixed

at Rs.1870/- in the revised pay scale of pay of Rs.1450 - 3710/- w.e.f.

10.08.1987 and her D.N.I was due on 1.8.1988. The relevant entry in the

service record is also endorsed by the Medical Superintendent, V.M.

Hospital (as it was then), Agartala.

[16] There is, therefore, no ambiguity in the proposition of the

appellant that she served in more than one post namely the post of

Assistant Nurse and the post of Staff Nurse after being brought over to the

revised scales as per ROP Rules, 1982 till the time of her pay fixation as

per ROP Rules, 1988 and as such, the department (State respondents)

should have revised her pay and allowances in terms of sub-clause (b) (ii)

of Rule 7(1)(A)(1) of ROP Rules, 1988.

[17] Resultantly, the judgment and order of the learned Single

Judge is set aside and the appeal stands allowed. The respondents are

directed to provide the benefit of revision of the pay of the appellant as

claimed by her in terms of sub-clause (b)(ii) of Rule 7(1)(A)(1) of ROP

Rules, 1988. She will also be entitled to enhanced rate of pension arising

from such revision of pay. The respondents are further directed to

complete the entire exercise within a period of 4(four) months from today.

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[18] In terms of the above, the writ appeal stands disposed of.

Department's file be returned to learned Government Advocate forthwith.

Pending application(s), if any, shall also stand disposed of.

                      JUDGE                                  JUDGE




Dipankar




W.A. No.212 of 2020