The State Of Tripura vs Sri Tejaram Khareshya
2023 Latest Caselaw 327 Tri

                                Page 1 of 14




                      HIGH COURT OF TRIPURA
                            AGARTALA
                            W.A. No.116/2022
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 and 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 and 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.
                                                          .........Appellant(s).
                                VERSUS
1. 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.
                                                      .........Respondent(s).

2. 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.

.........Proforma Respondent(s).

For Appellant(s) : Mr. Mangal Debbartma, Addl. G.A. For Respondent(s) : Mr. Somik Deb, Sr. Advocate, Mr. Abir Baran, Advocate.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH HON'BLE MR. JUSTICE ARINDAM LODH

Date of hearing and judgment: 25th April, 2023.

              Whether fit for reporting          : YES.

                     JUDGMENT & ORDER(ORAL)

            Heard learned counsel for the parties.

2. The appellant-State is aggrieved by the judgment dated

16.09.2021 passed in WP(C) No.330 of 2019 by the learned Single Judge

whereby the writ petition was disposed of with the 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."

3. The petitioner had prayed for stepping up of his pay at the level

of his junior in order to remove pay anomaly which was rejected by the

impugned communication dated 27.08.2018. The comparative position of

the petitioner and proforma respondent in their service career from the date

of birth in their cadre on same post are encapsulated in the form of a table,

part of the counter affidavit of the respondents/appellants herein and

incorporated in the impugned judgment as well are profitably extracted

hereunder as it would obviate the necessity of repeating the relevant facts

relating to the petitioner and the proforma respondent. It is extracted

hereunder:

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/
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





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.10390.00                     Total         = Rs. 4700.00
With DNI on 01.07.2006
                                        Factor of 1.86 = Rs. 8750.00
                                        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
          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.

4. It is not in dispute that both the petitioner and the private

respondent were appointed as Riflemen (GD) in Tripura State Rifles (TSR)

on 31.07.1992 in the same scale of pay of Rs.850-2,130/-. However, the

petitioner was senior to Dulal Chandra Das. The grievance of the petitioner

arose w.e.f. 23.08.2001 when petitioner was appointed by way of transfer to

the post of Naik (Operator) whereas the private respondent was promoted to

the post of Lance Naik (GD) on 01.03.2002. The discrepancy in their pay

fixation as is evident from the tabular chart started w.e.f. 01.07.2002 and

continued till the writ petitioner was promoted to the post of Naib Subedar

(Clerk) w.e.f. 19.10.2009 and his pay was fixed at Rs.14,090/- (9,530 + 360

+ 4,200), i.e. with Grade Pay of Rs.4,200/-. Since 01.07.2010 petitioner has

been getting higher pay on account of such promotion.

5. The learned Single Judge upon noticing the relevant facts of the

case found a case of pay anomaly between the petitioner and the private

respondent even though petitioner was senior in service on the basic post of

Riflemen (GD). Learned Single Judge also observed that petitioner was not

given any option to accept such transfer to the post of Naik (Operator)

whereas the similarly situated junior, i.e. private respondent was promoted to

the post of Lance Naik (GD). Learned Single Judge also observed that

petitioner held a higher post of Naik (Operator) compared to the private

respondent but continued to suffer lesser pay till he was promoted in the year

2009. The opinion of the learned Single Judge and the operative directions

contained in the impugned judgment are extracted hereinbelow for proper

appreciation:

"[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 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 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."

6. Learned counsel for the parties have argued against and in

favour of the impugned judgment relying upon the contents of the pleadings

before the Writ Court and also the relevant rules, i.e. Tripura State Rifles

(Recruitment) Rules, 1984.

7. It is the contention of the appellants-State that the writ

petitioner was not substantively promoted to the post of Naik (Operator) but

was posted by way of transfer only, the private respondent had been duly

promoted to the post of Lance Naik (GD) as there are different streams in the

organization where avenues and channels of promotion are different.

8. On the other hand, Mr. Somik Deb, learned senior counsel

assisted by Mr. Abir Baran, learned counsel for the writ petitioner, has

drawn the attention of this Court to Rule 6 and Rule 42 of the Rules of 1984

to buttress his submission that in the category of riflemen, the hierarchy of

posts start from Enrolled Followers to Riflemen, Riflemen to Lance Naik,

Lance Naik to Naik and Naik to Havildar respectively which clearly shows

that petitioner though was appointed on transfer as a Naik (Operator) and

was senior to the private respondent but was drawing a lesser pay compared

to the private respondent who was promoted to the post of Lance Naik (GD)

w.e.f. 01.03.2002 and got higher pay fixation w.e.f. 01.07.2002. It is

submitted by learned senior counsel for the writ petitioner that this anomaly

has been sought to be corrected by the learned Single Judge by directing the

respondents-State to step up the level of the pay of the petitioner up to that

of the junior Dulal Chandra Das, private respondent, at different stages and

which would have consequential effect in his subsequent pay revision also.

Learned senior counsel for the writ petitioner has also sought to impress

upon us that in light of the ratio rendered by the Apex Court in the case of

M.R. Gupta vrs. Union of India and others reported in (1995) 5 SCC 628

the writ petitioner should have been granted the arrears for a period of

3(three) years prior to the date of the writ petition, i.e. 2019 when the writ

petition was filed. The learned Single Judge has granted arrears only for the

past period of one year prior to filing of the petition. It is submitted that this

Court in appeal may adequately mould the relief to that extent. Learned

senior counsel for the writ petitioner has also relied upon the decision of the

Apex Court in the case of State of Madhya Pradesh and others vrs.

Yogendra Shrivastava reported in (2010) 12 SCC 538 (paragraph-18).

9. We have given our anxious consideration to the submissions of

learned counsel for the parties. We have also gone through the writ records

and perused the impugned judgment as well.

10. In our view, the present case reflects pay anomaly vis-à-vis the

petitioner and the private respondent dating back to 01.07.2002 when after

promotion of the private respondent as Lance Naik (GD), his pay was fixed

at Rs.4,010/- whereas the writ petitioner though appointed on transfer to a

post of Naik (Operator) and being senior to him in the basic post of Riflemen

(GD) got his pay fixed at Rs.3,830/- as on 01.07.2002. This discrepancy

continued till writ petitioner was promoted substantively as Naib Subedar

(Clerk) w.e.f. 19.10.2009 and got his pay fixed at Rs.14,090/- with Grade

Pay of Rs.4,200/- w.e.f. 01.07.2010 compared to the private respondent

whose pay was fixed with effect from the same date at Rs.13,090/-.

Therefore, all along from 01.07.2002 till 01.07.2010 writ petitioner despite

being senior to the private respondent in the basic cadre post continued to

get lesser pay on account of promotion of the private respondent as Lance

Naik (GD) w.e.f. 01.03.2002 whereas petitioner continued to hold the post of

Naik (Operator) and thereafter Havildar (Clerk) w.e.f. 10.02.2004 but

without any benefit of the applicable pay scale. In such a situation which

often may happen in an organization vis-à-vis similarly situated person, the

rules provide for pay protection to the person who is senior. Such pay

protection entails that the person senior would not suffer in matters of pay

compared to his junior receiving a higher scale of pay. Petitioner in this case

was appointed on transfer to the post of Naik Operator on 01.03.2002 but

raised his grievance of pay anomaly in the year 2019 by way of a writ

petition. Petitioner has been substantively promoted as Naib Subedar (Clerk)

in a higher scale of pay w.e.f. 19.10.2009 and his pay has been fixed w.e.f.

01.07.2010 at Rs.14,520/- which is higher to that of the private respondent

as on the same date, i.e. Rs.13,090/-. This discrepancy, therefore, came to an

end w.e.f. 01.07.2010. The learned Single Judge after noticing the case of

the parties, however, proceeded to issue directions upon the respondents-

State to step up the level of the pay of the petitioner to that of his junior at

different stages where such pay anomaly had arisen with consequential

effects in subsequent pay revisions as well. This, in our view, would not be

proper. The pay anomaly existing w.e.f. 01.07.2002 till 01.07.2010 was

required to be corrected by granting pay protection to the petitioner. Any

stepping up of the pay of the writ petitioner at the level of the private

respondent at different stages without a substantive promotion between those

years, i.e. 01.07.2002 to 01.07.2010 would be unwarranted till the writ

petitioner got a substantive promotion as per the rules to the next higher

post. Evidently, the writ petitioner has been promoted to the higher post

w.e.f. 19.10.2009 in a higher pay scale and the pay anomaly has ceased to

exist. If the directions of the learned Single Judge are carried by stepping up

of the pay of the writ petitioner at every stage with that of the private

respondent with consequential effects in pay revision for all times to come, it

would have a cascading effect which is not justified in the facts of the

present case.

11. In view of what has been held hereinabove, we are of the

opinion that the decision in the case of Yogendra Shrivastava (supra) does

not come to the aid of the writ petitioner.

12. Petitioner shall be paid the benefits of pay protection till such

from 01.07.2002 till 01.07.2010, the date on which the discrepancy in pay

came to an end.

13. Therefore, we are of the considered view that the impugned

judgment needs to be modified to the following extent:

The writ petitioner shall be granted pay protection at par with

that of the private respondent for the period w.e.f. 01.07.2002 till the

discrepancy in the pay came to an end i.e. w.e.f. 01.07.2010.

Consequentially, the monetary benefits of such pay protection shall be

released in favour of the writ petitioner within a period of 8(eight) weeks

from the date of receipt of the copy of this order.

14. The writ appeal is allowed in the manner and to the extent

indicated hereinabove.

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

(ARINDAM LODH), J                       (APARESH KUMAR SINGH), CJ




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