Shri Gautam Roy And Ors vs The State Of Tripura And Ors
2023 Latest Caselaw 726 Tri

                               HIGH COURT OF TRIPURA
                                     AGARTALA

                                   WA 307 of 2021

Shri Gautam Roy and Ors
                                                                      ----Appellant(s)
                                          Versus
The State of Tripura and Ors.
                                                                    ----Respondent(s)

For Appellant(s) : Mr. Somik Deb, Senior Advocate.

Mrs. Riya Chakraborty, Advocate.

For Respondent(s)                       : Mr. M. Debbarma, Addl.GA.
Date of Argument                        : 23.08.2023
Date of Pronouncement                   : 30.08.2023.
Whether fit for reporting               : Yes/No

              HON'BLE MR. JUSTICE T. AMARNATH GOUD
               HON'BLE MR. JUSTICE ARINDAM LODH


                           Judgment and order (Oral)

(T. Amarnath Goud), J

This is an appeal under Rule 2 of the Chapter VA of the

Gauhati High Court Rules read with Article 226 of the Constitution of

India, against the impugned Judgment & Order dated 04.02.2021 passed

by the learned Single Judge in WP(C) 69 of 2015.

[2] The reliefs sought by the petitioner in the WP(C) WP(C) 69 of

2015 are as follows:

(i) Issue Rule upon the respondents to show cause as to why the respondents should not transmit all records relating to the case of the petitioners.

And

(ii) As to why a writ in the nature of Mandamus should not be issued directing the respondents to grant pay scale of Rs.4200-Rs.8,650 as first CAS and Rs.5000-10,300 as second CAS to the petitioners w.e.f. the respective dates of their entitlements along with arrears.

And

(iii) As to why such other order/orders should not be passed so as to give full relief to the petitioner and upon causes shown to make the rule absolute.

[3] After hearing the learned counsel for the parties, the learned

Single Judge has observed in the following manner while dismissing the

petition of the petitioners:

"Learned counsel for the petitioners placed heavy reliance on a decision of learned Single Judge of Gauhati High Court in case

of Tripura Physical Education Employees Association and others vrs. The State of Tripura & 3 others dated 14.06.2006 and pointed out that the said decision was confirmed by the Division Bench. However, it may be noted that the said decision was rendered in the background of ROP, 1988. Thus, the career advancement or career progression scheme as contained in ROP, 1999 with which we are concerned, was not under consideration for interpretation. The career advancement scheme contained in the previous rules was vastly different. The said decision, therefore, would have no application."

[4] Being aggrieved and dissatisfied with the impugned order

dated 04.02.2021, the appellants have preferred the present writ appeal

before this court.

[5] It is the case of the appellants that they were employed as

Junior Instructors, posted under the Directorate of Youth Affairs and

Sports (Education) Department, Government of Tripura at various

stations in the State of Tripura. The appellants contended that they

continued to be Junior Physical Instructors without having any

promotional avenue, and those who have completed even more than 20

years of service as Junior Physical Instructors are still continuing in the

same post. They were entitled to the grant of first CAS, in the next higher

scale of Rs.4,200-8650/-, on completion of 10 years of service and to the

grant of second ACP, on completion of next 7 years of service in the

higher scale of Rs.5000-10,300/- but the appellants contended that they

were granted lower pay scale of Rs.4,000-7890/- as first ACP, and

Rs.4200-8650 as second ACP. The appellants filed a writ petition before

this Court and by a Judgment & Order dated 04.02.2021 the same was

dismissed.

[6] Mr. Somik Deb learned senior counsel assisted by Mr. Riya

Chakraborty, learned counsel appearing for the appellants have submitted

before this court that the appellants were entitled to the grant of first

CAS, in the next higher scale of Rs.4,200- 8650, on completion of 10

years of service, and to the grant of second ACP, on completion of next 7

years of service, in the higher scale of Rs.5000-10,300/- but the

appellants contented that they were deprived of the grant of ACP

accordingly, and instead they were granted lower pay scale of Rs.4,000-

7890/- as first ACP, and Rs.4200-8650 as second ACP.

[7] It is further contended by the counsel for the appellants that

the Accountant General, Tripura clarified that Junior Physical Instructors

were entitled to the pay scale of Rs.4,200-8,650/- as first ACP, but the

Finance Department, Government of Tripura illegally refused to accept the

said clarification, and thereby, the State respondents have continued

deprivation of the appellants from receiving the benefit of CAS as per

Rules.

[8] Counsel for the appellants has further contended that while

passing the impugned Judgment & Order dated 04.02.2021, the Hon'ble

Single Judge has failed to appreciate that all the appellants were recruited

to the post of Junior Physical Instructors, when the Tripura Civil Services

(Revised Pay) Rules, 1988, was in force whereunder the pre-revised pay

scales, admissible to the posts of Junior Physical Instructor, Physical

Instructor and Senior Physical Instructor were noted as Rs.430-850/-, no

separate pay scale for Physical Instructor and Rs.560-1300/- respectively,

and the corresponding revised pay scale, under the said Tripura Civil

Services (Revised Pay) Rules, 1988, were noted as Rs.970-2400/-,

Rs.1250-2890/- & Rs.1450-3710/- respectively.

[9] Moreover, while passing the impugned Judgment & Order

dated 04.02.2021, the Hon'ble Single Judge has failed to appreciate that

the pre-revised pay scale, admissible to the post of Physical Instructor

was Rs.1300-50-1700-55-2140-60-3220/-, and therefore, applying the

principle of scale to scale fitment, under the prescriptions, contained in

Annexure-A of the Tripura Civil Services (Revised Pay) Rules, 1999, the

revised pay scale, admissible to the said post of Physical Instructor ought

to have been Rs. 4200-120-6000-130-7300- 150-8650/-

[10] In course of their submission they have further contended

that while passing the impugned Judgment & Order dated 04.02.2021,

the Hon'ble Single Judge has failed to appreciate that the pre-revised pay

scale, admissible to the post of Senior Physical Instructor was Rs.1450-

60-1930-65-2450-70-3710/-, and therefore, applying the principle of

scale to scale fitment, under the prescriptions, contained in Annexure-A of

the Tripura Civil Services (Revised Pay) Rules, 1999, the revised pay

scale, admissible to the said post of Senior Physical Instructor ought to

have been Rs.5000-130-6690-150-8940- 170-10300/-.

[11] The counsel for the appellants has prayed before this court

to either consider pay scale under Annexure-C which has been discussed

in the previous paragraph or under Annexure-A of the said Rules, 1999

Existing Scales of Pay Revised Scales w.e.f. 01.1996

5. 970-40-1290-1650-50-2400/- 6.3200-90-4280-100-5480-110-6030/-

7.1250-45-1610-50-2010-55-2890/- 8.4000-110-5650-120-6850-130-7890/-

9.1450-60-1930-65-2450-70-3710/- 10.5000-130-6690-150-8940-170-10300/-

[12] On the other hand, Mr. M. Debbarma, learned Addl.GA while

denying the claim of the appellant has referred to the Civil Services

(Revised Pay) Rules, 1999, the relevant portion of which is extracted

herein under:

30   Senior Physical     Instructor/   Junior       970-2400        3300-7100
     Junior Physical Instructor           -         1250-2890       4200-8650
                                       Senior       1450-3710       5000-10300



[13]          It is also contended by the counsel by the respondents that

there are three designated posts of Physical Instructor viz; Junior Physical

Instructor, Physical Instructor and Senior Physical Instructor under

TSCS(Revised Pay) Rules, 1988 the scales of pay of Jr. Physical

Instructor, Physical Instructor and Sr. Physical Instructor were Rs.970-

2400/-, Rs.1250 - 2890/- and RS.1450-3710/- respectively with the

introduction of TSCS (Revised Pay) Rules, 1999. The scales of Jr. Physical

Instructor, Physical Instructor and Sr. Physical Instructor were revised to

Rs.3300-7100/- Rs.4200 -8650/- and Rs.5000-10300/- respectively.

[14] Rule 4 of TSCS (Revised Pay), 1999 states from the date of

commencement of TSCS(Revised Pay) Rules, 1999 the scale of pay of

every post/grade whose existing scale is specified in column (3) of

Annexure-3 shall be as specified in Column (4) thereof with effect from

01.01.1996. So, the figures reflected in Column 3 of Annexure-C of the

ROP rules 1999 refers to the pay scale of a post under TSCS (Revised

Pay) Rules, 1988 figures at Column 4 refers to corresponding revised

scale under TSCS (Revised Pay) Rules, 1999.

[15] The matter relating to implementation of CAS(modified) has

been mentioned at Rule 10 of the TSCS(Revised Pay)Rules, 1999. As per

Rule 10(b) of the TSCS (revised Pay), 1999 the employees entering by

direct recruitment in the existing scales No.4 to 10 or revised scale No.5

to 11 or corresponding earlier scale will have 2 scale advancement in the

next higher scales as per table in Annexure-A of the ROP Rules 1999 at

the end of the 10 and 7 years of continuous & satisfactory service in the

entry scale and higher scale of promotion/gradation or advancement

respectively as the case may be, to the higher scales unless they get

promoted to higher scale before the prescribed period at each stage.

[16] Further Proviso (vii) ibid mentions that by way of scale

advancement in this scheme, the CAS scale cannot exceed the promotion

scale. (However, CAS scale can become same as promotion scale.)

[17] It is worthy to point out that Note at the end of Annexure-C

of TSCS (Revised Pay) Rules, 1999 deserves some reference. Note 1 state

that the posts not appearing in the list will have revised scale as shown in

column-2 Annexure-A corresponding to the existing scale in column -1. It

means that if any post were left out from the table at Annexure-C due to

inadvertent mistake, the scale of pay of such post would be according to

the revised scale of pay mentioned in corresponding Coloumn Annexure-A

of TSCS(Revised Pay) Rules, 1999.

[18] Note 2 at the end of Annexure-C states that the (-) in the

prefix/suffix column means that post has name as shown in Coloumn 2

without any suffix or prefix. In other case, the posts may be read along

with prefix/suffix if indicated in Coloumn 2A. For example, the post of

Physical Instructor as appears at Sl.30 of Education Department (Higher

Education) or at Sl No.6 of Education Department (Middle and High Stage

Schools) can be read in three different formats viz.) Junior Physical

Instructor, Physical Instructor, and Senior Physical Instructor. Wherever

Junior is mentioned at Column 2A, it shall be read as Junior Physical

Instructor. Wherever (-) is mentioned at Column 2A, it shall be read as

Physical Instructor and wherever Senior is mentioned at Column 2A, it

shall be read as Senior Physical Instructor.

[19] From preceding paragraphs it is clear that the claim of the

petitioners for entitlement of first CAS in the next higher scale of

Rs.4200-8650/- on completion of 10 years of service and next CAS/ACP in

the next higher scale of Rs.5000-10300 on completion of 7 years of

service is unjustified. The petitioner would have claimed those scale had

they got promotion in the post of Physical instructor and Senior Physical

Instructor as per ROP Rules, 1999.

[20] It is seen from the record that neither there is any impugned

order nor any impugned action which is under challenge and mandamus

cannot be issued since there is no cause of action. However, this issue

was not looked into at the time of admission by this court in the year

2015. However, the writ petition had been heard and the same has been

dismissed on merits after hearing both sides in the following manner:

"Learned counsel for the petitioners placed heavy reliance on a decision of learned Single Judge of Gauhati High Court in case of

Tripura Physical Education Employees Association and others vrs. The State of Tripura & 3 others dated 14.06.2006 and pointed out that the said decision was confirmed by the Division Bench. However, it may be noted that the said decision was rendered in the background of ROP, 1988. Thus, the career advancement or career progression scheme as contained in ROP, 1999 with which we are concerned, was not under consideration for interpretation. The career advancement scheme contained in the previous rules was vastly different. The said decision, therefore, would have no application."

[21] Aggrieved thereby the present writ appeal has been

preferred by the appellants. It is seen from the record and in the

pleadings the petitioners are so many in numbers and it relates to their

service benefit. In view of this, the petitioners have not placed any

individual information on record with regard to their date of appointment,

when they completed their first ten years of service and subsequent

seven years of service, the terms and conditions of service and under

what ROP rules were made applicable for their appointment. Neither the

appellants have made certain important information available for deciding

the matter on merit. The petitioners (the appellants herein) could have

been advised for approaching the respondents first for ventilating their

grievances and represent their legitimate rights and entitlement.

Thereafter, if aggrieved, they could approach this court seeking

mandamus. The appellants, as it is evident, have placed reliance on the

pre-revised pay scales of Rs.970-2400/-(corresponding to the revised pay

scale of Rs.3200-6030/-), Rs.1250-2890/- (corresponding to the revised

pay scale of Rs.4000-7890/-), and Rs.1450-3710/- (corresponding to the

revised pay scale of Rs.5000-10,300/-) respectively. Moreover, the

counsel for the appellants has prayed before this court to either consider

pay scale under Annexure-A or C.

[22] Mr. M. Debbarma, learned Addl.GA appearing for the

respondents has submitted before this court that no violation of legal

right has been made against the appellants as they have been rightly

allowed fixation of pay in the scale of Rs.4000-7890/- as entitlement of

first CAS on completion of 10 years of continuous and satisfactory service

in the post of Junior Physical Instructor and fixation of pay in the scale of

Rs.4200-8650/- as second CAS on completion of 17 years continuous and

satisfactory service remaining in the same post of Junior Physical

Instructor.

[23] Attention has drawn to the sub-clause (vii) of Clause 10

TSCS (Revised Pay) Rules, 1999 which reads as follows:

"10. Career Advancement Scheme (Modified) with effect from 01-01-

...

...

(vii) By way of scale advancement in this scheme, the CAS can not exceed the promotion scale. (However, CAS scale can become same as promotion scale.) In such cases, the scale advancement will not take place at the prescribed period till actual promotion is done. However, on completion of the prescribed period in this scheme, he will earn an increment on 1.1.99 or later if any advancement is due. The earning of increment will be counted as an advancement of scale. This restriction will not be applicable to existing Group-D employees."

[24] The appellants have not pleaded about the category of

employments (viz; Junior Physical Instructor, Physical Instructor Senior

Physical Instructor) they belonged to. It is evident from the record that

they have only ventilated about their pay scale. The appellants could not

make out a clear case as to when they were granted 1st CAS and under

which scale, that would have been indicative to the next higher scales vis-

a-vis their entitlements to the 2nd and 3rd ACPs. Since the appellants have

not ventilated their case properly, we find force in the argument of Mr. M.

Debarrama, learned Addl.GA for the respondents and the impugned

judgment dated 04.02.2021 passed by the learned Single Judge needs no

interference. Accordingly, the instant appeal stands dismissed.

[25] In view of the above, the instant writ petition stands

dismissed. As a sequel, stay, if any, stands vacated. Pending

application(s), if any also stands closed.

               JUDGE                                                     JUDGE
Dipak

                   Digitally signed by

DIPAK DAS          DIPAK DAS
                   Date: 2023.08.30
                   16:54:21 +05'30'