Sri Pinaki Samanta vs The State Of Tripura
2023 Latest Caselaw 170 Tri

                    HIGH COURT OF TRIPURA
                          AGARTALA
                          WP(C) 426 OF 2021

Sri Pinaki Samanta, son of Sri Jogendra Chandra Samanta,
Tripura Police Service, resident of Ramkrishna Ashram Road,
Town Bordawali, PO-Agartala, PS-West Agartala,
District-West Tripura, Pin-700001.
                                                         ......Petitioner.

                                  Vrs.
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,
PO-Kunjaban, PS-New Capital Complex, Sub-Division-Sadar,
District-West Tripura.

2. The Deputy Secretary,
Department of Finance (Establishment Branch), Government of Tripura,
having his office at New Secretariat Complex, Gorkhabasti, Agartala,
PO-Kunjaban, PS-New Capital Complex, Sub-Division-Sadar,
District-West Tripura.

3. The Commissioner & Secretary, GA (P&T) Department,
Government of Tripura, having his office at New Secretariat Complex,
Gorkhabasti, Agartala, PO-Kunjaban, PS-New Capital Complex, Sub-
Division-Sadar, District-West Tripura.
                                                   ....Official Respondents.

4. Smt. Sarmistha Laskar (Das), 34, Azad Hind Road, Dhaleswar, Agartala, P.O. Dhaleswar, PS-East Agartala, Sub-Division-Sadar, District-West Tripura. [The Next-of-kin, Legal Heir and W/o Late Nalini Ranjan Das, Ex-Officer of Tripura Police Service].

....Proforma Respondent.

Present:

For the petitioner (s) : Mr.Sankar Lodh, Advocate.

      For the respondent (s)       : Mr. D. Bhattacharya, G.A.
                                     Mr. S. Saha, Advocate.

      Date of hearing              : 07.12.2022

      Date of delivery of
      judgment and order           : 20.02.2023
      Whether fit for              : Yes
      reporting

              HON'BLE MR.JUSTICE ARINDAM LODH
                                Judgment & Order

The main relief, the petitioner has sought for in the present

writ petition, is as under:

"ii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, to revoke/rescind the impugned letter dated 15th January 2021(Annexure-14 infra), and forthwith accord the benefit of the correct fixation of pay, by stepping up the pay of the petitioner at par with the pro-forma respondent, with effect from 28.03.2000, thereafter consequential advancement of the pay scale in the higher scale of pay which Rs.11150-18275/- and the promotion scale, with effect from 31.10.2002; followed by grant of one increment with effect from 20.2.2010 i.e., from the date of actual/functional promotion to TPS Grade-I in favour of the petitioner along with arrears thereof."

2. Factual background:

2.1 The petitioner was appointed to the post of Deputy

Superintendent of Police [for short, DySP] in the Grade-II Cadre of Tripura

Police Service [for short, TPS], Tripura through proper selection process

and after completion of necessary training, he joined to the post of DySP

on 31-10-1998 in the pay scale of Rs.2100-3000-5000/-. Tripura State Civil

Services (Revised Pay) Rules, 1999 [for short, "ROP Rules,1999"] was

introduced by the Government of Tripura wherein the pay structures of its

employees had been revised. The said ROP Rules, 1999 was made effective

from 01.01.1996. It is apposite to mention that under ROP Rules,1999, the

entry level scale of pay for the 'direct recruit TPS Grade-II Officers' was

revised to Rs.7800/- to Rs.15100/- whereas the entry level scale of pay for

the promotee TPS Grade-II Officers was revised to a higher scale of pay of

Rs.10000/- to Rs.15100/-. On the other hand, the pay scale of Rs.10000/-

to Rs.15100/- was prescribed for 'direct recruit TPS Grade-II Officers'

after 4(four) years of service as a matter of scale advancement in terms of

Clause (d) to Rule 10 of ROP Rules,1999. Therefore, according to the

petitioner, there was a clear distinction as regards fixation of pay scales

between the direct recruitee and promotees.

2.2 Further, the petitioner was directly appointed to the post of

TPS Grade-II (DySP) on 31-10-1998 and his basic pay as on 28.03.2000

was fixed at Rs.8075/- in the scale of pay of Rs.7800-15100/-, whereas, the

proforma respondent was promoted to the post of TPS Grade-II as DySP on

28.03.2000 with his initial basic pay admittedly fixed at Rs.10000/- in the

scale of pay of Rs.10000-15100/-, which is also revealed from his pay slips,

etc. dated 08.10.1999, 11.04.2000 [Annexure-6 to the writ petition].

2.3 According to the petitioner, such difference of pay scales in

the same Cadre is discriminatory and his pay scale should be at par with the

proforma respondent who in spite of being junior to him was drawing

higher pay w.e.f. 28.03.2000. The said fact for the first time came to the

notice of the petitioner in the year 2020 and immediately he submitted a

representation [Annexure-7 to the writ petition] on 08.05.2020 to the

Deputy Secretary, Finance Department (Esstt.), Government of Tripura

through proper channel claiming re-fixation of his pay by way of stepping-

up of his pay scale at par with Sri Nalini Ranjan Das, the proforma-

respondent herein w.e.f. 28.03.2000, that is, the date from which the said

pay scale was given to proforma-respondent. The basis of claim of the

petitioner was primarily based upon the fundamental principle of stepping-

up of pay under F.R. and by way of operation of Rule 9.A. of ROP

Rules,1999.

2.4 On receipt of the representation of the petitioner, the

Government had sought for some clarifications. In response to such queries

made by the Government, the petitioner as well as the department

concerned had clarified and further reiterated his claim for stepping-up of

his pay scale by way of removing the anomaly. Ultimately, vide

correspondence dated 15th January, 2021, the Deputy Secretary, Finance

Department (Establishment Branch), Government of Tripura addressed to

the Director General of Police, Tripura, Agartala with a copy to the

petitioner regretted the claim of the petitioner assigning the following

reasons:

"i) Under TPS Cadre Rules, 1967-Shri Pinaki Samanta is entitled to fixation of pay in the scale of pay of Rs.7800-15100/- whereas Sri Nalini Rn. Das (being a promote TPS officer) is entitled to fixation of pay in the scale of Rs.10000-15100/-. So, the Service Rules differentiate the entitlements of basic pay between these incumbents;

ii) Whereas, F.R. 22(I)(a)(1) has been applied in case of Sri Das, the same cannot be applied in case of Sri Samanta, as he is a direct recruit;

iii) At the time, when Sri Samanta drew basic pay of Rs.7800/- higher post; the basic pay of Sri Das in the lower post was Rs.8575/-. So, the question of having higher pay in the lower post in case of Sri Samanta is not applicable; hence, stepping up of pay cannot be allowed.

iv) The Service Rules of Sri Samanta clearly indicate that he is entitled to Rs.10,000/- after 4 years. So, the question of allowing his pay of Rs.10000/- before completion of 4 years and subject to clearness of Department examination, if any, does not apply. Further, Sri Samanta has not established any Law/Rule under which he is covered for Rs.10000/- after 2 years service. Hence, there is no cause of action on the part of the Administrative Department to consider his representation for stepping up of pay.

v) Sri Samanta has not established/furnished any case, where his batch mates have been drawing higher pay than him on account of stepping up of pay;

vi) The drawl of higher basic pay by Sri Das, in his lower post as Sub Inspector is an outcome of High Court order. This order itself is under sub-judice before the Hon'ble Apex Court. Until the case is finally settled in the Supreme Court; there is no reason to compare the basic pay of these two persons."

2.5 The petitioner contended that he being senior in the cadre than

that of the proforma-respondent should not get lower pay scale only for the

reason that he is a direct recruitee, and the Government should re-fix his

pay scale by way of equalization/up-gradation in the scale of Rs.10000-

15100/- w.e.f. 28.03.2000, initially as compared to that of the proforma-

respondent and thereafter movement in the pay scale of Rs.11150-375-

18275/- w.e.f. 31.10.2002 as a benefit of time-bound scale advancement

after completion of 4(four) years of service in Grade-II of TPS followed by

fixation of pay in terms of paragraph 2 in sub-rule (8) of Rule 10 of

TSCS(RP) Rules,2009 with one increment on his actual/functional

promotion to TPS Grade-I. It is the ultimate grievance of the petitioner that

if the basic pay of the petitioner was correctly accorded to the petitioner, at

par with the proforma respondent i.e. Sri Nalini Rn. Das, then, he would

have drawn enhanced amount of pay and non-granting of the same is per se

wrong and arbitrary inasmuch as violative of Rule 9.A. of ROP Rules,1999

resulting invidious discriminations as embodied under Articles 14, 16, 19,

300A of the Constitution of India.

2.6 The case of the State-respondents is mainly centered around

the correspondence dated 15.01.2021, whereby the claim of the petitioner

was regretted. Apart from the grounds of rejection extracted here-in-above.

Further case of the State-respondents is that the instant writ petition is

barred by delay and laches.

3. Submissions of the Counsel:

3.1 I have heard Mr. Sankar Lodh, learned counsel appearing for

the petitioner and Mr. D. Bhattacharya, learned G.A. assisted by Mr. S.

Saha, learned counsel appearing on behalf of the State-respondents.

3.2 Mr. Lodh, learned counsel appearing on behalf of the

petitioner has emphasized on Rule 9.A. of ROP Rules,1999 and contended

that the State-respondents had violated Rule 9.A. of ROP Rules,1999

rejecting the claim of the petitioner for stepping-up/up-gradation his pay

scale at par with the proforma respondent, Sri Nalini Rn. Das who was

junior to the petitioner as he was promoted to the post of Grade-II i.e. as

DySP on 28.03.2000, i.e. at a later date than that of the date of appointment

of the petitioner. According to Mr. Lodh, learned counsel for the petitioner,

the pay scale of senior officer must be at par with his junior officer and

non-granting of the same would be illegal, arbitrary and discriminatory and

violative of Articles 14, 16, 19 and 300A of the Constitution of India. In

support of his submission, learned counsel for the petitioner has pressed

into service the judgment of the Supreme Court in Kamlakar & Ors. Vrs.

Union of India & Ors., (1999) 4 SCC 756; a judgment of this court passed

in WP(C) No.267 of 2013, titled as Manab Bhattacharjee Vrs. the State of

Tripura & Ors. decided on 04.07.2016.

To brush aside the plea taken by the State-respondents in their

counter affidavit that the instant writ petition is barred by delay and laches,

Mr. Lodh, learned counsel appearing on behalf of the petitioner relying

upon the case of the Union of India & Ors. Vrs. Tarsem Singh, reported

in (2008) 8 SCC 648, contended that non-granting of actual and legitimate

pay scale was a continuous wrong ultimately affecting the salary and

pension of the employee and in that case, cause of action actually continues

from month to month.

3.3 Per contra, Mr. Bhattacharya, learned G.A. submitted that the

instant writ petition is absolutely barred by delay and laches and on this

ground alone, the instant writ petition should be dismissed in limine.

Secondly, learned G.A. submitted that the pay scale of the petitioner was

fixed in compliance with F.R. 22(I)(a)(1) and as a whole, his deliberations

was in the line of the grounds taken by the State-respondents in their

correspondence dated 15.01.2021.

4. Analysis:

4.1 I have given my thoughtful consideration to the submissions

of the learned counsel appearing for the parties to the lis.

4.2 At the outset, it would be useful to reproduce the relevant rules

as relied upon and referred to by learned counsel appearing for the

petitioner and learned G.A. appearing on behalf of the respondents.

4.3 Mr. Lodh, learned counsel for the petitioner has referred to

Rule 9.A. of ROP Rules,1999 in support of stepping-up/up-gradation of the

pay scale of the petitioner. That part of Rule 9.A., which is necessary and

relevant to decide the question involved in this writ petition is reproduced

here-in-below:

"9. STEPPING UP OF PAY:

A........However, if the revised pay of senior (without stepping up) is lower than that of junior employees, the pay of senior employee will be stepped up to an amount equal to the pay fixed for the junior employee in revised scale of pay F.R.om the date the stepping up was permitted in the existing scale with the approval of the Finance Department or by the Department as per existing orders of the Government."

4.4 On careful reading of Rule 9.A. of ROP Rules, 1999, it is

crystal clear that a senior officer in the same cadre getting lower pay scale

than that of an officer/employee junior to him having higher pay scale, in

that case, the pay scale of the senior officer/employee would have to be

stepped-up to the figure equal to the pay fixed for the junior

employee/officer in the revised scale of pay.

4.5 Admittedly, the petitioner was a direct recruitee in the post of

TPS Grade-II (DySP) who joined the post on 31.10.1998 in the scale of

pay of Rs.2,100-3,000-5000/-. Subsequently, with the introduction of ROP

Rules, 1999 this scale was upgraded to Rs.7,800-15,000/- w.e.f.

01.01.1996. On the other hand, Sri Nalini Ranjan Das, the proforma-

respondent herein was promoted to the post of DySP in the post of TPS

Grade-II on 28.03.2000 in the scale of pay of Rs.10,000-15,100/-. Curious

enough, ROP Rules, 1999 prescribes the pay scale of Rs.10,000-15,100/-

for the promotee officers in the post of DySP, TPS Grade-II, whereas the

pay scale for the direct recruitee officers in the post of DySP, TPS Grade-II

was prescribed Rs.7,800-15,000/-. Besides, the pay scale of Rs.10,000-

15,100/- was given to directly recruited TPS Grade-II officers only after

completion of 4(four) years of service in the post of DySP in the form of

benefit of CAS-I vide Government of Tripura Notification No.F.4(6)-FIN

(PC)/95, dated, Agartala, the 6th Feb,1999. Therefore, there was a separate

and distinct scale of pay prescribed for direct recruitee and promotee

officers in the same post and cadre.

4.6 Hon'ble Supreme Court in Kamlakar & Ors. (supra) clearly

held that once direct recruits and promotees are in one cadre, the

distinction between them disappears, at any rate so far as equal treatment in

the same cadre for payment of pay scale given is concerned. The

birthmarks have no relevance in this connection. [SCC.p.759,para 12]

4.7 It would not be permissible to prescribe distinct and separate

pay scales for the officers holding the post of DySP (TPS, Grade-II) on

consideration of the fact that some of the officers were direct recruitees and

some were promotees.

4.8 In the context of the present case, Rule 9 of Rules,1999 also

plays an important role which clearly says that the pay scale of a senior

officer who is a direct recruitee and gets lower pay scale than that of a

promotee officer who is promoted and joined in the higher post i.e. in the

same cadre to that of a direct recruitee, in that case, the pay scale of the

senior officer joining in the cadre earlier than that of promotee officer shall

be stepped-up/up-graded and the scale of pay of the direct recruitee being

the senior in the cadre, shall be re-fixed to the figure equal to the pay scale

of the promotee officer joining in the same cadre at a later date than that of

a direct recruitee.

4.9 Since the State-respondents primarily relied upon

F.R.22(I)(a)(1) to reject the claim of the petitioner, it would be useful to

reproduce the relevant portion of the same, which reads as under:

"22. (I) The initial pay of a government servant who is appointed to a post on a timescale of pay is regulated as follows:

(a)(1) Where a government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees one hundred only, whichever is more.

4.10 On careful reading of above quoted F.R.22 (I)(a)(1) makes it

aptly clear that when a government servant is promoted or appointed to a

higher post and the higher post he is promoted to carries duties and

responsibilities of greater importance than those attaching to the post held

by him, his initial pay in the timescale of the higher post shall be fixed at

the stage next above the notional pay arrived at by increasing his pay in

respect of the lower post held by him regularly by an increment at the stage

at which such pay has accrued or rupees one hundred only, whichever is

more.

4.11 Keeping in mind the subject of controversy, it is also

necessary to extract F.R.I(a)(2), which is as under:

"F.R. I(a)(2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the timescale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis."

4.12 F.R.22(I)(a)(2) crystallizes that the benefit of an additional

increment, which is available to a government servant under

F.R.22(I)(a)(1), would not be available to the government servant if the

higher post he is promoted or appointed to does not carry duties and

responsibilities of greater importance than those attaching to the post held

by him.

4.13 It is not the case of the respondents here that both the

petitioner and the proforma-respondent were holding same feeder post and

the anomaly is attributed due to the fact that the proforma-respondent

though junior to the petitioner was drawing from time to time a higher pay

than the petitioner even in the lower post by virtue of grant of advance

increment so that invoking F.R. 22-C [now F.R.22(I) (a)(1)] the scale of

pay of the petitioner would not be stepped up.

4.14 For the reasons stated above, Rule 9.A. of ROP Rules, 1999

would come into play for equalization of the scale of pay of the petitioner

with that of the proforma-respondent to bring parity in the pay scale as

revised under ROP Rules,1999 by way of removing the anomaly as regards

the fixation of two distinct and separate scales of pay for direct recruitee

officers and promotee officers holding similar and identical post in the

same cadre in the performance of similar and identical duties and

responsibilities.

4.15 In this context, Hon'ble Supreme Court in Syed Abdul Qadir

vrs. State of Bihar, reported in (2009) 3 SCC 475 interpreted and clarified

the affect of F.R. 22(I) (a)(1) and F.R. 22(I)(a)(2) with reference to F.R.

22-C [ now substituted and replaced by F.R.22(I)(a)(1) and F.R.22(I)(a)(2)]

holding that--"A reading of F.R.22-C makes it clear that benefit of an

additional increment would be extended to a government servant in the

event of his being promoted or appointed to a substantive, temporary or

officiating capacity to another post carrying duties and responsibilities of

greater importance than those attaching to the post hold by him."

4.16 Thereafter, the Apex Court held thus- [SCC.p.487, paras

39,40,41]

"39. Rule 22(I)(a)(1) provides that when a government servant is promoted or appointed to a higher post and the higher post he is promoted to carries duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees one hundred only, whichever is more.

40. According to F.R. 22(I)(a)(2), the benefit of an additional increment, which is available to a government servant under F.R. 22(I)(a)(1), would not be available to the government servant if the higher post he is promoted or appointed to does not carry duties and responsibilities of greater importance than those attaching to the post held by him.

41. Even, according to F.R. 22-C, the additional increment was to be granted only in cases where the incumbent on promotion or appointment to a higher post has to discharge the duties and responsibilities of greater importance. Therefore, in cases where on promotion or appointment to the higher post no duties and responsibilities of greater importance--than those being discharged in the post held by the incumbent regularly prior to the promotion--were to be discharged by the government servant, the pay fixation formula is provided for under F.R. 22(I)(a)(2) according to which benefit of additional increment is not to be extended at the time of fixation of pay on the promotional post."

4.17 Here, under ROP Rules,1999 two separate pay scales have

been prescribed i.e Rs.7,800-15,000/- for the direct recruitees and

Rs.10,000-15,100/- for the promotee officers. It is a clear anomaly and the

respondents must remove this anomaly allowing the pay scale to the

petitioner, being a direct recruitee, in the post of DySP (TPS Grade-II) at

par with the pay scale of the promotee officer (proforma-respondent) i.e.

Rs.10,000-15,100/-. In other words, the pay scale of the petitioner has to be

up-graded/stepped-up to Rs.10,000-15,100/- w.e.f. the date the proforma-

respondent had joined i.e. on 28.03.2000, being a promote officer, in the

revised pay scale of Rs.10,000-15,100/-.

4.18 In the opinion of this court, the State-respondents in their

counter affidavit could not show any justifiable reasons as to how the case

of the petitioner regarding fixation of pay scale of the proforma-

respondent, Sri Nalini Ranjan Das falls within the purview of F.R.

22(I)(a)(1).

4.19 Now, to deal with the argument advanced by learned G.A. that

the instant writ petition is barred by the doctrine of delay and latches,

according to this court, there is no merit in the submissions. It is well

entrenched principle that non-granting of legitimate pay scale to an

employee is continuing wrong against him which gives rise to a recurring

cause of action each time he was paid a salary which was not computed in

accordance with the rules. As such, the instant writ petition filed by the

petitioner is not barred by the doctrine of delay and laches since cause of

action arose each time the petitioner was paid his monthly salary on the

basis of wrong computation made contrary to rules.

(emphasis supplied)

4.20 The Hon'ble Supreme Court in Tarsem Singh (supra) settled

the law on this issue as under: [SCC.p.651. para 7]

"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

5. Conclusion and direction:

5.1 Learned counsel appearing for the petitioner has urged to pay

arrears of salary to the petitioner. In the opinion of this court, it is true that

in the instant case, substantial delay has been caused. However, keeping in

mind the aforesaid principle, laid down in the Tarsem Singh (supra), the

petitioner is not entitled to arrears of full salary because delay of around

19/20 years would affect the consequential claim of arrears. In this

situation, the relief may be restricted relating to arrears to only 1(one) year

prior to filing of the date of writ petition, but, the petitioner will not be

entitled to interest.

5.2 In the light of the above analysis on facts and legal issues

involved in the instant writ petition and for the foregoing reasons, the

State-respondents are directed to re-fix the scale of pay of the petitioner by

way of stepping-up/up-grading his pay scale to Rs.10,000-15,100/- w.e.f.

28.03.2000, i.e. the date when the said pay scale was given to the

proforma-respondent, Sri Nalini Ranjan Das. Needless to say, all financial

benefits, the petitioner is entitled to under the ROP Rules ,1999 and

subsequent revision of Pay Rules, should be fixed notionally till the date

prior to 1 (one) year of the date of filing of the writ petition. To re-iterate,

the relief relating to payment of arrears is restricted to only 1(two) year

before the date of filing of the writ petition and such payment would not

carry interest.

5.3 The writ petition, accordingly, stands allowed and disposed of

in the above terms.

5.4           However, there shall be no order as to costs.

                                                                       JUDGE



sanjay