Tripura High Court
Sri Lenin Debbarma vs The State Of Tripura on 5 July, 2024
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.595/2023
Sri Lenin Debbarma, son of Sri Upendra Debbarma, resident of village-Manik
Bhandar, P.O.-Manik Bhandar, P.S.-Kamalpur, District-Dhalai, aged about 43
years.
.......... Petitioner(s).
VERSUS
1. The State of Tripura, represented by the Commissioner & Secretary, Home
Department, Government of Tripura, having his office at New Secretariat
Complex, Gurkhabasti, Agartala, P.O.-Kunjaban, P.S.-New Capital Complex,
Sub-Division-Sadar, District-West Tripura.
2. The Commissioner & Secretary, Home Department, Government of Tripura,
having his office at New secretariat Complex, Gurkhabasti, Agartala, P.O.-
Kunjaban, P.S.-New Capital Complex, Sub-Division-Sadar, District-West
Tripura.
3. The Commissioner & Secretary, Finance Department, Government of
Tripura, having his office at New Secretariat Complex, Gurkhabasti, Agartala,
P.O.-Kunjaban, P.S.-New Capital Complex, Sub-Division-Sadar, District-West
Tripura.
4. The Director General of Police, Government of Tripura, having his office at
Police Head Quarters, Fire Brigade Chowmuhani, P.O.-Agartala, District-West
Tripura, Pin-799001.
5. The Commandant, 1st Battalion Tripura State Rifles, having his office at V.B.
Gram, Gokulnagar, District-Sipahijala, Tripura.
.........Respondent(s).
For Petitioner(s) : Mr. Somik Deb, Sr. Advocate,
Mr. Pranabindu Chakraborty, Advocate.
For Respondent(s) : Mr. Rajib Saha, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of hearing and judgment : 05th July, 2024.
Whether fit for reporting : NO.
JUDGMENT & ORDER(ORAL)
Heard Mr. Somik Deb, learned senior counsel assisted by Mr.
Pranabindu Chakraborty, learned counsel appearing for the petitioner and Mr.
Rajib Saha, learned counsel appearing for the respondents-State.
2. Petitioner has sought quashing of the impugned order dated
05.06.2023 (Annexure-1) so far as it relates to him and for directing the
respondents to refund the amount deducted from his salary and allowances and
further to restrain them from acting in any manner, in furtherance of the
impugned order dated 05.06.2023.
3. Petitioner has put forth the following chronology of dates and
events in order to substantiate his plea:
(a) Initially, the petitioner was appointed to the post of
Riflemen GD on 03.11.1998, in the pay scale of Rs.3200-6030. Thereafter, the
petitioner was discharging his functions with utmost sincerity, dedication and
devotion, without any dereliction thereof. The said appointment of the
petitioner was made under the Tripura State Civil Services (Revised Pay)
Rules, 1999, which came into force with retrospective effect from 01.01.1996.
(b) Consequent upon promulgation of the said Revised Pay
Rules, the petitioner had exercised his option on 01.01.2006, and his basic pay
as on that date was fixed at Rs.3,830/-.
(c) Under the said Revised Pay Rules, 1999, consequent upon
exercise of such option, the pay of the petitioner was fixed at Rs.6,670/-, in the
pay scale of Rs.5,310-24,000/- along with Grade Pay of Rs.1,700/-. Thus, in
totality, the pay of the petitioner stood at Rs.8370/- (6670 + 1700).
(d) Previously, the petitioner was inflicted with a punishment of
dies non for two days. At that juncture, even though the said punishment of
dies non was inflicted on to the petitioner, the pay admissible to the petitioner
for those two days was not withheld, and the petitioner was duly paid off his
pay and allowances. Accordingly, the petitioner was also granted the annual
increment.
(e) As on 01.07.2007, the pay of the petitioner was fixed at
Rs.9350/-.
Similarly, as on 01.07.2008, the pay of the petitioner was
fixed at Rs.9,280/- (7580 + 1700).
Similarly, as on 01.07.2010, the pay of the petitioner was
fixed at Rs.10,160/-.
(f) Thereafter, on 18.10.2010, the petitioner was promoted to
the rank of Havildar (GD) in substantive capacity, however, the said promotion
did not fetch any financial upgradation to him.
(g) After the said promotion, on and from 01.07.2006, the pay
and allowances were paid to the petitioner and at no point of time, neither the
pay of the petitioner was reduced, nor was he subjected to any recovery. Thus,
it is evidently clear that with effect from 2006 till date, the pay of the petitioner
has been fixed and that he was never subjected to any recovery.
(h) Later, the petitioner was promoted to the higher post of
Naib Subedar (GD) with effect from 24.03.2023 and his pay was fixed at
Rs.43,900/- at Pay Level 10 & Cell 09 in Pay Matrix, 2018 under the Tripura
State Civil Services (Revised Pay) (1st Amendment) Rules, 2018, with date of
next increment on 01.04.2024.
4. When the matter rested thus, the Commandant, 1 st Battalion,
Tripura State Rifles has passed an order bearing reference No.F.27/TSR-I/Pay-
fix/Estt/2020/3908 dated 05.06.2023, whereby reference has been made to the
previous fixations of the pay & allowances of the petitioner at various stages,
and thereafter, it has been directed that the pay of the petitioner should be re-
fixed, and that the overdrawn payment, if any, may be recovered.
5. Mr. Somik Deb, learned senior counsel for the petitioner, has
referred to the Swamy's Compilation of CCS (CCA) Rules, 42 nd Edition. Under
the Note to Rule 11, the orders issued by Director General P & T are furnished
under the heading "Action for unauthorized absence from duty or overstayal of
leave". Paragraph-2 thereof deals with the subject of dies non and its effect. It
is extracted hereunder:
"(2) When a day can be marked as dies non and its effect.-
Absence of officials from duty without proper permission or when on duty in
office, they have left the office without proper permission or while in the
office, they refused to perform the duties assigned to them is subversive of
discipline. In cases of such absence from work, the leave sanctioning
authority may order that the days on which work is not performed be treated
as dies non, i.e., they will neither count as service nor be construed as break
in service. This will be without prejudice to any other action that the
Competent Authorities might take against the persons resorting to such
practices. [Rule 62, P. & T. Manual, Vol.III.]"
6. Learned senior counsel for the petitioner submits that at the time
of imposition of dies non for two days absence, i.e. 03.04.2006 and 04.04.2006,
the competent authority did not treat it as a break in service. That is why, the
two days dies non period did not affect his subsequent pay fixations under ROP
Rules, 1999 or ROP Rules, 2009 or even after his promotion to the post of
Naib Subedar (GD) w.e.f. 24.03.2023 which led to fixation of his pay at
Rs.43,900/- at Pay Level 10 and Cell 09 in Pay Matrix, 2018 under the Tripura
State Civil Services (Revised Pay) (1st Amendment) Rules, 2018 with date of
next increment as 01.04.2024. However, the Commandant, 1 st Bn. Tripura
State Rifles, respondent No.5, has by the impugned order directed re-fixation
of his pay and recovery of the amount only for the reason that all such pay
revision benefits, ACP and pay fixation granted after 2006 did not count the
break in service of two days due to dies non. The relevant paragraph of the
impugned order dated 05.06.2023 so far as it relates to the petitioner is
extracted hereunder:
"02. Proposal for re-fixation of pay in respect of No.98060400
Nb/Sub(GD) Lenin Debbarma {DOA as Rfn(GD) on 03.11.1998, ACP-1
benefit on 05.11.2008 (deferred due to 02 days 'Dies-non'), thereafter he was
appointed directly to the post of Hav(GD) on 01.10.2010 through Limited
Departmental Competitive Examination (LDCE) by way of transfer without
fixation benefit, ACP-2 benefit on 05.11.2015 and subsequently promoted to
the post of Naib-Sub(GD) on 24-03-2023 on ad-hoc basis}:-
On scrutiny of the service records as well as relevant IPSs, his pay
was revised notionally at Rs.9,230/- (7130+2100) w.e.f. 01.01.2006 in the
pre-revised scale of PB-2, Rs.5700-24000/- and Grade Pay of Rs.2,100/-
under the TSCS(RP) (Twelfth Amendment) Rules, 2015 with DNI on
01.07.2006, which is found in order.
Now, according to the proposal, he did not complete more than
06(six) months service in the revised pay structure as on 1st July, 2006 due to
02 days 'Dies-non' w.e.f. 03.04.2006 to 04.04.2006. As such, next increment
in the revised pay structure is not admissible to him under the provision laid
down in the Note-1 below sub-rule 11(1) of TSCS(RP) Rule, 2009 and his
pay as on 01.07.2006 will remain unchanged as Rs.9,230/- (7130 + 2100)
with DNI on 01.07.2007.
Pay to be raised as on 01.07.2007 - Rs.9,510/-
Pay to be raised as on 01.07.2008 - Rs.9,800/-(7700+2100)
with DNI on 01.07.2009
Under the TSCS(Revised Pay) Rules, 2009, he was eligible for ACP-1
benefit w.e.f. 05.11.2008 (deferred due to 02 days 'Dies-non') after
completion of 10(ten) years total length of service from the date of his initial
appointment. So, his pay will be re-fixed notionally at Rs.10,200/-
(7700+300+2200) w.e.f. 05.11.2008 in the pre-revised scale of PB-2,
Rs.5700-24000/- and Grade Pay of Rs.2200/- under the TSCS(Revised Pay)
(Twelfth Amendment) Rules, 2015 with DNI on 01.07.2009.
Pay to be raised as on 01.07.2009 - Rs.10,510/-
Pay to be raised as on 01.07.2010 - Rs.10,830/-
Pay to be raised as on 01.07.2011 - Rs.11,160/-
Pay to be raised as on 01.07.2012 - Rs.11,500/-
Pay to be raised as on 01.07.2013 - Rs.11,850/-
Pay to be raised as on 01.07.2014 - Rs.12,210/-
Pay to be raised as on 01.07.2015 - Rs.12,580/-(10380+2200)
with DNI on 01.07.2016
Subsequently, under the TSCS(Revised Pay) Rules, 2009 he was
eligible for ACP-2 benefit w.e.f. 05.11.2015 after completion of
17(seventeen) years total length of service from the date of his initial
appointment as well as 07 years from his last ACP. So, his pay will be re-
fixed at Rs.13,160/- (10380+380+2400) w.e.f. 05.11.2015 in the pre-revised
scale of PB-2, Rs.5700-24000/- and Grade Pay of Rs.2400/- under the
TSCS(Revised Pay) (Twelfth Amendment) Rules, 2015 with DNI on
01.07.2016.
Pay to be raised as on 01.07.2016 - Rs.13,560/-(11160+2400)
with DNI on 01.07.2017
Under the TSCS(RP) Rules, 2017, his pay will be revised at
Rs.30,710/- w.e.f. 01.04.2017 at Level-08 and Cell-12 in the Pay Matrix'2017
with DNI on 01.07.2017.
Pay to be raised as on 01.07.2017 - Rs.31,640/-
Pay to be raised as on 01.07.2018 - Rs.32,590/-
with DNI on 01.07.2019
Further, his pay will be revised at Rs.37,300/- w.e.f. 01.10.2018 at
Level-08 and Cell-14 in the New Pay Matrix'2018 under the TSCS(Revised
Pay) (1st Amendment) Rules,2018 with DNI on 01.07.2019.
Pay to be raised as on 01.07.2019 - Rs.38,400/-
Pay to be raised as on 01.07.2020 - Rs.39,600/-
Pay to be raised as on 01.07.2021 - Rs.40,800/-
Pay to be raised as on 01.07.2022 - Rs.42,000/-
with DNI on 01.07.2023
Now, he has been promoted to the higher post as Naib-Subedar(GD)
w.e.f. 24.03.2023 on ad-hoc basis as a onetime measure as per PHQ's order
No.0735-53/F.27(8)/DAP/TSR/RSV/11 dated 24.03.2023. Therefore, his pay
will be fixed at Rs.43,900/- w.e.f. 24.03.2023 at the higher Level-10 and Cell-
09 in the New Pay Matrix,2018 under the TSCS(Revised Pay) (1st
Amendment) Rules, 2018 with DNI on 01.01.2024 subject to final outcome
of SLP(C) No.19765-19767 of 2015 pending before the Hon'ble Supreme
Court of India.
The concerned Head of Office is also requested to revised his relevant
IPSs as required under the TSCS(RP) Rules, 2009 and TSCS(RP) Rules, 2017
as well as its subsequent amendments issued by the State Govt. time to time
and overdrawn pay if any need to be recovered from the above individual
accordingly."
7. Re-fixation of pay and recovery of overdrawn pay, if any,
according to the petitioner would be wholly improper. Such re-fixation of pay
due to deferment of pay fixation and increments on account of 2(two) days dies
non after 18 years is not supported by any valid reason, more so, when the
petitioner has not made any misrepresentation or practised fraud. Learned
senior counsel for the petitioner has relied upon paragraph-18 of the decision of
the Apex Court in the case of State of Punjab & others vrs. Rafiq Masih
(White Washer) & others reported in (2015) 4 SCC 334. He submits that the
same principle has been reiterated in the case of Thomas Daniel vrs. State of
Kerala & others reported in AIR 2022 SC 2153.
8. Mr. Rajib Saha, learned counsel for the respondents, has referred
to paragraph-9 of the counter affidavit which only reiterates the grounds
reflected in the impugned order dated 05.06.2023. The same has been extracted
hereunder:
"9. That in regard to the statements made in paragraph No.2.5, 2.6
and 2.7 of the writ petition, the answering Respondents beg to state that on
24.03.2023 the petitioner was promoted to the rank of Naib Subedar (GD).
Thereafter, his pay fixation proposal was sent to the AIGP (Welfare), PHQ,
Tripura vide office letter No.F.27/TSR-1/Pay-fix/Estt/23/2666, dated
17.04.2023. On scrutiny by the AIGP (Welfare), PHQ, Tripura his service
book as well as IPSs, it is appears that after revision of his pay under the
TSCS (RP)(Twelfth Amendment) Rules, 2015, he did not complete more than
06(six) months service in the revised pay structure as on 1st July, 2006 since
his 02(two) days un-authorised absent period has been treated as "Dies-Non".
It is fact that erroneously his periodical increment was released on
01.07.2006. The PHQ vide letter No.8007(4)/F.12/PC(TSR)/PHQ/TSR-
1/NGO's/2022, dated 27.04.2023 asked this unit to rectify the above
irregularities in regulation of his pay and thereafter re-initiate a detailed
proposal from the beginning of his service with year wise break-up for re-
fixation of pay and also providing him fixation benefit on ad-hoc promotion
to the post of Naib Subedar (GD).
Copy of letter No. 8007(4)/F.12/PC(TSR)/PHQ/TSR-1/NGO's/ 2022,
dated 27.04.2023 is enclosed herewith and marked as Annexure-R/2.
Thereafter, a fresh proposal has been sent to the AIGP (Welfare),
PHQ, Tripura vide letter No.F.27/TSR-1/Pay-fix/Estt/23/3363, dated
10.05.2023. Now, the petitioner has been promoted to the higher post as Naib
Subedar (GD) w.e.f. 24.03.2023 on ad-hoc basis as an one time measure as
per PHQ, Tripura Order No.0735-53/F.27(8)/DAP/TSR/RSV/11, dated
24.03.2023. Therefore, his pay has been fixed at Rs.43,900/- w.e.f.
24.03.2023 at the higher level-10 and cell-09 in the new Pay Matrix'2018
under the TSCS (Revised Pay) (1st Amendment) Rules, 2018 with date of
next increment on 01.01.2024.
The AIGP (Welfare), PHQ, Tripura also directed the Head of Office
to revise his relevant IPS's as required under the TSCS (RP) Rules, 2009 and
TSCS (RP) Rules, 2017 as well as its subsequent amendments issued by the
State Govt. from time to time and overdrawn pay, if any be recovered from
the petitioner accordingly.
Copy of letter No.F.27/TSR-1/Pay-fix/Estt/23/3363, dated 10.05.2023
is enclosed herewith and marked as Annexure-R/3.
Copy of Order No.F.27/TSR-1/Pay-fix/Estt/2020/3908, dated
05.06.2023 is enclosed herewith and marked as Annexure-R/4."
9. On consideration of the submissions of learned counsel for the
parties, the chronology of facts and events leading to the pay fixation of the
petitioner after imposition of 2(two) days dies non period for 03.04.2006 and
04.04.2006 have been narrated hereinabove. The counter affidavit of the
respondents-State falls short of stating that the two days period of dies non was
treated as break in service by the competent authority when it was imposed.
The instruction issued by the Director General, P & T in respect of dies non
extracted hereinabove shows that while the sanctioning authority may order the
days on which the employee has not performed the work to be treated as dies
non, i.e., they will neither count as service nor be construed as break in service.
There is no statement in the counter affidavit to the effect that this period was
treated as break in service. Moreover, all subsequent pay revisions and pay
fixation have been undertaken by the conscious decision of the competent
authority from time to time discounting any break in service of two days due to
the period, i.e. 03.04.2006 and 04.04.2006 being treated as dies non. It is not
the case of the respondents that petitioner had either misrepresented or
practised fraud in the matter of pay fixation after 2006 all along till when he
was even promoted as Naib Subedar (GD) with a pay of Rs.43,900/- at Pay
Level 10 and Cell 09 in Pay Matrix, 2018. Promotions to the petitioner as
Havildar (GD) on 18.10.2010 and as Naib Subedar (GD) on 24.03.2023 do not
seem to have been affected by this period of dies non. It, therefore, appears that
the entire grounds of re-fixation of his pay and recovery of salary and
emoluments paid to him due to past pay fixation are not justified in the eye of
law or on facts.
10. Learned senior counsel for the petitioner has rightly placed
reliance upon the decision in the case of Rafiq Masih (supra) in support of the
submission that it would be iniquitous and harsh to recover such amount from
the petitioner who has climbed in rank from a Riflemen (GD) to Havildar (GD)
and now Naib Subedar (GD) over the past 18 years and that too without any
misrepresentation or fraud being practised on his behalf.
11. As such, this Court is of the opinion that the re-fixation of pay of
the petitioner at this point of time and recovery of the amounts paid due to such
re-fixation dating back from 2006 is not justified in law. Accordingly, the
impugned order dated 05.06.2023 (Annexure-1) so far as it relates to the re-
fixation of the pay of the petitioner and recovery is set aside. Amounts
recovered, if any, shall be released in favour of the petitioner within a
reasonable time.
12. With the aforesaid observations and directions, the writ petition is
allowed and disposed of.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2024.07.08 18:40:02 +05'30'
