Tripura High Court
Sri Biplab Saha vs The State Of Tripura on 17 January, 2025
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 68 OF 2022
1. Sri Biplab Saha, S/o Sri Phani Bhushan Saha, R/o Vill. North
Charilam, P.O. North Charilam, P.S. Bishalgarh, District-Sepahijala
Tripura, Pin-799103, Age-35 years.
2. Sri Kishore Shil, S/o Sri Anil Chandra Shil, R/o Vill +P.O.
Anandanagar, P.S. Srinagar, District-West Tripura, Pin-799004, Age-36
years.
3. Sri Maxwell Oliver Debnath, S/o Sri Alindra Debnath, R/o Near
Dasda Bazar, Laxmi Pur, P.O. Dasda, P.S. Kanchanpur, Distict-North
Tripura, Pin-799271, Age-28 years.
4. Sri Amal Das, S/o Sri Amarendra Das, R/o Brajendra Nagar, P.O.
Brajendranagar, Dharmanagar, P.S. Kadamtala, District-North Tripura,
Pin-799261, Age-32 years.
5. Sri Swapan Sinha, S/o Sri Labanya Sinha, R/o Kherengjuri, P.O.
Kherengjuri, Dharmanagar, P.S. Churaibari, District-North Tripura, Pin-
799262, Age-32 years.
6. Sri Pintu Das, S/o Sri Falindra Das, R/o Uttar Deuchara, near water
pump, P.O. Deochara, Dharmanagar, P.S. Panisagar, District-North
Tripura, Pin-799260, Age-35 years.
7. Sri Prasenjit Chakma, S/o Sri Surdas Chakma, R/o Korbook,
bhanupara, P.O. Jatan Bari, P.S. Natunbazar, District-Gomti Tripura,
Pin-799104, Age-31 years.
8. Sri Subal Chanda, S/o Sri Badal Chanda, R/o Dasda Laxmipur, P.O.
Dasda, P.S. Kanchanpur, District-North Tripura, Pin-799271, Age-35
years.
9. Sri Kamal Chowdhury, S/o Sri Jatindra Chowdhury, Vill +P.O.
Karaichara, P.S. Pecharthal, District- Unokoti Tripura, Pin-799263,
Age-35 years.
10.Sri Rajendra Deb, S/o Lt. Ranjan Deb, R/o South Nayapara,
Dharmanagar, P.O. Dharmanagar, P.S. Dharmanagar, District- North
Tripura, Pin-799250, Age-35 years.
2
11.Sri Bhaskar Bhowmik, S/o Sri Bhabatosh Bhowmik, R/o 92 College
Road, Ward-7 near RCC Bridge, P.O. & P.S. Dharmanagar, District-
North Tripura, Pin-799250, Age-36 years.
......Petitioners.
Vs.
1. The State of Tripura, Represented by its Principal Secretary, School
Education Department, Government of Tripura, P.O -Kunjaban, P.S-
New Capital Complex, District -West Tripura, Pin-799006.
2. The Director of Secondary Education, Directorate of Secondary
Education , School Education Department, Government of Tripura, P.O
-Agartala, P.S- West Agartala, District - West Tripura, Pin-799001.
3. The Director of Elementary Education, Directorate of Elementary
Education, School Education Department, Government of Tripura, P.O
-Kunjaban, P.S-New Capital Complex, District-West Tripura, Pin-
799001.
4. The Principal Secretary, Finance Department, Government of Tripura,
P.O -Kunjaban, P.S-New Capital Complex, District -West Tripura, Pin-
799006.
5. The Principal Secretary, General Administration (P&T) Department,
Government of Tripura, P.O-Kunjaban, P.S-New Capital Complex,
District-West Tripura, Pin- 799006.
..... Respondents.
WP(C) 968 OF 2022
1. Mr. Zonunfela Rawihte, S/o R. Sangkhuma, R/o Sabual, Jampui Hill,
P.O Vanghmun, District- North Tripura, PIN-799269, Age-39 years.
2. Mr. Anjan Mahishya Das, S/o Harmohan Mahishya Das, R/O Village &
P.O-South Hurua, Dharmanagar, District - North Tripura, PIN-799251,
Age - 33 years.
3. Sri Jitendra Tripura, S/o Reban Tripura, R/O Chittamara, Belonia, P.O
Chittamara, District-South Tripura, PIN-799155, Age-30 years.
4. Sri Abhijit Roy, S/o Sri Manoranjan Roy, R/o Village - Kamalpur,
Noagaon Road, Near Noagaon High School, P.O- Noagaon, District -
Dhalai, Tripura, PIN - 799285, Age - 38 years.
5. Sri Badal Pal, S/o - Khagendra Chandra Pal, R/o Near Kupilong Bazar,
Village - West Kupilong, P.S - Killa, P.O - Kupilong Bazar, District -
Gomati Tripura, PIN - 799114, Age - 49 years.
......Petitioners.
Vs.
1. The State of Tripura, to be represented by the Principal Secretary,
School Education Department, Government of Tripura, New Secretariat
Complex, New Capital Complex, P.O -Kunjaban, P.S- New Capital
Complex, Agartala, District -West Tripura, Pin-799006.
2. The Director of Secondary Education, Govt. of Tripura, School
Education Department, Government of Tripura, P.O -Agartala, P.S-
West Agartala, District - West Tripura, Pin-799001.
3. The Director of Elementary Education, Govt. of Tripura, School
Education Department, P.O -Agartala, P.S-West Agartala, District-West
Tripura, Pin- 799001.
4. The Principal Secretary, Finance Department, Government of Tripura,
P.O -Kunjaban, P.S-New Capital Complex, District -West Tripura, Pin-
799006.
5. The Principal Secretary, General Administration (P&T) Department,
Government of Tripura, P.O-Kunjaban, P.S-New Capital Complex,
District-West Tripura, Pin- 799006.
..... Respondents.
In WP(C) 68 of 2022
For the petitioners : Mr. Arijit Bhaumik, Advocate.
Mr. S. Dey, Advocate.
For the respondents : Mr. S. S. Dey, Advocate General,
Mr. Kohinoor N. Bhattacharyya, G.A.
Mr. D. Sarma, Addl. G.A.
In WP(C) 968 of 2022
For the petitioners : Mr. P. Roy Barman, Sr. Advocate.
Mr. K. Nath, Advocate.
For the respondents : Mr. S. S. Dey, Advocate General,
Mr. Kohinoor N. Bhattacharyya, G.A.
Mr. D. Sarma, Addl. G.A.
Date of hearing : 05.07.2024
Date of delivery of : 17.01.2025
judgment & Order
Whether fit for
reporting : Yes
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
Both the writ petitions were heard together on consent of learned
counsels appearing for the parties and are consolidated for disposal by a
common judgment since the issues raised in both the writ petitions are
common and identical in nature.
2. The facts leading to filing of both the cases are that all the
petitioners have been appointed as Graduate/Post Graduate Teachers under the
respondents ranging from the year 2016 to 2018 pursuant to a selection
process conducted by the Teachers' Recruitment Board, Tripura (for short,
'TRBT') which included written examination/TET qualified in consonance
with Articles 14 and 16 of the Constitution of India as they have their essential
qualifications for the said posts. They have been appointed on fixed pay basis
i.e. 75% of the minimum of the pay scale for the post of Post Graduate
Teacher or Graduate Teacher for a period of five years. They have approached
this Court seeking a direction upon the respondents to provide them regular
pay scale from the date of their initial appointment. It is contended that in the
year 2001 vide memorandum dated 15th December, 2001 the State of Tripura
introduced the system for recruitment of Group-C and Group-D staffs on fixed
pay basis keeping in abeyance the regular pay scale. Under this system,
Group-C and Group-D staffs were recruited after observing all formalities i.e.
as per recruitment rules, reservation rules including open selection process.
The posts against which such Group-C and Group-D employees were
appointed carry regular pay scale but, for the reasons best known to them such
regular pay scale was kept in abeyance for a certain period and the candidates
were appointed on fixed pay basis. It is reiterated by the petitioners that under
this system, the Group-C and Group-D employees, when recruited through
Tripura Public Service Commission (TPSC), have been provided with the
benefit of regular pay scale from the date of their initial appointment. The
petitioners also averred that the Finance Department, Govt. of Tripura
subsequently issued another memorandum on 16.10.2007 incorporating the
policy decision of the State Government made in the budget declaration 2006-
2007, whereby it has been provided that the Group-C and Group-D employees
who were recruited on fixed pay basis by keeping in abeyance the regular pay
scale would be afforded the regular pay scale on completion of 5 years of
service without any break. Therefore, the petitioners agitated that the policy
decision of the government by which they have been kept on fixed pay basis
for a period of 5 years is an arbitrary decision and it violates the rights of the
petitioners. They have been appointed against sanctioned posts through a
regular selection process having minimum qualification for the post, etc. and
hence they cannot be placed on fixed pay basis. The petitioners further pointed
out that they discharge same duty as the other regular Graduate/Post Graduate
Teachers who are on regular pay scale, but, they have been kept on fixed pay
though they have been rendering equal duty in the same post having same
qualification. More so, there is discrimination in the policy decision of the
Government in respect of Group-A and Group-B employees who are
appointed to the sanctioned posts after an open competitive selection process
on regular pay scale from the date of initial appointment itself whereas in
respect of Group-C and Group-D employees, the appointments have been
considered on fixed pay basis for a period of five years. Thus, according to the
petitioners, this policy decision is a clear deprivation to them which is illegal,
arbitrary and violative of Articles 14 and 16 read with Article 38(2) of the
Constitution of India and is liable to be struck down by this Court. The
petitioners issued legal notice upon the respondents for considering their
grievances, but, the respondents turned down their plea vide communication
dated 08.12.2021 [Annexure-22 to WP(C) No. 68 of 2022] and hence, the
petitioners have come up before this Court with these writ petitions. The
reliefs sought for in both the writ petitions may be reproduced hereunder:
"i) Issue notice upon the Respondents.
ii) Call for the Records.
iii) Issue rule calling upon the respondents to show cause as to why
the Memorandum dated 15th December 2001 issued by the General
Administration (Personal and Training) Department, Govt. of
Tripura and the Memorandum dated 16.10.2007 issued by the
Finance Department, Government of Tripura shall not be set aside
and quashed by this Hon‟ble Court.
AND
Issue Rule calling upon the Respondents to show cause as to why the
Petitioners shall not be appointed as Graduate Teachers/Post
Graduate Teachers with regular pay scale from the date of their
initial appointment along with all service benefits including arrears
of financial benefits.
AND
Issue Rule calling upon the Respondents to show cause as to why the
letter dated 08.12.2021 issued by the Respondent No.2 shall not be
set aside and quashed and why the Petitioners shall not be granted
the benefit of regular pay scale from the date of their initial
appointment as per the prayers above.
iv) And after hearing the parties, be pleased to make the rule
absolute."
"i) Issue Rule upon the Respondents to show cause as to why a writ
in the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued whereby
quashing the memorandum, dated, 16.10.2007, issued by the Finance
Department, Government of Tripura whereby a decision was taken to
recruit Group C & Group D staffs on fixed pay basis by keeping
abeyance the Regular Pay scale posts for a period of 5 years.
ii) Issue Rule upon the Respondents to show cause as to why a writ in
the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued whereby
quashing the Memorandum, dated, 15.12.2001 issued by the General
Administration (P&T) Department, Government of Tripura.
iii) Issue rule upon the respondents to show cause as to why a writ in
the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued whereby
directing the Respondents to allow regular pay scale of the post of
Post Graduate Teacher to the Petitioners Nos 1 & 2 from the date on
which they joined their service being selected and appointed in the
post of Post Graduate Teacher with arrear and directing the
Respondents to allow regular pay scale of the post of Graduate
Teacher to the Petitioners Nos 3, 4 & 5 from the date on which they
joined their service being selected and appointed in the post of
Graduate Teacher with arrear.
iv) Make the rules absolute.
(v) Call for records.
(vi) Pass any further order/orders as this Hon‟ble High Court
considered fit and proper"
3. Heard Mr. A. Bhaumik, learned counsel appearing for the
petitioners in WP(C) No.68 of 2022 and Mr. P. Roy Barman, learned senior
counsel assisted by Mr. K. Nath, learned counsel appearing for the petitioners
in WP(C) 968 of 2022. Also heard Mr. S. S. Dey, learned Advocate General
assisted by Mr. Kohinoor N. Bhattacharyya, learned G.A. and Mr. D. Sarma,
learned Addl. G.A. appearing for the respondents.
4. Mr. Bhaumik, learned counsel appearing for the petitioners has
argued that the petitioners have challenged in these writ petitions the
memorandum dated 16.10.2007 issued by the Finance Department,
Government of Tripura whereby a decision was taken to recruit Group C &
Group D staffs on fixed pay basis by keeping abeyance the regular pay scale
for a period of 5 years. It is contended by Mr. Bhaumik, learned counsel that
all the petitioners have been appointed pursuant to a selection process
conducted by the TRBT, but, they have been appointed on fixed pay basis for
a period of five years, whereas the employees, like the petitioners i.e. Group-C
and Group-D employees those are recruited through TPSC, have been
provided with regular pay scale from the date of their initial appointment
which is clear discriminatory in nature. Mr. Bhaumik, learned counsel further
reiterated that the policy decision contained in memorandum dated 16.10.2007
[Annexure-22 to WP(C) No.68 of 2022] is nothing but an unfair employment
policy adopted by the State of Tripura to deprive Group-C and Group-D
employees of their legitimate salary for a period of 5 years which amounts to
exploitation of such employees. Again, Mr. Bhaumik, learned counsel
submitted that the posts of Graduate/Post Graduate Teacher though carrying
regular pay scale, but such regular pay scale is not extended to the petitioners
because of said memorandum dated 16.10.2007 and such policy decision has
been restricting the operation of the recruitment rules for the posts of Post
Graduate Teachers/Graduate Teachers which have been framed under proviso
to Article 309 of the Constitution of India. He further mentioned that it is
settled law that in case of any inconsistency arose between the recruitment
rules and the memorandum which is an executive instruction, the recruitment
rules which have been framed under proviso to Article 309 of the Constitution
of India will prevail. Mr. Bhaumik, learned counsel further pointed out that
the petitioners have been discharging their duties like other regular employees,
but, despite of rendering equal duty in the same post having same
qualification, they have been deprived of their equal pay for equal work which
violates the right of equal pay for equal work as enshrined under Articles 14 &
16 of the Constitution of India. Mr. Bhaumik, learned counsel advanced his
submission that it is the duty of the State while formulating polices to
minimize the inequalities of income and take endeavour to eliminate
inequalities in status, facilities and opportunities. Thus, the decision contained
in the policy decision dated 15th December, 2001 read with the memorandum
dated 16th October, 2007 that the employees who are lowest in the hierarchy of
employees are to be kept on fixed pay basis for a period of 5 years, the
inequality in income, status, facilities and opportunities are bound to widen
which are not envisaged by our Constitution. Therefore, the decisions
contained in the memorandum dated 15th December, 2001 and 16th October,
2007 are liable to be struck down being violative of Article 14 read with the
provisions of Part IV of the Constitution of India including the Article 38(2)
of the Constitution of India. According to Mr. Bhaumik, learned counsel for
the petitioners, denial of extending the benefit of regular pay scale to the
petitioners from the date of their initial appointment is arbitrary,
discriminatory and violation of the principles of equal pay for equal work.
5. Mr. Roy Barman, learned senior counsel appearing for the
petitioners in WP(C) No.968 of 2022 has also submitted with the same line of
the submissions advanced by Mr. Bhaumik, learned counsel appearing for the
petitioners in WP(C) No.68 of 2022. However, Mr. Roy Barman, learned
senior counsel has drawn the attention of this Court to the memorandum dated
15th December, 2001 [Annexure-12 to WP(C) No.968 of 2022] whereby, in
the said memorandum it has been asserted that -'henceforth appointments to
Group C and Group D post which are not required to be filled up by the
selection through the TPSC may be maid [sic made] on fixed pay basis.'
Therefore, Mr. Roy Barman, learned senior counsel also stressed his argument
that the policy decisions of the respondents in regard to the appointment of
Graduate/Post Graduate Teachers suffers from illegality, arbitrariness which
are discriminatory in nature.
6. In support of their submissions, learned counsels for the
petitioners have submitted the following case laws:
(i) 1989 Supp. (1) SCC 393 [State of Maharashtra vs.
Jagannath Achyut Karandikar];
(ii) 1989 Supp. (1) SCC 399 [Kishore Shambhudatta Mishra
& Ors. Prakash alias Laxminaryayan Shambhudatta
Mishra vs. State of Maharashtra];
(iii) (1989) 4 SCC 318 [Senior Superintendent of Post Offices
Allahabad & Ors. vs. Izhar Hussain];
(iv) (2015) 15 SCC 713 [Arjun Singh & Ors. vs. State of
Himachal Pradesh & Ors.];
(v) (2017) 4 SCC 587 [State of Haryana & Anr. vs. Mohinder
Singh & Ors.]
7. Opposing the submissions of learned counsel appearing for the
petitioners, Mr. Dey, learned Advocate General clearly and unequivocally
submitted that the petitioners were appointed on fixed pay basis for a period of
5 years as per the policy decision of the State Government vide memorandum
dated 15.12.2001 and consequent upon another memorandum dated
16.10.2007, whereby the State Government introduced a system in the later
part of 2001 for recruitment of Group-C and Group-D staff (other than
uniformed personnel) on fixed pay basis by keeping in abeyance of the
concerned regular pay scale posts. Under the system, first of all fixed pay
posts are created against available regular pay scale posts with concurrence of
the Finance Department. It is submitted by Mr. Dey, learned Advocate
General that the petitioners being well conversant with the terms and
conditions of the service, participated in the selection process conducted by
the TRBT and after being selected they have accepted the pay offered for the
post of Graduate/Post Graduate Teachers and consequently, they were
appointed on fixed pay basis without raising any objections from their end.
Again, Mr. Dey, learned Advocate General based on the counter affidavit
emphasized the proviso to Article 209 of the Constitution of India and
submitted that Article 209 empowers the „Council of Ministers‟ to frame
policy decisions on service matters of State Government employees as per
norms. Further, the Rules of Executive Business are framed under Article 166
of the Constitution of India. Under these Rules, the „Council of Ministers‟ is
formed under Article 163 of the Constitution of India. So, there is no absurdity
in the formation of the „Council of Ministers‟. Now, Rule 8 of the said Rules
read with item 3(c) of the Second Schedule indicates that proposal for making
or amending of rules regulating the recruitment and condition of service of
person appointing to the public service and post in connection with the State
(Provision to Article 309) shall be placed before the „Council of Ministers‟.
Also, under Rule 7 of the Rules of Executive Business, the „Council of
Ministers‟ shall be collectively responsible for all executive orders issued in
the name of the Governor in accordance with these Rules, whether such rules
are authorized by an individual Minister or a matter appertaining to his
portfolio or as the result of discussion at a meeting of the Council, or
howsoever otherwise. Therefore, there appears no ambiguity in placing the
proposal for recruitment on fixed pay basis in Group-C and Group-D posts
(except those which are required to be filled up through TPSC before the
„Council of Ministers' followed by their decision affirming this policy.
7.1 Mr. Dey, learned Advocate General further advanced his
submission that the recruitment rules indicate the extent of the scale of pay
and not the formula for determination of pay or the guarantee for grant of a
regular pay scale. The memorandum of the General Administration (Personnel
& Training) Department, Tripura dated 15.12.2001 [Annexure-R/1 to the
counter affidavit of WP(C) No.968 of 2022 read with memorandum dated
16.10.2007 [Annexure-11 to WP(C) 968 of 2022 ] speaks about the formula
for determination of pay. These executive instructions do not interfere with the
pay scale but settles down the formula for determination of pay. So, the
subjects of the two are different and there is no cause to equate the same. It is
apparent that the policy decision to allow the candidates serving on a fixed
pay basis, with the benefit of the regular pay scale on completion of 5 years
has been finalized after due discussion in the Legislature during the Budget
declaration of 2006-07. So, there is no infirmity in the policy decision of the
State Government for the appointment of the petitioners on fixed pay basis by
keeping the regular pay scale in abeyance, as the decision has been taken after
Cabinet approval and assent of the Hon'ble Governor, Tripura. Mr. Dey,
learned Advocate General further pointed out that as per Article 14 of the
Constitution of India, under the same circumstance, citizens are to be treated
equally among equals. The doctrine of equal pay for equal work postulates
equal pay for equal work for those who are equally placed in all respect. The
petitioners are not equally placed to the referred class of Group-C and Group
D employees of the other departments. The recruitment rules for appointment
to the post of Post Graduate Teachers/Graduate Teachers are totally different
from that of the employees. Therefore, the State has made no discrimination
against the petitioners in regard to their appointment on fixed pay basis. In
support of his contention, learned Advocate General has referred to a decision
rendered in (2013) 5 SCC 470 [Rajasthan State Industrial Development and
Investment Corporation & Anr. vs. Diamond & Gem Development
Corporation Ltd. & Anr.]
8. Having considered the submissions of learned counsels appearing
for the parties let me have a look on the memoranda dated 15.12.2001 and
16.10.2007 issued by the Government of Tripura which read as follows:
"GOVERNMENT OF TRIPURA
GENERAL ADMINISTRATION (PERSONNEL & TRAINING) DEPARTMENT
No F 20 (3)-GA (P&T)/96 Dated, Agartala, the 15th December 2001
MEMORANDUM
Subject: Fixed Pay - Recruitment on-in Group C and D posts.
In order to have reasonable flexibility to recruit eligible candidates
on fixed pay basis to posts meant for direct recruitment it has been decided that
henceforth appointment to Group-C and D posts which are not required to be
filled up by selection through the TPSC, may be made on fixed pay basis. For
this purpose posts with fixed pay should be created by keeping the posts in time
scale in abeyance with the concurrence of GA (AR)/ PCD/ FD. The quantum of
fixed pay in respect of such posts will be fixed with prior approval of the
Finance Department.
2. It has also been decided that wherever interview has been
completed or selection has been made for posts having scale of pay, the
selected candidates may be offered appointment fixed pay basis. If such offer
are not accepted steps should be taken for holding fresh selection creating fixed
pay posts as indicated above.
3. All Departments/ Head of Departments are requested to take
necessary accordingly.
Sd/-
(Mrs. B. Deb Barma)
Under Secretary to the
Government of Tripura"
GOVERNMENT OF TRIPURA
DEPARTMENT OF FINANCE
No.F.10(2)-FIN(G)/05/Part-I Dated, the 16th October, 2007.
MEMORANDUM
Subject:- Providing of different benefits to employees recruited on fixed pay
basis by keeping abeyance regular pay scale posts.
1. Under a policy decision of the State Govt. a system was introduced in the
later part of year 2001 for recruitment of Group-C and D staff (other than
uniformed personnel) on fixed pay basis by keeping abeyance the concerned
regular pay scale posts. Under the system, first of all Fixed-pay Posts are
created against available regular pay scale posts with concurrence of the
Finance Department. After that candidates are selected by the Departments on
observance of required formalities in compliance to the provisions of RR for the
concerned regular pay scale post and recruited on fixed pay basis. The fixed
pay amount is determined under formula 75% of initial basic pay in the time
scale for Group- D posts and 65% of the initial basic pay in the time scale for
Group-C employees. Further a number of fixed pay posts including
supernumerary posts were/are also created/continued to be created for
providing jobs under die-in-harness cases/extremist violence cases.
Subsequently in the Budget declaration of 2006-07, a policy decision was
announced to the effect that such Fixed-pay employees on completion of 5 (five)
years of service will be provided regular pay scale.
2. Although the above category of Fixed-pay employees were recruited on
observance of all required formalities of selection including formal creation of
posts and adherence to the provisions of the concerned RR, it is observed that
they are yet to get service benefits viz. Leave, Die-in-harness scheme, seniority
and counting of full service of fixed pay period for the purpose of pension and
retirement benefits and maintenance of service records like regular
Government employees.
3. On consideration of the above position, it has been decided to provide
following benefits:
1) Those employees who were recruited on Fixed-pay basis against fixed pay
posts created by keeping abeyance regular scale posts and recruited on
observance of all required formalities including adherence to provision of RR
would be provided benefit of leave, coverage under Die-in-harness scheme,
seniority in service like regular pay scale employees, counting of full fixed pay
period for the purpose of pension and retirement benefits. Identical benefits
would be provided to the fixed pay employees appointed against supernumerary
posts created in different Departments for providing jobs under extremist
violence cases/ die-in-harness cases. Department-wise list of such employees
whose particulars have been found consistent with the requirement is enclosed
herewith.
ii) Service records of these employees would be maintained by opening of
service-book for each of such fixed pay employees.
iii) After opening of the service book and on completion of 5 (five) years of
service from the date of joining, such employees would be provided regular
scale of pay.
4. To facilitate quick action for implementation of the above decision,
appropriate authorities of the concerned Administrative Departments of the
State Government are authorized to take following action:
i) For the purpose of extending the benefits, only those names are to be
considered which are included in the annexure attached herewith subject to
verification of all required certificate and documents. Benefit in respect of leave
is to be extended to such Fixed-pay employees with effect from 1st October,
2007.
ii) After verification of required certificates and documents and on completion
of 5 (five) years of service without any break, regular pay scale would be
provided from the following date.
iii) After getting benefit of regular scale of pay, the concerned employee will be
eligible to get admissible DA and other benefit.
iv) If any genuine case is found left out in the enclosed annexure that may be
referred to the F.D. to consider inclusion.
v) In future wherever new candidates will be recruited under Fixed-pay post
created by keeping abeyance regular scale post, their names and particulars
will have to be sent to the F.D. for extending the aforesaid benefits to them.
5. All departments are requested to take action immediately for implementation
of the above decisions.
Sd/- illigible
(A. Roy)
Deputy Secretary to the
Government of Tripura"
9. Having gone through the above perspective, it comes to fore that
the petitioners were appointed against the sanctioned regular posts through a
regular mode of selection process. They have appeared successfully in TET in
consonance with the requirements of Articles 14 and 16 of the Constitution of
India. It is also an admitted fact that the petitioners had been appointed on
fixed pay basis i.e. 75% of the minimum of the pay scale for the post of Post
Graduate Teacher or Graduate Teacher for a period of five years. The entire
case revolves around the policy decision of the government. As per the
memorandum dated 16.10.2007 [Annexure-22 to WP(C) No.68 of 2022] it is
crystal clear that the State Govt. had introduced a system for recruitment of
Group-C and D staff (other than uniformed personnel) on fixed pay basis by
keeping in abeyance the concerned posts with regular pay scale. Under this
system, at first fixed-pay posts were created against available regular pay scale
posts with concurrence of the Finance Department. It is mentioned in the said
memorandum that the said policy decision was made to give effect the benefit
of regular pay scale after completion of 5 years of service on fixed pay basis.
10. Further, it is apparent from the advertisement published through
the notification dated 17.11.2017 [Annexure-13 to WP(C) No.68 of 2022]
issued by the TRBT, Education (School) Department, Govt. of Tripura that in
Clause 3 of the said notification it is clearly mentioned that the pay of the
aspirants (Post Graduate Teachers) would be „Rs.22,785/- (revised) fixed per
month being 75% of basic pay (Level-10) of Tripura State pay matrix 2017‟.
Further, it is apparent from the advertisement published through notification
dated 27.05.2017 [Annexure 14 to WP(C) No.68 of 2022] that the pay for the
post of Graduate Teachers was mentioned as 'Rs.7970/- fixed per month
(against Pay scale Rs.5700-24000/- with grade pay Rs.2800/- subject to
revision by the government from time to time‟. So, the petitioners had
participated in the selection process conducted by the TRBT having full
knowledge of one of the terms and conditions of service that the pay of posts
would be on fixed pay basis. More so, if I look upon the offer of appointment
of one of the petitioners, it is also pertinently mentioned in such offer of
appointment that the aspirants had been offered a purely temporary post of
Graduate Teacher under Education (School) Department, on fixed pay basis.
So, the petitioners being well conversant with the terms and conditions of the
service concerned, had accepted their offer of appointment and joined their
respective jobs. They were well acquainted with the policy of the government
that after completion of 5 years' service on fixed pay basis, their services
would be regularized. It is also transpired that after they got appointed in their
services, they had no objection regarding their pay that they were appointed
on fixed pay basis. Now they have come after a long period claiming that their
services would be reckoned from their initial appointment and they are to be
paid the regular pay scale from the date of their initial appointment.
11. The petitioners have agitated another point in these writ petitions
that when the Group-C and Group-D employees were recruited through TPSC,
they have been given the benefit of regular pay scale from the date of their
initial appointment and thus, they may be considered as like as the employees
who are appointed through recruitment process conducted by the TPSC and
accordingly, doctrine of equal pay for equal work may be applied in favour of
the petitioners as they discharge same duty as the regular employees
discharge.
12. To this aspect, I may gainfully refer here the decision rendered by
the Apex Court in State of W.B. vs. W.B. Minimum Wages Inspectors Assn.
reported in (2010) 5 SCC 225, wherein the Hon'ble Apex Court in paras 18 &
19 held thus:
"18.... The evaluation of duties and responsibilities of
different posts and determination of the pay scales applicable to such
posts and determination of parity in duties and responsibilities are
complex executive functions, to be carried out by expert bodies. Granting
parity in pay scale depends upon comparative job evaluation and
question of posts.
19. The principle „equal pay for equal work‟ is not a
fundamental right but a constitutional goal. It is dependent on various
factors such as educational qualifications, nature of the jobs, duties to be
performed, responsibilities to be discharged, experience, method of
recruitment, etc. Comparison merely based on designation of posts is
misconceived. Courts should approach such matters with restraint and
interfere only if they are satisfied that the decision of the Government is
patently irrational, unjust and prejudicial to any particular section of
employees."
13. In State of Bihar & Ors. vs. Bihar Secondary Teachers Struggle
Committee, Munger & Ors. reported in (2019)18 SCC 301, Hon'ble Supreme
Court has delineated the doctrine of 'equal pay for equal work' in para 104
which reads as follows:
―104. If a pay structure is normally to be evolved keeping in
mind factors such as "method of recruitment" and "employer's capacity
to pay" and if the limitations or qualifications to the applicability of the
doctrine of "equal pay for equal work" admit inter alia the distinction on
the ground of process of recruitment, the stand taken on behalf of the
State Government is not unreasonable or irrational. Going by the facts
indicated above and the statistics presented by the State Government, it
was an enormous task of having the spread and reach of education in the
remotest corners. Furthermore, the literacy rate of the State which was
lagging far behind the national average was also a matter which required
attention. The advances made by the State on these fronts are quite
evident. All this was possible through rational use of resources. How best
to use or utilise the resources and what emphasis be given to which
factors are all policy matters and in our considered view the State had
not faltered on any count. As laid down by this Court in the decisions
in Joginder Singh [State of Punjab v. Joginder Singh, 1963 Supp (2) SCR
169 : AIR 1963 SC 913] and Zabar Singh [Zabar Singh v. State of
Haryana, (1972) 2 SCC 275] , the State was justified in having two
different streams or cadres. The attempt in making over the process of
selection to Panchayati Raj institutions and letting the cadre of State
Teachers to be a dying or vanishing cadre were part of the same
mechanics of achieving the spread of education. These issues were all
part of an integrated policy and if by process of judicial intervention any
directions are issued to make available same salaries and emoluments to
Niyojit Teachers, it could create tremendous imbalance and cause great
strain on budgetary resources."
(emphasis added)
14. Again, the Hon'ble Supreme Court in the case of Bihar
Secondary Teachers Struggle Committee (supra) at para 91, taking into
account the case of State of Haryana vs. Charanjit Singh, reported in (2006)
9 SCC 321 had explained the term 'equal pay for equal, which runs as
follows:
―91. In State of Haryana v. Charanjit Singh [State of
Haryana v. Charanjit Singh, (2006) 9 SCC 321 : 2006 SCC (L&S) 1804] a
Bench of three Judges of this Court, speaking through Variava, J. observed as
under : (SCC pp. 335-36, para 19)
"19. Having considered the authorities and the submissions we are of the
view that the authorities in Jasmer Singh [State of Haryana v. Jasmer
Singh, (1996) 11 SCC 77 : 1997 SCC (L&S) 210] , Tilak Raj [State of
Haryana v. Tilak Raj, (2003) 6 SCC 123 : 2003 SCC (L&S) 828] , Orissa
University of Agriculture & Technology [Orissa University of Agriculture
& Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 : 2003 SCC
(L&S) 645] and Tarun K. Roy [State of W.B. v. Tarun K. Roy, (2004) 1
SCC 347 : 2004 SCC (L&S) 225] lay down the correct law. Undoubtedly,
the doctrine of "equal pay for equal work" is not an abstract doctrine
and is capable of being enforced in a court of law. But equal pay must be
for equal work of equal value. The principle of "equal pay for equal
work" has no mechanical application in every case. Article 14 permits
reasonable classification based on qualities or characteristics of persons
recruited and grouped together, as against those who were left out. Of
course, the qualities or characteristics must have a reasonable relation to
the object sought to be achieved. In service matters, merit or experience
can be a proper basis for classification for the purposes of pay in order to
promote efficiency in administration. A higher pay scale to avoid
stagnation or resultant frustration for lack of promotional avenues is also
an acceptable reason for pay differentiation. The very fact that the person
has not gone through the process of recruitment may itself, in certain
cases, make a difference. If the educational qualifications are different,
then also the doctrine may have no application. Even though persons may
do the same work, their quality of work may differ. Where persons are
selected by a Selection Committee on the basis of merit with due regard to
seniority a higher pay scale granted to such persons who are evaluated
by the competent authority cannot be challenged. A classification based
on difference in educational qualifications justifies a difference in pay
scales. A mere nomenclature designating a person as say a carpenter or a
craftsman is not enough to come to the conclusion that he is doing the
same work as another carpenter or craftsman in regular service. The
quality of work which is produced may be different and even the nature of
work assigned may be different. It is not just a comparison of physical
activity. The application of the principle of "equal pay for equal work"
requires consideration of various dimensions of a given job. The
accuracy required and the dexterity that the job may entail may differ
from job to job. It cannot be judged by the mere volume of work. There
may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
Thus normally the applicability of this principle must be left to be
evaluated and determined by an expert body. These are not matters where
a writ court can lightly interfere. Normally a party claiming equal pay for
equal work should be required to raise a dispute in this regard. In any
event, the party who claims equal pay for equal work has to make
necessary averments and prove that all things are equal. Thus, before any
direction can be issued by a court, the court must first see that there are
necessary averments and there is a proof. If the High Court is, on basis of
material placed before it, convinced that there was equal work of equal
quality and all other relevant factors are fulfilled it may direct payment of
equal pay from the date of the filing of the respective writ petition. In all
these cases, we find that the High Court has blindly proceeded on the
basis that the doctrine of equal pay for equal work applies without
examining any relevant factors."
(emphasis added)
15. In the Case of S.C. Chandra vs. Jharkhand, reported in (2007) 8
SCC 279 where Hon'ble Justice Markandey Katju in his separate but
concurrent judgment observed the term 'equal pay for equal work' and had
opined as under:
"26. Fixation of pay scale is a delicate mechanism which
requires various considerations including financial capacity,
responsibility, educational qualification, mode of appointment, etc. and it
has a cascading effect. Hence, in subsequent decisions of this Court the
principle of equal pay for equal work has been considerably watered
down, and it has hardly ever been applied by this Court in recent years.
*** ***
35. In our opinion fixing pay scales by courts by applying the
principle of equal pay for equal work upsets the high constitutional
principle of separation of powers between the three organs of the State.
Realising this, this Court has in recent years avoided applying the
principle of equal pay for equal work, unless there is complete and
wholesale identity between the two groups (and there too the mater
should be sent for examination by an Expert Committee appointed by the
Government instead of the court itself granting higher pay)"
(emphasis added)
16. In Asif Hameed vs. State of J & K, reported in 1989 Supp (2)
SCC 364, a three-Judge Bench of the Apex Court observed at para 19 that--
"19. When a State action is challenged, the function of the
court is to examine the action in accordance with law and to determine
whether the legislature or the executive has acted within the powers and
functions assigned under the Constitution and if not, the court must strike
down the action. While doing so the court must remain within its self-
imposed limits. The court sits in judgment on the action of a coordinate
branch of the Government. While exercising power of judicial review of
administrative action, the court is not an appellate authority. The
constitution does not permit the court to direct or advise the executive in
matters of policy or to sermonize qua any matter which under the
Constitution lies within the sphere of legislature or executive, provided
these authorities do not transgress their constitutional limits or statutory
powers".
(emphasis added)
17. In view of the above analogy, this Court feels it proper that
granting of pay scales is a purely executive function and hence, the Court
should not interfere with the same. The Court should exercise its judicial
restraint and not interfere in such executive function.
18. On careful scrutiny of the case of the petitioners it has come to
fore that the State Government had taken a policy decision to the effect that
the unemployed youths are to be appointed in different departments across the
State and to fulfill that object, Government had taken initiative for the
appointment of such unemployed youths on fixed pay basis. It is apparent
from the counter affidavit filed by the State-respondents that such policy
decision was taken to the effect that fixed pay employees would be appointed
keeping the regular post in abeyance for 5 years and after completion of 5
years' service, regular pay scale would be provided. It is also evident from
their counter affidavit that such policy decision has been finalized after due
discussions in the Legislative Assembly during the budget declaration of
2006-2007.
19. The financial stringency of a State Government in creating
employment refers to the fiscal constraints or limitations that the Government
faces while allocating resources for employment generation programmes. This
concept involves managing financial resources carefully due to budget
deficits, low revenue generation, or competing demands for Government
spending. When the State Governments experience financial stringency, their
ability to invest in infrastructure projects, support industries, or fund to the
recruitment of employees in Government Sector or Public Sector, may be
limited.
20. The fixed pay policy by a Government to recruit a large number
of unemployed youths typically refers to a structured wage system
implemented by the State to ensure that job creation efforts are both effective
and sustainable. This type of policy establishes a predetermined, stable salary
for Government or Public-sector employment programmes aimed at absorbing
large numbers of unemployed individuals into the workforce.
21. The sole objectives of the Government behind implementing this
fixed pay policy are to enable a large number of unemployed youths to find
stable work opportunities especially in public projects or Government-driven
employment schemes. Keeping in mind the vast employment policy
throughout the State, the Government had offered such fixed pay policy
among the youths to have certain predictable income allowing them a
minimum financial security. It is transpired that a uniform salary is offered to
all recruited employees under the said policy with the option for renewal
depending of funding availability after a considerable period. Therefore, in my
considered opinion, a fixed pay policy to recruit unemployed youths can be a
transformative initiative, providing both immediate employment and pathways
for skill-building. However, for long-term success, Government must ensure
that such policies are well-funded, inclusive, sustainable, and adaptable. With
strategic planning, integration with skill development, and partnerships with
the Private-sector, fixed pay policies can reduce unemployment rates while
fostering economic growth and social inclusion.
22. Inasmuch as ultimately it is the responsibility of the State to
provide good education, training and employment, it is best suited to frame a
policy or either modify/alter a decision depending on the circumstance based
on relevant and acceptable materials. The Courts do not substitute its views in
the decision of the State Government with regard to policy matters. In fact, the
Court must refuse to sit as appellate authority or super legislature to weigh
the wisdom of legislation or policy decision of the Government unless it runs
counter to the mandate of the Constitution. With regard to the importance of
human resources, especially manpower requirement in various professional
and technical fields, the Government is free to frame its policy, alter or modify
the same as to the needs of the society. In such matters, the Courts cannot
interfere lightly as if the Government is unaware of the situation [State of
H.P. vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh,
(2011) 6 SCC 597].
23. The petitioners neither agitated the matter as and when such type
of policy was introduced by the Government, nor at the time of their
participation in the selection process against such fixed pay policy. That time
they whole heartedly came forward to have a job anyhow and accordingly,
they participated in the interview.
24. On meticulous scrutiny of the Government policy for
employment vide memorandum dated 16.10.2007, I am of the opinion that the
said policy was aimed to achieve a specific object of generating more job
opportunities for a significant number of qualified and eligible un-employed
youths in the government job. Under the policy, many un-employed teachers
have been appointed and it is not the case here that Government has acted in
deviation of the policy providing regular pay scale to similarly situated
teachers before expiry of 5 (five) years of service. What has emerged from
close scrutiny of the policy that it is a welfare policy and its interference will
defeat the legislative intendment to achieve the object of creating more job
opportunities for the educated youths. So, such policy should not be treated as
illegal, arbitrary, discriminatory, and violative of Articles 14 and 16 of
Constitution of India. In this situation, the Court will not sit in appeal and
substitute its views in the decision of the State Government in introducing the
Employment Policy (supra) which is in vogue since 2007.
Having held so, the policy formulated by the State Government
vide memorandum dated 16.10.2007 does not call for interference.
25. In view of the discussions and for the reasons outlined here-in-
above, both the writ petitions challenging the Government policy vide
memorandum dated 16.10.2007 are devoid of merits and accordingly, stand
dismissed. Connected petition(s), if any, shall also stand disposed.
JUDGE
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2025.01.21 17:55:49 +05'30'
sanjay
