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2006 DIGILAW 653 (GAU)

Nalini Ranjan Debnath v. State of Tripura

2006-07-20

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. This common judgment would dispose of the above two writ petitions filed by nine Petitioners in Civil Rule No. 584 of 1996 and four Petitioners in Civil Rule No. 122 of 1997, who advanced same grievances arising from same factual premises. 2. All the thirteen Petitioners in the above two cases entered into service as Constables (Armourer) under the Tripura Police Organisation on different dates shown in the final seniority list published on 30.6.1990. Though they were required to undergo Armourers training for more than a year in the Electrical and Mechanical Centre at Bhopal and also at Sekendrabad and the posts held by them were classified as selection posts by the Recruitment Rules, the pay scale of the ordinary Constables was given to them, which is one of the several grievances. Another grievance is that unlike other employees of the Police Organisation, the Constables (Armourer) had no channel of promotion, which is a clear violation of the constitutional mandate confirmed by the Apex Court that in every service under the Govt. or its instrumentalities there must exist at least two avenues of promotion during the entire service career. The third and final grievance adumbrated in the writ petitions is that though in the Tripura State Civil Services (Revision of Pay) Rules, 1988 ('POP, 1988') provisions for all employees were made providing first scale advancement after 10 years of continuous service and second scale advancement after 8 years of continuous service, if no promotion could be given during the said periods, similar provisions had not been made for the Constables (Armourer), which undoubtedly constitutes sheer discrimination and violation of the constitutional and legal mandates. By means of the two writ petitions the Petitioners have approached this Court for a direction to the Respondents to grant two promotions and allow two scale advancements after completion of 10 years and 8 years of continuous service under the ROP, 1988. 3. The State Respondents in their counter-affidavit contended, inter alia, that promotional avenues for the Constables (Armourer) are available as per the Recruitment Rules. Some of the Petitioners would appear to have been promoted to the cost of Head Constable as indicated in the final seniority list of Constables (Armourer), It appears, for example, Abani Mohan Singh, one of the Petitioners in Civil Rule No. 122 of 1997 was promoted to the post of Head Constable. Some of the Petitioners would appear to have been promoted to the cost of Head Constable as indicated in the final seniority list of Constables (Armourer), It appears, for example, Abani Mohan Singh, one of the Petitioners in Civil Rule No. 122 of 1997 was promoted to the post of Head Constable. It has further been admitted in para 5 of the counter-affidavit that all other Petitioners are eligible for promotion to the rank of Head Constable (Armourer), but due to non-availability of vacancies their cases could not be considered. It has also been contended that as and when vacancy in Head Constable (Armourer) would arise, the cases of the Petitioners would certainly be considered for promotion. Referring to the Recruitment Rules for the post of Assistant Sub-Inspector of Police (Man) published on 12th July, 2002 (Annexure-R/1), the contention advanced is that the posts of Constable (Armourer) are also feeder posts for promotion to the post of Assistant Sub-Inspector of Police. The Recruitment Rules for the post of Head Constable (Un-Armed Branch) (Annexure-R/2) strengthens the same contention as it would appear therefrom that the posts of Constable (Armourer) are the feeder posts for promotion to the post of Head Constable (Un-armed Branch). Another Recruitment Rules for the post of Naik (Annexure-R/3) further shows that this post also is to be filled up by promotion/transfer from amongst the Constables (Armed) and Constables (Armourer). Proceeding from this factual premises the Respondents have strongly contended that the promotional avenues for the post of Constable (Armourer) having been specifically provided for upward movement to Naik, Head Constable and Assistant Sub-Inspector of Police, the grievance made in the writ petitions that this post has no promotional avenues is untrue and deserves no manner of consideration. 4. As regards the scale advancement after 10 years and 8 years of continuous service under the ROP, 1988, if no promotion takes place, it has been admitted that no specific provision was made in the said Rules for scale advancement for the post of Constable (Armourer), but after the Petitioners made several representations, the State Government referred the matter to the Fourth Pay Commission, which was constituted in November 1996, the same year when the first writ petition was filed. As the matter was under consideration of Fourth Pay Commission, the State Respondents did not consider it appropriate to give any benefit of scale advancement after a long lapse often years as the ROP, 1988 came into force w.e.f. 1.1.1986. 5. In a re-joinder the Petitioners contended that in accordance with Govt. of India's decision to strengthen infrastructure of the Police and Jail Units, it was necessary for the State Government to create posts of Head Constables and Sub-Inspectors, which was not done depriving thereby promotion of the Petitioners to the higher posts though they have put in 20 years of service without promotion. Admitting in para 4 of the re-joinder that ROP, 1988 did not provide for any scale advancement for the post of Constable (Armourer) after 10 or 18 years of continuous service, the contention advanced is that such an issue is undoubtedly violation of the fundamental rights of the Petitioners enshrined in Articles 14 and 16 of the Constitution. 6. In the additional counter-affidavit, the State Respondents provided some information that during the pendency of the writ petitions, the report of the Fourth Pay Commission was submitted following which the Tripura State Civil Services (Revised Pay) Rules, 1999 ('ROP, 1999') was published by the State Respondents on 6.2.1999. In the said Rules clear provisions have been made that on completion of 10 years of service a Constable (Armourer), if not promoted, would get next higher pay scale of Rs. 3,300-7,100 and a Head Constable would get the next higher pay scale of Rs. 4,000-7,890. But no further benefit after completion of 18 years of service has been provided for the said post in the ROP, 1999. It has been pointed out that following the observation of this Court made on 26.2.2002 that the benevolent Government would take care of the petty employees like the Petitioners by providing promotional avenues or graded pay scale facilities, the State Respondents modified the Recruitment Rules for the post of Assistant Sub-Inspector of Police, Head Constable and Naik by including the post of Constable (Armourer) as one of the feeder posts for filling up of those higher posts. Thus, two pronged grievances regarding the promotional avenues and scale advancement having been suitably addressed by the amendment of the Rules and the provisions of the ROP, 1999, the writ petitions having no merit deserve to be dismissed. 7. I have heard Mr. Thus, two pronged grievances regarding the promotional avenues and scale advancement having been suitably addressed by the amendment of the Rules and the provisions of the ROP, 1999, the writ petitions having no merit deserve to be dismissed. 7. I have heard Mr. B. Das, learned senior Counsel for the Petitioners and Mr. R.B. Sinha, learned Counsel for the State Respondents. 8. Taking up the first grievance regarding absence of promotional avenues as adumbrated in the writ petitions, a detailed discussion on the issue is not called for in view of the contention per contra of the Respondents that there exists scope of promotion for the post of Constable (Armourer) for upward movement to Naik, Head Constable and ASI. Number of posts in the higher category may not be enough for promoting all the Constables (Armourer), but there cannot be any sound or legal proposition that promotional posts in the higher grades must be equal to the feeder posts to accommodate all the eligible candidates in one go. If the Petitioners have not been promoted for a period of long 20 years, the reason may be non-availability of vacancies in the higher grade and that may not be a sole ground to give a direction to the Respondents to create more posts for ensuring their promotion. Again, it is not within the jurisdiction of a writ court to issue such a direction. Once it is found that there are promotional avenues for the post of Constable (Armourer), this Court does not feel free to proceed any further with the grievance of the Petitioners on this count, which is misconceived and without any merit. The two decisions relied on by Mr. Das, learned senior Counsel for the Petitioners in (i) Council of Scientific and Industrial Research and Anr. v. K.G.S. Bhatt and Anr. AIR 1989 SC 1972 and (ii) State of Tripura and Ors. v. K.K. Roy AIR 2004 SCW 1 on the need of providing two promotional avenues in the service career of each employee offer no assistance to the case of the Petitioners for the reason that the post of Constable (Armourer), as seen above, has distinct promotional avenues for upward movement to the posts of Naik, Head Constable and Assistant Sub-Inspector of Police. It is, therefore, not necessary for this Court to quote the relevant portion of the above two decisions. 9. It is, therefore, not necessary for this Court to quote the relevant portion of the above two decisions. 9. Coming to the second grievance, which is relatable to scale advancement under the ROP, 1988, the admitted fact is that no provision was made in the said Rules for scale advancement for the post of Constable (Armourer). The said Rules came into force w.e.f. 1.1.1986 and the present writ petitions were filed in the year 1996 and 1997 when the Fourth Pay Commission was already in position to consider another revision of pay for the State Govt. employees. A careful reading of the prayer part of the writ petitions would show that no provision of the said Rules has been called in question. In para 17(c) the specific prayer of the Petitioners is to low them the benefit of two scale advancements on completion of 10 years and 18 years of continuous service as per provisions of ROP Rules, 1988. As no provision of the said Rules is under challenge the question that falls for consideration is whether the Petitioners herein are entitled to the benefit of two scale advancements after 10 years and 18 years of service as claimed. 10. When it is admitted by the Petitioners as well as the Respondents that the ROP, 1988 had made on provision for such scale advancement, the claim noticed above in the writ petition for such benefit merits no consideration in the absence of any challenge to the relevant provision of the said Rules. From the additional counter-affidavit of the State Respondents it would appear that one scale advancement has been provided for the Constable (Armourer) in the ROP 1999, which has come into force w.e.f. 1.1.1996. It has been clearly provided that a Constable on completion of required years of service from 1.1.1999 would get his pay fixed in Rs. 3,200-6,030 on the date of option and then in the next higher pay scale of Rs. 3,300-7,100 on 1.1.1999. The example given under Clause (ix) of the proviso below Rule 10 of the said Rules reads as follows: A Constable has 20 years of service as on 1.1.1999 and he did not receive any promotion upto 1.1.1999, his pay will be fixed in 3,200-6,030 on the date of option and in 3,300-7,100 on 1.1.1999 under F.R. 22(a)(i). The example given under Clause (ix) of the proviso below Rule 10 of the said Rules reads as follows: A Constable has 20 years of service as on 1.1.1999 and he did not receive any promotion upto 1.1.1999, his pay will be fixed in 3,200-6,030 on the date of option and in 3,300-7,100 on 1.1.1999 under F.R. 22(a)(i). Though for every employee under the State Government at least two scale advancements have been provided under Rule 10 of the said Rules, the question may arise why for the Constable (Armourer) only one scale advancement has been provided. To answer this question, a reference to the revised scale of pay given in Annexure-C under the Police Department for the posts of Constable and Head Constable need to be looked into. The revised pay of the Constables is Rs. 3,200-6,030 and that of the Head Constable is Rs. 3,300-7,100. As seen above, on completion of the required number of years, the pay of the Constable will be fixed at Rs. 3,300-7,100, which is the pay scale of the Head Constable, a promotion post. Though the ROP Rules, 1999 has a clear provision in Rule 10 that there shall be two scale advancements after 10 years and 17 years of service, there is a rider in clause (vii) under the, proviso to Rule 10. The said clause provides as follows: (vii) By way of seals advancement in this scheme, the CAS scale can not exceed the promotion scale. (However, CAS scale can become same as promotion scale). In such cases, the scale advancement will not take place at the prescribed period till actual promotion is done. However, on completion of the prescribed period in this scheme, he will earn an increment on 1.1.1999 or later if any advancement is due. The earning of increment will be counted as an advancement of scale. This restriction will not be applicable to existing Group-D employees. (emphasis mine) 11. As noticed above, the Petitioners being Constables (Armourer) have got their pay fixed in the pay scale of Rs. 3300-7100, which is the pay scale of the Head Constables and, therefore, the second scale advancement, which would exceed the pay scale of the Head Constable cannot be allowed due to the above rider. This rider or restriction is applicable to all employees including the Petitioners and, therefore, the question of discrimination against them does not arise at all. 3300-7100, which is the pay scale of the Head Constables and, therefore, the second scale advancement, which would exceed the pay scale of the Head Constable cannot be allowed due to the above rider. This rider or restriction is applicable to all employees including the Petitioners and, therefore, the question of discrimination against them does not arise at all. If, however, they do not get any promotion after 17 years of service, they would earn one increment, which would be counted as another advancement of scale. No other scale advancement after completion of 17 years of service has been provided in view of the restriction noted above. Thus, the second grievance of the Petitioners, even if considered in the light of the ROP, 1999, though no claim under that Rule has been advanced, does not appear to be sustainable in law. 12. For the reasons aforementioned, the above two writ petitions do not appear to have any merit and consequently the same are dismissed leaving the parties to bear their own cost. Petition dismissed.