Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 750 (GAU)

Amal Chandra Das v. State of Tripura

2006-08-11

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. The Petitioner Sri Amal Chandra Das was appointed as Fitter Grade-II on 2.9.1975 in the pay scale of Rs. 140-210 under the Public Works Department, Government of Tripura. He joined the said post on 2.11.1975. Before the Revision of Pay Rules, 1988 ('ROP rules, 1988') came into force from 1.1.1986, there were 4 grades of Fitter under the said department the lowest being Grade IV with other higher Grades of III, II and I. Sri Jyotirmoy Purkayastha, Proforma Respondent No. 3 was appointed Fitter Grade II on 20.6.1984, about 9 years after the appointment of the Petitioner in the said grade. Sri Biresh Chandra Dasgupta, the fourth Proforma Respondent was appointed as Grade IV on 13.5.1970. However, the said two Respondents had been in the service of the department in other posts since 1.10.1965 and 5.6.1966. The first tentative seniority list of the Fitters of different grades was published on 17.2.1982 showing the Petitioner at Sl. No. 4 of the Fitter Grade II and the third Respondent at Sl. No. 1 of the Fitter Grade III as on 31.12.1981. At that time, the fourth Respondent was not even in Grade III. The tentative seniority list of Fitter Grade IV as on 1.3.1985 (Annexure-3) shows him at Sl. No. 1. 2. On 28.4.1988, another tentative seniority list of Fitter Grade II was published which shows the Petitioner at Sl. No. 1 and third proforma-Respondent at Sl. No. 2 as on 1.3.1988. The fourth proforma-Respondent was not in that grade at that time. Surprisingly, on 8.6.1992, another tentative seniority list of Fitter as on 31.3.1991 was published showing Shri J. Purkayastha (proforma-Respondent No. 3) at Sl. No. 2 and the Petitioner Sri Amal Chandra Das at Sl. No. 12. Thus, the Petitioner's seniority position came far below in the third list. The Petitioner made representation against such wrong fixation of his seniority. In response to his representation (Annexure-8), the second Respondent informed the Petitioner that the seniority position would be recast when the final seniority list would be prepared. This letter was issued on 20.8.1993. But nothing was done to rectify the seniority position shown in the third tentative seniority list. On the contrary, the official Respondents acted on the said wrong tentative seniority list and promoted the third proforma-Respondent to the post of Diesel Superintendent on ad hoc basis on 22.11.1996. This letter was issued on 20.8.1993. But nothing was done to rectify the seniority position shown in the third tentative seniority list. On the contrary, the official Respondents acted on the said wrong tentative seniority list and promoted the third proforma-Respondent to the post of Diesel Superintendent on ad hoc basis on 22.11.1996. The fourth Respondent who did not find place in any of the three tentative seniority list was promoted as Chargeman (Mechanical) on ad hoc basis on 22.11.1996. While the third proforma-Respondent was later designated as Sr. Fitter in the pay scale of Rs. 1,700-3,980 the fourth proforma-Respondent as Charwoman (Mechanical) was in the pay scale of Rs. 1,450-3,710. The grievance of the Petitioner is that his case for promotion to the post of Sr. Fitter or Charwoman was never even considered though admittedly by virtue of his length of service as Fitter Grade II, he was senior to both the above proforma-Respondents. By means of this writ petition, he has prayed for a direction to the Respondents to restore his seniority and give him the promotional benefits from the date when his juniors were given the same. 3. The contention of the State Respondents in their counter affidavit, inter alia, is that the Petitioner was appointed to the Fitter Grade II on 2.9.1975 and the proforma-Respondent No. 3 was appointed much later to that grade. The proforma-Respondent No. 4 having been appointed as Fitter Grade IV, his name did not appear in the tentative seniority list of Fitter Grade II or Fitter Grade III. It is admitted that in the first two tentative seniority lists of Grade II and Grade III, the position of the Petitioner and the proforma-Respondent No. 3 was correctly shown in their respective Grades. After ROP Rules, 1988 came into force with effect from 1.1.1986, the position had undergone a drastic change. Though before coming into force the said rules, there were 4 grades for upward movement from Grade IV to Grade III, from Grade III to Grade II and Grade II to Grade I and the Petitioner having been appointed as Grade II was senior to proforma-Respondents 3 and 4, the ROP rules 1988 which came into force with effect from 1.1.1986 levelled all the grades and provided 3 graded scales, namely, Jr. Fitter (Rs. 970-2400), Fitter (Rs. 1250-2890) and Sr. Fitter (Rs. 1300-3220). Fitter (Rs. 970-2400), Fitter (Rs. 1250-2890) and Sr. Fitter (Rs. 1300-3220). It has further been provided that on completion of 10 years of service, the Jr., Fitter would move to the grade of Fitter and after completion of another 8 years of service, he would move to the grade of Sr. Fitter. As the Petitioner was appointed only on 2.9.1975, he was shown Fitter on 16.9.1987 after completion of 10 years of service in the pay scale of Rs. 1,250-2,890 and as Sr. Fitter on 16.9.1993 in the pay scale of Rs. 1,300-3,220 after completion of 18 years of service. The proforma-Respondent No. 3 having completed 18 years of service was given the pay scale of Rs. 1,300-3,220 on 1.1.1986 long before the Petitioner. The proforma-Respondent No. 4 was, however, given the pay scale of Fitter (Rs. 1,250-2,890) on 1.1.1986 on completion of 10 years of service and then as Sr. Fitter on 13.5.1988 on completion of 18 years of service in the pay scale of Rs. 1,300-3,220 both before the same benefit was given to the Petitioner. It is the contention of the Respondents that though admittedly the Petitioner was senior to the other two because of his direct appointment as Fitter Grade II to which grade the said two Respondents came much later, the ROP rules, 1988 has wiped out the entire earlier seniority position as the length of service rendered by the incumbents came to be reckoned with for the purpose of showing the incumbents in the respective graded scales. The third proforma-Respondent entered into the service as Fitter on 1.10.1965 and the fourth proforma-Respondent to the said post of Fitter on 5.6.1966 while the Petitioner was directly appointed to the post of Fitter Grade II on 2.9.1975. Thus, after the grades were abolished and all the incumbents became Fitters only to be accommodated in the respective graded scales on the basis of length of service, the Petitioner having comparatively shorter period of service, lost his seniority as well as the scale of pay, as has emerged from the facts pleaded by the official Respondents. Taking shelter of the ROP rules, 1988, it is the simple contention of all the official Respondents that the Petitioner is not entitled to any benefit as claimed for in the writ petition. 4. Mr. Taking shelter of the ROP rules, 1988, it is the simple contention of all the official Respondents that the Petitioner is not entitled to any benefit as claimed for in the writ petition. 4. Mr. Sinha, learned Counsel for the Petitioners would argue that the ROP rules, 1988 which came into force with effect from 1.1.1986 cannot upset the seniority position of the employees as has been done in the present case. According to him, the relevant provisions of the said rules have been wrongly interpreted by the official Respondents as nowhere in the said rules there is any provision that the graded pay scale No. 28 per se had the potential of erasing seniority position of the employees to allow them the respective graded pay scales only on the basis of the length of service of the incumbents without any reference to or weightage of the seniority position in the grades held by them. Such a position, according to Mr. Sinha is against the settled service jurisprudence as no such rule can be framed with retrospective effect adversely and prejudicially affecting the seniority position already gained by the employees. 5. Mr. Datta, learned Counsel for the Respondents has argued that the Petitioner has not put under challenge the ROP rules, 1988 which clearly provided that there shall be only graded pay scales for the Fitters who shall be re-designated on the basis of their scales of pay. The scale movements have been provided after 10 and 18 years of service in the grades of Jr. Fitter and Fitter respectively for movement to Fitter and Sr. Fitter. Admittedly, the Petitioner though appointed as Fitter Grade II became a Fitter only by virtue of the said provision and as he did not complete 10 or 18 years of service in the respective grades on 1.1.1986 when the said ROP rules came into force, he had to be given the pay scale of the Jr. Fitter initially. Considering the length of service only he was given the pay scale of Fitter on completion of 10 years of service and finally, the pay scale of Sr. Fitter on completion of 18 years both long after similar scale benefits given to the aforesaid two Respondents. Fitter initially. Considering the length of service only he was given the pay scale of Fitter on completion of 10 years of service and finally, the pay scale of Sr. Fitter on completion of 18 years both long after similar scale benefits given to the aforesaid two Respondents. Having rendered longer period of service as Fitter which was a lower position than Fitter Grade II held by the Petitioner, they came to be entitled to steal a march over the Petitioner because same value given to the length of service in lower and higher position as well. The benefit of scale movement after 10 and 18 years of service accrued to the said Respondents by virtue of the ROP rules and, therefore, it is contended that there has been no discrimination to the Petitioner though he was senior to the said Respondents. The seniority after the pay revision had to be recast showing the Petitioner junior to the Respondents. 6. The admitted position that has finally emerged from the factual matrix pleaded above, is that the Petitioner was always senior to both the Respondents by virtue of his holding a higher grade of Fitter II as has been correctly reflected in the first tentative seniority list. The ROP rule's, 1988 no doubt re-designated the posts and provided 3 graded scales in scale No. 28 of ROP Rules, 1988. It has been clearly provided there that a person initially entering into the Jr. Grade Fitter would move to the grade of Fitter after 10 years of service and then to the grade of Sr. Fitter after 18 years of service. Nowhere it has been provided that the existing Fitters in different lower and higher grades who acquired seniority by virtue of holding such position before ROP, 1988 would have to be treated as Jr. Fitter with effect from the date of their initial appointment for the purpose of scale movement. Admittedly, third proforma-Respondent entered into the service on 1.10.1965 and the fourth proforma-Respondent on 5.6.1966 in the lowest grade of Fitter prevailing at that time. The Petitioner was appointed to the higher grade of Fitter II on 2.9.1975 where the said Respondents were still in the lowest grade of Fitter, acquiring, thus, seniority over them. Admittedly, third proforma-Respondent entered into the service on 1.10.1965 and the fourth proforma-Respondent on 5.6.1966 in the lowest grade of Fitter prevailing at that time. The Petitioner was appointed to the higher grade of Fitter II on 2.9.1975 where the said Respondents were still in the lowest grade of Fitter, acquiring, thus, seniority over them. The ROP rules, 1988 nowhere provided that their seniority position obtained before 1.1.1986 would stand erased and all of them would have to be treated as Jr. Grade Fitter introduced by ROP rules, 1988 as if they were appointed to such grade from the date of their appointment. 7. In my considered view, the said graded pay scale was provided for the new entrants only after the ROP rules, 1988 came, into force and not for the existing employees who were enjoying higher grades and higher scales of pay. The ROP rules cannot and have not wiped out post gradation, rank and seniority. It was the duty of the State Respondents to suitably accommodate the existing Fitters of different grades to the respective new grades having regard to their rank and seniority as well as unrevised pay scale attached to such position. If a junior is required to be fitted to a particular new grade, his senior cannot be fitted to a lower grade whatever may be his length of service. Such senior or higher position holder must at least be given the same grade like his juniors ignoring the total length of service. The Respondents have utterly misconstrued the provisions of the said ROP rules, 1988 and illegally deprived the Petitioner from the benefit of his seniority which is a vested right accrued to him The same cannot be taken away without any justifiable reasons. I find no such justifiable reason in the action of the Respondents impugned. 8. In the result and for the reasons aforementioned, this writ petition has merit and the same is accordingly allowed. The State Respondents are directed to accommodate the Petitioner in the grade in which his junior was accommodated on the date when the fixation was done and he shall be given all the financial benefits of such graded scale of pay with arrear. This exercise shall be completed within a period of three months from the date of receipt of a copy of the order. No cost. Petition allowed.