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2006 DIGILAW 952 (GAU)

State of Tripura v. Dwijendra Home Roy

2006-10-31

A.B.PAL, R.B.MISRA

body2006
JUDGMENT A.B. Pal, J. 1. This writ appeal has arisen from the judgment dated 08.08.2000 passed by a learned Single Judge of this Court in W.P.(C) No. 491 of 1999. By that judgment the writ petition filed by the respondents herein was allowed with a direction that the writ petitioner No. 1, an Assistant Engineer, would get the pay scale of Rs. 10,650-15,850/- for the period from 01.01.1999 to 30.09.1999 in accordance with the proviso (ix) under Rule 10 of the Tripura State Civil Services (Revision Pay) Rules, 1999 (for short 'ROP, 1999'). 2. We have heard Mr. S. Deb, learned senior counsel, assisted by Mr. T.D. Majumder, learned Addl. Govt. Advocate for the State appellants and Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. S. Ghosh, learned Counsel for the respondents. 3. The writ petition was filed by Dwijendra Home Roy and All Tripura Diploma Engineers' Association claiming benefit of Career Advancement Scheme (for short 'CAS') provided in Rule 10 o£ the ROP, 1999 for all the diploma Engineers, who were similarly situated like the first petitioner. The facts pleaded in the writ petition show that Shri Home Roy was appointed on 18.06.1963 as Overseer in the pay scale of Rs. 200-400/- in 1987 the Tripura Engineering Service Rules came into force. Mr. Home Roy and other similarly situated overseers were taken into the newly constituted cadre service. On 30.03.1989 by a memorandum of the finance Department, the post of Overseer was re-designated as Junior Engineer Grade-II (Diploma Engineer) and Junior Engineer Grade-I (Degree Engineer). It was further provided that the Junior Engineer Grade-II on completion of four years of service would be Junior Engineer Grade-I w.e.f. 01.01.1986 when ROP, 1988 came into force. It was also provided that Diploma Engineer on completion of 22 years of service on 01.01.1986 would be directly re-designated as Assistant Engineer. By virtue of his memorandum dated 30.03.1989 of the State government in the Finance department, Mr. Home Roy, who completed more than 22 years of service on 01.01.1986 came to be Assistant Engineer w.e.f. that date in the revised pay scale of Rs. 2100-5000/-. His pay was fixed in that revised pay scale under FR 22(a)(i). Then came the next revision of pay by ROP, 1999. It was given effect from 01.01.1996. Home Roy, who completed more than 22 years of service on 01.01.1986 came to be Assistant Engineer w.e.f. that date in the revised pay scale of Rs. 2100-5000/-. His pay was fixed in that revised pay scale under FR 22(a)(i). Then came the next revision of pay by ROP, 1999. It was given effect from 01.01.1996. In ROP, 1999 a scheme known as Career Advance Scheme (for short 'CAS') was provided in Rule 10 for scale advancement by way of promotion or by time bound movement as per table in Annexure-A. Proviso (ix) to Rule 10 indicated that for the posts, which did not appear in Part 'B' and 'C’ of the Tripura State Civil Services (Revision Pay) Rules, 1988 (for short 'ROP, 1988) or for which graded scales were not prescribed, the holders of such posts on completion of prescribed number of years as on 01.01.1999 would move to the next higher scale and the pay would be fixed as per FR.22 (a)(i). As the first petitioner completed 37 years of service in the post of Overseer, which was subsequently upgraded as Assistant Engineer on 01.01.1999, without any promotion, he came to be entitled to the next higher scale of Rs. 10,650-15,850/- on 01.01.1999 as per table in Annexure 'A' to the said ROP, 1999. 4. The claim was resisted by the State respondents contending in their counter-affidavit that the first petitioner was redesignated as Assistant Engineer in recognition of his service for a period of more than 22 years and such re-designation in essence amounted to a promotion. The next promotion from the post of Assistant Engineer is to the post of Executive Engineer and the pay scale of the Executive Engineer (Rs. 10,650-15,850/-) in Grade-III of the service cannot be obtained by CAS. The only way to move to the said pay scale is by promotion in accordance with the service rules. 5. The claim of automatic movement to the pay scale of Rs. 10,650-15,850/-, which is the pay scale of Grade-Ill of the service (Executive Engineer) has been flagged by the petitioners on the basis of two provisions contained in the ROP, 1999. The first provision relied on appears in proviso (ii) of Rule 10, which reads: (ii) If the post has been ungraded or modified after entry in the service, it will not be treated as scale advancement. The first provision relied on appears in proviso (ii) of Rule 10, which reads: (ii) If the post has been ungraded or modified after entry in the service, it will not be treated as scale advancement. The service period in the pre-revised scale will be counted taking into account service both in modified/upgraded scale and corresponding earlier scale. The second provision is in proviso (ix) of the said Rule, which reads: (ix) For the posts which did not appear in part 'B' or 'C’ of the TSCS (Revised Pay) Rules 1988 or for which graded scales were not prescribed and if the holders have completed prescribed no. of years or more of service as on 01.01.1999 for career advancement at that stage, the pay will be fixed in the next higher scale as per table in Annexure 'A' on 01.01.1999 with pay Fixation Under FR 22(a)(i) provided he had not received prescribed no. of advancement by promotions earlier. This will be applicable for direct recruits in Cadre Services also, who did not have time bound promotion under existing Cadre Service Rules. It was contended by the petitioners that according to proviso (ii) re-designation of the post of Overseer as Assistant Engineer would not be treated as a promotion and, therefore, on completion of 10 years of services as provided in Rule 10(a), the first petitioner and similarly situated others were entitled to the next higher pay scale of Rs. 10,650-15,850/- on 01.01.1999 in terms of proviso (ix) of Rule 10 of the said rules. 6. It was argued on behalf of the respondents before the learned Single Judge that the employees of Cadre services are entitled to career advancement as prescribed in Annexure 'B' of the said Rules, not as per provision of Rule 10. The first petitioner or other similarly situated persons being members of the Cadre service are not entitled to the benefit of CAS in terms of Rule 10 of the said Rules. The other argument placed before the learned Single Judge was that even under Rule 10 of the said Rules no movement to the pay scale of Rs. 10,650-15,850/- was contemplated, more so when the first petitioner by way of re-designation was given the benefit of promotion. 7. The other argument placed before the learned Single Judge was that even under Rule 10 of the said Rules no movement to the pay scale of Rs. 10,650-15,850/- was contemplated, more so when the first petitioner by way of re-designation was given the benefit of promotion. 7. The learned Single Judge disapproved the arguments placed by the respondents after noticing that even in Rule 10 of the said Rules example regarding movement of junior Grade Stenographer with 15 years of service as on 01.01.1999 has been shown under proviso (ix) indicating thereby that the Cadre services were not outside the purview of the CAS contemplated by Rule 10. Accepting the argument of the petitioners that re-designation of a post did not amount to promotion by virtue of proviso (ii) of Rule 10 and the provision of CAS under Rule 10 would also apply for direct recruits in Cadre Services, who did not have time bound promotion under the existing Cadre service Rules, learned Single Judge came to decide that the first petitioner, who retired on 31.09.1999 as Assistant Engineer without a promotion was entitled to the pay scale of Rs. 10,650-15,850/- on 01.01.1999 with fixation benefit under FR 22(a)(i). 8. Mr. Deb, learned senior counsel for the State appellants herein has strenuously argued that the first petitioner being redesignated as Assistant Engineer on completion of 22 years of service received the benefit of promotion in the revised pay scale of Rs. 10,000-15,100/- and therefore, a further movement to the next higher pay scale was not in contemplation of Rule 10 of the said Rule. His other argument is that for the Cadre Services of the pay scales starting from Rs. 10,000-15,100/- there is no provision for scale advancement except by way of promotion. 9. Mr. Bhowmik, learned senior counsel for the writ petitioners, respondents herein, on the other hand, argued that a Division Bench of this Court in Writ Appeal No. 98 of 2000 (The State of Tripura v. Asis Dutta) decided on 24.05.2006, a photocopy of which has been made available for our perusal, clearly held that re-designation or upgradation of a post would not amount to promotion for the purpose of higher initial pay of Rs. 3,000/-. 3,000/-. We have carefully gone through the judgment and we notice that in a different context a question was raised whether the petitioners therein by virtue of their re-designation as Assistant Engineer by notification dated 14.06.1989 would be entitled to the higher initial pay of Rs. 3000/- in the pay scale of Rs. 2100-5000/- as such higher initial pay was contemplated only for the promotees. The question that has fallen for consideration in the present case is whether the petitioners, who were re-designated as Assistant Engineers are entitled to the pay scale of Grade-III of the said Cadre Service by application of the CAS provided in Rule 10 of the said Rules if their re-designation is not treated as promotion. 10. The scheme, known as "Career Advance Scheme" appearing in Rule 10 of the said Rules is required to be understood first before proceeding to decide whether the petitioners are entitled to the benefit of the said scheme. A careful reading of the entire scheme would show that scale advancement was contemplated by way of promotion, failing which by time bound movement w.e.f. 01.01.1996 to a higher scale as per table in Annexure 'A' in the said table 21 nos. of revised pay scale starting from Rs. 2600-3545/- (Scale 1) to Rs. 18,400-22,400/- (21st Scale) have been indicated against the existing 19 nos. of pre-revised pay scales. Clause (a) of Rule 10 provides that the employees entering by direct recruitment in scale No. 1 (Rs. 2600-3545/-) will have three scale advancement at the end of 10, 7 and 7 years of continuous and satisfactory service in the scale 1, 2 and 3 to the scale 2, 3 and 4 respectively unless they get promotion to a post of higher scale before the period at each stage. The next category of employees entering into service by direct recruitment in revised scales No. 5 to 11 would be entitled to only two scale advancement after 10 and 7 years of service if no advancement by way of promotion during such period takes place. For the employees entering into service by direct recruitment in the scale above Rs. 5500/- will have only one scale advancement on completion of 10 years of continuous and satisfactory service without a promotion. For the employees of Cadre Services, Clause (d) of Rule 10 states that the scale advancement would be as per Annexure 'B' w.e.f. 01.01.1999. For the employees entering into service by direct recruitment in the scale above Rs. 5500/- will have only one scale advancement on completion of 10 years of continuous and satisfactory service without a promotion. For the employees of Cadre Services, Clause (d) of Rule 10 states that the scale advancement would be as per Annexure 'B' w.e.f. 01.01.1999. In Annexure 'B' appears the Tripura Engineering service and Tripura Power Engineering Service, which provides that an engineer entering in Grade-v (B) in the pay scale of Rs. 5000-10,300/- would move to V (A) in the pay scale of Rs. 7450-13,000/- on completion of 8 years of service. For the Degree holders directly entering into V(A) in the pay scale of Rs. 7450-13,000/-, the movement will be to Rs. 10,000-15,100/-on completion of 8 years of service. No CAS has been specifically provided for the Diploma Engineers after their movement to V (A) on completion of 8 years of service. A perusal of other category of services like Tripura Veterinary Service. Tripura Dairy Service, Tripura Forest Service, Tripura Health Service, Tripura Dental Service, Tripura Judicial Service, Tripura Civil Service, Tripura Police Service, Tripura Govt. Stenographers and Tripura Court Stenographers Service, Tripura Agricultural Service etc., no provision exists for movement from the scale of Rs. 10,000-15,100/- to any other higher pay scale by way of CAS. Uniform provision appearing for all the Cadre Services is that every movement from the pay scale of Rs. 10,000-15,100/- to any higher pay scale is by way of promotion. That uniformity has also been maintained in the case of the Tripura Engineering Service. If these provisions are examined in the light of the provision contained in Rule 10 of the said Rules, it would be evident that the intention of the CAS was that its journey would start from Scale 1 (Rs. 2600-3545/-) and end at Scale 15 (Rs. 10,000-15,100/-). Within these fifteen pay scales the movement also is not uniform. For the employees in lowest scale there shall be three movements, for the middle stages there shall be two movements and for the pay scales from Scale No. 12 there shall be one movement by way of CAS. In no case there shall be any movement by way of CAS to any pay scale above Rs. 10,000-15,100/. 11. For the employees in lowest scale there shall be three movements, for the middle stages there shall be two movements and for the pay scales from Scale No. 12 there shall be one movement by way of CAS. In no case there shall be any movement by way of CAS to any pay scale above Rs. 10,000-15,100/. 11. It is true that in proviso (ii) of Rule 10 it has been provided that re-designation shall not be treated as promotion. Accepting that the petitioner No. 1's re-designation as Assistant Engineer cannot be treated as a promotion the fact will remain that he was not directly recruited to the grade of Assistant Engineer and after such re-designation, he came to enjoy the revised pay scale of Rs. 10,000-15,100/- from which there can be no further movement by way of CAS. Proviso (ix) of Rule 10 no doubt indicates that the scale advancement would also be applicable for direct recruits in Cadre Services (petitioner 1 was not directly recruited as Assistant Engineer), who did not have time bound promotion, but this provision cannot be read in isolation. It has to be read in accordance with Clause (d) of Rule 10 which clearly states that employees of Cadre services will have scale advancement in terms of Annexure 'B'. As noticed above, Annexure 'B' does not provide scale advancement from pay scale of Rs. 10,000- 15,100/-. If any view is taken, as has been taken by the learned Single Judge, in our view erroneously, that the petitioners are entitled to move to the higher pay scale of Rs. 10,650-15,850/-by way of CAS, the entire scheme would stand modified and all the other Cadre Services would lodge similar claim upsetting the entire scheme. 12. For the reasons aforesaid, this writ appeal has merit and consequently, the same is allowed setting aside and quashing the judgment of the learned Single Judge impugned herein. No. cost. Appeal allowed.