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2009 DIGILAW 151 (GAU)

Shyamal Kanti Deb v. State of Tripura

2009-02-27

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. This writ petition is directed against the order issued by the Government of Tripura in the Industries and Commerce Department denying the particular revised pay scale to the Petitioner for which, he had earlier filed another writ petition, which was disposed of providing fresh consideration of the matter consistently with the observations made in the judgment. The prayer made in the writ petition is for a direction to the Respondents to grant the particular pay scale. 2. The Petitioner is an employee of the Respondent corporation and at the time of filing of the earlier writ petition being W.P.(C) No. 166/2000, he was working as Assistant Manager under the corporation, which is a Government of Tripura undertaking. He was appointed as such on regular basis with effect from 1.9.1991 in the pay scale of Rs. 2100- 3000/- (SL 5000/-). As per the provisions of Tripura State Civil Service (Revised Pay) Rules, 1999 which came into force with effect from 1.1.1996, the pay scale of Rs. 2100-5000/- had been revised to Rs. 7800-15,100/- and the senior scale thereof, which was Rs. 3000-5000/- had been revised to 10,000-15,100/-. The particular note in the ROP Rules on which the Petitioner has put emphasis reads as follows: Note 2 - The employees having existing senior level scale (SL) 3500/- of Scale No. 13(d) i.e. 2100-3000/- (SL - 5000) will have revised scale No. 15 i.e. 10,000-15,100/-. 3. In the ROP Rules of 1988, the revised scale of Rs. 2100-5000/- had been provided under item No. 13(b) and the scale of Rs. 3000-5000/- had been provided under item No. 13(a) of Schedule 1 of Part-A. Under Note No. 1 of the ROP Rules of 1988, it was provided that the revised scale of Rs. 3000-5000/- as at serial No. 13(a) would be admissible to a Government servant who had completed four years of service in the posts/service in relation to which the scale was specified. 4. The Petitioner was provided with the revised scale of Rs. 3000-5000, which is the senior stage level of the pay scale of Rs. 2100-5000/-. Same was admissible on completion of four years of service and was made effective from 1.9.1995. It is the case of the Petitioner that he is entitled to receive the corresponding revised pay scale of Rs. 10,000-15,100/- as per ROP Rules of 1999. 3000-5000, which is the senior stage level of the pay scale of Rs. 2100-5000/-. Same was admissible on completion of four years of service and was made effective from 1.9.1995. It is the case of the Petitioner that he is entitled to receive the corresponding revised pay scale of Rs. 10,000-15,100/- as per ROP Rules of 1999. In the earlier writ petition, it was the specific case of the Petitioner that the revised pay scale of Rs. 10,000-15,100/- has been provided to all similarly situated State Government employees including the Assistant Engineers working in the same Corporation. The Petitioner exercised his option to come over to the revised scale of Rs. 10,000-15,100/-. However, the Managing Director of the Corporation asked the Petitioner to re-submit the option opting for the scale of Rs. 7,800-15,100/- in the pre-revised scale of Rs. 2100-5000/-. Same having been objected to by the Petitioner, the Managing Director by his letter dated 21/23.8.1999 intimated the Petitioner that upon a reference to the Finance Department, it has been clarified as follows: The scale of Rs. 2100-3000/-(SL - 5000/-) has been suggested to be revised to Rs. 7800-15,100/- and no provision of SL (Senior Level) has been kept in the suggestion. Hence those were enjoying the SL in the scale of Rs. 2100-3000 (SL- 5000/-), except Assistant Engineer, may be fixed in the revised scale of Rs. 7800-15,100/- 5. By the said letter the Petitioner was once again requested to re-submit his option facilitating re-fixation of his pay in the revised scale of pay and to make payment of arrears. The proposal was objected to by the Petitioner, which, however, yielded no result. These are the revelations from the earlier round of litigation. 6. In the earlier round of litigation, the State of Tripura, in the Finance Department although was made party Respondent did not respond to the writ proceeding. However, the Respondent corporation in its counts affidavit, while agreeing the facts stated in the writ petition, contended that since the pay scale of Assistant Manager, Assistant Engineer and Assistant Manager (Finance) had been prescribed as 2100-5000/-, the Petitioner was rightly provided with the revised scale thereto, which was 7800-15,100/-. 7. The writ petition was disposed of by judgment and order dated 24.8.2007 directing the Respondents to deal with the matter dispassionately and arrive at a decision consistently with the observations made in the judgment. 7. The writ petition was disposed of by judgment and order dated 24.8.2007 directing the Respondents to deal with the matter dispassionately and arrive at a decision consistently with the observations made in the judgment. The decision was to be taken by a speaking order. Pursuant thereto, the Government of Tripura in the Department of Industries and Commerce under the signature of the Commissioner has issued the impugned order dated 17/27.10.2007 rejecting the claim of the Petitioner. Hence this writ petition. 8. I have heard Mr. A.M. Lodh, learned Sr. Counsel assisted by Mr. H.C. Chakraborty, learned Counsel for the Petitioner and so also Mr. S. Deb, learned Sr. Counsel, assisted by Mr. S. Choudhury, learned Counsel appearing for the Respondents. I have also gone through the materials on record and have given my anxious consideration to the same. 9. Since the matter was to be decided consistently with the observations made in the earlier judgment, it will be appropriate to refer to the said judgment and the particulars taken note of in the said judgment. It was noticed that the ROP Rules of 1988 provided the revised scale of Rs. 3000-5000/- for the promotees and Rs. 2100-5000/- for the direct recruits. It was also provided that on completion of four years of service in the post on 1.1.1986 and thereafter the direct recruits shall be allowed to revised scale of Rs. 3000- 5000/-. The Petitioner completed four years of service in 1995 and thus, was provided with the revised scale of Rs. 3000-5000/- with effect from 1.9.1995, which scale stood revised to Rs. 10,000-15,100/- as per ROP Rules of 1999. However, the three cadre officers of Assistant Manager, Assistant Engineer and Assistant Manager (Finance) had been shown in the scale of Rs. 2100-5000/- 10. Noticing the aforesaid factual aspects of the matter, it was observed in the earlier judgment that if the Petitioner was provided with the revised scale of Rs. 7800-15,100/- taking his pre-revised scale as Rs. 2100-5000/-, same would amount to downgradation of his pay scale. In paragraph 11 of the judgment, it was observed as follows: 11. If the Petitioner is provided with the revised scale of Rs. 7800-15,100/- taking his pre-revised scale as 2100-5000/-, same would amount to down gradation of his pay scale. When the ROP Rules of 1999 provides for the revised scale of Rs. 10,000-15,100/- for the pre-revised scale of Rs. In paragraph 11 of the judgment, it was observed as follows: 11. If the Petitioner is provided with the revised scale of Rs. 7800-15,100/- taking his pre-revised scale as 2100-5000/-, same would amount to down gradation of his pay scale. When the ROP Rules of 1999 provides for the revised scale of Rs. 10,000-15,100/- for the pre-revised scale of Rs. 3000-5000/-, without any indication in the rules itself that the officers, who came to the scale of Rs. 3000-5000/- on completion of 4 years of service would be entitled to the revised scale of Rs. 7800-15,100/- corresponding to their erstwhile pre-revised scale of Rs. 2100-5000/-, it is not discernible as to on what basis the Petitioner cold be provided the revised scale of Rs. 7800-15,100/- and not Rs. 10,000-15,100/-. 11. In the course of hearing of the earlier writ petition, as recorded in paragraph 12 of the judgment, Mr. Deb, learned Sr. Counsel appearing for the Respondent corporation submitted that the revised scale of Rs. 3000-5000/- was meant for the promotees only and consequently, the Petitioner, a direct recruit, although enjoyed the said pay scale on completion of four years of service, would be entitled to get his pay fixed taking into account the entry grade pay scale of Rs. 2100-5000/-. It was observed that the argument was not acceptable. It was also observed that same was also not the stand of the Respondents neither in their counter affidavit nor in the impugned letter dated 21/23.8.1999. It was further observed that the case will have to be decided as it stood on passing of the impugned order and not on the basis of developments made in oral arguments adopting interpretation, which never formed the basis to reject the claim of the Petitioner. 12. The particular view of the Finance Department conveyed to the Petitioner by the aforesaid letter dated 21/23.8.1999 has been quoted above. As per the said clarification the Finance Department suggested for revision of the scale of Rs. 2100-5000/- to that of Rs. 7800-15,100/-. It was also conveyed that no provision of senior level had been kept in the suggestion. As per the said letter, those who were enjoying the SL in the scale of Rs. 2100-3000/- (SL) 5000/-, except Assistant Engineer were entitled to the revised scale of Rs. 10,000-15,100/-. 2100-5000/- to that of Rs. 7800-15,100/-. It was also conveyed that no provision of senior level had been kept in the suggestion. As per the said letter, those who were enjoying the SL in the scale of Rs. 2100-3000/- (SL) 5000/-, except Assistant Engineer were entitled to the revised scale of Rs. 10,000-15,100/-. Noticing the stand of the Finance Department, in paragraph 14 of the judgment, it was observed as follows: 14. The aforesaid pleas in the impugned letter are fallacious. Firstly because, the Finance Department cannot modify the ROP Rules of 1999 accepted by the Government and/or give its own interpretation. When the ROP Rules itself provides for the revised scale of Rs. 10,000-15,100/- for those in the pre-revised scale of Rs. 3000-5000/- there cannot be any deviation from the same. Secondly, if the kind of interpretation given by the Finance Department is to be accepted, it is not discernible as to why an exception has been made in case of Assistant Engineer. Needless to say that there cannot be any classification within the same class. Learned State Counsel was requested to obtain instruction as to the basis of curving out the exception, but he could not furnish any explanation to the same. However, he has produced the photocopies of the note sheet in the file of the Finance Department, which also do not through any light. In any case, as has been observed above, the Finance Department by its own interpretation cannot deprive an incumbent, who is otherwise entitled to the benefits accrued to him as per the ROP Rules of 1999. 13. It is in the aforesaid backdrop, the matter was remitted to the Respondents No. 1 and 2 for fresh consideration consistently with the aforesaid observations made in the judgment. In the impugned order dated 17/27.10.2007 (Annexure-2), the stand is that the Government of Tripura had set up Tripura Pay Commission vide notification dated 5.11.1996 and in the terms of reference, the commission was entrusted to recommend revision of structures of emoluments of employees of State Government, Autonomous Body, Institutions, Corporations, Cooperative Banks, Boards etc. taking resource position of the State Government and concerned Institutions. Upon such study, the Commission had recommended revision of pay scales of Assistant Manager/Assistant Engineer of the concerned Autonomous bodies, Institutions etc. as follows: 14. taking resource position of the State Government and concerned Institutions. Upon such study, the Commission had recommended revision of pay scales of Assistant Manager/Assistant Engineer of the concerned Autonomous bodies, Institutions etc. as follows: 14. The impugned order further speaks of the 4th Tripura Pay Commission, which recommended revision of pre-revised scale of Rs. 2100-5000/- as Rs. 8000-13,500/- uniformly, for different cadre and non-cadre of services in the State Government, but on consideration of the report of the Pay Commission, the Government in its wisdom had decided to modify the recommended pay scale as Rs. 7800-15,100/- for the Autonomous Bodies, Institutions etc. Accordingly, this modified recommended revised scale was communicated from the Finance Department to the Autonomous Bodies, Institutions, etc. for consideration by the Board of Directors. Further stand in the impugned order is that the status of employees of Corporation etc. are not same with that of the employees of the State Government working in comparable positions/having identical designation. Thus, the claim of the Petitioner for providing identical benefit with that the Government employees is not justified. 15. It is with the aforesaid observations, the impugned order has been passed. However, in the counter affidavit, filed by the Respondent State Government, altogether a different stand has been taken and so also by the Respondent corporation in its counter affidavit. The State Respondents in their counter affidavit have admitted that the Petitioner was elevated in the scale of Rs. 3000-5000/- on completion of four years of service with effect from 1.9.1995. It has been contended that the said scale for the corporation employees was revised as per serial No. 13(b) of the ROP Rules and as per Rule 13(a) for State Government employees and that due to misconception, the Petitioner has claimed the revised scale as per serial No 13(a) of the 1999 ROP Rules. It has been stated that although the Petitioner is fitted in the senior scale of Rs. 3000-5000/-, but his substantive pay sale is Rs. 2100-3000/-, which was revised to Rs. 7800-15,100/-. 16. In the counter affidavit filed by the Respondent corporation it has been stated that the pay scale of Rs. 2100-5000/- was suggested to be revised to Rs. 7800-15,100/- and no provision of senior level scale has been kept in the suggestion, except Assistant Engineer. 3000-5000/-, but his substantive pay sale is Rs. 2100-3000/-, which was revised to Rs. 7800-15,100/-. 16. In the counter affidavit filed by the Respondent corporation it has been stated that the pay scale of Rs. 2100-5000/- was suggested to be revised to Rs. 7800-15,100/- and no provision of senior level scale has been kept in the suggestion, except Assistant Engineer. In paragraph 6 of the counter affidavit the corporation has repeated the same very contention of the State Respondents i.e. the pay the scale in SL13(b) in the existing scale of Rs. 2100-5000/- having been revised to 7800-15,100/-, the Petitioner would be entitled to the same and not the revised pay scale of Rs. 10000-15,100/- in the pre-revised scale of Rs. 3000-5000/- in SI. 13(a). In a nutshell, it is their contention that while revising the pay scale of the corporation, no senior level scale has been provided. 17. It has already been observed in the earlier judgment that if the Petitioner is placed in the revised pay scale of Rs. 7800-15,100/- corresponding to pre-revised scale of Rs. 2100-5000/-, although, the Petitioner was placed in the SL. scale of Rs. 3000-5000/-, same would amount to down-gradation of his pay scale. It was further observed that when the ROP Rules of 1999 provides for the revised scale of Rs. 10,000-15,100/- for the pre-revised scale of Rs. 3000-5000/-, without any indication in the rules itself that the officers, who enjoyed the scale of Rs. 3000- 5000/- on completion of four years of service would be entitled to the revised scale of Rs. 7800-15,100/- corresponding to the pre-revised sale of Rs. 2100-5000/-, it was not discernible as to on what basis the Petitioner could be provided the revised scale of Rs. 7800-15,100/- and not Rs. 10,000-15,100/-. 18. As noticed above, the developments sought to be made in the counter affidavit are not germane with the stand in the impugned order. The only stand in the impugned order is that since the status of the employees of the corporation is not akin to the employees of the State Government working in comparable position/identical designation, the Petitioner cannot claim identical benefit with that of the Government employee. The stand of the Respondents in the impugned order as well as in the counter affidavit is fallacious. Serial No. 13(b) of the ROP Rules of 1999 is in the revised scale of Rs. The stand of the Respondents in the impugned order as well as in the counter affidavit is fallacious. Serial No. 13(b) of the ROP Rules of 1999 is in the revised scale of Rs. 7800-15,100/- corresponding to pre-revised scale of Rs. 2100- 3000/- (SL) - 5000/-, while, Serial No. 13(a) prescribes revised scale of Rs. 10,000- 15,100/- in the pre-revised scale of Rs. 3000- 5000/-. Admittedly, the Petitioner was placed in the SL scale of Rs. 3000-5000/- on completion of four years of service. 19. Annexure-D to Annexure-R/2 letter dated 5.7.1999 addressed to the Managing Director of the Corporation by the Government of Tripura in the Finance Department provides as follows: 4. Drawal of pay in the revised scales: Save as otherwise provided herein, a employees shall draw pay in the revised scale applicable to the post to which he is appointed. Provided that if an employee enjoyed any graded/higher scale of pay under the provision of Part-C or Part-B of TSCS (revised pay) Rules, 1988 as extended to his organization, on the date of option or after the date of option upto the date of publication of the order of pay revision, which is same as the Pre-Revised scale corresponding to the Revised scale of the post effective from 01.01.96, the pay will be fixed on the date of option or after the date of option upto the date of publication of the order of Pay Revision, as the case may be, in the next higher scale as per the Revised scales shown in Annexure-A. However, if the next higher scale is higher than that of promotion post of the post he holds on the date of option or thereafter, as the case may be, the pay will be re-fixed in the Revised scale corresponding to his pre-revised scale on the date of option or thereafter, as the case maybe, as per the provision of FR 22(a)(i). Provided further that if an employee enjoyed a graded/higher scale of pay under the provision of Part-C or Part-B of TSCS (Revised Pay) Rules. 1988 as extended to his organization, then his pay will be fixed in the Revised Scale of pay corresponding to his Pre-revised Scale. Provided further that if an employee enjoyed a graded/higher scale of pay under the provision of Part-C or Part-B of TSCS (Revised Pay) Rules. 1988 as extended to his organization, then his pay will be fixed in the Revised Scale of pay corresponding to his Pre-revised Scale. Provided further that when an employee hold the charge of a post otherwise than by regular appointment/promotion to that post as on 01.01.1996 or on the date of coming over to the revised scale his pay shall be fixed in the revised scale if pay corresponding to the pre- revised scale of pay of his substantive post. (Emphasis added) 20. The aforesaid provision must be read with SL 13(a) of the ROP Rules of 1999. When so read, there is no escape from the conclusion that the Petitioner is entitled to the revised pay scale of Rs. 10,000-15,100/-. However, the Respondents have denied the same to the Petitioner with different pleas. The plea taken in the earlier round of litigation has been noted in the earlier judgment. The plea taken in the impugned order is different than that of the one taken in the counter affidavits. It is this context, the Apex Court in the case of Mahinder Singh Gill reported in AIR 1978 SC 851 , upon a reference to its earlier decision in Gordhandas Bhanji AIR 1952 SC 16 observed thus: The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it come to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji AIR 1952 SC 16 (atp. 18): Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. 18): Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself Orders are not like old wife becoming better as they grow older. 21. In the impugned order the only plea is that the pre-revised scale of Rs. 2100-5000/ - has been revised to Rs. 7800-15,100/- for the employees of the corporation etc. and that the status of employees of the corporation is not the same with that of the Government employees working in comparable positions/having identical designations. Nothing has been stated as to why the Petitioner shall not be entitled to the revised scale of Rs. 10,000- 15,100/- in the pre-revised scale of Rs. 3000- 5000/-, which the Petitioner enjoyed by virtue of his placement in the said senior scale on completion of four years of service. As already held in the earlier judgment which has since attained finality, if the Petitioner is fitted in the revised scale of Rs. 7800-15,100/- taking the pre-revised scale of Rs. 2100-5000/- instead of Rs. 3000-5000/-, same will amount to down-gradation of the pay scale, which the Respondents are not entitled to do so. 22. Enough indication was given in the earlier judgment to the entitlement of the Petitioner the revised pay scale of Rs. 10,000-15,100/- and the matter was remitted back with specific observations in that direction. However, the authority without addressing itself to the said observations and findings, passed the impugned order only to deprive the Petitioner his entitled revised scale as per ROP Rules of 1999. In the process, the Respondents also played in the joint the game of approbate and reprobate by taking different pleas at different times, which is unbecoming of a model employer. 23. For all the aforesaid reasons, the writ petition is allowed, setting aside and quashing the impugned order dated 17/27.10.2007 (Annexure-2) with further direction to get the pay of the Petitioner fixed in the revised pay scale of Rs. 10,000-15,100/- with effect from 1.1.1996. 23. For all the aforesaid reasons, the writ petition is allowed, setting aside and quashing the impugned order dated 17/27.10.2007 (Annexure-2) with further direction to get the pay of the Petitioner fixed in the revised pay scale of Rs. 10,000-15,100/- with effect from 1.1.1996. Necessary exercise in this regard shall be carried out as expeditiously as possible, but at any rate not latter than 30.4.2009. 24. Writ petition is allowed. Without, however, any order as to costs. Petition allowed