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2012 DIGILAW 959 (GAU)

Dipak Chowdhury v. State of Tripura

2012-08-09

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. The petitioners, were all members of Tripura Government Stenographers' Service working in the Grade of Personal Assistant-I (for short, P.A.-I) a Group-B non-gazetted ministerial post, appointed as per the provisions of Tripura Government Stenographers' Service Rules, 1977. The Tripura State Civil Services (Revised Pay) Rules, 1999 (for short, ROP Rules, 1999), vide its 7th amendment Rules, 2001 notified on 19th May, 2001 (Annexure 2 to the Writ Petition) prescribed certain benefits, in the form of Career Advancement Scheme (for short, CAS), for the employees, who completed 17 years of continuous service in a Grade without promotion to the next higher Grade. The relevant rule prescribes thus:- (3) An employee of any cadre service appointed to a grade of Group-B or A posts shall move to the next higher grade on completion of seventeen years' continuous and satisfactory service in the existing grade, if in the mean time he does not get any promotion. (4) The benefit of movement to a higher grade shall be personal to the employee concerned and shall not involve any increase in the cadre strength. Where the cadre rule so requires or as per the rules it is not possible to accommodate the employee within the cadre strength of the higher grade, the movement shall not entail change or nature of duties: 2. Vide a notification dated 30.10.2004 (Annexure 4 to the writ petition), the petitioners were allowed the benefit under CAS pursuant to notification dated 19.05.2001. The contents of said notification read thus:- In pursuance of the Finance Department, Government of Tripura Notification No. F. 6(1)-FIN(PC)/98 dated 19th May, 2001 the Governor is pleased to allow the benefit under the Career Advancement Scheme in respect of the following P.As.-I (Personal Assistants) of the Tripura Government Stenographers' Service on completion of their 17 (seventeen) years' continuous and satisfactory service in the existing grade without any promotion to next higher grade: 1. ... ... .... ... ... .... 44... ... ... 2. Such benefit under the Career Advancement Scheme in respect of the above members of the Stenographers' Service will be effective from 05.08.2004 i.e. from the date on which they have completed 17 years' continuous service in the existing grade. 3. ... ... .... ... ... .... 44... ... ... 2. Such benefit under the Career Advancement Scheme in respect of the above members of the Stenographers' Service will be effective from 05.08.2004 i.e. from the date on which they have completed 17 years' continuous service in the existing grade. 3. The concerned Personal Assistants-I henceforth on allowing such benefit towards movement to next higher grade, shall be designated as the Private Secretary-IV but such movement shall not be treated as promotion to next higher grade. However, the benefit of movement to higher grade shall be personal to the employee concerned. 4. The pay of the concerned Personal Assistants-I, on allowing such benefit of Career Advancement Scheme, shall be guided under F.R. 22(1)(a)(2). By order of the Governor, (R.P. Dutta) Under Secretary to the Government of Tripura. 3. Vide another notification dated 28.12.2004 (Annexure 5 to the writ petition), the petitioners were allowed the Group 'B' gazetted status as attached to Private Secretary-IV (for short, PS-IV) Grade. 4. The authority, vide notification dated 17.09.2007 (Annexure-6 to the writ petition), notified the promotion of the petitioners along with others regularly to the post of PS-IV. The said notification reads thus:- In pursuance of Rule 10(2)(b) of the Tripura Government Stenographers' Service Rues, 1977, the Governor, in consultation with the Tripura Public Service Commission, is pleased to appoint the following Personal Assistants(P.A.-I) of the Tripura Government Stenographers' Service to the post of Assistant Private Secretary (P.S.-IV), on promotion, on regular basis in the scale of pay of Rs. 7,450 - 13,000/- plus other allowances as admissible from time to time allowing prospective effect: 1. ... ... ... ... ... ... 58... ... ... 2. On promotion, the officers will continue in the offices where they are posted now until further orders. Pay etc. of the concerned officers will be fixed as per rules. 5. The petitioners contended that their seniority should be counted from the date of their movement to P.S.-IV Grade by virtue of notification dated 30.10.2004. ... ... 58... ... ... 2. On promotion, the officers will continue in the offices where they are posted now until further orders. Pay etc. of the concerned officers will be fixed as per rules. 5. The petitioners contended that their seniority should be counted from the date of their movement to P.S.-IV Grade by virtue of notification dated 30.10.2004. But by issuing notification dated 17.09.2007, the seniority position of the petitioners in the Grade of the service was disturbed and therefore, they made a representation to the appropriate authority vide Annexure 7 to the writ petition and in response thereto the appropriate authority vide order dated 18.05.2009 (Annexure 8 to the writ petition) informed the petitioners that the benefit of CAS shall not affect the seniority position of the members of Stenographers' Service, the contents of the order dated 18.05.2009 reads thus:- Consequent upon allowing the benefit under the Career Advancement Scheme in respect of the Personal Assistant (PA-I) of the Tripura Govt. Stenographers' Service on completion of their 17 years of continuous service in the existing grade without any promotion to next higher grade vide Notification of even number dated 30.10.2004, a good number of representations have been received from the members of Stenographers' service claiming the status on allowing of CAS benefit on completion of 17 years continuous service vis-a-vis seniority position. 2. The matter has been examined by the Govt. after careful consideration of the matter, and in consultation with the Finance (G) Department vide U.O. No. 8/Fin/PC/09 dated 13.04.2009, it has been decided that the benefit of CAS shall not affect to the seniority position of the members of Stenographers' service who have been allowed CAS vide Notification of even number dated 30.10.2004. 6. By this writ petition, the petitioners challenged the impugned order dated 18.05.2009 and sought for declaring the same as illegal, unfair and contrary to the rules and also prayed for quashing the same directing the respondent to determine seniority of the petitioners in PS-IV Grade from the date of their movement to the Grade by virtue of notification dated 30.10.2004. 7. Respondent contended that seniority and promotion are the matters to be regulated as per the service rules. The ROP Rules simply determine the financial and other benefits available to the employees in a particular service. 7. Respondent contended that seniority and promotion are the matters to be regulated as per the service rules. The ROP Rules simply determine the financial and other benefits available to the employees in a particular service. CAS is a beneficial scheme provided to the employees who were stagnant in a particular Grade without promotion for a continuous satisfactory service of 17 years and more. Grant of CAS benefit to an employee of a particular Grade or service does not confer any right to determine seniority from the date of such movement. The case of the petitioners is misconceived and therefore, liable to be dismissed. 8. Heard learned counsel, Mr. D. K. Biswas for the petitioners and learned Additional G.A., Mr. S. Chakraborty for the respondent. It is contended by learned counsel, Mr. Biswas that prior to 2001 CAS only contemplated Scale Advancement for different classes of employees after a prescribed period of service, when promotion could not be afforded and the scheme only stipulated financial benefits for the employees suffering stagnation and deprived of the promotion. After, 2001 the scheme has been substantially modified with the amendment Rule of 2001 (Annexure 2 to the writ petition) and thereby Scale Advancement as well as Grade Advancement have also been allowed and as a result, the petitioners in view of their movement from P.A.-I to P.S.-IV Grade, shall be entitled to their seniority also from the date of such movement. In support of his contention, learned counsel relied on the decision of the Apex Court in the case of O.P. Singla & Anr. Vs. Union of India & Ors. reported in (1984) 4 SCC 450 and the case of Union of India Vs. Dharam Pal & Ors. reported in (2009) 4 SCC 170 . Learned counsel also relied on a decision of this Court in the case of Dr. Pratap Sanyal Vs. State of Tripura & Ors. in WP (C) 150 of 2002. 9. Learned additional G.A., on the contrary, has submitted that notification dated 30.10.2004 clearly stipulates that it was only a movement from grade to grade to secure financial benefits and without any promotion to the next higher Grade and that, such movement shall not be treated as promotion to the higher Grade and that the benefit of movement to higher Grade shall be personal to the employee concerned. Since it was only a Scale Advancement available to the next Grade, the petitioners cannot automatically claim seniority from the date of their movement to the higher Grade of the service. After the ROP Rules, 1999 as amended in 2001, came into effect, and the benefit of CAS provided to the petitioners, in the meantime, there were several promotions in different Grade of the service according to the Service Rules, and so, fixation of seniority of the petitioners because of their movement to the next Grade under CAS will make the provisions of the Service Rules otiose and such a decision will have an adverse effect on other services also. 10. Part-XIV, Chapter-I of the Constitution of India deals with the provisions of Services under the Union and the States. Article, 309 authorises the appropriate legislature to make law regulating the recruitment and conditions of services of persons appointed, to the Public Services and Posts in connection with the affairs of the Union or of any State. Proviso to Article 309 authorises the President/the Governor to make rules regulating such recruitment and other conditions of services of persons appointed to such services and posts under the Union/State. 11. Admittedly, the petitioners are members of Tripura Government Stenographers' Service and their services are regulated by the Tripura Govt. Stenographers' Service Rules, 1977. 12. Indisputably, services of the petitioners are Cadre services. They were serving in the Grade of P.A.-I and were members of the Cadre. In service Jurisprudence, the term "cadre" has a definite legal connotation. In the legal sense, the word "cadre" is not synonymous with service. A cadre would ordinarily mean the strength of a service in an establishment sanctioned as a separate unit constituting the posts therein. 13. 'Service' as defined in Rule 2(t) of the Rules of 1977, means the Tripura Government Stenographers' Service. 14. The word "Grade" as defined in Rule 2(m) of the Rules means any of the Grade specified in Rule 3. By 8th amendment Rule 2001 of the Rules of 1977, the service classified in 6 (six) Grades. The Grade of PS-IV is the next higher Grade of P.A.I. The dictionary meaning of the word 'Grade' is rank, a position in scale, a class or position in a class according to the value. 15. By 8th amendment Rule 2001 of the Rules of 1977, the service classified in 6 (six) Grades. The Grade of PS-IV is the next higher Grade of P.A.I. The dictionary meaning of the word 'Grade' is rank, a position in scale, a class or position in a class according to the value. 15. The word "permanent officer" defined in Rule 2(p) of the Rules, 1977 reads thus :- "Permanent officer" in relation to a Grade means a person who has been substantively appointed to a substantive vacancy in that Grade. 16. The word "temporary officer" defined in Rule 2(v) of the Rules, 1977 reads thus :- "temporary officer" in relation to any Grade means a person holding a temporary or officiating appointment in that Grade on the basis of his being regularly approved for such appointment. 17. The word "Substantive appointment" has been defined in Rule 2(u) of the Rules, 1977 reads thus :- "Substantive appointment" means appointment made against a permanent post and confirmed in that post. 18. Rule 9 of the Rules, 1977, prescribes that all substantive appointments of the service shall be made to the appropriate Grade in the service and not against any specified duty post in that Grade. 19. The word "appointment" means the designation of a person to discharge the duties of an office or trust by the person or persons having authority there for, and the exercise of the right to designate such person. According to Corpus Juris, Volume IV, 1916 Edition, page 1402, the word 'appoint' inter alia means designate or to nominate. 20. ROP Rules are rules made in exercise of the powers conferred by proviso to Article 309 of the Constitution but admittedly, the Rules only deals with determination and fixation of pay and other service related benefits. The ROP Rules in no way regulates the other service conditions such as seniority, promotion, conduct, etc. Under the amendment rules of 2001 of the ROP Rules, 99, vide notification dated 19.05.2001, the State Government, generally allowed certain benefits to the employees of Group B and A posts in different cadre services of their movement to the next higher Grade on completion of 17 years of continuous and satisfactory service in the existing Grade. It is clearly stipulated therein, that it does not relate to promotion to next higher Grade. It is clearly stipulated therein, that it does not relate to promotion to next higher Grade. A person will be entitled to claim seniority in the next higher Grade only from the date of his appointment to the Grade on promotion. Mere movement to next higher Grade affording benefit of pay scale etc. does not necessarily carry the other service benefits such of seniority, promotion etc., unless a person is moved to the higher Grade with an appointment, either substantially or temporarily, according to the service Rules. Seniority will be reckoned only from the date of substantive appointment to the post in a particular Grade of the service. There was no appointment of the petitioners to the post of PS-IV. They were just given all the benefits of the Grade as per the ROP Rules. There was no order made under the Service Rules appointing them to the post of PS-IV and therefore, they cannot automatically claim the seniority in the Grade of PS-IV, unless and until, they were appointed as per the provisions prescribed under the Service Rules. 21. In the case of Dr. Pratap Sanyal (supra), the issue involved was in respect of seniority between the petitioner and respondent No. 4. Admittedly, the petitioner was much senior in service and he was moved to the next higher Grade after 17 years of continuous service in the existing Grade without promotion. The respondent No. 4 was given an ad-hoc promotion on the same date with the petitioner. Subsequently, the respondent was given higher responsibility denying the petitioner who was admittedly senior in the service and that issue was challenged before this Court and this Court was pleased to hold that ad-hoc promotion is no promotion at all and a person moved to the superior Grade who was admittedly senior, cannot be denied the superior post in the service. The ratio of that case, therefore, cannot be applied in the fact of the present case. 22. In the case of O.P. Singla (supra), the issue of seniority was in question between direct recruits and promotees. Apex Court considered the seniority of the persons in the service who were appointed to substantive post, permanent or temporary, in a substantive capacity. In the present case, the petitioners were simply given the benefit of CAS in view of their stagnation in a particular Grade without promotion for more than 17 years. Apex Court considered the seniority of the persons in the service who were appointed to substantive post, permanent or temporary, in a substantive capacity. In the present case, the petitioners were simply given the benefit of CAS in view of their stagnation in a particular Grade without promotion for more than 17 years. They were never appointed to the superior Grade either temporarily or permanently to a substantive post of the PS-IV. The ratio of O.P. Singla, therefore, cannot be applied in the facts of this case. 23. The ratio laid down in Dharampal (supra) also has no bearing in the issue involved in this case. 24. In the case at hand, by virtue of ROP Rules, 99 (as amended in the year 2001), the benefit of CAS was afforded to the petitioners giving them the pay scale and other benefits of the next higher Grade. It does not mean that they were appointed in the next higher Grade either permanently or temporarily, pursuant to the service rules and therefore, their seniority cannot be isolatedly predetermined without taking into consideration the total strength of service and the other appointments made to the service time to time. In other way, it may be said that the claim of the petitioners to determine their seniority w.e.f. the date of their movement to the higher Grade under CAS, is premature. Further, the petitioners did not challenge notification dated 30.10.2004 (Annexure-4), under which they were enjoying the benefits of CAS and also claiming seniority, wherein it is also specified in Para 3 that such movement to P.S. IV shall not be treated as promotion to the next higher grade. While enjoying benefits under the said notification, the petitioners were also bound by other terms of the same. They cannot claim acceptance of beneficial part of the notification and rejection of the rest. 25. The writ petition, therefore, is found without any merit and hence, stands dismissed. Parties to bear their own cost. Petition dismissed.