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2014 DIGILAW 112 (TRI)

Ajit Chakraborty v. State of Tripura

2014-02-26

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- Engineer-in-Chief of the Public Works Department, Govt. of Tripura issued an advertisement on 16.04.1997 (Annexure P/1 to the writ petition) inviting thereunder applications for recruitment of 266 Nos. of Junior Engineers under specific terms and conditions (Civil, Electrical and Mechanical) on temporary fixed pay basis for a period of 6 months @ Rs. 2500/- per month for degree holder Engineers and @ Rs. 1750/- per month for Diploma holder Engineers. All the petitioners being degree holder Engineers, pursuant to the advertisement made applications for appointment to the post of Junior Engineer and they were in due course selected and were appointed on fixed pay basis initially for a period of 6(six) months and thereafter it was extended time to time. By Memo. dated 30.04.2002 (Annexure P/3 to the writ petition) Finance Department of the Govt. of Tripura after creation of posts, allowed regular pay scale to both degree holder and diploma holder Junior Engineers appointed on temporary basis, including the petitioners w.e.f. 01.05.2002. Subsequently by an Office Order dated 16.05.2002 (Annexure P/4 to the writ petition) the Engineering officer of the Office of Engineer-in-Chief (PWD) held that the fixed pay Junior Engineers on sanction of regular pay scale w.e.f. 01.05.2002 shall be treated as Ex-cadre Junior Engineers. By notification dated 28.07.20027 (Annexure P/5 to the writ petition) 151 Ex-cadre Junior Engineers including the petitioners were encadred w.e.f. 30.12.2003 under certain terms and conditions and they were en-block made junior to the Junior Engineers already holding cadre post in the service and it was also held that past services of those Junior Engineers would be counted only for their finalisation of pension. By Memo. dated 21.11.2009 (Annexure P/6 to the writ petition) it was clearly specified that the past services of the petitioners will be counted for pension etc. and it was reiterated that the Junior Engineers appointed in the year 1990 will be entitled to CAS-I notionally on completion of 8 years of service. By Memo. dated 21.11.2009 (Annexure P/6 to the writ petition) it was clearly specified that the past services of the petitioners will be counted for pension etc. and it was reiterated that the Junior Engineers appointed in the year 1990 will be entitled to CAS-I notionally on completion of 8 years of service. The petitioners issued a demand notice (Annexure P/9 to the writ petition) to the respondents contending that they were entitled to get benefit of CAS-I (Career Advancement Scheme) as per the recruitment rules and in response thereof the respondents by their communication dated 23.03.2013 (Annexure P/10 to the writ petition) informed the petitioners that in view of the Tripura State Civil Services (Revised Pay) Rules 2009 which was given effect from 01.01.2006, the petitioners were entitled to Assured Career Progression (ACP) Scheme and that they were not entitled to CAS as contemplated in the service rules. The petitioners claimed that they should be given regular pay scale w.e.f. their date of appointment and therefore, prayed for interfering with the part of Annexure P/3 to the writ petition. They have also claimed that they were entitled to be en-cadred from the date they were given regular pay scale w.e.f. 01.05.2002. They have further claimed that they should be given the benefit of CAS-I for their continuous qualifying service of 8 years as a regular Junior Engineer. 2. Respondents by filing a counter affidavit, inter alia, contended that the claim of the petitioners, of regular pay scale w.e.f. the date of joining till 30.04.2002 and their encadrement w.e.f. the date of payment of the regular pay scale cannot sustain since those claims were made at a belated stage and further the petitioners were appointed on a purely temporary basis under certain specific terms and conditions and therefore, they were not entitled to get any such benefit as prayed for. Regarding the claim of CAS, respondents in Para 7 of the counter affidavit contended that the petitioners would have been eligible to get CAS-I after completion of 8 years of service under regular pay scale but they are not entitled to CAS-I because of enforcement of ROP Rules, 2009 w.e.f. 01.01.2006. CAS has been modified to ACP and ACP is now available after rendering 10 years of service in regular pay scale. CAS has been modified to ACP and ACP is now available after rendering 10 years of service in regular pay scale. The petitioners were given regular pay scale w.e.f. on 01.05.2002 and so they were entitled to ACP-I after 10 years of service i.e. 01.05.2012. 3. Heard learned counsel Somik Deb for the petitioners and learned Advocate General, assisted by learned counsel, Mr. J. Majumder for the respondents. 4. Mr. Deb, learned counsel appearing for the petitioners has submitted that the petitioners joined the service on fixed pay basis in the year 1997 but regular pay scale was given w.e.f. 01.05.2002 and no benefit given for their past services rendered from the year 1997. It is also submitted by Mr. Deb that the petitioners were entitled to be en-cadred at least w.e.f. the date the posts were created and regular pay scale was given to them but they have been deprived of that service benefit. Finally it is contended by learned counsel, Mr. Deb that as per rule 30 of the Tripura Engineering Service Rules, 1987 the petitioners were entitled to get CAS-I on their completion of 8 years of un-interrupted service in regular pay scale but taking the plea of ACP as contemplated in the revision of pay Rules, they have been deprived of that benefit. Since service rule was not amended after the ROP rules came into force with retrospective effect, the petitioners are bound to be guided by the service rules and entitled to CAS-I. 5. Learned Advocate General appearing for the State-respondents has submitted that the claim of regular pay scale w.e.f. the date of their entry into job and their encadrement w.e.f. the date of giving regular pay scale is barred by the principles of delay and latches and cannot be considered. It is also submitted by learned Advocate General that there is no plea in the writ petition regarding exclusion of Rule 2(1) of ROP Rules, 2009 and no option was exercised by the petitioners in respect of their claim of CAS-I as contemplated in rule 6 of the ROP rules, 2009. Since ROP rules, 2009 came into force before their completion of 8 years of service they are bound to be guided by the ROP rules and as per rules they are entitled to ACP and not CAS. 6. Indisputably, the petitioners are all degree holder Engineers. Since ROP rules, 2009 came into force before their completion of 8 years of service they are bound to be guided by the ROP rules and as per rules they are entitled to ACP and not CAS. 6. Indisputably, the petitioners are all degree holder Engineers. They applied for the job to the post of Junior Engineer pursuant to the advertisement, dated 16.04.1997 (Annexure P/1 to the writ petition). The advertisement itself contains certain specific terms and conditions. The relevant terms and conditions are as follows:- The terms & conditions of appointment are as follows:- i). The appointment is purely on temporary fixed pay basis for 6(six) months only and will not confer any title on the part of the appointee to regular appointment to the post of Junior Engineer (Civil, Electrical & Mechanical). ii). The recruitment to the post of Junior Engineer (Civil, Electrical & Mechanical) on regular basis will depend on selection through T.P.S.C. iii). The aforesaid appointment will also not confer any right to claim seniority in the grade or any preferential treatment in the matter of regular appointment to the grade. iv). The appointment, may be terminated at any time by a month's notice given by either side, namely, the appointee or the appointing authority without assigning any reason. The appointing authority, however reserves the right to terminate the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment of a sum equivalent to the pay for the period of notice of the unexpired portion thereof. v). The appointment carries with the liability to serve in any part of the State of Tripura. vi). Other conditions of service will be guided as may be decided by the Government from time to time. vii). When he/she is posted in charge of store, cash or when Government property is involved he/she will have to furnish security deposit prescribed for the post as per rules. 7. Admittedly, pursuant to the advertisement dated 16.04.1997, the petitioners applied for the post and in due course they were appointed on temporary basis on fixed pay for a period of 6 (six) months initially. Annexure P/2 to the writ petition i.e. office order dated 05.08.1997 also contains the aforesaid conditions which has been incorporated in the advertisement dated 16.04.1997. 7. Admittedly, pursuant to the advertisement dated 16.04.1997, the petitioners applied for the post and in due course they were appointed on temporary basis on fixed pay for a period of 6 (six) months initially. Annexure P/2 to the writ petition i.e. office order dated 05.08.1997 also contains the aforesaid conditions which has been incorporated in the advertisement dated 16.04.1997. There were some further terms and conditions which are not relevant for the purpose of deciding the present writ petition. It is, therefore, evident that the petitioners were appointed purely on temporary fixed pay basis for period of 6(six) months initially and they were not entitled to claim for regular appointment w.e.f. the date of their initial appointment. The claim, therefore, has no basis. By Memo. dated 30.04.2002 (Annexure P/3 to the writ petition) the petitioners were given regular pay scale by the Finance Department after creation of posts and by office order dated 16.05.2002 (Annexure P/4 to the writ petition), they were treated as Ex-cadre Junior Engineers. Subsequently, by notification dated 28.07.2007 (Annexure P/5 to the writ petition) they were en-cadred w.e.f. 30.12.2003. I find nothing wrong in the action taken by the State-respondents on that score. 8. The word 'service' has been defined in Rule 2(f) of the Tripura Engineering Service Rules, 1987 which reads thus:- Service" means Tripura Engineering Service. 9. The word 'Strength of the Service' has been defined in Rule 4 which reads thus:- 4. Strength of the Service (1) The authorized permanent strength of the service and the duty posts included therein shall be as specified in the Schedule to these rules. (2) The Government may, by order, create duty posts for such period as may be specified therein. (3) Distribution of posts of Grade-V between Grade V(A) and V(B) shall be 70:30. (4) Distribution of posts between Degree Holder and Diploma Holder in Grade-V [Grade-V(A) and Grade-V(B) together] shall be 50:50. 10. The word 'Member of the Service' has been defined in Rule 2(d) which reads thus:- Member of the Service" means a person appointed in a substantive capacity to any Grade of the Service and includes a person appointed on probation. 11. The word 'Schedule' has been defined in Rule 2(e) which reads thus:- Schedule" means the Schedule [appended] to these Rules. 12. The Schedule appended to the rules prescribes in different grades, the strength of service. 11. The word 'Schedule' has been defined in Rule 2(e) which reads thus:- Schedule" means the Schedule [appended] to these Rules. 12. The Schedule appended to the rules prescribes in different grades, the strength of service. Cadre means the strength of service. While the petitioners were given regular pay scale after creation of posts etc. outside the cadre, they were rightly termed as Ex-cadre since they were not coming within the purview of the strength of service prescribed in the schedule of rules. I, therefore, find nothing wrong in the action taken by the State-respondents. Further as I find the regular pay scale was given by Memo. dated 30.04.2002 and the petitioners were treated as Junior Engineers (Ex-cadre) by office order dated 16.05.2002 and those orders were not challenged by the petitioners immediately thereafter. So, the challenge made by the writ petitioners suffers from the mischief of delay and latches. 13. Regarding the claim of CAS-I, it is not disputed that Rule 30 of the Tripura Engineering Service Rules, 1987 prescribes CAS after 8 years of uninterrupted service in regular pay scale. The petitioners were paid regular pay scale w.e.f. 01.05.2002. So after completion of 8 years of service in the regular pay scale w.e.f. 01.05.2002 the petitioners were entitled to get the benefit of CAS-I. 14. Rule 2(b) of the Tripura Engineering Service Rules prescribes duty post which reads thus:- (b) 'Duty post' means any post specified in the Schedule appended to these rules and includes a temporary post carrying the same designation as any of the posts specified in the schedule and the scale of pay of which is identical to that attached to any Grade of the Service. 15. It is, therefore, evident that the petitioners, while on temporary posts, created by the Finance Department with specific pay scale identical to the posts in the service were also entitled to get CAS. The respondents contended that after ROP Rules, 2009 came into force, the petitioners no longer entitled to CAS-I, but they are entitled to ACP after 10 years of service. 16. Learned Advocate General referred to various provisions of ROP Rules, 2009 but I find no relevance of the same for deciding the issue. It is the settled law that service condition, service benefit, promotion, disciplinary action, salary and benefits etc. of an employee shall be determined in terms of the service rules. 16. Learned Advocate General referred to various provisions of ROP Rules, 2009 but I find no relevance of the same for deciding the issue. It is the settled law that service condition, service benefit, promotion, disciplinary action, salary and benefits etc. of an employee shall be determined in terms of the service rules. ROP rule is also made under Article 309 of the Constitution but there is nothing to arrive at a conclusion that the ROP Rule will automatically supersede the provisions contained in the service rules. What is contained in the service rule shall continue to prevail until it is amended pursuant to the terms and conditions contained in the revision of pay rules. After the revision of pay rules came into existence, the Department did not amend Rule 30 of the Tripura Engineering Service Rules, 1987 particularly the provision of CAS. While that rule was in force and pursuant to that rule the Junior Engineers who were appointed in the year 1990 were given the benefit of CAS. There was no reason for the respondents to refuse such benefit to the petitioners. The petitioners since rendered continuous and un-interrupted services for 8 years from the date of their regular pay scale, they are entitled to get CAS-I. There is nothing to show that the petitioners were asked to give their option as to whether they will opt for the existing pay scale and service benefits or opt for the revised pay scale and service benefit. In the absence of any such situation, the claim of the petitioners to CAS-I should not have been refused by the respondents on the ground that in view of ROP Rules, 2009 they are entitled to ACP and not entitled to CAS. I have, therefore, no hesitation to arrive at a conclusion that the petitioners are entitled to CAS-I on their successful completion of 8 years of service w.e.f. 01.05.2002. 17. Accordingly, the writ petition is disposed of with a direction to the respondents to give benefit of CAS-I to the petitioners on their successful completion of 8 years of service w.e.f. 01.05.2002. The other claims of the petitioners stands rejected. Parties are to bear their own costs.