Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 233 (TRI)

Archana Bhattacharjee v. State of Tripura

2014-06-20

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. All the three writ petitions, having identical facts and legal issues involved, taken up together on the prayer of learned counsel both side and this common judgment is accordingly passed which shall govern all the cases. 2. Heard learned counsel Mr. D.K. Biswas for the petitioners. Learned Sr. ASG, Mr. P.K. Biswas for the respondent No. 4. Learned counsel Mr. B. Dutta for the respondent Nos. 1 to 3 in WP(C) 417 of 2006; learned counsel Mr. D.C. Nath for the respondent Nos. 1 to 3 in WP(C) 418 of 2006 and learned counsel Mr. N. Majumder for the respondent Nos. 1 to 3 in WP(C) 419 of 2006. 3. All the petitioners were working as ministerial staff under respondent No. 3, Govt. of Tripura and on 19.10.1998 they were appointed as Head Clerk from the post of Accountant and on such posting as Head Clerk, the pay of the petitioners were fixed as per FR 22(C), re-numbered as FR 22(I)(a)(1) [herein-after mentioned as FR 22(c)] giving them the financial benefits admissible as per rules. 4. Petitioner of WP(C) 417 of 2006 retired on 30.04.2002. Petitioner of WP(C) 418 of 2006 retired on 31.01.2003 and petitioner of WP(C) 419 of 2006 retired on 30.11.2014. When their pension proposals were sent to the respondent No. 4, a clarification was sought by the respondent No. 4 by a letter dated 04.09.2002 (Annexure 7 to the writ petition) addressed to the Secretary, Finance Department, Govt. of Tripura requesting to intimate the Accountant General (A.G.) as to whether the post of Head Clerk involved duties and responsibilities of greater importance than the post of Accountant and whether the post of Head Clerk shall be treated as promotional post with higher responsibilities than the post of Accountant. Finance Department by their letter dated 07.06.2003 (Annexure 8 to the writ petition) informed respondent No. 4 that the post of Accountant and Head Clerk enjoying same revised pay scale and hence they should be treated as post of same level and therefore, the post of Head Clerk shall not be treated as promotional post of the post of Accountant and hence, the question whether the post of Head Clerk involved duties and responsibilities of greater importance than that of the post of Accountant does not arise. The petitioners felt highly aggrieved with the communication made by the respondent No. 4 to the respondent No. 3 and the response given by the respondent No. 3. 5. It is emphatically contended by the petitioners that the post of Head Clerk in the Police Department involved duties and responsibilities of greater importance than that of the post of Accountant and that the post of Head Clerk is supervisory in nature over the post of Accountant and so the Head Clerks are appointed from the post of Accountant. ROP 1988 prescribes same pay scale for the post of Head Clerk and Accountant but Police Department maintained the position that the post of Head Clerk is a supervisory post of Accountant and hence benefit of F.R. 22(C) was all along given to all incumbents while posted as Head Clerk from the post of Accountant. The petitioners and before them the other employees who were posted as Head Clerk were also given the same benefit. It is further stated by the petitioners that in the year 1992 one Rakhal Chandra Chowdhury while was promoted to the post of Head Clerk, was given the benefit of FR 22(C) and at that time a conscious decision was taken by the concerned department in consultation with the Chief Secretary and DGP and it was decided that the post of Head Clerk carries duties and responsibilities of greater importance. The petitioners also contended that the regulation 1133 of the Police Regulation of Bengal (PRB) which is adopted in Tripura has clearly stipulated that the post of Head Clerk is the supervisory post of Accountant and perhaps keeping in mind the said provision, the Police Department even after ROP 1988 came into force, continued to apply the same method of treating the post of Head Clerk as a post of greater responsibility than that of the Accountant and in the event of posting as Head Clerk, pay was fixed all along giving the benefit under FR 22(C). Since the benefit of FR 22(C) was withdrawn, the petitioners felt aggrieved and issued demand notice to the respondents but the respondents did not pay heed to the grievance of the petitioners and hence, the petitioners filed the writ petitions seeking following reliefs:- (a) Issue Rule asking the Respondents to show cause as to why the decision of the Respondent No. 2 disallowing the benefits of F.R. 22(1)(a)(I) to the promotes in the post of Head Clerk should not be declared illegal, unreasonable, improper and accordingly quashed by an appropriate order. (b) Issue Rule asking the Respondents to show cause as to why the Petitioner should not be declared to be entitled to the benefits available under F.R. 22(c) [now modified as F.R. 22(1) (a) (i)] on fixing pay on her appointment to the post of Head Clerk from the post of Accountant w.e.f. 19-10-1998. 6. Respondent Nos. 1, 2 and 3 filed a common counter affidavit in all the writ petitions, inter alia, stating that the post of Accountant/Head Clerk is a common category post spread over in different State Government department including Home/Police Department of the State Government. As per recruitment rules, the post of Head Clerk is filled up on promotion from the post of Upper Division Clerk or on transfer from the post of Accountant and hence, the post of Accountant cannot be considered as the Feeder post of Head Clerk. Therefore, when an Accountant is transferred to the post of Head Clerk, pay cannot be fixed under F.R. 22(C). The claim of the petitioners that the post of Head Clerk carries higher responsibility and greater importance than that of the post of Accountant in the Police Department, has no basis at all and that the benefit of F.R. 22(C) was wrongly given to the petitioners and such wrong cannot be allowed perpetually. It is also contended that notification dated 15.12.1977 makes it amply clear that the post of Head Clerk/Head Clerk cum Accountant may be filled up by transfer from the post of Accountant and not by promotion and those posts carries same pay scales and responsibilities. It is also contended that notification dated 15.12.1977 makes it amply clear that the post of Head Clerk/Head Clerk cum Accountant may be filled up by transfer from the post of Accountant and not by promotion and those posts carries same pay scales and responsibilities. Regarding the instance of Rakhal Chandra Chowdhury, the respondents contended that he was promoted on the recommendation of DPC dated 12.03.1991 on adjustment in proforma appointment against the vacant post of Superintendent applying the provisions of Rule 77 GFR which is an exceptional case of special promotion and the case of Rakhal Chandra Chowdhury cannot be cited as a precedent in any future case. The respondents referred Annexure R/2 to the counter affidavit in support of their contention. It is also contended by the respondents that after ROP 1988, it was made abundantly clear by notification of the Finance Department, Govt. of Tripura that the posts carrying identical pay scale shall be treated as equal and one post shall not be treated as the promotional post of the other and also shall not be treated as the post carrying greater responsibilities or importance of the other post. Finance Department rightly communicated the A.G. that the petitioners were not entitled to the benefit of fixation under FR 22(C). 7. Respondent No. 4 also submitted counter affidavit in the same tune of the respondent Nos. 1, 2 and 3. 8. The issues required to be decided in the present writ petitions are-- (a) Whether the post of Head Clerk carries greater importance and responsibilities than that of the post of Accountant in the Police Department of the Government of Tripura? (b) Whether the benefit extended to the petitioners applying F.R. 22(C) in the event of their appointment to the post of Head Clerk was rightly given and it is liable to be maintained? (c) Whether the clarification sought by the A.G. by writing letter dated 04.09.2002 (Annexure 7 to the writ petition) and reply thereto by the Finance Department by letter dated 07.06.2003 (Annexure-8 to the writ petition) were beyond jurisdiction and thereby fundamental right guaranteed under Article 15 and 16 violated or not? 9. It is an admitted position that the petitioners while were working in the post of Accountant, were appointed as Head Clerk on 19.10.1998 and their pay was fixed applying F.R. 22(C). 9. It is an admitted position that the petitioners while were working in the post of Accountant, were appointed as Head Clerk on 19.10.1998 and their pay was fixed applying F.R. 22(C). It is also an admitted position that after retirement of the petitioners, pension proposals were sent to the respondent No. 4 and by writing letter, dated 04.09.2002 (Annexure-7 to the writ petition) to the respondent No. 2, respondent No. 4 sought clarification as to whether the post of Head Clerk involves duties and responsibilities of greater importance than the post of Accountant and whether the post of Head Clerk shall be treated as promotional post with higher responsibility than the post of Accountant. In reply to that letter, respondent No. 2 intimated respondent No. 4 stating that the post of Accountant and Head Clerk were carrying same revised pay scale and they should be treated at same level and the post of Head Clerk shall not be treated as promotional post of Accountant. The question whether the post of Head Clerk involved duties and responsibilities of greater importance does not arise. It is also an admitted position that after that clarification made by the Finance Department, the benefit extended to the petitioners under F.R. 22(C) was withdrawn. 10. Recruitment, promotion and other service conditions of the govt. employees are guided by the respective service rule applicable to the concerned employee, is the settled law. Let us, therefore, first see the recruitment rules for the post of Head Clerk and Accountant. Annexure-1 to the writ petition, notification dated 15.12.1977, is the service rule for appointment/promotion to the post of Head Clerk cum Accountant under police organization of the Govt. of Tripura. The schedule to the rule, as notified, column 1 shows the name of the post-Head Clerk/Head Clerk cum Accountant. Column 10 shows the method of recruitment by transfer from the post of Accountant. It is, therefore, abundantly clear that the rule prescribed the posts of Head Clerk/Head Clerk cum Accountant are at par and the column 4 prescribed same pay scale for the posts and the post of Head Clerk/Head Clerk cum Accountant has to be filled up by transfer from the post of Accountant. It is, therefore, evident that the post of Head Clerk/Head Clerk cum Accountant is not a promotional post of the post of Accountant. 11. It is, therefore, evident that the post of Head Clerk/Head Clerk cum Accountant is not a promotional post of the post of Accountant. 11. The petitioners contended that the post of Head Clerk carries greater importance and responsibilities and hence F.R. 22(C) shall apply. For ready reference let us reproduce here F.R. 22(C) i.e. F.R. 22(I)(a)(1) which reads as follows:- F.R. 22.(I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:- (a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more. [Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment: Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post of [rupees one hundred], whichever is more. 12. Burden lies on the petitioners to prove that the post of Head Clerk is of greater responsibility and importance than that of the post of Accountant. In support of their contention the petitioners referred the case of Rakhal Chandra Chowdhury as an instance. Annexure-3 to the writ petition, a copy of the office note shows that the case of Rakhal Chandra Chowdhury was considered for giving him the benefit of F.R. 22(C) and the decision was taken in consultation with the Chief Secretary and DGP on 08.07.1992 and it is noted in the said office note that the post of Head Clerk carries duties and responsibilities of greater importance. A letter was thereafter written by the Under Secretary of the Home Department to the DGP (Annexure-4 to the writ petition) stating that the benefit of fixation under F.R. 22(C) should be given to Rakhal Chandra Chowdhury since the post of Head Clerk carries duties and responsibilities of greater importance than that of the post of Accountant. Respondent Nos. 1, 2 and 3 contended that the case of Rakhal Chandra Chowdhury was a special case considered by DPC and he was given the benefit after considering his promotion in the post of Head Clerk on adjustment in proforma appointment against the vacant post of Superintendent and it was considered as per rule 77 of GFR. Paragraph 2 of Annexure-R/2 to the counter affidavit of respondent Nos. 1, 2 and 3 reads as follows:- 2. Paragraph 2 of Annexure-R/2 to the counter affidavit of respondent Nos. 1, 2 and 3 reads as follows:- 2. It has been decided by the Government that Shri Rakhal Chandra Chowdhury, Ex-Accountant, Police Organization may be promoted to the post of Head Clerk according to the DPC's recommendation dated 12.3.91 on adjustment in proforma appointment against the vacant post of Superintendent as envisaged in rule 77 of the G.F.Rs as a very special case purely personal to Shri Choudhury and in no case this will be cited as a precedent in any future case. 13. The above stipulation made in Annexure-R/2 reveals that the case of Rakhal Chandra Chowdhury was considered as a special case in adjustment against a vacant post of Superintendent while promoting him to the post of Head Clerk and according to the respondents the promotion of Rakhal Chandra Chowdhury cannot be treated as a precedent for all future cases to come. No rejoinder affidavit filed by the petitioners to counter the stand taken by the respondents by filing Annexure-R/2 to the counter affidavit. Therefore, the case of Rakhal Chandra Chowdhury cannot be taken as an instance to render the benefit of F.R. 22(C) to the petitioners. 14. The petitioners also contended that regulation 1133 of PRB (Police Regulation of Bengal), as applicable in Tripura shows that the post of Head Clerk is a supervisory post of Accountant and therefore, made the rules in consistent with PRB and thereby treated the post of Head Clerk as a superior post with greater responsibility and importance than the post of Accountant. Let us quote here regulation 1133 of PRB which reads as follows:- 1133. Charge of Accounts.---(a) All accounts shall be in sole charge of the accountant and all bills, both original and copy, shall be prepared and initialled by him, and examined and initialled by the head clerk before they are signed by the Superintendent or by the gazette officer authorized to sign bills for the Superintendent. (b) As head clerks continue to be responsible for all their duties, including all cash transactions, during their absence on casual leave they shall, on return from such leave, examine the accounts from the date they proceeded on leave and initial all pay and receipt cheques written up and bills cashed during their absence. 15. (b) As head clerks continue to be responsible for all their duties, including all cash transactions, during their absence on casual leave they shall, on return from such leave, examine the accounts from the date they proceeded on leave and initial all pay and receipt cheques written up and bills cashed during their absence. 15. A reading of the above provisions, in my considered opinion, does not contemplate that the post of Head Clerk is a supervisory post of Accountant. The regulation simply prescribed the arrangement of administrative works in the department. The examination of the works of Accountant by the Head Clerk does not necessarily mean that the Head Clerk is the superior authority of the Accountant or that the post of Head Clerk is the supervisory post of the Accountant having greater responsibility and importance. For proper care and attention and to avoid mistake in the functioning of the department, cross checking of particular work may be arranged in any department and such arrangement cannot be said to be job of supervisory nature. I, therefore, cannot agree with the submission of learned counsel Mr. Biswas that the post of Head Clerk shall be treated as a Supervisory post of Accountant in view of regulation 1133 of PRB. 16. Finance Department of the Government of Tripura after ROP 1998 came into force, issued instruction to all departments for amendment of the service rule wherever it is required that the posts which carry same pay scales should be deleted from the post of Feeder post of the other post of same pay scale. Annexure-2 to the writ petition, memorandum, dated 10th August, 1988 issued by the Finance Department reads as follows:- Where even after removal of anomaly certain Feeder post and promotion post still remain at the same scale, such Feeder Post should be deleted from the list of Feeder Post in the recruitment Rules and the posts (which were originally Feeder and promotion post) should be regarded as of the same level. It has come to the notice of the Government that posts which are now in the same revised scale are still being considered by the different Departments as Feeder and promotion posts on the basis of the original recruitment rules. It has come to the notice of the Government that posts which are now in the same revised scale are still being considered by the different Departments as Feeder and promotion posts on the basis of the original recruitment rules. This is clearly not possible and such posts which were shown in the original recruitment rules as Feeder post but which have now been allowed the same pay scale as allowed to a promotion post should be regarded as posts of the same level. The Governor of Tripura, is therefore, pleased to order that posts which are in the same revised pay scales under R.O.P. Rules, 1988 should be treated as posts of the same level. If any such posts are shown in any Recruitment Rules as Feeder Post, such post will stand deleted from the List of Feeder Post. 17. The petitioners contended that even after the above memorandum the Police Department consciously did not make amendment of the rules and thereby the administrative department took a conscious decision to maintain the position that the post of Head Clerk is a superior post of greater responsibility than the post of Accountant. 18. I have already discussed above the recruitment rules which in no stress of imagination can be said that the post of Head Clerk is a promotional post of Accountant or that the post of Head Clerk carries greater responsibility and importance than the post of Accountant. The rule only prescribes that the post of Head Clerk/Head Clerk cum Accountant may be filled up by transfer from the post of Accountant. No inference can be drawn from the provision that the post of Head Clerk thereby carries greater responsibilities and importance rather, both the posts since carry identical pay scale shall be bound to be treated as the post of same responsibility and importance, may be one is filled up by transfer from the other posts and vice versa. Notification dated 24th March, 2000 (Annexure-6 to the writ petition) makes it abundantly clear as to in which cases F.R. 22(I)(a) (1) shall be applied and in which cases F.R. 22(I)(a) (2) shall be applied. Notification dated 24th March, 2000 (Annexure-6 to the writ petition) makes it abundantly clear as to in which cases F.R. 22(I)(a) (1) shall be applied and in which cases F.R. 22(I)(a) (2) shall be applied. We may refer here paragraph 2(b) and (c) of the notification which read as follows:- (b) The substituted provision of F.R. 22(I)(a)(1) shall be applicable in cases of promotion/appointment to another post(s) with higher/same pay scale, provided such posts carry duties and responsibilities of greater importance than those attached to the post held by him before promotion as per Recruitment Rules. Date of Next Increment (DNI) along with the scope for exercising option shall be regulated as per provision of F.R. 22(I) (a) (1). (c) The substituted provision of F.R. 22(I)(a)(2) shall be applicable in cases of movement to higher/next higher pay scale under graded pay scale/CAS (modified) and also in cases of appointment to another post(s) with same pay scale, provided such posts do not carry duties and responsibilities of greater importance, than those attached to the post held by him before appointment to new post as per Recruitment Rules. Date of Next Increment (DNI) along with scope for exercising option shall be regulated as per provision of F.R. 22(I)(a)(2). 19. Since I am of considered opinion that the post of Head Clerk cannot be said to have carried greater duties and responsibilities than that of the post of Accountant, the petitioners are not entitled to the benefit of FR 22(C). May be such benefits were given to some other people who had retired prior to the petitioners, which in my considered opinion was a wrong decision, as has been detected subsequently, should not be allowed to perpetuate. It is the settled principle of law that when a wrong is detected it should be rectified at once and previous same wrong cannot justify the subsequent wrong. 20. Learned counsel Mr. D.K. Biswas in course of his argument contended that determination of benefits in the event of posting of an employee is the duty of administrative department. Finance department or the AG cannot sit as a superior authority over the decision of the administrative department. I cannot agree with the submission of learned counsel since as per the rules of executive business, Finance Department of the Govt. is the authority to decide the financial implication of Govt. Finance department or the AG cannot sit as a superior authority over the decision of the administrative department. I cannot agree with the submission of learned counsel since as per the rules of executive business, Finance Department of the Govt. is the authority to decide the financial implication of Govt. establishment as well as the Government employees and the decision of the Finance Department is binding on all other departments in respect of financial issues are concerned. AG based on the provisions of the Revision of Pay Rules sought clarification from the Finance Department and it is now agreed by the administrative department as well as Finance Department that conferment of benefits under F.R. 22(C) to the petitioners was wrong in the event of their posting as Head Clerk and so I find no illegality or violation of fundamental right of the petitioners while such benefits were withdrawn at the time of consideration of the retiral benefits. 21. The writ petitions, therefore, are found to be devoid of merit and accordingly these are dismissed. 22. Parties to bear their own costs.