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Tripura High Court · body

2014 DIGILAW 304 (TRI)

Ashok Kumar Ghosh v. Tripura Jute Mills Limited

2014-08-02

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. By filing this writ petition the petitioner prayed for directing the respondents to provide him the benefit of Career Advancement Scheme-I (‘CAS-I’ for short) in the revised scale of pay of Rs. 6500-12300/- with effect from 01.12.1990 and Career Advancement Scheme-II (‘CAS-II’ for short) in the revised scale of pay of Rs. 7450-13000/- with effect from 01.12.1997 as per Tripura State Civil Services (Revised Pay) Rules, 1999 (for short ‘TSCS ROP Rules 1999’) and further to provide him time bound scale movement from time to time. The petitioner also prayed for giving him the benefit from the post of Work Assistant to the post of Overseer(Civil) with financial benefits admissible to the post of Overseer. 2. Heard learned counsel, Mr. S.C. Das for the petitioner. Heard also learned counsel, Mr. C.S. Sinha for the respondent Nos. 1 and 2 and learned counsel Mr. J. Majumder for the respondent Nos. 3 and 4. 3. It is an admitted position that the respondent No. 1 is a company, registered under the Companies Act, 1956 and is a Government of Tripura undertaking. It is also an admitted position that the petitioner was appointed as a Work Assistant in the Civil Engineering Department of the respondent No. 1 w.e.f. 01.12.1980, pursuant to an office order issued on 31.12.1980. It is also an admitted position that by a Memorandum dated 08.01.1989 (Annexure-1 to the writ petition), issued by the respondent No. 2, the petitioner was authorised to sign Measurement Books relating to civil contracts of the respondent No. 1. By office order dated 03.07.1997(Annexure-2 to the writ petition), the petitioner was placed in the independent charge of the Civil Department as a stop gap arrangement under the over all supervision of one Sri. D.R. Kar, M.M. in-charge of the department. By another office order dated 12.02.1999 (Annexure-3 to the writ petition) the petitioner was asked to function as Overseer in the Civil Engineering Branch of respondent No. 1 in his existing pay scale without any financial benefit of higher pay scale for holding higher post with further stipulation that the order will not accrue any right and title to the petitioner for confirmation/promotion in the post of Overseer. The petitioner thereafter made a representation dated 15.02.1999 (Annexure-4 to the writ petition) claiming the financial benefit for holding the higher post and in response to that representation the respondents by office order dated 02.03.1999(Annexure-5 to the writ petition) assured the petitioner to pay the scale of Rs. 6500-12300/- as per provision of F.R. 49 and further assured that pending such payment of the scale he will be given an officiating allowance @ Rs. 650/- (10% of higher scale in initial pay) per month with retrospective effect from 12.02.1999. It is alleged by the petitioner that though the petitioner discharged his duties in the higher post with all efficiency and to the satisfaction of the authority, the authority ultimately did not give him financial benefit for holding the higher posts. The petitioner also alleged that he rendered unblemished service from the year 1980 and as per TSCS ROP Rules 1999 he was entitled to CAS-I and CAS-II, but those benefits were not given to him, though TSCS ROP Rules 1999 was made applicable to the employees of the Jute Mills. It is contended by the petitioner that TSCS ROP Rules 1999 was made applicable to the employees of the Jute Mills and to that effect a communication was made by the Finance Department to the respondent No. 1, but subsequently that decision was revoked by the Finance Department, whereas, the benefit of TSCS ROP Rules 1999 was made available to some of the employees of the Jute Mills and employees of some other public sector undertakings, but the same benefits were not given to the petitioner. It is also contended by the petitioner that he is entitled to get time bound scale movement as per TSCS ROP Rules 1999 and also entitled to get promotion to the post of Overseer and since has been deprived of those benefits, he filed this writ petition seeking relief as stated herein before. 4. The respondent Nos. 1 and 2 contested the writ petition by filing counter affidavit, inter alia, stating that the respondent No. 1, the Tripura Jute Mills Limited is a company managed by the State Government. The TSCS ROP Rules 1999, which is meant for the State Government employees, cannot be made automatically applicable to the employees of the company. 4. The respondent Nos. 1 and 2 contested the writ petition by filing counter affidavit, inter alia, stating that the respondent No. 1, the Tripura Jute Mills Limited is a company managed by the State Government. The TSCS ROP Rules 1999, which is meant for the State Government employees, cannot be made automatically applicable to the employees of the company. A separate ROP Rules for the employees of the respondent No. 1 was made by the Finance Department and there is no provision in the said ROP Rules which is applicable to the petitioner and other employees of the respondent No. 1 of any benefit of CAS and time bound movement. The petitioner is guided by that ROP Rules meant for the respondent No. 1 and a copy of that Rule is annexed as Annexure-R/1 to the counter affidavit. It is also contended by the respondent Nos. 1 and 2 that the petitioner was a Work Assistant having educational qualification upto Class-XI and the petitioner has got no degree or diploma in Engineering and so, there is no question of giving him promotion to the post of Overseer or Assistant Engineer. The petitioner was not appointed to any higher post and so, he is not entitled to any benefit of F.R. 49. It is also contended by the respondent Nos. 1 and 2 that the Tripura Jute Mills Limited (respondent No. 1) is a loss earring concern of the Government of Tripura and it had no financial ability to fill up the vacant posts of the company and, therefore, the petitioner was given additional responsibility of Overseer to run the Civil Engineering Department for which the petitioner cannot claim any extra financial benefit. The Jute Mills since a loss earning concern cannot satisfy the claim of the employees and, therefore, the petitioner is not entitled to any relief. 5. The respondent Nos. 3 and 4 substantially adopted the counter affidavit of respondent Nos. 1 and 2 and further stated that the company is incurring heavy loss year to year. Its accumulated loss has exceeded its authorised capital. It deserves to be liquidated. But considering the interest of the employees, Government’s support is provided instead of liquidation of the company and the Government is providing fund for payment of salaries of the existing employees. 1 and 2 and further stated that the company is incurring heavy loss year to year. Its accumulated loss has exceeded its authorised capital. It deserves to be liquidated. But considering the interest of the employees, Government’s support is provided instead of liquidation of the company and the Government is providing fund for payment of salaries of the existing employees. The TSCS ROP Rules 1999 was not applicable to the employees of the company and the petitioner cannot claim any benefit at par with the State Government employees. The respondents prayed for dismissal of the writ petition. 6. Learned counsel, Mr. S.C. Das, appearing for the petitioner has submitted that the benefit of TSCS ROP Rules 1999 was made available to some employees of the respondent No. 1, but that has not been extended to the petitioner and, therefore, Article 14 of the Constitution has been violated. 7. Learned counsel, Mr. C.S. Sinha appearing for the respondent Nos. 1 and 2 has submitted that there is no instance to show that the benefits of TSCS ROP Rules 1999 was extended to any employee of the respondent No. 1. For the employees of the respondent No. 1 separate pay rules was made, a copy of which is annexed as Annexure-R/1 to the counter affidavit and as per that rule the petitioner is not entitled to any benefit of CAS-I and CAS-II and also the benefit of time bound scale movement. The petitioner is entitled to the benefit as per ROP Rules meant for the employees of the Tripura Jute Mills Limited and all the benefits as admissible has been given to the petitioner. 8. Admittedly, the respondent No. 1 is a Company under the management of the State Government. The TSCS ROP Rules 1999, indisputably, is applicable to the State Government employees and other Public Sector Undertakings to which it is made applicable by Government’s decision. It cannot be held that it will be automatically applicable to the employees of the respondent No. 1 unless it is decided by the State Government and the Board of Directors of the Company. It is an admitted position that no financial benefits can be given to the employees of the respondent No. 1 without approval of the Finance Department of the Government of Tripura. It is an admitted position that no financial benefits can be given to the employees of the respondent No. 1 without approval of the Finance Department of the Government of Tripura. The Government of Tripura in the Finance Department has notified separate revision of pay rules for the employees of the Jute Mills Limited(Annexure-R/1 to the counter affidavit) and the petitioner is liable to be guided by that ROP Rules and not by the TSCS ROP Rules 1999. Learned counsel for the petitioner failed to show any provision in the ROP Rules meant for the employees of the respondent No. 1 that the petitioner and other employees are entitled to the benefit of CAS-I and CAS-II as well as the benefit of time bound scale movement. In the absence of any specific provision in the ROP Rules meant for the employees of the respondent No. 1, the petitioner cannot claim any benefit as per TSCS ROP Rules 1999 and this Court also cannot give any direction to afford such benefit to the petitioner. Learned counsel, Mr. Das has submitted that there were some instances of affording such benefit to some of the employees, but could not show any specific instance of affording the benefit of TSCS ROP Rules 1999 to any employee of the respondent No. 1 and, hence, I find no merit in the submission made on behalf of the petitioner. 9. The next argument advanced by learned counsel, Mr. Das is that the petitioner has been discharging the duties of Overseer from the year 1989 though he substantially appointed in the post of Work Assistant and the petitioner discharged his duties with all efficiency to the satisfaction of the authority and, therefore, the authority entrusted him the charge of Civil Engineering Department and so, the petitioner was entitled to be promoted to the post of Overseer. No promotion has been given to the petitioner during his service career though he has been continuously discharging duties in superior post and so, submits learned counsel, Mr. Das that the petitioner is entitled to get promotion to the post of Overseer and this Court for fair ends of justice may give such direction to the respondents. 10. It is an admitted position that the petitioner was appointed in the post of Work Assistant. Das that the petitioner is entitled to get promotion to the post of Overseer and this Court for fair ends of justice may give such direction to the respondents. 10. It is an admitted position that the petitioner was appointed in the post of Work Assistant. In exigency of the works of the Civil Engineering Department of the respondent No. 1, the respondent No. 2 entrusted him at first the job of Overseer and thereafter he was entrusted the charge of Civil Engineering Branch of the respondent No. 1 it is an admitted position that the petitioner was having with the educational qualification of Class-XI and he does not have any degree or diploma in Engineering. A person having no requisite qualification of the technical subject cannot claim as of right a promotion in the technical post. There is nothing in the service rule that the post of Work Assistant is the feeder post of Overseer. It is settled position of law that appointment, promotion and disciplinary action of public servant is to be guided as per the provision of the service rules applicable to particular employees. The petitioner failed to show any rule of the respondent No. 1 prescribing promotion to the post of Overseer from the post of Work Assistant. In the absence of any such rule, no direction can be issued to the respondents to give promotion to the petitioner to the post of Overseer or any other superior post. The argument, therefore, merits no consideration. 11. Mr. Das, learned counsel for the petitioner at the end has contended that it is an admitted position that the petitioner was entrusted to discharge the responsibility of higher post, i.e., the post of Overseer, though he was holding the substantive post of Work Assistant. The respondents made specific commitment of affording the benefit of the pay scale of Rs. 6500-12300/-, but that has not been provided. It is contended by Mr. Das, learned counsel for the petitioner that as per F.R. 49 the petitioner is entitled to the benefit of the higher pay scale of the superior post and in view of the office order dated 02.03.1999 (Annexure-5 to the writ petition) the petitioner is entitled to get the benefit of F.R. 49 of the scale of pay of Rs. 6500-12300/- for the period he discharged the duties of superior post. 12. Learned counsel, Mr. 6500-12300/- for the period he discharged the duties of superior post. 12. Learned counsel, Mr. Sinha has contended that F.R. 49 is not applicable in the case of the petitioner since he was never appointed to discharge the responsibility of the higher post, but as a stop gap arrangement he was simply entrusted to discharge the responsibility of Overseer and the Civil Engineering Department. Such temporary stop gap arrangement cannot entitle an employee to claim the benefit of higher scale as per F.R. 49. The commitment in the office order dated 02.03.1999 is of no consequence since it is not consistent with F.R. 49. In support of his contention, he has referred the case of State of U.P. & anr. V. U.P. Rajya Khanij Vikas Nigam S.S. & ors., Appeal (Civil) No. 3202 of 2008, decided on 02.05.2008(Para-43). On this point, learned counsel, Mr. J. Majumder has also referred the decision of the Full Bench of the Gauhati High Court in the case of Assm Tombi Singh V. State of Manipur & ors., reported in : 2006(4) GLT 608. 13. For ready reference we may refer here the relevant provision of F.R. 49, which reads as follows:- F.R. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:- (i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post; (ii) Where a Government servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charge: Provided that, if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay; .... .... .... 14. .... .... 14. It is an admitted position that by Memorandum dated January 8, 1989 (Annexure-1 to the writ petition), the petitioner was authorised to sign the Measurement Books of Civil Engineering contracts of the Jute Mills under the supervision of one Sri. D.R. Kar, Sr. Maint. Officer. It is also an admitted position that by office order dated 03.07.1997 (Annexure-2 to the writ petition) the petitioner was entrusted with the charge of Civil Engineering Department with the specific stipulation that the order will not entitle the petitioner any extra benefit in any manner besides the existing benefit enjoyed by him in the post of Work Assistant. Office order dated 12.02.1999 (Annexure-3 to the writ petition) is most important since by that order the petitioner was entrusted with the function of Overseer and the order reads as follows:- -:ORDER:- In the interest of the company Shri Ashok Kumar Ghosh, Work Asstt. will function as Overseer in the Civil Engineering Branch of Tripura Jute Mills Ltd. in his existing pay scale without any financial benefit of higher pay scale for holding higher post. This order will not accrue any right and title to Shri Ghosh for confirmation/promotion in the post of Overseer. Sd/- (R.C. CHOUDHURY) MANAGING DIRECTOR 15. The petitioner thereafter made a representation for financial benefit to the post of Overseer and by order dated 02.03.1999 (Annexure-5 to the writ petition), the respondents made a commitment to afford the benefit of the scale of Rs. 6500-12300/- to the petitioner. The relevant order reads as follows:- ORDER In inviting reference to the Representation dt. 15.02.1999 made by Sri. Ashok Kumar Ghosh, Overseer(Civil) he is directed to carry out the order of the Authority i.e. to function as Overseer communicated vide No. TJ/PD/(30)/VOL-III/RD/960-66 dt. 12th February, 1999. The non-execution of the said order will be detrimental to the interest of the Company and appropriate disciplinary action will be taken against him by the undersigned as “Disciplinary Authority”. However, as discussed with Managing Director, the undersigned is directed to communicate that the pay of Sri. Ashok Kumar Ghosh, would be released very soon in the scale of Rs. 6,500-12,300 according to F.R. 49. Further pending introduction of pay in the scale of Rs. 6,500-12,300/-, the payment of Officiating Allowance would be considered by the Management shortly @ Rs. 650/- (10% of higher scale in initial pay) per month with retrospective effect 12.02.1999. Ashok Kumar Ghosh, would be released very soon in the scale of Rs. 6,500-12,300 according to F.R. 49. Further pending introduction of pay in the scale of Rs. 6,500-12,300/-, the payment of Officiating Allowance would be considered by the Management shortly @ Rs. 650/- (10% of higher scale in initial pay) per month with retrospective effect 12.02.1999. Sd/- 02/03/99 (D.R. Choudhury) Personnel Officer 16. A careful reading of Annexures-1, 2, 3 and 5 makes it clear that the petitioner was entrusted the job of higher post, but he was never appointed by his authority to the higher post to entitle him the benefit of F.R. 49. An order of appointment to hold the charges of higher post is a sine quo non for affording the financial benefits of the higher post as required by F.R. 49. This issue has been carefully dealt by the Full Bench of the Gauhati High Court in Assam Tombi Singh (supra). In that reported case, the petitioner was holding a substantive post of Supervisor Kanungo and he was delegated the charge of the Assistant Survey & Settlement Officer without any extra remuneration. He claimed higher pay as admissible to the post of Assistant Survey & Settlement Officer. The Full Bench has held that the Government is entitled, as a temporary measure, to appoint an employee to officiate in two or more posts and on such contingency, the employee is not entitled to claim pay of the higher post unless the order speaks otherwise. The Court has held that in order to get the benefit of pay of higher post, the nature, terms and conditions of the relevant order have to be considered. We may gainfully quote here paragraphs-6, 18 and 20 of the judgment, which read as follows:- “6. The origin of public service arises out of a contract, although once an employee enters into service, certain status is conferred upon him by specific service law holding the field and the Constitution. This contractual aspects involve fulfillment of certain reciprocal instances giving rise to an enforceable contract. Consideration is one of the essential ingredient of an enforceable contract; remuneration payable to him for rendering such services constitute the consideration moving from the employer to the employee and the services rendered is the consideration moving to the employee to the employer. This contractual aspects involve fulfillment of certain reciprocal instances giving rise to an enforceable contract. Consideration is one of the essential ingredient of an enforceable contract; remuneration payable to him for rendering such services constitute the consideration moving from the employer to the employee and the services rendered is the consideration moving to the employee to the employer. Such pay allowable to an employee may be of different kind as recognized by the service rules, which includes substantive pay, special pay, additional pay, personal pay, presumptive pay. FR 49 provides that when a public servant is holding two posts, he is entitled to draw the salary of the higher post. Such occasion to pay higher pay arises in the event of an employee being allowed to “officiate” temporarily to a higher post at a time when the employee is substantially holding the post in a lower cadre, which may arise on different contingencies. 18. From the aforesaid discussion, we find that, it is beyond the civil of any doubt that in order to get the benefit of pay of a higher post, the nature, terms and conditions of the relevant order is the pivotal factors to be considered. The language of FR 49, is undoubtedly clear that the Government is entitled to appoint an employee as a temporary measure or to officiate in two or more independent posts and on such contingencies the Govt. servant is not entitled to claim the pay of the higher post, unless the order speaks otherwise. 20. In view of the aforesaid discussion, we hold that an employee simply placed in charge of the higher post, without any appointment therein, in terms of FR 49 is not entitled to claim pay and allowances for such higher post. Similarly, an incumbent holding a higher post on In-charge basis under an order which contains specific conditions that it would be without extra remuneration, is not entitled to read in the order more than what it discloses. Likewise, such employee who is simply delegated the power of the higher post, while serving in his substantive post in the lower cadre, is also not entitled to get the higher pay scale, unless directed by the authority, otherwise. The reference is answered accordingly.” 17. In the case of the petitioner, he was entrusted the job of Overseer in his existing pay without any financial benefit. The reference is answered accordingly.” 17. In the case of the petitioner, he was entrusted the job of Overseer in his existing pay without any financial benefit. Annexure-3, reproduced above, is very clear and specific. After the petitioner made a representation (Annexure-4 to the writ petition), the respondents issued office order dated 02.03.1999 (Annexure-5 to the writ petition), which is reproduced above, wherein some commitment of affording the higher pay scale in accordance with F.R. 49 was made. Neither Annexure-3 nor Annexure-5 shows that the petitioner was appointed in terms of F.R. 49 to the post of Overseer to perform the duties in addition to his post of Work Assistant. So, the provision of F.R. 49 cannot be applied in the case of the petitioner. 18. The Supreme Court in the case of U.P. Rajya Khanij Vikas Nigam S.S.(supra) has held that even if some assurance had been given, it would be of no consequence if it is contrary to the statutory rules. We may gainfully refer here paragraph-43 of the judgment, which reads as follows:- 43. After all, the High Court was considering the prayer of the petitioners to grant a writ in the nature of mandamus. It was, therefore, expected of the High Court to keep in view the relevant provisions of law. The High Court mainly relied upon an assurance said to have been given by the Secretary on behalf of the Corporation that excess employees would be absorbed either in the Government Department or in other Public Sector Undertakings. From the record it appears that it was the case of the Secretary of the Corporation that no such assurance was given by him to the Hon’ble Court. But even if he had given such assurance, it was of no consequence since in the teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions. 19. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions. 19. In the present case, though there was commitment of giving the benefit of F.R. 49 so far as office order dated 02.03.1999 reflects, but, in fact, no appointment, as required under F.R. 49, was made in the name of the petitioner by the respondents to entitle the petitioner in claiming the benefit of higher pay scale. In view of the above decision, the petitioner is not entitled to the higher pay scale of Rs. 6500-12300/-. But the respondents since made a specific commitment that an officiating allowance of Rs. 650/- should be paid to the petitioner, I think it will be appropriate to direct the respondents to give the petitioner an officiating allowance of Rs. 650/- per month for the period he discharged the duties of Overseer under the respondent No. 1. 20. In view of the discussion made above, the petitioner is not entitled to get any benefit of CAS or time bound scale movement as per TSCS ROP Rules 1999 and also is not entitled to get any promotion to the post of Overseer. The petitioner is also not entitled to the higher pay scale of Rs. 6500-12300/- for discharging the duties of Overseer. However, the petitioner is entitled to get an officiating allowance of Rs. 650/- (Rupees six hundred fifty) per month for the period he discharged the duties of Overseer while working in the post of Work Assistant. 21. With the above observation and directions, the writ petition stands disposed of. The parties to bear their own costs.