Research › Search › Judgment

Tripura High Court · body

2019 DIGILAW 10 (TRI)

Sukanta Biswas v. State of Tripura

2019-01-18

S.TALAPATRA

body2019
JUDGMENT : S. Talapatra, J. 1. Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. A.K. Bhowmik, learned Advocate General assisted by Mr. R. Datta, learned counsel appearing for the respondents. 2. The petitioner was appointed, as stated in the writ petition, as the Sub-Inspector of Police on 01.02.2000. After completion of 10 years of continuous and satisfactory service in the post of Sub-Inspector of Police without any promotion, the petitioner was given the first benefit under Assured Career Progression [ACP]. It has been stated by the petitioner that the Recruitment Rules for the post of Inspector of Police was published by the notification dated 11.7.2007. In terms of the said recruitment rules, the petitioner was promoted to the post of Inspector of Police. By the office order dated 24.3.2011 his pay was fixed at Rs. 16,470/- in the scale of pay of Rs. 9570-30000/- [Pay Band-3] with Grade Pay of Rs. 3500/- corresponding to pre-revised scale of pay of Rs. 7450-13000/- under the ROP Rules, 1999. The petitioner has stated that by Rule 10 of the Tripura State Civil Services (Revised Pay) Rules, 2009, the method of fixation of pay in the revised pay structure of the employees as fresh recruits on or after 01.01.2006 has been provided. Rule 8 of the said ROP Rules, 2009 provides as under: "8. Fixation of pay in revised pay structure of employees appointed as fresh recruits on or after 1st day of January, 2006: (1) The pay of direct recruits to a particular post carrying a specific grade pay shall be fixed on or after the 1st day of January, 2006, at the entry level pay in the pay band as indicated in Part-E read with Part D of Schedule I to these rules. (2) The provisions of sub-rule (1) shall also be applied in the case of those recruited between the 1st day of January, 2006 and the date of publication of these rules." Rule 12 of the said Rules, 2009 provides for fixation on promotion as under: "12. (2) The provisions of sub-rule (1) shall also be applied in the case of those recruited between the 1st day of January, 2006 and the date of publication of these rules." Rule 12 of the said Rules, 2009 provides for fixation on promotion as under: "12. Fixation on promotion on or after 1.1.2006 - In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows: (i) One increment equal to 2½% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay band will be stepped up to such minimum. (ii) In case of promotion from HAG+ to the Apex scale, after adding one increment in the manner prescribed in these Rules, the pay in the pay band and existing grade pay will be added and the resultant figure will become the basic pay in the apex scale. This shall not exceed Rs. 50,400/-. (iii) The benefit of fixation of pay available at the time of normal promotion under this rule shall be allowed in case of movement under ACP. Note 1 - In case the employee opts to get his pay fixed from his date of next increment, then on the date of promotion, initially his pay in the pay band shall continue to remain unchanged, but only grade pay admissible for the post or grade to which he is promoted shall be granted. Further re-fixation shall be done on the date of his next increment i.e. 1st day of July. On that day, such an employee shall be granted two increments; one annual increment and the second on account of promotion. Further re-fixation shall be done on the date of his next increment i.e. 1st day of July. On that day, such an employee shall be granted two increments; one annual increment and the second on account of promotion. While computing these two increments, basic pay prior to the date of promotion and grade pay corresponding to such pay in the pay band shall be taken into account. After allowing such increments, grade pay of the higher post/scale shall be allowed. Note 2.- In case the employee opts to get his pay fixed in the higher post or grade from the date of his promotion he shall get his first increment in the higher grade on the next 1st July, if he was promoted between the periods from the 2nd July to 1st January. However, if he was promoted between periods commencing from the 2nd January and ending on the 30th June of a particular year, he shall get his increment on the 1st July of the next year." 3. The petitioner's pay was supposed to be fixed under Rule 12 of the said Rules as he was promoted from the post of Sub-Inspector to the post of Inspector of police. On fixation of his pay in the post of Inspector of Police, Home Department, the Superintendent of Police [Traffic], Government of Tripura issued the office order bearing No. 635-43/F.1(1)-Estt./SP(T)/13 dated 12.02.2014 by reducing the initial pay of the petitioner in the post of Inspector of Police by way of re-fixation and directing recovery of the excess amount as paid in terms of the earlier fixation of pay from the monthly salary of the petitioner. The said office order dated 12.02.2014 has been challenged in this writ petition and for purpose of reference, the entire text of the said office order dated 12.02.2014 is extracted hereunder: "Government of Tripura Office of the Superintendent of Police (Traffic) Tripura:: Agartala No. 635-43/F.1(1)-Esstt./SP(T)/13 12.02.2014 Office order In pursuance of PHQ order no 48944-45/F.80/PC/PHQ/SP(T)GO's/2013 Dated 20.10.13 regarding Re-fixation of Pay under Sixth Amendment Rules, 2012. According to the Clarification of Government of Tripura, Department of Finance as issued vide their Memo No. F.6(1)-FIN(PC)/2008 dated 21.06.2013 as communicated vide PHQ No. 26366-406/F.59/PC/PHQ/ROP/2012 dated 29.6.2013, pay of the following Inspector of Police will be re-fixed as under: Shri Sukanta Biswas, Inspector (DOA-As SI on 1.2.2000, ACP-1 on 01.02.2010 and Inspector of Police on 17.05.2010):- According to the IPS' 2009, his pay was fixed on ACP-1 at Rs. 14830/- (12230+2600) w.e.f. 01.07.2010 in the PB-2, Rs. 5310-24000/- with GP Rs. 2600/- which is in order. Thereafter, he was promoted to the post of Inspector of police on 17.05.2010. So, his pay will be re-fixed at Rs. 15730/- (12230+3500) w.e.f. 17.05.2010 to 30.06.2010 and thereafter at Rs. 16640/- (12230+450+460+3500) w.e.f. 01.07.2010 (as per option) in the PB-3. Rs. 9570-30000/- with GP Rs. 3500/- with DNI on 01.07.2011. Accordingly, his pay will be raised at Rs. 18190/- w.e.f. 1.7.2013 with DNI on 01.07.2014. Shri Keshab Hari Jamatia, Inspector (SOA-As SI on 03.6.1997, ACP-1 on 03.06.2007 and Inspector of Police on 25.11.2009): According to the IPS'2009, his pay was fixed at Rs. 15670/- (13070+2600) w.e.f. 01.07.2009 in the PB-2, Rs. 5310-24000/- with GP Rs. 2600/- with GP Rs. 2600/- with DNI on 01.07.2010 which is in order. Thereafter, he was promoted to the post of Inspector of police on 25.11.2009. So, his pay will be re-fixed at Rs. 16970/- (13070+400+3500) w.e.f. 25.11.2009 in the PB-3, Rs. 9570-30000/- with GP Rs. 3500/- with DNI on 01.07.2010. Accordingly, his pay will be raised at Rs. 19110/- w.e.f. 1.7.2010 with DNI on 1.7.2014 The above fixations are provisional and subject to final check-up by the AG (Audit), Tripura. If any over payment is recovered from their monthly salary bill. Superintendent of Police (Traffic) Tripura Agartala" For purpose of further reference, the earlier order of fixation of pay dated 24.3.2011 is also reproduced hereunder in order to make a comparison and also to appreciate the reasons for re-fixation of pay of the petitioner in the post of Inspector of police: "Government of Tripura Office of the Superintendent of Police (Procurement) Tripura: Agartala- Office Order In exercise of Tripura State Civil Services (Revised Pay) Rules, 2009 10(1) and in pursuance of Home Department, Govt. of Tripura Memorandum No. F.1(46)-PD/2005, dated 14.05.2010 communicated by the Office of the Director General of Police, Tripura, Agartala vide PHQ Order No. 241/2010 & No. 21850-907/F.28(1)-PHQ/Inspr./09, dated - 15.5.2010 and approval of PHQ issued vide letter No. 12462-63/F.39/PC/PHQ/SP (Proc.)/10 dated 21.03.2011, the pay of Shri Sukanta Biswas, Sub-Inspector of Police (AB) now Inspector of Police (AB) is fixed to Rs. 14,070/- (P.B.-Rs. 11470-plus G.P.-Rs. 2600/-) on ACP-1 w.e.f. 01.02.2010 in the Pay Band-3 (Rs. 9,570-30,000/-) and Grade Pay of Rs. 2600/- with D. N. I. 01.07.2011 on completion of 10 years continuous services from the date of his appointment in the same Post and thereafter, the pay of Shri Sukanta Biswas, Inspector of Police (AB) is fixed at Rs. 16,470/- (P.B.-Rs. 12,970/- plus G.P.-Rs. 3500/-) initially w.e.f. 17.05.2010 in the existing Pay Band-3 (Rs. 9,570-30,000/-) with D.N.I. 01.07.2011 on promotion to the post of Inspector of Police (AB) as per Option exercised by the Officer concerned for those purpose. The above fixation is provisional and subject to final check up by the Accountant General, Tripura in due course. Sd.-/Illegible Superintendent of Police (Procurement), Tripura: Agartala Dated 24.03.2011 No. 4858-66/F.1/Pay Fixation/Vol-IV/SP(Proc)/2009" 4. The recovery has been directed separately by the office order dated 18.7.2014 [Annexure-6 to the writ petition]. There is no dispute that the said office order dated 18.07.2014 is a consequential order of the office order dated 12.02.2014 whereby the initial pay of the petitioner was re-fixed in the post of Inspector of Police at Rs. 15,730/- w.e.f. 17.05.2010 to 30.06.2010 and further at Rs. 16,640/- w.e.f. 1.7.2010 and thereafter, at Rs. 16,640/- w.e.f. 1.7.2010 and at Rs. 18,190/- w.e.f. 1.7.2013. The difference as sought to be recovered has been made out in the office order dated 12.2.2014 by the office order dated 18.07.2014. 5. Mr. Somik Deb, learned counsel appearing for the petitioner has strenuously argued that two incumbents holding the same post and discharging the similar duties cannot get two different pay only because of one is coming by direct recruitment and the other is coming by way of promotion. Mr. Deb, learned counsel has further contended that the pay of the petitioner be stepped up as the persons who have been directly recruited being junior to him was getting the pay of Rs. 16,470/-. Mr. Deb, learned counsel has further contended that the pay of the petitioner be stepped up as the persons who have been directly recruited being junior to him was getting the pay of Rs. 16,470/-. He has further submitted that the un-amended Rule 12 of ROP Rules, 2009 or 6th Amendment of the said ROP Rules, 2009 [the notification was issued on 19.12.2012] was given effect retrospectively from 1.1.2006. According to Mr. Deb, learned counsel, the initial fixation was made at Rs. 16,470/- under the un-amended Rule 12 of the ROP Rules, 2009. Thus, the recovery is impermissible. In this perspective, the petitioner has urged that the office orders dated 12.2.2014 and 18.7.2014 [Annexures-5 & 6 respectively of the writ petition] be set aside and the initial pay of the petitioner in the post of Inspector of Police at Rs. 16,470/- be restored. It has been further urged by the petitioner that the respondents be commanded to refund the amount that has been recovered from the salary of the petitioner. 6. The respondents by filing their reply have admitted the factual aspects but seriously disputed the premise that the petitioner is entitled to get the initial pay of Rs. 16,470/- from the day of his promotion i.e. 17.05.2010. It is to be noted that the reply of the respondents are not only sketchy but also did not lay the basic foundational facts on which they intend to rely. Further, they have asserted that on 17.05.2010, the day of promotion to the post of Inspector of Police [AB], the petitioner was entitled to the pay of Rs. 16,470/-. As he was so entitled, the said amount was paid as the pay during the period from 17.05.2010 to 31.10.2013. Now, the respondents have averred that the petitioner had overdrawn an amount of Rs. 54,209/-. That amount has been sought to be recovered from the petitioner, it has been asserted as well that there is no illegality. The premise of such re-fixation is as follows: "The amount was drawn by him as per order of SP(T) vide this No. 635/F. 1 (i)/Estt/SP(T)/13 dated 12.2.2014. As per Govt. 54,209/-. That amount has been sought to be recovered from the petitioner, it has been asserted as well that there is no illegality. The premise of such re-fixation is as follows: "The amount was drawn by him as per order of SP(T) vide this No. 635/F. 1 (i)/Estt/SP(T)/13 dated 12.2.2014. As per Govt. of Tripura, Finance Department Order No. F.6(1)/FIN(PC)/2008 dated 21.06.2013 and subsequently PHQ order No. 48944-45/F.80/PC/PHQ/SP(T)/GOs/2013 dated 29.10.2013 and vide this Office Order No. 635-43/F.1(1)/Estt/SP(T) 13 dated 12.02.2014 followed by PHQ order No. 48944-45/F.80/PC/PHQ/SP(T)/GOs/2013 dated 29.1.2013 according to the clarification received from Finance Department vide Memo No. F.6(1)/Fin/PD/2008 dated 21.06.2013. At that time the petitioner made and appeal/representation dated 20.09.2013 intimating to recover his total amount presumably due to wrong fixation of his promotion and required further re-fixation under 6th Amendment Rules, 2012." The respondents have placed the office order dated 29.10.2013, Annexure-R/2 to their reply on records to show how the re-fixation of the petitioner's pay was made under 6th Amendment Rules, 2012. The relevant part of the said office order is as follows: "According to the Clarification of Government of Tripura. Department of Finance as issued vide their Memo No. F.6(1)-FIN(PC)/2008 dated 21.06.2013 as communicated vide PHQ No. 26366-406/F.59/PC/PHO/ROP/2012 dated 29.06.2013, pay of the following Inspector of Police will be re-fixed as under: Shri Sukanta Biswas. Inspector (DOA-As SI on 01.02.2000. ACP-1 on 01.02.2010 and Inspector of Police on 17.05.2010):- According to the IPS' 2009, his pay was fixed on ACP-1 at Rs. 14830/- (12230+2600) w.e.f. 01.07.2010 in the PB-2. Rs. 5310-24000/- with GP Rs. 2600/- which is in order- Thereafter. he was promoted to the post of Inspector of police on 17.05.2010. So, his pay will be re-fixed at Rs. 15730/- (12230+3500) w.e.f 17.5.2010 to 30.6.2010 and thereafter at Rs. 16640/- (12230+450+ 460+3500) w.e.f. 01-07-2010(as per option) in the PB-3. Rs. 9570-30000/- with GP Rs. 3500/- with DNI on 01.07.2011. Accordingly. his pay will be raised at Rs. 18190/- w.e.f 01.07.2013 with DNI on 01.07.2014." [Emphasis added] 7. It may be pertinent to note that the office order dated 03.02.2011, Annexure-R/1 to the reply filed by the respondents, provides that on 01.07.2009 the pay of the petitioner was fixed on 13,730/- in the scale of pay of Rs. 5310-24000/- [Pay Band-2] with Grade Pay of Rs. 18190/- w.e.f 01.07.2013 with DNI on 01.07.2014." [Emphasis added] 7. It may be pertinent to note that the office order dated 03.02.2011, Annexure-R/1 to the reply filed by the respondents, provides that on 01.07.2009 the pay of the petitioner was fixed on 13,730/- in the scale of pay of Rs. 5310-24000/- [Pay Band-2] with Grade Pay of Rs. 2,600/- w.e.f. 1.2.2010 for his completion of 10 years of service as the benefit of ACP-I as he did not get any promotion. The State Civil Services (Revised Pay) (6th Amendment) Rules, 2012 has made certain changes in the fitment principles. According to the petitioner, for applying the change, the said discrepancy had occurred. In Para-2.10 of the writ petition, the petitioner has asserted that from a bare perusal of Rule 8 & Part-E & Part-F of Schedule I of the ROP Rules,- 2009 it would be clear that for the person directly recruited to a post in the revised pay scale of Rs. 9570-30000/- [Pay Band-3] with Grade Pay of Rs. 3500/-, his initial pay would be at Rs. 16,470/- as stated by the petitioner. Thus, the petitioner's initial pay cannot be less than Rs. 16,470/-. In the writ petition, the petitioner has raised some other issues which are not germane to the context of fixation of pay in the post of Inspector of Police and as such, this court refrains from referring those averments which are immaterial. According to the petitioner, 6th Amendment Rules takes away the vested right created in favour of the petitioner by giving its retrospective effect w.e.f. 1.1.2006. This court is constrained to observe that the interpretation of the un-amended Rule 12 may not come to the rescue of the petitioner inasmuch as the root of classification is located in Rule 12, which has been reproduced hereinabove. 8. Having appreciated the submissions, this court finds that no detailed discussion is required, in the context of this case as by way of Tripura State Civil Services (Revised Pay) (15th Amendment) Rules, 2016 which has come into force on and from 01.01.2006, the differential between a direct recruit and the promotee has been substantially attended to. 8. Having appreciated the submissions, this court finds that no detailed discussion is required, in the context of this case as by way of Tripura State Civil Services (Revised Pay) (15th Amendment) Rules, 2016 which has come into force on and from 01.01.2006, the differential between a direct recruit and the promotee has been substantially attended to. By means of Rule 14 of the principal rules i.e. Tripura State Civil Services (Revised Pay) Rules, 2009 after Clause III of sub Rules 6A of Rule 14 to the principal rules read with Tripura State Civil Services (Revised Pay) (8th Amendment) Rules, 2013, a new clause (iv) has been inserted and that reads as under: "(iv) In the case of senior employee, who has been appointed on promotion to the higher post on or after 01.01.2006, is drawing lesser pay than his junior who has been appointed directly in the same post after 01.01.2006." There is no challenge against any of the rules including 6th Amendment Rules, 2016 under which rules, the impugned orders are manifestly issued. Though Mr. Deb, learned counsel appearing for the petitioner has referred to the memorandum dated 21.6.13 [Annexure-8 to the writ petition] but according to this court, the clarifications as contained in the said memorandum are not relevant inasmuch as the clarifications are mostly in respect of the fixation of pay in terms of 6th Amendment Rules, 2012. In the said clarification it has been provided that when a government employee is promoted to the higher post, in the different pay band, his pay will be fixed as per Rule 12 of Tripura State Civil Services (Revised Pay) Rules, 2009 read with 4th Amendment Rules, 2010 to Tripura State Civil Services (Revised Pay) Rules, 2009 and the operational mode has been clarified. This court has failed to persuade how without challenging those rules or the clarifications, the writ petitioner has urged this court to interfere with the office order dated 12.02.2014 [Annexure-5 to the writ petition] or its consequential order dated 18.07.2014 [Annexure-6 to the writ petition]. It appears to this court that on the misconceived premise that if the petitioner has been directly recruited and he could have received better pay on the same post but admittedly the post of Inspector of Police cannot be filled up by direct recruitment. It appears to this court that on the misconceived premise that if the petitioner has been directly recruited and he could have received better pay on the same post but admittedly the post of Inspector of Police cannot be filled up by direct recruitment. From the recruitment rules of the post of Inspector of Police [Armed Branch] [Men & Women] it can be clearly gathered that 100% posts are to be filled up by promotion following such transfer/deputation [See Rule 10 of the Recruitment Rules]. 9. The petitioner has asserted further that if a person is directly recruited on or after 1.1.2006 to a post carrying the revised pay scale of Pay Band-3 in the scale of pay of Rs. 9570-30000/- with Grade Pay of Rs. 3500/- under the ROP Rules, 2009 his initial pay would have been fixed at Rs. 16,470/- and hence, his initial pay as fixed for the post of Inspector of Police by the impugned order is illegal and arbitrary. 10. Having appreciated the records, this Court is constrained to observe that the case of the petitioner will not be covered by the amendment of Rule 14 of the principal rules as caused by Tripura State Civil Services (Revised Pay) (15th Amendment) Rules, 2018. When there is no provision even for direct recruitment, Rule 8 or its clarification as made by the memorandum dated 21.6.2013 cannot have any manner of application in the case of the petitioner so far his fixation of pay in the promotion post is concerned. The ground that has been taken that a senior cannot get a lesser pay that of a junior is absolutely without any basis as no reference has been made to illustrate that aspect. Further, the petitioner has submitted that he was promoted to the post of Inspector of Police on 17.05.2010, for the date [in this respect the records will prevail] under the unamended Rule of 2009 and the 6th Amendment of the said principal rules came only on 19.12.2012 and hence, retrospective effect of the 6th Amendment Rules w.e.f. 1.1.2006 can have no impact on his pay. The fixation made under Rule 12 cannot be impaired and in such circumstances, the recovery as ordered is untenable as the petitioner cannot be made responsible for any excess payment. The fixation made under Rule 12 cannot be impaired and in such circumstances, the recovery as ordered is untenable as the petitioner cannot be made responsible for any excess payment. True it is that from the office order dated 3.2.2011, Annexure-R/1 to the reply filed by the respondents, it appears that the petitioner's pay was fixed at Rs. 13,730/- w.e.f. 1.2.2010 to 30.6.2010. But in the office order dated 12.2.2014 it has been delineated that in terms of the clarification given by the Finance Department by the said memorandum dated 21.6.2013 as communicated by PHQ's communication dated 29.06.2013, the pay of the petitioner was fixed at Rs. 14,830/- [Rs. 12230/-+Rs. 2,600/-] w.e.f. 1.7.2010 by ACP. Thereafter, the petitioner was promoted to the post of Inspector of Police on 17.5.2010. Thus, his pay has been fixed at Rs. 15,730/- [12,230 + 3,500] w.e.f. 17.5.2010 to 30.6.2010 and thereafter, at Rs.16,640/- [12,230+450+460+3,500] w.e.f. 1.7.2010 as per option. The relevant part of the said order dated 29.10.2013 has been reproduced before. It is apparent that only by operation of 6th Amendment Rules, 2012 the said re-fixation had been directed and the petitioner had no contribution in such fixations. It is not in dispute that unless the rule was amended, the petitioner's pay would remain unchanged at Rs. 16,470/- as determined by the office order dated 24.03.2011. As stated already, there is no challenge against any rule including 6th Amendment Rules, 2012 and as such, the determination of the pay of the petitioner in the post of Inspector of Police cannot be interfered with as that has been done under valid rules. Accordingly, the prayer to that extent stands rejected. However, the order of recovery is required to be interfered with, as for giving the retrospective operation of the said Amendment Rules, 2012, the said recovery has been directed. Even if 6th Amendment Rules, 2012 is held constitutionally valid, by its operation, the actual financial benefit that has been extended to the petitioner by the previous un-amended rules, cannot be taken away. But operation of the rules cannot be ceased. In view of this, the order of recovery dated 18.7.2014 [Annexure-6 to the writ petition] stands set aside. It is further directed that the amount what has been recovered from the petitioner shall be returned. In terms of the above, the writ petition stands allowed partly to the extent as indicated above. But operation of the rules cannot be ceased. In view of this, the order of recovery dated 18.7.2014 [Annexure-6 to the writ petition] stands set aside. It is further directed that the amount what has been recovered from the petitioner shall be returned. In terms of the above, the writ petition stands allowed partly to the extent as indicated above. There shall be no order as to costs.