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2020 DIGILAW 2 (TRI)

Kanu Biswas v. State of Tripura

2020-01-04

AKIL KURESHI

body2020
JUDGMENT 1. These petitions arise in common background, they have been heard together and would be disposed of by this common judgment. [2] Facts being identical we may notice them from WP(C) No.501/2019. [3] Petitioners have challenged a memorandum dated 30th December, 2017 issued by the Government of Tripura by which certain clarifications have been made for the purpose of granting benefit of automatic scale up-gradation to the stenographers after 4(four) years of service. [4] Brief facts are as under : Petitioners were appointed as Stenographer (Personal Assistant-I) in the Tripura Government Stenographers Service in the pay scale of Rs.4,200-8,650/- by separate orders passed in the month of May, 2007. The Government of Tripura had promulgated Tripura State Civil Services (Revised Pay) Rules, 1988 (hereinafter to be referred to as the ROP 1988 ) which were brought into effect from 1st January, 1986. These rules provided for granting of higher grade/scale on completion of 4(four) years of service to most other State service cadres, whereas in case of the Stenographers such benefit would be available only upon completion of 7(seven) years of service. It appears that the Pay Anomaly Committee had also highlighted this aspect and recommended corrective measures by the State Government. Since this was not accepted, the aggrieved stenographers had moved a writ petition (Civil Rule No.301/1999) before the High Court which was decided by the learned Single Judge on 2nd December, 2006 directing the Government to examine the grievances of the petitioners and if the decision was adverse, the authority would record reasons. The Government thereupon considered the representation of the concerned employees which was rejected upon which the employees filed a fresh petition before Tripura High Court being WP(C) No.245/2007 . The learned Single Judge by a judgment dated 24th July, 2014 in case of Anjan Deb Roy v. State of Tripura and Anr. found that the Government had no valid basis for discriminating the stenographers. The petition was allowed in following terms: '16. In view of the above discussion, the writ petition is allowed and the petitioners are held entitled to grant of being automatically placed in the higher grade on completion of 4 years of service in the lower grade as Junior Grade Stenographers. The petition was allowed in following terms: '16. In view of the above discussion, the writ petition is allowed and the petitioners are held entitled to grant of being automatically placed in the higher grade on completion of 4 years of service in the lower grade as Junior Grade Stenographers. Their pay shall be re-fixed accordingly by giving them this benefit but the monetary benefit shall be restricted from 14-06-1996, i.e. 3 years prior to the filing of Civil Rule No.301 of 1999. It is also made clear that such benefit shall only be available to the petitioners and not to other stenographers who have not approached this Court.' Since these directions were confined to those who had approached the Court, large number of fresh petitions came to be filed before the Tripura High Court being WP(C) No.371/2016 and other connected petitions. These petitions came to be disposed of by learned Single Judge dated 15th December, 2016. The Government was directed to give the benefit of next higher grade upon completion of 4 years of service to the petitioners. However, actual benefits were restricted to a period of 3(three) years prior to filing of the petition. [5] Pursuant to such judgments of the High Court, Government of Tripura issued a memorandum dated 6th October, 2017 granting benefits as per the decisions of the High Court to the petitioners. Subsequent memorandum was issued on 20th April, 2018 giving the benefit even to those employees who had not approached the High Court. The Government, thereafter, issued the impugned memorandum dated 30th December, 2017 which reads as under : 'Several correspondences have been received in this Department seeking clarification on fixation of pay in respect of Stenographers due to entitlement of benefit of automatic scale up-gradation after 4(four) years due to implementation of Hon ble High Court order in WP(C) No.245 of 2007. 2. 2. The matter has been examined in this and it is clarified that :- (i) A Stenographer who has joined in service prior to 01-01-1996 shall get automatic scale up-gradation after 4(four) years continuous and satisfactory service which shall be treated as 1st gradation subject to the condition that he has not got any promotion during that period; (ii) He/she shall get subsequent scale upgradation after completion of next 13(thirteen) years of service from the date of availing of automatic scale up-gradation after 4(four) years [total 17(seventeen) years from the date of initial joining in service] subject to the condition that he/she has not got any promotion during that period. 3. In view of the above, all Head of Department(s)/Head of Office(s) is requested to take necessary action for ensuring correctness in the fixation of pay in respect of stenographers falling within the aforesaid category. Excess fund disbursed, if any, may be recovered.' [6] The grievance of the petitioners is that by the impugned memorandum the Government has restricted the benefits flowing from the above decisions of the High Court to those stenographers who had joined the service prior to 1st January, 1996. According to the petitioners, this cut-off date of 1st January, 1996 is wholly arbitrary and discriminatory and creates an impermissible sub-classification. It is also contended that the ROP 1988 made statutory provisions for up-gradation. By a mere executive clarification such benefits cannot be withdrawn. In any case, there is no reason for denying the said benefits to those stenographers who joined the service after 1st January, 1996. [7] On the other hand, the case of the Government is that fresh pay rules were promulgated under Revision of Pay Rules, 1999 ( ROP 1999 for short) which were implemented w.e.f. 1st January, 1996). By virtue of these Rules, ROP 1988 stood repealed. ROP 1999 contained fresh set of rules for Assured Carrier Progression ( ACP for short) . Those employees who joined the service after 1st January 1996, therefore, cannot claim the benefit of carrier progression provisions contained in ROP 1988. [8] Learned Government Advocate further pointed out that subsequently fresh pay rules have been framed by the Government under Revision of Pay Rules, 2009 ( ROP 2009 for short) w.e.f. 1st January, 2006. Those employees who joined the service after 1st January 1996, therefore, cannot claim the benefit of carrier progression provisions contained in ROP 1988. [8] Learned Government Advocate further pointed out that subsequently fresh pay rules have been framed by the Government under Revision of Pay Rules, 2009 ( ROP 2009 for short) w.e.f. 1st January, 2006. He relied on a decision of Division Bench of this Court in case of State of Tripura v. Ajit Chakraborty and Ors in Writ Appeal No.46/2014 dated 28th May, 2019 in support of his contentions. [9] From the materials on record it can be seen that the grievance of the stenographers who were governed by ROP 1988 was that the said pay rules discriminated the cadre of stenographers for the purpose of granting higher grade upon completion of 4(four) years of service which was the provision made in favour of all other cadres. This Court found that the stand taken by the Government for denying such benefits to the stenographers under the said pay rules was illegal. Suitable directions were therefore issued in two separate judgments, as noted above. The Government has accepted the judgments and also issued necessary memoranda granting benefits to the eligible stenographers. However, the Government also considered the question whether such benefits could flow in favour of those stenographers who were appointed after 1st January, 1996. It was in this context, after deliberations, the impugned clarificatory memorandum came to be issued. This memorandum clarifies that such benefit would not be available to those stenographers who were appointed after 1st January, 1996. The reason for this clarification in its justification is not difficult to appreciate. [10] ROP 1988 introduced certain features for ACP. The provision made for all cadres except the stenographers was that upon completion of 4(four) years of regular service without promotion the employee concerned would be placed in the higher grade scale of pay. In case of the Stenographers this period prescribed was 7(seven) years. This discrimination was eliminated by virtue of judgments of this Court in cases of Anjan Chakraborty (supra) and Prabir Paul (supra). The anomaly or discrimination vis- -vis the stenographers and the rest of the employees thus stood removed. This, however, would not mean that the stenographers who were appointed subsequently after implementation of fresh pay rules, can claim continued benefit of Carrier Advancement in terms of ROP 1988. The anomaly or discrimination vis- -vis the stenographers and the rest of the employees thus stood removed. This, however, would not mean that the stenographers who were appointed subsequently after implementation of fresh pay rules, can claim continued benefit of Carrier Advancement in terms of ROP 1988. As is well-known, each revision of pay rules bring into effect fresh set of pay scales for different cadres in Government service and contained suitable provisions for ACP. With implementation of ROP 1999, provisions for ACP contained in such rules would come into operation. ROP 1999 would repeal ROP 1988. The recommendations for pay scales and pay revision with matching ACP provisions, as contained in ROP 1999, would then become operative. Those stenographers who were appointed after 1st January 1996, therefore cannot claim any benefit of ACP under ROP 1988. This is precisely what by the impugned clarification, has been provided. The memorandum thus is not only legal and valid, is also merely clarificatory in nature. To the extent it declares that stenographers appointed after 1st January, 1996 would not be entitled to the benefit of higher scale up-gradation under ROP 1988, it merely clarifies the provisions which even otherwise in law obtains. [11] In a recent decision in case of Suvarun Datta v. State of Tripura and Ors . in WP(C) No.99/2019 and connected petitions in the judgment dated 11th December, 2019 learned Single Judge of this Court considered the grievance of the petitioners who claimed the benefit of up-gradation under the previous revision of pay rules where they had not fulfilled the condition of completion of 10 years till the fresh ROP 2009 were implemented w.e.f. 1st January, 2006. In this context, while dismissing the petitions it was observed as under : '8. It can thus be seen that the ROP, 2009 provided an entirely different scheme of Assured Career Progression replacing earlier modified Career Advancement Scheme contained in ROP, 1999. The admitted fact is that none of the petitioners completed the minimum qualifying service of 10 years for claiming the benefit of modified Career Advancement Scheme under the ROP of 1999 till 01.01.2006. All the petitioners completed 10 years of service as LDCs long after 01.01.2006. We have noticed that petitioner of WP(C) No.99 of 2019 completed such 10 years of service only in the year 2013. All the petitioners completed 10 years of service as LDCs long after 01.01.2006. We have noticed that petitioner of WP(C) No.99 of 2019 completed such 10 years of service only in the year 2013. By the time, therefore, these petitioners had completed 10 years of service, ROP of 1999 no longer held the field. The ROP of 2009 were brought into existence, revised pay scales as per the said revision were implemented, petitioners had opted for being governed by the ROP of 2009. 9. Under the circumstances, the petitioners cannot claim to enjoy the continued benefit of modified Career Advancement Scheme as per the Rules of 1999. Their entitlements of pay and other allowances as well as the career progression benefits would be traced only to the ROP of 2009. Any other view would bring about an anomalous situation. The employees such as the petitioners would be governed by the revised pay scales as per ROP, 2009 and corresponding pay fixations whereas they would receive benefit of career advancement as per the scheme contained in the ROP, 1999. Such a hybrid situation is neither envisaged under the rules, nor can be interpreted.' [12] In the result, I find no merit in the petitions. Petitions are, therefore, dismissed. Pending application(s), if any, also stands disposed of.