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2020 DIGILAW 97 (TRI)

Naresh Chandra Datta v. State of Tripura

2020-07-16

AKIL KURESHI

body2020
JUDGMENT Akil Kureshi, J. - The petitions arise in similar background. They would be disposed of by this common judgment. Petitioners have raised a grievance about the Government of Tripura not granting them the benefit of 3rd Career Advancement Scheme (CAS-III, for short). 2. Brief facts are as under: The petitioner of WP(C) No. 1477 of 2017 Sri Naresh Chandra Datta was appointed as an undergraduate teacher in an aided school on 06.08.1970. In the year 1973 the petitioner completed his graduation. He was, therefore, granted a fresh appointment as a graduate teacher on 18.06.1973. He was placed in a higher pay scale corresponding to that of a graduate teacher. During his service career he was given benefits of CAS-I and CAS-II as and when due. According to him, after completion of 29 years of service without promotion he would be entitled to CAS-III which became due w.e.f. 05.05.2001. The department also had passed an order granting benefit of CAS-III to the petitioner w.e.f. 05.05.2001 by placing him in the next higher scale of Rs.7,450-13,000/- and fixing his basic salary at Rs. 12,000/- in the said scale. However, the actual benefit of this order was never given to the petitioner. He continued to draw salary in the lower scale without the benefit of CAS-III. He eventually retired on superannuation w.e.f. 31.03.2010. He received his post retiral benefits such as, gratuity on the basis of his last pay drawn. His pension was also fixed accordingly. The petitioner contends that after he completed graduation, he was granted fresh appointment as a graduate teacher which was neither a promotion nor a financial upgradation. The department, therefore, erroneously denied the benefit of CAS-III on the ground that in the year 1973 the petitioner had enjoyed one promotion/financial upgradation and, therefore, during his remaining service career he was entitled to the benefit of CAS-I and CAS-II only. Petitioner relies heavily on a decision of this Court dated 11.12.2014 in WP(C) No.408 of 2008 and connected petition in case of Shri Amarendra Bhattacharjee vrs. The State ofTripura and others. 3. In WP(C) No. 1478 of 2017 the petitioner Sri Subrata Bhowmik was appointed as a substitute teacher in an aided school on 09.08.1972. Thereafter, he completed his graduation and was appointed as a regular graduate teacher on 14.08.1973. He was also granted the benefit of CAS-I and CAS-II during his service career. The State ofTripura and others. 3. In WP(C) No. 1478 of 2017 the petitioner Sri Subrata Bhowmik was appointed as a substitute teacher in an aided school on 09.08.1972. Thereafter, he completed his graduation and was appointed as a regular graduate teacher on 14.08.1973. He was also granted the benefit of CAS-I and CAS-II during his service career. In his case, the department passed an order granting him the benefit of CAS-III w.e.f. 01.12.2001. Accordingly, his pay was fixed in the higher pay scale of Rs.7,450-13,000/-. He was also given actual benefit of the higher pay scale till his retirement on superannuation w.e.f. 31.03.2011. However, according to the department, he was wrongly granted the benefit of CAS-III and, therefore, a sum of Rs.76,731/- which according to the department was overpayment of salary, was recovered from his retiral benefits. He also places heavy reliance on the decision of a Division Bench of this Court in case of Amarendra Bhattacharjee (supra). 4. The department has filed replies. Stand taken by the department is that both the teachers got the benefit of higher pay scale when they were made graduate teachers from initial appointment as undergraduate teachers. They were, therefore, entitled to benefit of CAS-I and CAS-II only which was granted to them from due dates. The department is, however, unable to distinguish the case of the petitioners from that of Amarendra Bhattacharjee (supra) decided by the Division Bench. In fact, in an affidavit dated 28.06.2018 filed by Smti. Uma Debbarma, Under Secretary to the Government of Tripura, Department of School Education, it is stated that at one stage a proposal was moved before the Finance Department for approval for providing the similar benefits to these teachers also. In another affidavit dated 09.02.2018 filed by one Sri Nepal Kanti Chakraborty, Accounts Officer in the Office of the Accountant General (A&E), Tripura, it is stated that the names of these petitioners were not included in the judgment in WP(C) No.408 of 2008 in case of Amarendra Bhattacharjee (supra) and, therefore, similar benefits were not granted to them. 5. The issue involved is very short. Both the petitioners initially joined as undergraduate teachers. While in service they completed their graduations and they were appointed as graduate teachers. 5. The issue involved is very short. Both the petitioners initially joined as undergraduate teachers. While in service they completed their graduations and they were appointed as graduate teachers. They were denied the benefit of CAS-III on the premise that their appointment as graduate teachers was by way of promotion/financial upgradation and, therefore, during their service career they were entitled for CAS-I and CAS-II only. This issue is squarely covered by the decision of the Division Bench in case of Amarendra Bhattacharjee (supra). In the said case also the petitioners were initially appointed as undergraduate Assistant Teachers. After they completed their graduations, they were granted fresh appointments as graduate teachers on which post they retired. During their service, they were granted benefits of CAS-I and CAS-II. The department held the belief that they were not entitled to the benefit of CAS-III. In such background, the Court held and observed as under:- "5. The sole question which arises for consideration is, whether the appointment of the petitioners as Assistant Teacher in the Secondary Section was a promotion or a fresh appointment. The employer and the State have both stated that it was a fresh appointment. The minimum qualification for appointment in the Secondary Section was graduation. In the 'rules' framed for appointment of Assistant Teachers there is no promotion from the Primary Section to the Secondary Section and a person has to apply for the post and if selected is appointed. Therefore, this is a fresh appointment and not a promotion. As such the decision of respondent no.4 to treat this as a promotion is totally illegal and is, accordingly, set aside. 6. Consequently, the petitioners are entitled to the benefit of CAS-III and therefore, their pension, gratuity and other retiral benefits shall be calculated by taking into consideration the last pay which was actually drawn by them on the basis of getting the benefit of CAS-III. The monetary benefits be released to the petitioners latest by 30th April, 2015 failing which the State shall liable to pay 12% per annum from today till payment of the amount." 6. Facts in the present two cases are identical on all material aspects. The respondents are unable to show any significant difference in facts between the two sets of cases. Facts in the present two cases are identical on all material aspects. The respondents are unable to show any significant difference in facts between the two sets of cases. In fact, as noted earlier, the reply of the Accountant General suggests that the benefit of the said judgment of this Court was not granted to the petitioners simply because their names did not appear in the cause title. In other words, the only reason for not giving the same benefit as was granted to the petitioners in case of Amarendra Bhattacharjee (supra) to the present petitioners was that they were not parties to the said petitions. The facts being similar on all material aspects of the matter, the law laid down by the Division Bench would apply squarely to these cases also. 7. The question of delay and laches, however, would have to be addressed. Both the petitioners became entitled to CAS-III w.e.f. 05.05.2001 and 01.12.2001 respectively. In fact, the department had passed an order to this effect also, in one case giving benefit of such an order whereas in another such order was not implemented. In a case where the order was implemented, the department affected recovery of difference in salary from the retiral benefits of the employee. In any case, both the petitioners retired from service in the years 2010 and 2011 respectively. Neither during their service nor after retirements did they raise any dispute about non-grant of benefit of CAS-III. In case of the petitioner of WP(C) No. 1477 of 2017 his inaction is even more glaring. After passing the order granting him the benefit of CAS-III w.e.f. 05.05.2001 such order was never given effect to. He raised no objection to the stand of the department till he retired in the year 2010 or even thereafter. He received his gratuity and his pension was fixed on the basis of his retiring salary. The Division Bench of this Court rendered the judgment in case of Amarendra Bhattacharjee (supra) in the year 2014. Even thereafter he filed the petition nearly 3(three) years later. His every action was thus grossly delayed. In case of the petitioner in WP(C) No. 1478 of 2017, delay though substantial, is of a lesser extent. In his case, the department not only passed the order granting benefit of CAS-III w.e.f. 01.12.2001, gave actual benefit to the employee by giving him pay fixation and higher salary. His every action was thus grossly delayed. In case of the petitioner in WP(C) No. 1478 of 2017, delay though substantial, is of a lesser extent. In his case, the department not only passed the order granting benefit of CAS-III w.e.f. 01.12.2001, gave actual benefit to the employee by giving him pay fixation and higher salary. At the time of his retirement in the year 2011, however, the department retraced its steps and recovered the alleged overpayment. He did not object to this action of the department nor did he insist that his gratuity and pension be fixed on the basis of the benefit of CAS-III. Inaction on his part would start from the year 2011. 8. Both these petitions are, therefore, filed long after the cause of action arose. However, as is well settled in service jurisprudence, in the context of payment of salary or pension, both are treated as continuous recurring causes where cause of action is seen to have arisen from month to month when the salary or the pension, as the case may be, becomes due and payable. The petitions, therefore, cannot be rejected solely on the ground of delay and laches. However, the petitioners cannot expect full relief of payment of difference of past period, re-fixation of gratuity or even the benefit of higher pension from the date of retirement. In the present cases, therefore, there is a need to mould the prayers. 9. Considering the facts and circumstances of the case, it is held that the petitioners are entitled to CAS-III from the respective dates, i.e. in case of WP(C) No.1477 of 2017 w.e.f. 05.05.2001 and in case of WP(C) No.1478 of 2017 w.e.f. 01.12.2001. Their salaries shall be fixed in the higher scale of Rs.7,450-13,000/- at an appropriate stage from respective dates. Such pay fixation, however, would be for notional purposes till the date of the retirements. They will not be entitled to any revision in gratuity already paid to them. Their pensions would, however, be revised inaccordance with their revised pay fixations. Their pensions would be counted on the basis of such fresh fixation. However, they would be paid the benefit of higher pension for the period 3 (three) years prior to the date of filing of the petitions and thereafter. Their pensions would, however, be revised inaccordance with their revised pay fixations. Their pensions would be counted on the basis of such fresh fixation. However, they would be paid the benefit of higher pension for the period 3 (three) years prior to the date of filing of the petitions and thereafter. The entire exercise of carrying out fresh pay fixation and pension of the petitioners and paying the arrears to the extent directed above shall be completed within a period of 4(four) months from today. 10. Both the petitions are disposed of accordingly. Pending application(s), if any, also stands disposed of.