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Tripura High Court · body

2020 DIGILAW 98 (TRI)

Bapi Deb v. State of Tripura

2020-07-16

AKIL KURESHI

body2020
JUDGMENT 1. The petitioner has challenged a communication dated 06.09.2016 issued by the respondents and further prayed for a direction for grant of one increment upon his promotion to the post of Bench Assistant and another increment at the time of his promotion to the post of Senior Administrative Assistant. 2. Brief facts are as under: The petitioner was appointed as a Lower Division Clerk on 06.08.1997 under South Tripura District Court. He joined the service of the High Court as a Lower Division Assistant on 01.04.2002 in the pay scale of Rs.3,300 - 7,100/-. His past service in the District Court was protected. As per the Government of Tripura policy also adopted by the High Court for its employees, an employee would get the benefit of first Career Advancement Scheme-I (CAS-I) upon completion of 10 years of service without promotion. With effect from 06.08.2007, the petitioner was granted the benefit of CAS-I. His pay was fixed in the promotional grade of Rs.5,700 24,000/- with Grade Pay of Rs.2,400/-. Tripura Civil Service (Revision of Pay) Rules, 2009 (hereafter to be called ROP, 2009), introduced Assured Career Progression Scheme (ACP for short) contained in Rule 10 replacing the old nomenclature of CAS. As per these Rules, after getting benefit of first financial upgradation, an employee would be entitled to second ACP upon completion of 7 years of service. Accordingly, the petitioner was granted ACP-II with effect from 06.08.2014 by placing him in the next promotional Grade bearing scale of pay of Rs.5,700 Rs.24,000/- and a Grade Pay of Rs.2,800/-. 3. On 11.08.2014, the petitioner received his first promotion in the High Court to the post of Bench Assistant, which carried the pay scale of Rs.5,700/- - 24,000/- and a Grade Pay of Rs.2,400/-. He got his second promotion on 01.09.2015 on the post of Senior Administrative Assistant carrying a pay scale of Rs.5,700 24,000/- with a Grade Pay of Rs.2,800/-. 4. The case of the petitioner is that neither at the time of his first promotion to the post of Bench Assistant, nor at the time of his second promotion as a Senior Administrative Assistant, the benefit of pay fixation in terms of Fundamental Rule 22 (C) or 22(I)(a)(1) was granted. 4. The case of the petitioner is that neither at the time of his first promotion to the post of Bench Assistant, nor at the time of his second promotion as a Senior Administrative Assistant, the benefit of pay fixation in terms of Fundamental Rule 22 (C) or 22(I)(a)(1) was granted. It is in this context, the petitioner has challenged the communication, issued by the Department rejecting his prayer for such benefits and further prayed that one increment each be granted to him at the time of his promotions. 5. The respondents have opposed the petition. The High Court as well as the Government have filed replies. The stand emerging from such replies is that the petitioner had already got the benefits of financial upgradations on two occasions before he was granted functional promotions. As per Rule 10 of ROP, 2009 and in particular, sub-Rule (7) thereof, under such circumstances, at the time of functional promotions, additional increment is not to be granted. The respondents contend that FR 22(I)(a)(1) as adopted by the Tripura Government for its employees must yield to sub-Rule (7) of Rule 10 of ROP, 2009. 6. Appearing for the petitioner, learned counsel Mr. Somik Deb submitted that the respondents have committed a serious error in not granting the benefit of pay fixation in terms of FR 22(I)(a)(1) at the time the petitioner was granted two promotions. He submitted that the benefits envisaged under FR 22(I)(a)(1) cannot be taken away under Rule 10(7) of ROP, 2009. He drew my attention to a clarification, issued by the Government of Tripura in a Memorandum dated 14th September, 2009 in which it has been stated as under: Sl. No. Point on which clarification sought Clarification 13. It is observed that in certain cases in the Home (Police) and Forest Department, feeder post and promotion posts were same in the pre-revised pay structure. In such cases, special pay used to be granted for promotion to the higher post. Now clarification sought what benefit would be admissible in the event of promotion after coming over to the revised pay structure. In such cases benefit of one increment would be provided without change of Grade Pay. 7. In such cases, special pay used to be granted for promotion to the higher post. Now clarification sought what benefit would be admissible in the event of promotion after coming over to the revised pay structure. In such cases benefit of one increment would be provided without change of Grade Pay. 7. Counsel also drew my attention to a clarification issued by the Central Government in the context of FR 22(I)(a)(1) under OM dated 7th January, 2013, which reads as under: "The undersigned is directed to invite an attention to the provisions contained in Rule 13 of the CCS(RP) Rules, 2008, which provides for the method of fixation of pay on promotion on or after 1.1.2006 in case, inter-alia, of promotion from one grade pay to another. The Rule provides for fixation of pay by way of addition of one increment equal to 3% of the sum of the pay in the pay band and the existing grade pay (rounded off to the next multiple of 10) to the existing pay in the pay band and then fixing the pay in the promotional post as per the procedure prescribed therein. 2. In terms of this Ministry's OM No. 169/2/2000-IC dated 24.11.2000, dealing with the situation whereby both the feeder and the promotional grades were placed in the identical revised pay scales based on the recommendations of the 5th Central Pay Commission, it was provided, inter-alia, that only in cases where it was not found feasible to appropriately restructure cadres in question on functional, operational and administrative considerations, extension of the benefit of fixation of pay under FR 22(I)(a)(1) could be considered on the merits of each case, provided all the conditions precedent for the grant of this benefit were fully satisfied and promotion to the post in question actually involved assumption of higher responsibilities. 3. In view of the provisions which existed prior to 1.1.2006, the matter has been considered and the President is pleased to decide that in cases of promotion from one post to another where the promotional post carries the same Grade Pay as the feeder post, the fixation of pay in such cases will be done in the manner as prescribed in Rule 13(i) of the CCS(RP) Rules, 2008, provided fixation of pay in such cases was done prior to 1.1.2006 in terms of this Ministry's aforesaid OM No.169/2/2000-IC dated 24.11.2000. 4. 4. In so far as the persons serving the Indian Audit and Account Department are concerned, these orders are issued in consultation with the Comptroller & Auditor General of India. 5. The Hindi version of this OM will follow." 8. Counsel submitted that by virtue of the said clarifications, the petitioner was entitled to grant of one increment each at the time of his promotions. 9. On the other hand, learned counsel appearing for the High Court of Tripura and the State Government opposed the petition contending that by the time petition was granted actual promotions, he was already granted the benefits of two financial up-gradations. He was, thus, already enjoying the pay fixation in promotion grades. At the time of granting of benefits of financial up-gradations, the petitioner was already given the benefit of increment @ 3% of his basic pay. In terms of Rule 10(7) of ROP 2009, thereafter, he was not entitled to additional increment at the time of functional promotions. 10. The facts are not seriously in dispute. The petitioner was granted the benefit of CAS-I on 06.08.2007. His pay was fixed in the higher Grade of Rs.5,700 24,000/- with a Grade Pay of Rs.2,400/-, which was assigned to the promotional post of Bench Assistant. He was given the benefit of second upgradation on 06.08.2014 in the pay scale of Rs.5,700 24,000/- with a Grade Pay of Rs.2,800/-, which is assigned to the Senior Administrative Assistant. He was actually promoted as a Bench Assistant on 11.08.2014 and thereafter, as a Senior Administrative Assistant on 01.09.2015. 11. At the time of the grant of financial upgradations, he was granted the benefit of 3% increment as per Rule 10 of ROP 2009. From the affidavit in- reply filed by the High Court, one can gather his pay fixations before and after such financial upgradations as under: Period Lower Scale Higher Scale PB-2(Rs, 5700-24000) PB-2(Rs, 5700-24000) with Grade Pay Rs.2200/- with Grade Pay Rs.2400/- 01.07.2007 Rs. 10,630/- - (Rs.8,430 + G.P.2200) 06.08.2007 (Rs. 10,630/-) Rs. 11,150/- (Rs.8,430 + 320 (3% increment) + G.P. 2400 Period Lower Scale Higher Scale PB-2(Rs, 5700-24000) with Grade Pay Rs.2800/- 01.07.2007 Rs. 13,740/- (Rs. 11,340+ G.P. 2400) 06.08.2007 (Rs. 13,740/-) Rs. 14,560/- (Rs. 11,340+ 420 (3% increment) + G.P. 2800 12. 10,630/- - (Rs.8,430 + G.P.2200) 06.08.2007 (Rs. 10,630/-) Rs. 11,150/- (Rs.8,430 + 320 (3% increment) + G.P. 2400 Period Lower Scale Higher Scale PB-2(Rs, 5700-24000) with Grade Pay Rs.2800/- 01.07.2007 Rs. 13,740/- (Rs. 11,340+ G.P. 2400) 06.08.2007 (Rs. 13,740/-) Rs. 14,560/- (Rs. 11,340+ 420 (3% increment) + G.P. 2800 12. Thus, at the time of granting both financial upgradations, the petitioner was granted the benefit of an increment calculated @ 3% of his basic salary. In this background, is the petitioner justified in seeking additional increments at the time of his functional promotions? This question must be answered in the backdrop of Rule 10 of ROP 2009 under which the petitioner's entitlements of ACP are governed. Relevant portion of said Rule 10 reads as under. "10. Introduction of a new scheme titled 'Assured Career Progression' (ACP) Scheme with effect from 1st January, 2006 in replacement of existing CAS introduced under TSCS(Revised Pay) Rules, 1999.- (1) Under the new scheme (A.C.P), all Government employees in the PB-1, PB-2 & PB-3 shall be entitled to get a maximum of three financial up gradations, the first after 10 years of service under regular scale, 2nd after another 7 years of service (total 17 years) and 3rd after further 8 years of service(total 25 years) in their service career provided the concerned employee had not got up to three numbers of benefits of scale up gradations including promotions already. In case of PB-4, the employees borne under Grade Pay Rs.3700/- (against pre-revised scale of Rs.7800-15,100/-), under Grade Pay Rs. 4500/- (against pre-revised scale of Rs.10,000-15,100/) and Grade Pay Rs. 4800/- (against pre-revised scale of Rs.10,650-15,850/-) would be entitled to get 3, 2 and 1 financial up gradations respectively under the scheme provided the concerned employee had not got scale upgradation including promotion up to 3,2 & 1 respectively already. (5) The scheme envisages grant of only financial benefits (through financial upgradation) to the Govt. servant concerned on a personal basis and shall, therefore, neither amount to functional/ regular promotion nor would require creation of new posts for the purpose. (6) The financial upgradation under the scheme will be purely personal to the employee concerned and will have no relevance to his seniority position. There will be no change in his designation or functional/reporting responsibilities. servant concerned on a personal basis and shall, therefore, neither amount to functional/ regular promotion nor would require creation of new posts for the purpose. (6) The financial upgradation under the scheme will be purely personal to the employee concerned and will have no relevance to his seniority position. There will be no change in his designation or functional/reporting responsibilities. Moreover, other benefits/facilities available for the promotion posts would also not be available to him/her until and unless the official has been duly promoted to the higher post. (7) Only the benefit of fixation of pay will be available at the time of financial upgradation under this scheme. For this, an increase of one increment in the existing pay in his/her Pay Band (i.e. 2.5% of Band Pay plus Grade Pay) along with next available Grade Pay shall be admissible as benefit of financial upgradation under this scheme. However, in cases where financial up-gradation and promotion fall in the same Grade Pay, in that case if any employee has already got the benefit of financial upgradation under ACP, he will not get any further financial benefit of increment etc for his promotion in the same Grade Pay. He will, however, thereafter be entitled to the higher designation and all the functional responsibilities and facilities available for the higher post. (8) Besides providing one increment @ 2.5 % and the next available Grade Pay under the ACP, the concerned employee will continue to remain in his existing Pay Band. However, in the event of his crossing the maximum of the Pay Band as a result of this upgradation, she/he will move to the next higher Pay Band but without any change in the earlier Grade Pay. Provided, those Government employees who had got the benefit of CAS under TSCS (Revised Pay) Rules, 1999 between period 1.1.1999 to 31.12.2005 moving to the promotion scale without having benefit of FR 22(I)(a)(1) but got/ will get functional promotion in the same pre-revised pay scale or to the revised pay structure corresponding to the same pre-revised pay scale after coming over to the revised pay scale, will be entitled to get the benefit of one increment under revised pay structure at the time of functional promotion in the same pay scale. (9) Grant of higher pay scale under the Scheme shall be conditional to the fact that an employee, while accepting the said benefit shall deemed to have given his unqualified acceptance for regular promotion on occurrence of vacancy subsequently. (10) If a Government employee, after availing the financial upgradation under the ACP Scheme subsequently refuses to accept the regular promotion, the financial up gradation already granted will not be withdrawn. However, the subsequent financial upgradations will get postponed suitably by the Administrative Department. (11) For the purpose of movement under ACP, the concerned Government employee shall be eligible to opt to get his pay fixed from the date of his next increment as provided in the Note No.1 & 2 below rule 12." 13. Under this Rule, the Government of Tripura granted the benefit of Assured Career Progression, to its employees. In a nutshell, subject to fulfillment of conditions contained in the said Rule, an employee, who stagnates without promotion for a specified number of years of service, would be granted first, second and third level of ACP. The employee would be placed in the next higher pay scale even though the promotional post may not be vacant. The question as to what will happen when an employee, who has already received such benefit of ACP is actually promoted or as is referred to by the Government, receives functional promotion is answered in sub-Rule (7) of Rule 10. As per this sub-Rule, at the time of granting the financial upgradation, the employee would receive one increment in the existing pay, which was previously prescribed the rate of 2.5% of Band Pay + Grade Pay and was later on revised to 3%. As per this Rule, in case, where financial upgradation and promotion fall in the same Grade Pay, the employee, who has already got the benefit of financial upgradation, will not get any further financial benefit of increment upon his promotion in the same Grade Pay. He would be entitled to higher designation and all functional responsibilities attached to the higher post. In plain terms, when an employee has already got financial up-gradation before he is actually promoted and such financial upgradation as well as the pay scale prescribed for the promotional post are identical, at the time of the promotion, the employee shall receive no further increment. In plain terms, when an employee has already got financial up-gradation before he is actually promoted and such financial upgradation as well as the pay scale prescribed for the promotional post are identical, at the time of the promotion, the employee shall receive no further increment. This is also logical since a financial upgradation is granted to an employee, who has stagnated without promotion for a specified period. However, subsequently, when he gets the promotion, all that changes for him is his designation, duties and responsibilities, but not his pay fixation. In my opinion, therefore, the case of the petitioner squarely falls under sub-Rule (7) of Rule 10 of ROP 2009. He was not entitled to grant of any further increments at the time of his actual promotions since before he received such promotions he had already been granted the benefits of two financial upgradations. 14. The contention that the benefit envisaged under FR 21(I)(a)(1) cannot be taken away is to be recorded only for rejection. FR 22(I)(a)(1) provides for the formula for pay fixation on promotion. The benefit of CAS or ACP is made available in terms of statutory rules. It is a special benefit made available by the Government to its employees, who on account of non-availability of vacancies in the promotional cadre, have stagnated for years together without promotion. Such benefit can be claimed only subject to inherent conditions and restrictions prescribed in the Rules providing for the Scheme of such up-gradation. 15. Neither the clarification issued by the Government of Tripura under its OM dated 14th September, 2009, nor the clarification issued by the Government of India under its OM dated 7th January, 2013, would change this position. The clarification issued by the Government of Tripura mainly covers a situation where an employee is granted promotion where the feeder post as well as promotional post carry the same pre-revised structure. In such a situation, it is clarified that at the time of promotion, the employee would be granted the benefit of one increment without change the Grade Pay. This query and the corresponding clarification does not cover the present situation where the employee had already got the benefit of ACP before he was actually promoted. Likewise the clarification issued by the Government of India cannot be applied unless and until it is adopted by the State Government. This query and the corresponding clarification does not cover the present situation where the employee had already got the benefit of ACP before he was actually promoted. Likewise the clarification issued by the Government of India cannot be applied unless and until it is adopted by the State Government. Additionally, the said clarification also does not cover the case of the petitioner for the same reasons, the clarification issued by the State Government does not cover his case. The clarification of the Government of India does not touch the situation where the employee has already received the benefit of ACP-I or II before actual promotions. 16. For such reasons, the Petition is dismissed. Pending application, if any, stands disposed of.