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2021 DIGILAW 166 (TRI)

Tejaram Khareshya v. State of Tripura

2021-09-16

AKIL KURESHI

body2021
JUDGMENT The petitioner has challenged a communication, dated 27th August 2018, as at Annexure -11 to the petition by which his request for stepping up of pay at the level of his junior, in order to remove pay anomaly, came to be rejected. [2] Brief facts are as under : The petitioner and the private respondent No.7 Sri Dulal Chandra Das were both appointed as Riflemen(GD) in Tripura State Rifles(TSR), on 31st July 1992, in the scale of pay of Rs.850-2,130/-. The petitioner was senior to Dulal Chandra Das. Both got identical pay from time to time. As on 1st July 1996, the basic pay of both of them was Rs.1,090/-. The Government of Tripura introduced Revision of Pay Rules, 1999 w.e.f 1st January 1996. The pay of the petitioner and Dulal Chandra Das were refixed in the revised scale of Rs.3,200-6,030/- at Rs.3,290 as on 1st July 1996. The pay parity between the two continued till 1st July 2001 when they were both drawing basic pay of Rs.3,740/-. [3] On 23rd August 2001, the petitioner was appointed as a Naik(Operator) and which led to the pay discrepancy between him and Dulal Chandra Das at a later point of time. As per Rule 42 of Tripura State Rifles (Recruitment) Rule, 1984 (hereinafter to be referred to as “the Recruitment Rules”), the post of Naik(GD) or Naik(Operators) shall be filled by transfer from amongst Naiks, failing which Lance Naiks, failing which Riflemen who possess the qualifications of Matriculation or equivalent and Grade III of Wireless Operator’s proficiency standard. Under this Rule, the petitioner was made the Naik(Operator), however, without any financial benefits since the department considered this not as a promotion but merely a transfer, though admittedly the post of Naik(Operator) carries higher pay scale than that of Riflemen(GD). [4] On the other hand, Dulal Chandra Das was promoted to the post of Lance Naik(GD) which is a post one step lower in the hierarchy than that of Naik(Operator) on 1st March 2002. Since Dulal Chandra Das was being promoted, he got the benefit of pay fixation in the promotional scale. As on 1st July 2002 i.e. shortly after his promotion, his pay was fixed at Rs.4,010/- whereas on the same day, the petitioner was joined the basic of Rs.3,830/-. This was the starting point of anomaly which continued from time to time. Since Dulal Chandra Das was being promoted, he got the benefit of pay fixation in the promotional scale. As on 1st July 2002 i.e. shortly after his promotion, his pay was fixed at Rs.4,010/- whereas on the same day, the petitioner was joined the basic of Rs.3,830/-. This was the starting point of anomaly which continued from time to time. Even after the petitioner got the benefit of Carrier Advancement Scheme(CAS) - I w.e.f 31st July 2002 he was drawing less pay than that of his junior. The petitioner was granted promotion to the post of Havildar(Clerk), on 10th February 2004 and his pay was fixed at Rs.4,200/- w.e.f 1st July 2004 and momentarily, he drew slightly higher pay than Dulal Chandra Das who on the same day was drawing Rs.4,190/-. Soon enough, the anomaly reappeared because Dulal Chandra Das was promoted as Naik(GD) on 12th January 2005 and on account of a fresh pay fixation to the promotional post, his pay became Rs.4,380/- as on 1st July 2005 whereas the petitioner was drawing Rs.4,300/- on the same day. This anomaly continued till the petitioner was promoted as Naib Subedar(Clerk), on 19th October 2009 and his pay as on 1st July 2010 was Rs.14,520/- whereas that of Dulal Chandra Das remained at Rs.13,090/- on the post of Havildar(GD). It appears that till date Dulal Chandra Das has not got the next promotion and therefore, the petitioner since his promotion as Naib Subedar is drawing higher pay than that of his junior. All this data I have taken from the Government reply in which in the form of a chart following details are provided. Rfn GD Tejaram Khareshya [now Nb/Sub(Clrk)]. Rfn GD Dulal Ch Das (now Hav.GD). Appointed as Rfn(GD) on 31.07.1992, pay scale pre-revised Rs.850-2130/- with DNI on 01.07.1993. Appointed as Rfn(GD) on 31.07.1992, pay scale prerevised Rs.850-2130/- with DNI on 01.07.1993. Pay re-fixed at modified scale Rs.950/- w.e.f 01.11.1992, prerevised scale Rs.970-2400/- with DNI on 01.07.1993. Pay re-fixed at modified scale Rs.950/- w.e.f 01.11.1992, prerevised scale Rs.970-2400/- with DNI on 01.07.1993. Appointed as Rfn(GD) on 31.07.1992, pay scale pre-revised Rs.850-2130/- with DNI on 01.07.1993. Appointed as Rfn(GD) on 31.07.1992, pay scale prerevised Rs.850-2130/- with DNI on 01.07.1993. Pay re-fixed at modified scale Rs.950/- w.e.f 01.11.1992, prerevised scale Rs.970-2400/- with DNI on 01.07.1993. Pay re-fixed at modified scale Rs.950/- w.e.f 01.11.1992, prerevised scale Rs.970-2400/- with DNI on 01.07.1993. Pay as on 01.07.1993 Rs.985/- Pay as on 01.07.1993 Rs.985/- Pay as on 01.07.1994 Rs.1020/- Pay as on 01.07.1994 Rs.1020/- Pay as on 01.07.1995 Rs.1050/- Pay as on 01.07.1995 Rs.1050/- Pay as on 01.07.1996 Rs.1090/- Pay as on 01.07.1996 Rs.1090/- Pay fixed under ROP, 1999 As pay on 01.07.1996 Rs.1090.0 DA 148% = Rs.1613.20 I/R 10% + 100 = Rs. 205.00 FB 30% = Rs.327.00 Total = Rs.3235.20 Say Rs.3290/- in pre-revised scale Rs.3200-6030/- with DNI on 01.07.1997 Pay fixed under ROP, 1999 As pay on 01.07.1996 Rs.1090.0 DA 148% = Rs.1613.20 I/R 10% + 100 = Rs. 205.00 FB 30% = Rs.327.00 Total = Rs.3235.20 Say Rs.3290/- in pre-revised scale Rs.3200-6030/- with DNI on 01.07.1997 Pay as on 01.07.1997 Rs.3380/- Pay as on 01.07.1997 Rs.3380/- Pay as on 01.07.1998 Rs.3470/- Pay as on 01.07.1998 Rs.3470/- Pay as on 01.07.1999 Rs.3560/ Pay as on 01.07.1999 Rs.3560/ Pay as on 01.07.2000 Rs.3650/ Pay as on 01.07.2000 Rs.3650/ Pay as on 01.07.1997 Rs.3740/- Pay as on 01.07.1997 Rs.3740/ Appointed to NK(Opr) on 23.08.2001 and no financial benefits as per RR - Pay as on 01.07.2002 Rs.3830/- Promoted to LNK(GD) on 01.03.2002 and pay fixed at Rs.4010/- w.e.f. 01.07.2002 (exercising option) in existing pay scale with DNI on 01.07.2003. Allowed CAS-1 pay fixed at Rs.3,920/- w.e.f. 31.07.2003 in existing pay scale under ROP 1999 with DNI on 01.07.2003. - Pay as on 01.07.2003 Rs.4010/- Pay as on 01.07.2003 Rs.4100/- Again appointed to Hav(Clerk) on 10.02.2004, pay fixed at Rs.4200/- w.e.f 01.07.2004 (Exercising option), pre-revised Rs.3300-7100/- under FR 22(1)(a)(2) with DNI on 01.07.2005. Pay as on 01.07.2004 Rs.4910/- Pay as on 01.07.2003 Rs.4300/- Promoted to NK(GD) on 12.01.2005 and pay fixed at Rs.4380/- w.e.f. 01.07.2005 in existing pay scale with DNI on 01.07.2006. Pay as on 01.07.2004 Rs.4910/- Pay as on 01.07.2003 Rs.4300/- Promoted to NK(GD) on 12.01.2005 and pay fixed at Rs.4380/- w.e.f. 01.07.2005 in existing pay scale with DNI on 01.07.2006. ROP(12th amendment 2015) pay fixed in PB-2, Rs.5700-24000/- with GP Rs.2200/- as pay on 01.01.2006 = Rs.4300.00 Bunching benefit = Rs.100.00 Total = Rs.4400.00 Factor of 1.86 = Rs.8190.00 GP = Rs.2200.00 Total = Rs.10390.00 With DNI on 01.07.2006 ROP(12th amendment 2015) pay fixed in PB-2, Rs.5700-24000/- with GP Rs.2200/- as pay on 01.01.2006 = Rs.4300.00 Bunching benefit = Rs. 100.00 Spl Pay holding post to NK = Rs. 120.00 Total = Rs.4700.00 Factor of 1.86 = Rs.8750.00 GP = Rs. 2100.00 Total = Rs.10850.00 With DNI on 01.07.2006 Pay as on 01.07.2006 Rs.10710/- Pay as on 01.07.2006 Rs.11180/- Pay as on 01.07.2007 Rs.11040/- Pay as on 01.07.2007 Rs.11520/- Promoted to Hav(GD) on 27.09.2007, pay fixed at Rs.11970/- (9420 + 350+2200) w.e.f 27.09.2007 in existing PB with GP Rs.2200/- pay scale with DNI on 01.07.2008. Pay as on 01.07.2008 Rs.11380/- Pay as on 01.07.2008 Rs.12330/- Pay as on 01.07.2009 Rs.11730/- Pay as on 01.07.2009 Rs.12700/- Promoted to Nb/Sub(Clerk), pay fixed at Rs.14090/- (9530+360+4200) w.e.f 19.10.2009 (Exercising option), in PB with GP Rs.4200/- with DNI on 01.07.2010. - Pay as on 01.07.2010 Rs.14520/- Pay as on 01.07.2010 Rs.13090/- Pay as on 01.07.2011 Rs.14960/- Pay as on 01.07.2011 Rs.13490/- Pay as on 01.07.2012 Rs.15410/- Pay as on 01.07.2012 Rs.13900/- Pay as on 01.07.2013 Rs.15880/- Pay as on 01.07.2013 Rs.14320/- Pay as on 01.07.2014 Rs.16360/- Pay as on 01.07.2014 Rs.14750/- Pay as on 01.07.2015 Rs.16850/- Pay as on 01.07.2015 Rs.15200/- Pay as on 01.07.2016 Rs.17360/- with DNI 01.07.2017 Pay as on 01.07.2016 Rs.15660/- with DNI 01.07.2017 Pay fixed under ROP 2017 in new pay matrix As on 01.04.2017 Rs.17360/- Matrix of 2.25 Rs.39060/- Say Rs.39680/- Level – 19 Cell – 10 With DNI 01.07.2017 Pay fixed under ROP 2017 in new pay matrix As on 01.04.2017 Rs.15660/- Matrix of 2.25 Rs.35235/- Say Rs.36140/- Level – 07 Cell – 23 With DNI 01.07.2017 Pay as on 01.07.2017 Rs.40880/- with DNI 01.07.2018. Pay as on 01.07.2017 Rs.37230/- with DNI 01.07.2018. Pay as on 01.07.2018 Rs.42110/- with DNI 01.07.2019. Pay as on 01.07.2018 Rs.38350/- with DNI 01.07.2019. Pay as on 01.07.2018 Rs.49400/- Level-10, Cell-13 with DNI 01.07.2019. Pay as on 01.10.2018 Rs.44800/- Level-7, Cell-26 with DNI 01.07.2019. Pay as on 01.07.2017 Rs.37230/- with DNI 01.07.2018. Pay as on 01.07.2018 Rs.42110/- with DNI 01.07.2019. Pay as on 01.07.2018 Rs.38350/- with DNI 01.07.2019. Pay as on 01.07.2018 Rs.49400/- Level-10, Cell-13 with DNI 01.07.2019. Pay as on 01.10.2018 Rs.44800/- Level-7, Cell-26 with DNI 01.07.2019. [5] The question in such background arises is, whether the petitioner’s request for removal of pay anomaly is justified and if so, in facts of the present case, what relief should be granted. Learned counsel for the petitioner in addition to pointing out the peculiar facts of the case also relied on the decisions of Supreme Court in cases of Union of India and Ors. Vs. P Jagdish and Ors. reported in (1997) 3 SCC 176 , Gurcharan Singh Grewal and Anr. Vs. Punjab State Electricity Board and Ors. reported in (2009) 3 SCC 94 and Commissioner and Secretary of Government of Haryana and Ors. Vs. Ram Sarup Ganda and Ors. reported in (2011) 15 SCC 772 and argued that this is a classical case where the stepping up of pay should be ordered. [6] On the other hand, learned Additional Government Advocate Mr. M Debbarma for the department submitted that the petitioner was transferred to the post of Naik and therefore, rightly not granted any benefit of higher pay. As against this, Dulal Chandra Das was promoted to the post of Lance Naik and therefore, got the benefit of incremental pay fixation. The petitioner and Dulal Chandra Das did not belong to the same cadre and therefore, their pay scales cannot be compared. [7] In my view, the pay anomaly arises in the present case is required to be removed by a judicial order. As noted, the petitioner who had joined the service as a Riflemen(GD) was appointed to the post of Naik(Operator) on 23rd August 2001. As per the Recruitment Rules, the post could be filled by way of transfer from various cadres including that of the Riflemen. Admittedly, the post of Naik(Operator) carries higher pay scale than that of the Riflemen(GD). It is not the case of the respondents that the petitioner had any option to refuse such transfer and appointment as Naik(Operator) and that the petitioner voluntarily accepted such transfer so as to improve his chances of promotion. Admittedly, the post of Naik(Operator) carries higher pay scale than that of the Riflemen(GD). It is not the case of the respondents that the petitioner had any option to refuse such transfer and appointment as Naik(Operator) and that the petitioner voluntarily accepted such transfer so as to improve his chances of promotion. It is not even the case of the department that by being brought over to the post of a Naik(Operator), the petitioner improved his chance of promotion ahead of his contemporaries. In plain terms, therefore, the petitioner was made the Naik(Operator) on account of administrative exigencies and the petitioner had no option but to accept such order. If that be so, the petitioner cannot be made to suffer in terms of his pay fixations. His junior who was not brought over to the post of Naik(Operator), got promotion to a lower post of Lance Naik and in the process, started drawing more pay than the petitioner who was holding a higher post. This is a most anomalous situation. Though occupying a higher post, the senior was drawing less pay than the junior because in case of the junior, appointing him as a Lance Naik was considered a promotion whereas in case of the petitioner, appointing him to a higher post of Naik was considered not a promotion but mere transfer. In the process, petitioner’s pay remained the same even after being brought over to a post carrying higher pay scale whereas the junior got the benefit of pay fixation which goes along with regular promotion. [8] This anomaly manifested itself from time to time from the year 2002 right up to the year 2010. It was only in the year 2010 when the petitioner was promoted to the post of Naib Subedar(Clerk) and Dulal Chandra Das has not got any matching promotion that the petitioner started drawing more pay than his junior. However, for entire span of eight years, consistently the petitioner’s junior made him the junior. The petitioner’s pay therefore, at all stages, must be stepped up to match that of his junior with consequential effect. However, this petition is filed in the year 2019. There is a long delay in filing the petition. Only because the pay fixation has recurring effect, petition cannot be thrown out on the ground of delay and laches. However, the petitioner cannot claim benefit of the past without any restrictions. However, this petition is filed in the year 2019. There is a long delay in filing the petition. Only because the pay fixation has recurring effect, petition cannot be thrown out on the ground of delay and laches. However, the petitioner cannot claim benefit of the past without any restrictions. [9] Under the circumstances, petition is disposed of with following directions : (i) The pay of the petitioner shall be stepped up to the level of his junior Dulal Chandra Das at different stages where such pay anomaly has arisen. Such stepping up would have consequential effect. In other words, on the basis of such consequential effect his subsequent pay also shall be revised accordingly. (ii) The petitioner shall, however, not receive any arrears for the past period except for one year prior to filing of the petition. [10] Directions shall be carried out within 6(six) months. Pending application(s), if any, also stands disposed of.