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2021 DIGILAW 70 (TRI)

Rajesh Shil v. State of Tripura

2021-05-05

AKIL KURESHI

body2021
ORDER 1. These petitions arise in common background and involve similar facts. They have been heard together and would be disposed of by this common judgment. For convenience, we may refer to facts from WP(C) No. 1256 of 2019. 2. Petitioner was appointed as Assistant Teacher (Post Graduate) in a Grant-in-Aid School on 14.02.2007. As per the Government policy initially for a period of five years, he was granted fixed pay @ Rs.3,250/-per month. After completion of the period of five years, he was brought over to the regular scales. Under ROP 2009, he was granted the benefit of First Assured Career Progression referred to as ACP-I upon completion of 10 years of service without promotion. Accordingly, by an order dated 20.05.2017 he was granted benefit of first ACP with effect from 16.02.2017 i.e. 10 years from the date of his joining the service. Before grant of this benefit, the petitioner was drawing basic salary of Rs. 34,930/- with a Grade Pay of Rs.4200/-. Upon grant of ACP-I, the basic pay of the petitioner was fixed at Rs.37,060/- with a Grade Pay of Rs.4400/-. Pursuant to the Revision of Pay Scales under Tripura State Civil Service (Revised Pay) Rules, 2018 (hereinafter to be referred to as ROP 2018) the basic pay of the petitioner was fixed at Rs.43,600/- with Grade Pay of Rs.4400/-. 3. The petitioner would point out that three persons, namely, Sri Prasanta Sutradhar, Smt. Purnima Chowdhury and Sri Swapan Majumder had joined as Assistant Teachers on 01.08.2007 i.e. after the date of the joining of the petitioner. These persons junior to the petitioner were drawing less pay than the petitioner till the stage the petitioner was granted the benefit of ACP-I. The case of the petitioner is that these juniors were granted the benefit of Career Progression in the month of August, 2017 upon which their basic pay was fixed at Rs. 37,390/- (at which point of time the petitioner's basic pay was Rs.37,060/-) and after implementation of ROP 2018 basic pay of these juniors were fixed at Rs.45,200/- (and that of the petitioner at Rs.43,600/-). 4. According to the petitioner, this is a clear case of anomaly since the persons junior to the petitioner are drawing more salary than the petitioner and this pay anomaly has arisen on account of grant of the benefit of Assured Career Progression. 4. According to the petitioner, this is a clear case of anomaly since the persons junior to the petitioner are drawing more salary than the petitioner and this pay anomaly has arisen on account of grant of the benefit of Assured Career Progression. The petitioner, therefore, urges that such anomaly be removed by stepping up the pay of the petitioner to the level of the juniors in terms of State of Tripura rules, regulations and instructions. The facts of other petitioners are identical and are therefore not separately recorded. These petitioners also joined the service as teachers in Grant-in-Aid Schools on or around the same day as the petitioner of WP(C) No. 1256 of 2019. They also refer to the same set of teachers who joined in Government service after them and who upon being granted the benefit of First Career Progression are drawing higher basic salary than them. 5. The prayer of the petitioners is strongly opposed by the Government. A detailed affidavit in reply was filed on 14.05.2020 in which the stand taken is that the petitioners are employed in Grant-in-Aid Schools and the persons whom the petitioners refer to as their juniors are Government teachers. Therefore, the petitioners and the so called juniors do not belong to the same cadre. The fundamental requirement for stepping up of the pay to remove pay anomaly, namely, that the senior and junior must both belong to the same cadre is not fulfilled. 6. The respondents have also pointed out that the petitioners were granted the benefit of ACP-I in terms of the then applicable ROP 2009. Accordingly, the petitioners in addition to getting higher basic salary, also moved from the Grade Pay of Rs.4200/- to Grade Pay of Rs.4400/-with effect from 16.02.2007. As against this, the persons junior to the petitioners, were granted the benefit of Modified Assured Career Progression under ROP 2017 which were brought into effect by the time their right to seek Career Progression had arisen. As per this MACP, they were granted only one additional increment at the same Grade Pay. Thus, the basic pay of these juniors was re-fixed by releasing an additional increment, however, their Grade Pay continued to be Rs.4200/-. As per this MACP, they were granted only one additional increment at the same Grade Pay. Thus, the basic pay of these juniors was re-fixed by releasing an additional increment, however, their Grade Pay continued to be Rs.4200/-. It is further pointed out that after fixing the pay in terms of ACP-I of all the petitioners they were allowed the benefit of one increment @ 3% with effect from 01.07.2017 and their basic pay was fixed at Rs.37,060/- with Grade Pay of Rs.4400/-. Upon implementation of the ROP 2018, their basic pay was fixed at Rs.43,600/- and they were placed in the Pay Matrix-2018 with Pay Level-11 and they were granted Grade Pay of Rs.4400/-. As against this, the juniors were granted MACP-1 on 01.08.2017 and they were given option for pay fixation. Accordingly, their pay was fixed as on 01.08.2017 at Rs.38,520/- with Pay Band of Rs.4200/-. Upon implementation of ROP 2018, with effect from 01.10.2018 their basic pay was fixed at Rs.45,200/-at Pay Matrix Level-10. In the nutshell, case of the respondents is that the facts do not justify invocation of the principle of stepping up of pay. 7. As is well known, the genesis for the principle of stepping up of pay of a senior to that of the level of a junior in order to remove pay anomaly is FR 22(1)(a)(1). The Government of Tripura also has adopted such principles either in form of statutory rules or the executive instructions issued from time to time. ROP 2017 also contained a provision for stepping up of pay under Rule 14 thereof. Sub-rule (1) of Rule 14 provided as under: "14. The Government of Tripura also has adopted such principles either in form of statutory rules or the executive instructions issued from time to time. ROP 2017 also contained a provision for stepping up of pay under Rule 14 thereof. Sub-rule (1) of Rule 14 provided as under: "14. Stepping up of pay: (1) Where a senior Government employee got promoted to a higher post before the 1st day of April, 2017 draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day April, 2017, the pay of such senior Government employee in the revised pay structure shall be stepped up to an amount equal to the pay as fixed for his junior in that higher post and such stepping up shall be done with effect from the date of promotion of the junior Government employee subject to the fulfillment of the following conditions, namely:- A. both the junior and the senior government employees belong to the same cadre and the posts in which they have been promoted are identical in the same cadre; b. the existing pay structure and the revised pay structure of the lower and higher posts in which they are entitled to draw pay are identical; c. the senior Government employees at the time of promotion are drawing equal or more pay than the junior; d. the anomaly is directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation on such promotion in the revised pay structure. Provided that if the junior officer was drawing more pay in the existing pay structure than the senior by virtue of any advance increments granted to him, the provisions of this sub-rule shall not be invoked to step up the pay of the senior officer;" 8. The Government of Tripura has issued certain clarifications under a memorandum dated 09.01.2020 with respect to stepping up of pay. Relevant portion of which reads as under : "Proposals have been received from various Departments on the issue of anomaly relating to senior Government employees drawing less pay than their juniors due to application of provisions of FR 22(1)(a)(1) and seeking clarification on whether the pay of such seniors can be stepped up at par with that of the junior. 2. 2. The matter has been examined in Finance Department in light of TSCS(Revised Pay) Rules 2017 and Department of Personnel & Training, Ministry of Personnel Public Grievances and Pension, Government of India, Office Memorandum No.4/3/2017-Estt (Pay-I) dated 26:10-2018. Upon examination, it has been observed that the provisions of "stepping up of pay" derives its genesis from FR 22 (1) (a)(1). However, proposals for stepping up of pay have also been received in respect of certain cases that are not covered under the', provisions of FR 22(1)(a)(1). Hence, a need has been felt to clarify the circumstances as to when the provisions of "stepping up of pay" can be invited. 3. The undersigned is directed to say that the Governor is pleased to decide as follows:- (i) In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 01-04-2017 drawing lower pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, the pay of the senior Government servant in the higher post should be stepped up to a figure equal to the pay as fixed for the junior Government servant in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior Government servant and will be subject to the following conditions, namely: (a) both the junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted are identical in the same cadre; (b) the Level in the Pay Matrix of the lower and higher posts in which they are entitled to draw pay should be identical; (c) the senior employee at the time of promotion is drawing equal or more pay than the junior; (d) the anomaly is directly as a result of the application of the provisions of Fundamental Rule 22(1)(a)(1). For example, if the junior officer was drawing more pay in the existing pay structure than the senior by virtue of any advance increments granted to him, the provisions of this sub rule should not be invoked to step up the pay of the senior officer. For example, if the junior officer was drawing more pay in the existing pay structure than the senior by virtue of any advance increments granted to him, the provisions of this sub rule should not be invoked to step up the pay of the senior officer. ii) The order relating to re-fixation of the pay of the senior officer in accordance with clause (i) shall be issued under fundamental Rule 27 and the senior officer shall be entitled to the next increment on completion of his required qualifying service with effect from the date of re-fixation of pay." 9. Perusal of these rules and regulations and Government instructions would show that in order to remove anomaly of a Government servant promoted or appointed to a higher post and who is drawing lower pay than the Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post what is required is (a) both junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted are also identical in the same cadre; (b) the Level in the Pay Matrix of the lower and higher posts in which they are entitled to draw pay should be identical; (c) the senior employee at the time of promotion should be drawing equal or more pay than the junior; (d) such pay anomaly should be directly result in on account of application of the provisions of FR 22(1)(a)(1). 10. For variety of reasons the petitioners' claim for stepping up of pay is not justified. Firstly, the petitioners are employed in Grant-in-Aid Schools and they are therefore not Government servants. As against this, the instances of the so called juniors which the petitioners have cited, are all Government teachers. In plain terms, therefore, the petitioners and the "juniors" do not belong to the same cadre. Thus, the first condition for application of the rule of stepping up of pay is not satisfied. Further, in the present case, the petitioners got the benefit of ACP-1 under ROP 2009 whereas their juniors got the benefit of MACP-1 under ROP 2017. Under their scheme of ACP, the petitioners not only received an additional increment to their basic pay, their pay grade also moved from Rs.4200/- to Rs.4400/-. As against this, the juniors got the benefit of MACP under ROP 2017. Under their scheme of ACP, the petitioners not only received an additional increment to their basic pay, their pay grade also moved from Rs.4200/- to Rs.4400/-. As against this, the juniors got the benefit of MACP under ROP 2017. Rule 12 of ROP 2017 provides for the Modified Assured Career Progression. Sub-rule (6) of Rule 12 provides that financial up-gradation under the said scheme will involve grant of one increment at the existing rate in the existing Level of Pay Matrix in which the pay of the employee is fixed "without any further fixation of pay in immediate next higher Level of Pay Matrix". Thus the Pay Band of the juniors continued to be Rs.4200/-in contrast to the case of the petitioners where they also got the benefit of upward movement in the Pay Band from Rs.4200/- to Rs.4400/-. The cases of the petitioners and their so called juniors are thus not comparable. If we add the Grade Pay to the basic pay of the petitioners and do the same exercise for the juniors, the petitioners draw higher salary. In other words, the basic plus Grade Pay of the petitioners is higher than the basic and the Grade Pay of the juniors. 11. The right of a government servant to seek stepping up of pay must be based on some statutory rule or regulation or government instruction having the force of law. Every case where a junior is drawing more pay than the senior is not a case for stepping up of pay irrespective of the reason for such pay anomaly. Provisions of career advancement contained in different revision of pay rules referred to as CAS, ACP and MACP are different. If anomaly between the pay of the senior and junior arises on account of the fact that one got the benefit of career advancement under a scheme different than the other, it is not a case for stepping up of the pay. 12. In the result, petitions are dismissed. Pending application(s), if any, also stands disposed of.