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2022 DIGILAW 215 (TRI)

Abhijit Ray v. State of Tripura

2022-04-29

ARINDAM LODH, S.G.CHATTOPADHYAY

body2022
JUDGMENT Arindam Lodh, J. - The present intra-court appeal has been preferred by the petitioner by the writ petition against the judgment and order passed by learned Single Judge in connection with WP(C) No.37 of 2016 titled as Sri Abhijit Ray v. The State of Tripura and Others whereby and whereunder, the learned judge has denied the pay scale of the petitioner as he claimed in his writ petition. 2. In the writ petition, the petitioner had prayed for following reliefs: 'In the premises whereof, it is most humbly submitted that Your Lordships would be graciously pleased to: (i) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued, for transmitting the records, lying with the respondents, and for quashing/setting aside the impugned Offer of Appointment dated 10.06.2012 (Annexure-P4 supra),whereby the petitioner has been granted the lesser pay scale of Rs.9570-30500/- with Grade pay of Rs.3500/- (corresponding to the pre-revised pay scale of Rs.7450-225-11500-250-13000/), instead of the pre-revised pay scale of Rs.7,800-275-10,000-300-15,100/-, corresponding to the revised pay scale of Rs. 13,575-37,000/- with Grade Pay of Rs.3700/-; I) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/ or in the nature thereof, shall not be issued, for mandating/ directing the respondents, to fix the pay of the petitioner, in the pre-revised pay scale of Rs.7800-275-10,000-300-15,100/-, corresponding to the revised pay scale of Rs.13,575-37,000/- with Grade Pay of Rs.3700/-, instead of the pay scale of Rs.9570-30500/- with Grade pay of Rs.3500/-( corresponding to the pre-revised pay scale of Rs.7450-225-11500-250-13,000/), grant him the arrears thereof, and further grant the benefit of Leave, as admissible to him, with effect from the date of his joining (14.11.1990) to the post of Company Secretary as a fixed pay employee; II) Call for the records appertaining to this petition; III) After hearing the parties, be pleased to make the Rule Absolute in terms of i,ii, above; IV) Costs of an incidental to this proceeding; V) Any other relief(s) as to this Hon'ble High Court may deed fit and proper;' 3. Background facts are that the petitioner was initially appointed under respondents No. 2 and 3 on adhoc basis in the post of Assistant Company Secretary, but without following the established selection norms. Background facts are that the petitioner was initially appointed under respondents No. 2 and 3 on adhoc basis in the post of Assistant Company Secretary, but without following the established selection norms. In that situation, respondents no. 2 and 3 being the Corporation had framed a draft recruitment rule. In its 91st Board meeting on 28.5.2009 (Annexure- P6 to the writ petition) following relevant resolution was taken: 'Resolution No.3: Approval of the Draft Recruitment Rules for the post of Assistant Company Secretary. The Board resolved to accept the recruitment rules for the post of Assistant Company Secretary for decision of the government with an amendment of 2(two) years of working experience' in lieu of 5 (five) years of working experience'- against item no.7 of the proposed Recruitment Rules.' 4. In the proposed recruitment rules for the post of Assistant Company Secretary the pay scale was prescribed at Rs.7,800-275-10,000-300-15,100/-. The said decision of the Board was subjected to the approval of the government i.e. the respondent no.1. Thereafter, a notification was issued in the month of May 2009 by the Secretary to the Government of Tripura under the order of the Governor framing recruitment rule relating to the post of Assistant Company Secretary under Article 309 of the Constitution of India. After framing of rules, the respondents no. 2 and 3 had undertaken the process of filling up the post of Assistant Company Secretary in conformity with the Recruitment Rule dated May, 2009. Selection process was made in terms of the schedule attached to the said Recruitment Rules. The petitioner appeared and was selected. Appointment letter was issued in favour of the petitioner mentioning the pay scale of Rs.7,450/- therein instead of the pay scale prescribed under the Recruitment Rule as aforestated. The petitioner had joined, but challenged the pay scale mentioned in his appointment letter by way of filing the writ petition. While deciding the writ petition learned Single Judge has dismissed the claim of the petitioner on the ground that 'the government did not approve the said pay scale and the post was approved only in scale of pay of Rs.7,450-13,000/-(pre-revised).The petitioner was, therefore, appointed on the said post in the scale corresponding to the pre-revised pay of Rs.7,450-13,000/-.' 5. On such dismissal of the writ petition, the writ petitioner has preferred the instant appeal before this court. 6. On such dismissal of the writ petition, the writ petitioner has preferred the instant appeal before this court. 6. We have heard Mr Somik Deb, learned counsel assisted by Ms. R. Chakraborty, learned counsel appearing for the writ petitioner-appellant and Mr. D Sarkar, learned counsel appearing for the respondents no. 2 and 3 and Mr. D Sarma, learned additional GA appearing on behalf of the respondent no.1, the State of Tripura. Mr. Deb, learned senior counsel submits that there is no scrap of paper to justify the finding of the learned Single Judge that the Government did not approve the pay scale as prescribed under the Recruitment Rule at Rs.7,800/-. 7. We have made a query to the learned counsel appearing on behalf of the respondents no. 2 and 3 to justify the ground as considered by learned Single Judge in fixing the pay scale of the petitioner at Rs.7,450/- by producing relevant records but, he has fairly submitted that there is no record. Contrary thereto, on scrutiny of the records attached to the writ petition we find that the respondent no.1 i.e. State of Tripura has framed specific Recruitment Rule for appointment to the post of Assistant Company Secretary and this rule was framed under Article 309 of the Constitution of India. Alongwith the Recruitment Rule a schedule has also been attached indicating the name of the post and the pay scale against the said post. At column no.4 it is specifically mentioned that the pay scale for the post of Assistant Company Secretary would be Rs.7,800-275-10000-300-15100/-. Furthermore, there is no dispute that the petitioner was appointed in the year 2012 after the introduction of the revised ROP Rules, 2009, which came into force w.e.f, 1.1.2006. The revised pay scale as prescribed under ROP Rules, 2009 is Rs.13,575-37,000/-with grade pay of Rs.3,700/- corresponding to the pre-revised scale of pay of Rs.7,800-15,100/-. 8. Having perused the said Recruitment Rule as well as ROP Rules, 2009, we are of the opinion that the learned Single Judge would had escaped to take note of the Recruitment Rule framed by Government for the post of Assistant Company Secretary which was framed under Article 309 of the Constitution of India, which could not be made without prior approval of the Resolution taken by the respondents no. 2 and 3 prescribing the pay scale at Rs.7,800/-for the post of Assistant Company Secretary. 2 and 3 prescribing the pay scale at Rs.7,800/-for the post of Assistant Company Secretary. There is no dispute that the service conditions of the employees of the Corporation, that is respondents no. 2 and 3 are not governed by the ROP Rules framed by the respondent no. 1, i.e. the State of Tripura. Ultimately, we hold that the petitioner ought to have been appointed in the post of Assistant Company Secretary at the pay scale of Rs.13,575-37,000/- with grade pay of Rs.3700/- corresponding to the pre-revised pay scale of Rs.7,800-15,100/-,since his appointment was made after the introduction of ROP Rules,2009. 9. Accordingly, the appeal stands allowed to the extent that the pay scale of the petitioner in the scale of Rs.7800-275-10000-300-15100/-shall be fixed notionally for the purpose of pensionery benefits alongwith other service benefits as per service conditions. It is made clear that there would be no arrears of pay. 10. Accordingly, the instant appeal stands allowed to the extent as indicated above. Pending application(s), if any, shall also stand disposed of. 11. The entire exercise as discussed hereinabove and the reliefs given in the present Writ Appeal in favour of the Appellant(writ petitioner) shall be completed within a period of 6(six) weeks from today. The actual benefit shall be given to the appellant (writ petitioner) with effect from the month of May, 2022.