Tripura High Court
Sri Gopal Banik vs The State Of Tripura on 28 February, 2022
IN THE HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.540 of 2021
WP(C)No.541 of 2021
WP(C)No.542 of 2021
WP(C)No.543 of 2021
WP(C)No.544 of 2021
WP(C)No.545 of 2021
In WP(C)No.540 of 2021
Sri Gopal Banik,
son of Sri Sankar Lal Banik,
resident of Village-Kunjaban Colony,
P.O. Abhoynagar, P.S. New Capital Complex,
District : West Tripura, PIN : 799005
............ Petitioner(s)
-Versus-
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala, P.S. East Agartala,
District : West Tripura
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
Page 2 of 20
In WP(C)No.541 of 2021
Sri Sanjeeb Das Gupta,
son of late Chittaranjan Das Gupta,
resident of Netaji Road, Dharmanagar,
P.O. & P.S. Dharmanagar,
District : North Tripura,
PIN : 799250
............ Petitioner(s)
-Versus-
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala, P.S. East Agartala,
District : West Tripura
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
In WP(C)No.542 of 2021
Sri Debasish Majumder,
son of late Manoranjan Majumder,
resident of Belonia, P.O. & P.S. Belonia,
District : South Tripura, PIN : 799155
............ Petitioner(s)
-Versus-
Page 3 of 20
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala, P.S. East Agartala,
District : West Tripura
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
In WP(C)No.543 of 2021
Sri Apu Paul,
son of late Nagendra Chandra Paul,
resident of Joynagar, Akhaura Road,
P.O. Agartala, P.S. West Agartala,
District : West Tripura,
PIN : 799001
............ Petitioner(s)
-Versus-
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala, P.S. East Agartala,
District : West Tripura
Page 4 of 20
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
In WP(C)No.544 of 2021
Sri Bhanulal Debnath,
son of late Haridas Debnath,
resident of Village-Nutan Nagar,
Airport Road, P.O. Nutan Nagar,
P.S. Airport, District : West Tripura,
PIN : 799009
............ Petitioner(s)
-Versus-
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala, P.S. East Agartala,
District : West Tripura
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Page 5 of 20
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
In WP(C)No.545 of 2021
Sri Shyamal Kanti Roy,
son of late Sudhanya Kumar Roy,
resident of Joynagar Road No.1,
P.O. Agartala, P.S. West Agartala,
District : West Tripura,
PIN : 799001
............ Petitioner(s)
-Versus-
1. The State of Tripura,
represented by its Principal Secretary,
Power Department, Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District : West Tripura, PIN : 799006
2. Tripura State Electricity Corporation Limited,
represented by its Chairman, Vidyut Bhawan,
North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
4. The Managing Director,
Tripura State Electricity Corporation Limited,
Vidyut Bhawan, North Banamalipur, P.O. Agartala,
P.S. East Agartala, District : West Tripura
5. The Deputy General Manager (Corporate),
Tripura State Electricity Corporation Limited,
Corporate Office, Vidyut Bhawan, North Banamalipur,
P.O. Agartala, P.S. East Agartala, District : West Tripura
6. The Principal Secretary,
Finance Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex,
District : West Tripura
............ Respondent(s)
Page 6 of 20
For Petitioner(s) : Mr. A. Bhowmik, Advocate
For Respondent(s) : Mr. M. Debbarma, Addl. G.A.
Mr. N. Majumder, Adv.
Date of hearing : 11.01.2022
Date of delivery of : 28.02.2022
Judgment & order
Whether fit for reporting : NO
HON‟BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER
This batch of writ petitions involving a common background fact
and law are taken up for disposal by a common judgment. The petitioners
entered into the service as the Junior Engineer, Grade-II under the Power
Department on fixed pay basis on diverse dates. Later on, they were given the
scale of pay of Rs.1,450-3,710/- in place of the fixed pay of Rs.800/- per month.
By the addendum dated 30.09.1989 as issued by the Finance Department,
Government of Tripura [Annexure-3 to the writ petition being WP(C)No.540 of
2021], all the Overseers [diploma holder] were designated as the Junior
Engineers, Grade-II. After completion of four years of service, from the date of
granting the regular pay scale, the petitioners were given the pay scale of
Rs.2000-4,410/-, the pay scale of Junior Engineer, Grade-V(A) of the respective
Engineering service, even though, the petitioners were not inducted in the cadre
service.
2. The petitioners have admitted that their initial entry into the
service was not through Tripura Public Service Commission [TPSC in short] as
Page 7 of 20
required by the Tripura Power Engineers Service Rules, 1989. As their entry was
not through TPSC, they were treated as ex cadre Junior Engineers. It has been
stated that similarly situated persons filed a writ petition in the Gauhati High
Court being WP(C)No.101 of 1999 for having treated them in the cadre service
i.e. Tripura Engineering Service from the date of granting them the regular pay
scale. The said writ petition was disposed of by the judgment and order
22.04.2010 in terms of the interim order dated 13.12.2000. By the said interim
order the pay scale of the said Junior Engineers was upgraded to Rs.2100-4530/.
3. There is no dispute that the Council of Ministers took a decision to
grant relaxation of the provisions of the Tripura Power Engineering Service
Rules. Thus, without due selection process, the petitioners were regularised in
terms of the decision of the Council of Ministers dated 21.05.2007 [Annexure-7
to the writ petition]. Thereafter, the Power Department, Government of Tripura
by the memorandum dated 06.01.2010 [Annexure-8 to the writ petition],
provided that those who were initially appointed as ex-cadre engineer without
recruitment process of TPSC they will be encadred. It has been urged in these
writ petitions that such encadrement be counted from the date of granting the
regular pay scale en blok the benefits under the Career Advancement Scheme
(CAS) be granted. The petitioners got CAS-1 and accordingly, after completion of
four years of service from the date of grant of regular pay scale. The benefit as
noted, was upgradation to the pay scale ear-marked for the Junior Engineers
Grade-I, equivalent to those borne in the Grade-V(A) of the cadre service. The
petitioners were in the pay scale of Rs.9,570-30,000/- and had the benefit of
Page 8 of 20
ACP-II on completion of seventeen years of service. But according to the
petitioners, they ought to have been placed at Rs.13,575-37,000/- as ACP-II on
a prior date, considering their regularisation from the date of granting them the
regular scale from the fixed pay. Under ROP Rules, 2009, an employee
completing 10, 17 and 25 years of continuous service are entitled to grant ACP-
1, ACP-II and ACP-III respectively. The petitioners are entitled to ACP-II after
completing seventeen years of continuous service from 01.10.1996. Even, they
would be entitled to MACP under the Tripura Civil Services (Revised) Rules, 2017
as asserted by the petitioners. At a glance, the pay scale as was in force are as
follows :
Grade in cadre Scales of pay as per Scale as per ROP Corresponding
service as per TPES TPES Rules 1999 Revised scale as
Rules per ROP 2009
Grade V(B) 5000-10,300/- 5000-10,300/- 5,310-24,000/-
Grade V(A) 7,450-13,000/- 7450-13,000/- 9570-30,000/-
Grade IV 10000-15,1000/- 10,000-15,1000/- 13,575-37,000/-
4. The petitioners have contended that they were in the pre-revised
pay scale of Rs.2,100-4,530/-, and the said pay scale of Junior Engineer, Grade-I
was revised to Rs.9,570-30,000/- under Tripura State Civil Services (Revised
Pay) Rules, 2009 [ROP Rules, 2009 in short]. Thus, according to the petitioners,
they are entitled to pay scale of Rs.13,575-37,000/- as the benefit of ACP-II but
the same has been denied to the petitioners. The petitioners were further
entitled to 3rd financial up-gradation in the form of MACP under ROP Rules,
2017. The petitioners, therefore, by means of these writ petitions have urged
this court (i) to treat the petitioners as the Junior Engineer Grade-I/ Junior
Engineer borne in the Grade-V(A) of the Tripura Power Engineers Service with
Page 9 of 20
effect from 01.10.1996 (ii) to grant the benefit of ACP-II in the pay scale of
Rs.13,575-37,000/- with effect from 1.10.2013 and (iii) to grant 3rd financial up-
gradation in the form of MACP with effect from 01.10.2021 and finally, to refix
their pay in accordance therewith.
5. The respondents, however, did not file any reply despite numerous
opportunities given to them. However, Mr. M. Debbarma, learned Addl. G.A. has
appeared for the respondents No.1 and 5 and Mr. N. Majumder, learned counsel
has appeared for the respondents No.2, 3 and 4. Both Mr. Debbarma, learned
Addl. G.A. and Mr. Majumder, learned counsel have categorically stated that the
petitioners were encadred with effect from 30.12.2003 and as such, their
movement in the cadre for purpose of getting the financial up-gradation will be
carried out with effect from 30.10.2003. Accordingly, all benefits as due to the
petitioners, are released.
6. Mr. Majumder, learned counsel appearing for the respondents
No.2, 3 and 4 have placed the notification dated 29.10.2007 admittedly by which
the ex-cadre Junior Engineers were inducted in the Tripura Power Engineer
Service by granting relaxation under Rule 35 of Tripura Power Engineering
Service Rules, 1987. Thus, the petitioners and others borne in the ex-cadre posts
were encadred in the Grade-V(A) and Grade-V(B) of Tripura Power Engineering
Service depending on whether they were degree holder Junior Engineers or
diploma holder Junior Engineers. The petitioners were encadred retrospectively
from not earlier than 30.12.2003. Even though, the said notification dated
29.10.2007 of encadrement was issued to support his contentions.
Page 10 of 20
7. In Shibajyoti Bhattacharjee and Others versus State of
Tripura and Others [judgment dated 04.01.2017 delivered in
WP(C)No.381/2006, along with four others analogous writ petitions], as relied on
by the respondents, this court was dwelling on the similar question as regards
the degree holder Junior Engineers who were also gradually encadred by the
said notification dated 29.10.2007 by relaxing the due process. They were also
encadred w.e.f. 30.12.2003. Those writ petitions were filed for purpose of
finalisation of pension etc. In that case, the respondents resisted similar claims
by stating that since they did not belong to Tripura Power Engineering Service
prior to 30.12.2003, the petitioners were not entitled to any benefit under Career
Advancement Scheme under the cadre service rules inasmuch as the said
scheme categorically provides that that scheme will be applicable only to the
regular employees. Even though, the petitioners were given the regular scale of
pay but their services were only regularised from 30.12.2003. However, the state
has admitted in those cases that the petitioners were granted regular pay scale
w.e.f. 01.10.1992 by the memorandum dated 03.09.1992, which made it clear
that the petitioners were entitled to the benefit of regular pay scale
w.e.f.22.10.1992 in view of the said memorandum, and not before. The
respondents on those writ petitions had further contended that the petitioners
cannot expect the pay scale attached to the cadre service posts as they were not
borne in the said cadre service. There is a gulf of difference in status between a
junior engineer in the cadre service and a Junior Engineer outside the cadre
service. In those writ petitions, the petitioners had succinctly urged the court to
Page 11 of 20
treat the petitioners as the regular junior engineer from the date when they
were given the regular pay scale as they are holding the ex-cadre post, they
were entitled to parity with the junior engineers borne in the cadre. The
petitioners of those writ petitions had urged to count their seniority from the
date of release of the regular pay scale. It had been urged that when the
petitioners were regularised and were granted regular pay scale i.e. Rs.2,100-
4,530/- corresponding to the revised pay scale of Rs.7,450-13,000/- further to
the pay scale of Rs.10,000-15,100/- and further to Rs.11,000-18,000/- under
CAS-I after their completion of seventeen years of service they are entitled to be
regularised from the date when they were granted the scale. It has been
categorically criticised by the writ petitioners that inclusion of those writ petitions
in the cadre of Junior Engineers w.e.f.30.12.2003 is arbitrary and violative of
Article 14 and 16 of the Constitution. As the petitioners were granted regular pay
scale of Junior Engineers w.e.f.20.10.1992 their services be deemed to have
been encadred from that date. Thus, the petitioners will be further entitled to
count the past service for purpose of pension and seniority. If, that is not
allowed, the equals will be treated unequally.
8. The respondent, however, had contended that no appointment
usually can be made retrospectively nor can any seniority be granted on
retrospective basis from a date when an employee has not been borne in the
cadre, particularly in a case when this would adversely affect the seniority of
those appointees who have been appointed following the laid down procedure in
the meantime. It has been reiterated by the State that the benefit of Career
Page 12 of 20
Advancement can be granted only to those who have completed the qualifying
service in a regular post and not to the petitioners whose services were
encadred only in 2003.
9. Thereafter, this court having discussed the relevant notifications
including the notification dated 29.10.2007, whereby Junior Engineers who were
not in the cadre were encadred en bloc has observed as follows:
15. From the findings made by me, the question to be decided
is whether the services rendered by the petitioners prior to 29-
10-2007 when they were encadred as Junior Engineers of the
TPES can be counted for the purpose of seniority. It is now
well settled by various decisions of the Apex Court that
retrospective seniority cannot be given to an employee from a
date when he was not even born in the cadre. So also,
seniority cannot be given with retrospective effect so as to
adversely affect others. Seniority amongst members of the
same grade must be counted from the date of their initial
entry into the grade. If any authority is needed, I may
conveniently cite the latest decision of the Apex Court in P.
Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693. The
relevant portions are found at paras 44, 45, 46, 47, 48, 50 and
51, which are reproduced below:
"44. As far as the impact of the retrospective
operation of the executive instructions or statutory
rules on the seniority of employees is concerned
(including the Junior Engineers before us), this
issue is now settled by a few recent decisions of
this Court. There is no doubt that retrospective
operation can be given to statutory rules such as
the Andhra Pradesh Engineering Service Rules. But,
the retroactivity must still meet the test of Article
14 and Article 16 of the Constitution and must not
adversely trench upon the entitlement of seniority
of others.
45. Without intending to multiply precedents on
this subject, reference may be made to a decision
rendered by this Court more than two decades ago.
In State of Bihar & ors, etc v. Akhouri Sachindra
Nath and others13 it was held that retrospective
seniority cannot be given to an employee from a
date when he was not even borne in the cadre. So
also, seniority cannot be given with retrospective
effect so as to adversely affect others. Seniority
amongst members of the same grade must be
Page 13 of 20
counted from the date of their initial entry into the
grade. It was held:
"12. In the instant case, the promotee
Respondents 6 to 23 were not born in
the cadre of Assistant Engineer in the
Bihar Engineering Service, Class II at
the time when Respondents 1 to 5 were
directly recruited to the post of
Assistant Engineer and as such they
cannot be given seniority in the service
of Assistant Engineers over
Respondents 1 to 5. It is well settled
that no person can be promoted with
retrospective effect from a date when
he was not borne in the cadre so as to
adversely affect others. It is well settled
by several decisions of this Court that
amongst members of the same grade
seniority is reckoned from the date of
their initial entry into the service. In
other words, seniority inter se amongst
the Assistant Engineers in Bihar
Engineering Service, Class II will be
considered from the date of the length
of service rendered as Assistant
Engineers. This being the position in law
Respondents 6 to 23 cannot be made
senior to Respondents 1 to 5 by the
impugned government orders as they
entered into the said service by
promotion after Respondents 1 to 5
were directly recruited in the quota of
direct recruits. The judgment of the
High Court quashing the impugned
government orders made in Annexures
8, 9 and 10 is unexceptionable."
46. This decision was cited with approval, a few
years ago, along with the decision rendered in
Keshav Chandra Joshi v. Union of India :1992 Supp
(1) SCC 272. This Court held that when a quota is
provided for, then the seniority of the employee
would be reckoned from the date when the vacancy
arises in his/her quota and not from any anterior
date of promotion or subsequent date of
confirmation. It was observed that injustice ought
not to be done to one set of employees in order to
do justice to another set. It was said in Uttaranchal
Forest Rangers‟ Assn. (Direct Recruit) v. State of
U.P. : (2006) 10 SCC 346, on referring to these
judgments that:
"37. We are also of the view that no
retrospective promotion or seniority can
be granted from a date when an
Page 14 of 20
employee has not even been borne in
the cadre so as to adversely affect the
direct recruits appointed validly in the
meantime, as decided by this Court in
Keshav Chandra Joshi v. Union of India
held that when promotion is outside the
quota, seniority would be reckoned from
the date of the vacancy within the quota
rendering the previous service
fortuitous. The previous promotion
would be regular only from the date of
the vacancy within the quota and
seniority shall be counted from that
date and not from the date of his earlier
promotion or subsequent confirmation.
In order to do justice to the promotees,
it would not be proper to do injustice to
the direct recruits. ...
38. This Court has consistently held that
no retrospective promotion can be
granted nor can any seniority be given
on retrospective basis from a date when
an employee has not even been borne in
the cadre particularly when this would
adversely affect the direct recruits who
have been appointed validly in the
meantime."
47. However, the mere existence of a vacancy is not enough to
enable an employee to claim seniority. The date of actual
appointment in accordance with the required procedure
becomes important in such a case. This was so held in State of
Uttaranchal v. Dinesh Kumar Sharma : (2007) 1 SCC 683
(followed in Nani Sha v. State of Arunachal Pradesh : (2007)
15 SCC 406, wherein it was said:
"34. Another issue that deserves
consideration is whether the year in
which the vacancy accrues can have any
relevance for the purpose of
determining the seniority irrespective of
the fact when the persons are recruited.
Here the respondent‟s contention is that
since the vacancy arose in 1995-1996
he should be given promotion and
seniority from that year and not from
1999, when his actual appointment
letter was issued by the appellant. This
cannot be allowed as no retrospective
effect can be given to the order of
appointment order under the Rules nor
is such contention reasonable to normal
parlance. This was the view taken by
this Court in Jagdish Ch. Patnaik v.
State of Orissa : (1998) 4 SCC 456."
Page 15 of 20
48. More recently, and finally, in Pawan Pratap Singh v.
Reevan Singh : (2011) 3 SCC 267 all relevant precedents on
the subject were considered, including the Constitution Bench
decision in Direct Recruit Class II Engg. Officers‟ Assn. v. State
of Maharashtra : (1990) 2 SCC 715 and the legal position
summarised (by Lodha, J.) as follows:
"(i) The effective date of selection has
to be understood in the context of the
service rules under which the
appointment is made. It may mean the
date on which the process of selection
starts with the issuance of
advertisement or the factum of
preparation of the select list, as the case
may be. (ii) Inter se seniority in a
particular service has to be determined
as per the service rules. The date of
entry in a particular service or the date
of substantive appointment is the safest
criterion for fixing seniority inter se
between one officer or the other or
between one group of officers and the
other recruited from different sources.
Any departure therefrom in the
statutory rules, executive instructions
or otherwise must be consistent with
the requirements of Articles 14 and 16
of the Constitution.
(iii) Ordinarily, notional seniority may
not be granted from the backdate and if
it is done, it must be based on objective
considerations and on a valid
classification and must be traceable to
the statutory rules.
(iv) The seniority cannot be reckoned
from the date of occurrence of the
vacancy and cannot be given
retrospectively unless it is so expressly
provided by the relevant service rules.
It is so because seniority cannot be
given on retrospective basis when an
employee has not even been borne in
the cadre and by doing so it may
adversely affect the employees who
have been appointed validly in the
meantime."
****
50. The facts of the appeals before us show that at least some of the Supervisors were given retrospective seniority on the date when they were not even eligible for appointment as Junior Engineers. The precedents referred to above show that Page 16 of 20 this is impermissible. In addition as pointed out by the High Court, there is no indication of the vacancy position, that is, whether the Supervisors could be adjusted in the grade of Junior Engineers from the date on which they were given notional retrospective seniority. There is also no indication whether the quota of vacancies for Supervisors was adhered to as on the date on which they were given notional retrospective seniority. The case law suggests that this is an important factor to be considered. Finally, it is quite clear that the grant of retrospective seniority to the Supervisors has adversely impacted on the promotion chances of the Junior Engineers by bringing them down in seniority. This too is impermissible.
51. From the various decisions referred to and from the facts of the case, it is clear that to pass the scrutiny of Article 14 of the Constitution, the seniority of the Supervisors should be reckoned only from the date on which they satisfied all the real and objective procedural requirements of the Andhra Pradesh Engineering Service Rules and the law laid down by this Court. This has not happened in the present appeals creating a situation of unreasonableness and unfairness."
16. In the case before me, considered against the parameters laid down by the Apex Court in P. Sudhakar case (supra), I have no hesitation to hold that the seniority of the petitioners can be counted only with effect from 30- 12-2003 when they came to be encadred in the Tripura Power Engineering Service; it is only after this that they became members of the service as defined in Rule 2(e) of the Tripura Power Engineering Service. Granting of regular pay scale Junior Engineer in 1992, without any more, cannot be equated with encadrement in the TPES. Till their services were encadred in the TPES, they were simply holding ex-cadre posts of Junior Engineer; the posts held by them prior to 30-12-2003 was outside the cadre of Junior Engineer contemplated in the schedule to the rules. To include the petitioners in the common inter se seniority list of the Junior Engineers who were already borne in the cadre and adversely affecting their seniority will be to facilitate reverse discrimination against the latter; all they can ask for is to be placed en bloc below those regularly appointed Junior Engineers and nothing more. In the view that I have taken, I do not think that the respondent authorities have acted illegally in not counting the past services rendered by the petitioners in the ex-cadre posts of Junior Engineer for the purpose of seniority and in deciding to count their services from the date of their respective encadrement in the TPES.
17. Coming now to the question as to whether the petitioners are entitled to the benefit of CAS (interestingly no relief is claimed in the writ petition), the contentions made by the learned counsel for the petitioners are, to my mind, ill- conceived and misconceived. The concept of Career Assured Scheme is introduced with a view to provide safety net to deal with problems of genuine stagnation, frustration and hardship faced by the employees due to lack of adequate promotional Page 17 of 20 avenue. For example, CAS, in the very nature of the scheme, is not and cannot be extended to casual employees including those granted „temporary status‟ or employees appointed in the Government only on ad hoc or contract basis. It is only when the petitioners became members of the TPES in 2007, the question of promoting them to a higher post would arise and not before; it is, therefore, absurd for them to claim CAS-
1. After all, the period of service rendered by them in the ex- cadre posts of Junior Engineer prior to their encadrement cannot obviously be counted for the purpose of promotion, much less, for the purpose of CAS-1."
[Emphasis added]
10. Mr. A. Bhowmik, learned counsel appearing for the petitioners having referred to the memorandum dated 06.01.2010 has submitted that the decision contained in the said memorandum has wider ramification in the present controversy. Hence, the relevant part of the said memorandum is reproduced hereunder :
"In the year 1990, a number of Jr. Engineers (Both Degree and Diploma holders) were recruited in Power Department on fixed pay basis as ex-cadre and they were allowed regular pay scale in the year 1992 with approval of the Govt. as communicated vide No.F.6(53)-CEE/89/(S)/3,069-92 dated 22-10-1992 of Power Department, Govt. of Tripura. The Ex-cadre Junior Engineers (Both Degree and Diploma Holders) were also recruited in the year of 1997 and in subsequent periods. In the meantime, a section out of those Ex-cadre Jr. Engineers were recruited through T.P.S.C. competitive examination as regular Jr. Engineer in Power Department and were allowed to join in Tripura Power Engineering Service after tendering resignation from their previous service as Ex-cadre Jr. Engineers while a number of fresh Jr. Engineers were also recruited in the Deptt. During the same time. On 15th November, 2007, with a decision of the government, the ex-cadre Jr. Engineers who were in service of Power Department outside TPES, were en- cadred and brought into Cadre of Tripura Power Engineering Service w.e.f.2003.
2. With a view to settling the different issues as arisen a number of applications representations received from many applicants to consider the following issues :-
i) Allowing up-gradation of their pay (CAS) after completion of 8(eight) years of service in regular pay scale for the Degree holders as was allowed to Diploma holders after 4(four) years.Page 18 of 20
ii) Counting of past service for pension, retirement etc. benefit of Ex-cadre Jr. Engineers from the date of joining.
iii) Pay protection to those Ex-cadre Junior Engineers who were recruited subsequently through TPSC in the year 2003.
iv) CAS for the Ex-cadre Junior Engineers irrespective of their subsequent status of service in the Department.
3. The issues were referred to the Finance Dept., Govt. of Tripura and accordingly, the following decisions have been communicated for implementation in due course.
i) All the involved Engineers who were in service under Power Department both during their ex-cadre period and after en-
cadrement, their ex-cadre period of service may be counted for the purpose of providing pension and retirement benefits.
ii) Degree holder Ex-cadre Junior Engineers (recruited in 1990) may be provided benefit of CAS-I notionally on completion of 8 years of service. To determine completion of 8 years of service, the period should be calculated from the date when they were provided benefit of regular pay scale ignoring the period served under fixed remuneration basis. However, the financial effect of the CAS would be admissible from 1-9- 2004 as provided under 15th Amendment of TSCS (ROP) Rules, 1999. Whereever such benefit was/is provided, this should be treated as consumption of CAS or , as the case may be, ACP irrespective of periods served under ex-cadre or cadre service.
iii) The Diploma holder Ex-cadre Jr. Engineers who had already got the benefit of CAS-I on completion of 4 years of service in the regular pay scale in pursuance of communication issued from the Finance Department vide No.F.4(40)-FIN(PC)/90 Dt.16.07.2009, their benefit will remain unchanged.
iv) The concerned incumbents may be provided the benefit of protection of pay scale for their ex-cadre period of service in the Power Department by invoking the provision of FR 22 read with GOI decision No.7, which provides scope to treat the resignation as technical resignation instead of a straight resignation.
v) Those incumbents who would be found eligible to get benefit of higher pay scale and protection of pay for the ex- cadre period of service, their arrear pay inclusive of all allowances up to period 31st March, 2009 would be in their respective GPF accounts. This impounding would be continued upto 31st March, 2010.
vi) The seniority of the Ex-cadre Junior Engineers who were regularised and brought into cadre service (TPES) in the year 2007, will be placed enblock below the seniority list of the recruitees of 2003 as made by TPSC as per conditions given in the order of regularisation vide No.F.2(25)-Power/2007/980- Page 19 of 20 94 Dated 15-11-2007 of the Under Secretary, Power Deptt., Govt. of Tripura.
vii) They will exercise their option as per Rules of the Government as prevailing as per order of the Finance Department. "
11. Mr. Bhowmik, learned counsel has further contended that the said memorandum dated 06.01.2010 is not under challenge. The said memorandum only gives protection to the financial up-gradation provided to the petitioners on completion of four years of service in the regular pay scale pursuant to the communication dated 16.07.2009. But those communications were made subject to the outcome of Shibajyoti Bhattacharjee(supra) and other similar writ petitions, reference of which has been made in the said memorandum dated 06.01.2010.
12. Mr. Bhowmik, learned counsel has asserted that the controversy as raised in these writ petitions is covered by a decision of this court in Kalyanbrata Bhattacharjee versus State of Tripura and Others [judgment dated 03.03.2021 delivered in WP(C)No.488/2019 and other analogous writ petitions]. But the said decision, with all humility to the learned counsel, is not germane to the present context. It may be noted that at this juncture that the pay scale in the Grade-V(A) of Tripura Engineering Service and Tripura Power Engineering Service is equal for the Degree holder direct recruit and the Diploma holder promotees. As such, any movement thereafter will be to the pay scale equal to both the Degree holders and Diploma holders.
13. There is no dispute that as the petitioners were brought in the pay scale of Rs.2000-4,410/-, they were also given the benefit of pay scale of Page 20 of 20 Rs.2,100-4,530/- (unrevised) in terms of the memorandum dated 06.04.2000. As such, what has been decided by a co-equal bench of this court squarely covers the present controversy. The petitioners, thus, cannot claim that they should be designated as the Junior Engineer borne in Grade-V(A) of Tripura Engineering Service/Tripura Power Engineering Service on a prior date, as asserted in these writ petitions, as they were not recruited, admittedly following the due process provided by the Tripura Engineering Service Rules, 1987 and Tripura Power Engineering Service Rules, 1987 as amended time to time. As such, the petitioner cannot claim that they had completed seventeen years of service on 01.10.2013 for purpose of granting ACP-II as the petitioners have calculated their regular service from 01.01.1996. Their regular appointment, according to the notification dated 15.11.2007 issued by the Power Department has taken effect from 30.12.2003. There is no challenge against the said notification. As such, the sound reasonings as based in Shibajyoti Bhattacharjee(supra) will squarely apply in the controversy raised in these writ petitions. For the same reasons, the petitioners' claim for 3rd financial up-gradation in the form of MACP w.e.f.01.10.2021 is not sustainable. The consequential relief of fixation of pay has thus become irrelevant.
Having observed thus, all these writ petitions are dismissed. However, there shall be no order as to costs.
JUDGE Sabyasachi B