Tripura High Court
Sri Pratul Datta vs The State Of Tripura on 25 February, 2022
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C)No.141 of 2021
1. Sri Pratul Datta,
son of late Prabhat Datta,
Rabindra Palli, Govt. Quarters,
P.O. Agartala, District: West Tripura,
PIN:799 001
2. Sri Lalit Mohan Datta,
son of late Raimohan Datta,
resident of village: Town Rajarbag,
P.O. R.K. Pur, Udaipur,
Gomati Tripura, PIN: 799 120
;;;;;...
............ Petitioner
- Vs -
1. The State of Tripura,
to represented by the Secretary,
Department of Agriculture,
Government of Tripura,
P.O. New Secretariat Complex,
New Secretariat Complex, Agartala,
PIN:799 001
2. The Director of Agriculture &
Farmers Welfare Department,
Government of Tripura,
Krishi Bhavan, Agartala,
PIN: 799 001
3. The Executive Engineer,
Department of Agriculture & Farmers Welfare,
Gomati Tripura, Udaipur
4. The Secretary,
Department of Finance,
Government of Tripura,
New Secretariat Complex,
P.O. Secretariat Complex,
Agartala, PIN:799 006
............ Respondents
W.P.(C). No. 141 of 2021
Page 1 of 11
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. K. Nath, Advocate For the respondents : Mr. D. Bhattacharya, G.A. Mr. P. Saha, Adv.
Date of hearing : 25.01.2022
Date of judgment
& order : 25.02.2022
Whether fit for reporting : NO
Judgment and Order
The petitioners were appointed in the post of Surveyor under the directorate of Agriculture & Farmers Welfare and thereafter, they were promoted to the post of Technical Officer Survey (Group-B) Non-Gazetted in the scale of pay of Rs.6500/-- 12,300/-. It is required to be noted that the petitioners were in the scale of pay of Rs.560-1300/- when they were serving in the post of Surveyor before 01.01.1986, the date of introduction of Tripura State Civil Services (Revised Pay) Rules, 1988 (ROP Rules, 1988 in short). In terms of Rule 4(a)(iii) of the said Rules, the petitioners who were serving in the post of Surveyor were brought to the graded scale No.9. For purpose of reference, the graded scale No.9 is reproduced hereunder:
GRADED SCALE NO.9
9.Drafsman/Surveyor/Research 650-1595 Senior Draftsman 750-1750 1700-3980 Assistant/ Chemist/Water Analyst/ 600-1440 Draftsman 650-1595 1450-3710 Soil Analyst and similar other 430-850 Junior Draftsman 600-1440 1300-3220 posts. 550-1245 560-1300 (similar for other posts) Note:- Redesignation of various existing posts has been shown in the departmental list in Part B of Schedule III W.P.(C). No. 141 of 2021 Page 2 of 11
02. It appears from Part-B of Schedule-3 of the said Rules the post of Surveyor has been re-designated as the Junior Surveyor (see Entry 38 under Department of Agriculture). Thus, they became entitled to the graded scale No.9. It is apparent therefrom that the scale of Rs.560-1300/- was modified to Rs.600-1440/- with effect from 01.01.1982. The revised scale of the Junior Surveyor has become Rs.1300-3320/-. There cannot be any dispute that the Junior Surveyor is the entry post, in the hierarchy under the graded scale No.9 and the post of Surveyor is in the middle and the post of Senior Surveyor is at the top in the hierarchy. Though under the graded scale No.9, illustration by the post of Draftsman has been given, but the similar arrangement will follow for all other posts shown under the name of the posts. In terms of the said graded scale No.9, the petitioners being the Surveyor was given the scale of Rs.1300-3320/-. According to the petitioners, they are entitled to the pay scale of Rs.1450-3710/- which was the pay scale for Surveyor positioned in the middle of the hierarchy.
03. Mr. K. Nath, learned counsel appearing for the petitioners has submitted that the petitioners' claim is buttressed by the judgment and order dated 27.04.2005 delivered in WA No.48 of 1999 [Nimai Chandra Das vs. State of Tripura & W.P.(C). No. 141 of 2021 Page 3 of 11 Ors.]. In Nimai Chandra (supra) the Gauhati High Court had occasion to return the following observation:
6. On noticing the above aspects of the matter, the learned Single Judge has observed in the impugned judgment to the effect that the post of Surveyor has been re-
designated as Junior Surveyor and the scale prescribed for the post of Junior Surveyor being Rs.1300-3320/- which is corresponding revised pay scale of the appellant, he has been correctly designated as a Junior Surveyor. We notice that the conclusion so reached by the learned Single Judge is contrary to the ROP Rules, 1988, inasmuch as the post of Surveyor has not been re-designated as Junior Surveyor. What has been done in the ROP Rules, 1988, is that in addition to the post of Surveyor, two posts have been created, one being junior to the post of Surveyor and the same being designated as Junior Surveyor and the other being senior to the post of Surveyor and the same being designated as Senior Surveyor. Since the appellant was already a Surveyor, he could not have been degraded to the level of Junior Surveyor merely because his pre- revised pay scale was meant for the post of Junior Surveyor. As the effect of granting of the benefit of revised pay scale to a person might make him junior in his grade, the Department of Finance, Government of Tripura, had, in fact, vide its Memorandum No.F.4(6)/FIN(PC)/88(L), dated 28.4.1990 elaborately dealt with the matter and issued the clarification, in this regard, which, we find, runs as follows :
MEMORANDUM Subject :- Clarification of Tripura State Civil Services (Revised Pay) Rules, 1988- fixation of pay The undersigned is directed to state that it has come to notice that in the case of appointment to posts with graded scales during the period from 1-1-86 upto the date of publication of the ROP Rules, in some cases employees have been allowed a revised scale which is lower than the scale of the grade in which he is placed by virtue of holding a particular existing scale. For example, an employee who appointed during the period from 1-1-1986 upto the date of publication of the ROP Rules, 1988 in the existing scale of Rs.560-1300/-. This scale in this particular case was placed in the intermediate grade with the up-graded revised scale of Rs.1450-3710/-. But the employee was allowed the revised scale of lowest grade. This was perhaps done in view of the stipulation in Part-C of the rules that no new W.P.(C). No. 141 of 2021 Page 4 of 11 appointment should be made except in the lowest grade.
It is hereby clarified that this is not the correct position. No employee should get a scale lower than the revised scale of the grade in which he falls by virtue of holding a particular existing scale.
The stipulation in Part C of the ROP Rules, 1988 that no new appointment should be made at any level other than the lowest or no new post should be created except at the lowest grade will apply in the case of appointment/creation after the publication of the ROP Rules, 88 and where the appointment/creation is in the revised scale. This stipulation will not apply where appointment/creation was in the existing scale before publication of the ROP Rules, 1988."
7. From the above memorandum, it is abundantly clear that an employee, who was appointed during the period from 01.01.86 to the date of publication of the ROP Rules, 1988, in the existing pay scale of Rs.560-1300/-, his revised pay scale would be Rs.1450-3710/-. In the case at hand, since the appellant came to be appointed, on promotion, to the post of Surveyor by order, dated 14.5.1986, and was already granted the pay scale of Rs.500-1300/-
before the ROP Rules, 1988, came into force, he could not have been the re-designated as, or brought down to the level of, Junior Surveyor with the scale of pay of Rs.1300-3220/-. In terms of the memorandum dated 28.4.1990 aforementioned, the appellant ought to have been kept retained and designated as a Surveyor and he ought to have been allowed the pay scale of Rs.1450-3710/-, which has the pay scale meant for the post of Surveyor and which pay scale the appellant had demanded. On careful perusal of the impugned judgment, we notice that the learned Single Judge has not taken into account at all the Memorandum, dated 28.04.1990, aforementioned and it was, perhaps, as a result of his omission to note the contents of the said Memorandum that the learned Single Judge concluded that the post of Surveyor had been re- designated under the ROP Rules, 1988, as a Junior Surveyor.
8. Because of what have been discussed and pointed out above, we are of the view that the State-
respondents/authorities concerned have illegally and unjustifiably not given the benefit of revised pay scale of Rs.1450-3710/- to the appellant and brought him down to the grade of Junior Surveyor, W.P.(C). No. 141 of 2021 Page 5 of 11 whereas he ought to have been retained in the grade of Surveyor and he ought to have been given the revised scale of pay meant for the post of Surveyor.
9. For the forgoing reasons, this appeal succeeds and the impugned judgment and order dated 11.5.1999, in Civil Rule No.304 of 1994 is hereby set aside. The letter, dated 5.6.1993, by which the respondent no.2 has turned down the prayer of the appellant for granting him the pay scale of Rs.1450- 3710/- shall also stand set aside and quashed. The respondents/authorities concerned are hereby directed to fix the pay scale of the appellant at Rs.1450-3710/- as per the ROP Rules, 1988, with effect from the date, when the said ROP Rules, 1988, came into force treating the appellant as an incumbent in the post of Surveyor and shall make available accordingly to the appellant the arrears of pay and allowances. The benefits given to the appellant shall remain confined to the case of the appellant only."
[Emphasis added]
04. Having regard to that clarificatory memorandum in Nimai Chandra (supra), it has been observed that the stipulation under Part-C of ROP Rules, 1988 will not apply where the appointment was in the existing scale before the publication of the ROP Rules, 1988. Thus, the respondents were directed to fix the pay of the appellant (the writ petitioner) in the scale of pay of Rs.1450-3710/- as per ROP Rules, 1988 for their holding the post of Surveyor before the graded scale No.9 was published. According to Mr. Nath, learned counsel, the petitioners of this writ petition are similarly situated. He has referred to another decision of this court in Sunil Baran Datta vs. The State of Tripura & Ors. [delivered in WP(C)No.66 of 2008 dated 19.08.2013] where, following the interpretation of Nimai Chandra (supra), similar W.P.(C). No. 141 of 2021 Page 6 of 11 benefits were granted to the Surveyors under the Forest Department. The respondents were directed to fix their pay under the pay scale of Rs.1450-3710/-. Similar inference had been drawn in another decision delivered in a series of writ petitions being WP(C)637 of 2017, WP(C)No.638 of 2017 and WP(C)No.639 of 2017. In that case also following the ratio of Nimai Chandra (supra), it has been observed that the petitioners of that case were entitled to get their pay fixed in the pay scale of Rs.1450- 3710/- which was subsequently revised to Rs.5000-10300/-.
05. Mr. D. Bhattacharya, learned G.A. appearing for the respondents has submitted that the petitioners were appointed in the scale of pay of Rs.560-1300/- for holding the post of Surveyor when ROP Rules, 1988 was not in force. In reply, the respondents No.1-4 have also contended that the nature of job of Surveyors of Public Works Department and the Department of Agriculture are not same and hence they cannot get the benefit of pay scale of Rs.1450-3710/- as per Part-C-Schedule-3 vide the graded scale No.9 [See ROP Rules, 1999]. According to Mr. Bhattacharya, learned G.A., the post of Surveyor was re-designated, as would be evident from Part-B of Schedule-2 of ROP Rules, 1988. Hence, the contention of the petitioners cannot be sustained. For that purpose, the respondents have made a table on re-designation of W.P.(C). No. 141 of 2021 Page 7 of 11 the post of Senior Surveyor and Surveyor under the ROP Rules, 1988. For purpose of reference, the said table is reproduced below:
Existing Redesignated Present Modified Revised Post post in the Scale Present Scale in ROP Rules, Scale in the 1988 the ROP ROP Rules, Rules, 1988 1988 Senior Surveyor 600- 650- 1450-
Surveyor 1440/- 1595/- 3710/-
Surveyor Junior Surveyor 560- 600- 1300-
1300/- 1440/- 3220/-
06. Those respondents have vehemently opposed that the principles of aforementioned decision of this court can be applied to the petitioners. When the matter was referred to the Finance Department, the Finance Department had refused to accept such claim. Hence, the petitioners are not entitled to the relief as sought for.
07. Having appreciated the submissions of the learned counsel for the parties as well as scrutinized the records, this court is of the view that the decision as referred by the Gauhati High Court in Nimai Chandra (supra) has reached its finality by efflux of time. May it be noted that the state did not challenge the said decision. As noted before, subsequently Nimai Chandra (supra) has been followed in various cases including the cases as noted before. The analogy for granting the pay scale of Rs.1450- W.P.(C). No. 141 of 2021 Page 8 of 11
3710/- is quite sound and based on principles of administrative law that by way of re-designation a post cannot be downgraded. In this case the post of Surveyor has been retained. Therefore, so called re-designation had no effect on all posts of Surveyors. Hence, it cannot be stated the post of the petitioners were downgraded by way of re-designation to Junior Surveyor. According to the government policy the post of Junior Surveyor is only relevant for the new recruitment under the said graded pay scale. The entry post shall always be Junior Surveyor. As such, the petitioners are entitled to be placed under the pay scale of Rs.1450-3710/- and they are entitled to get their pay re-fixed in the said pay scale under the ROP Rules, 1988.
08. True it is that there are differences, a little bit, in the hierarchy but, the principle as relied on by the petitioners cannot be treated as abated. Hence, the respondents are directed to grant the pay scale of the petitioners of Rs.1450-3710/- as per ROP Rules, 1988. But they will not be entitled to the entire arrear pay as the petitioners have approached this court after 33 years from the date of publication of the ROP Rules, 1988. As the petitioners draw less salary every month, the cause to approach this court survives, but they cannot be entitled to the actual financial benefits. In such cases the apex court in M.R. Gupta vs. W.P.(C). No. 141 of 2021 Page 9 of 11 Union of India & Ors., reported in (1995) 5 SCC 628, Union Of India & Anr. vs. Tarsem Singh, reported in (2008) 8 SCC 648 and State of Madhya Pradesh & Ors. vs. Yogendra Srivastava, reported in (2010) 12 SCC 538. In Yogendra Srivastava (supra), the cases of M.R. Gupta (supra) and Tarsem Singh (supra) have been elaborately referred and discussed and on the basis of those precedents, the apex court has observed as under:
".........Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India: (1995) 5 SCC 628, and Union of India vs. Tarsem Singh : (2008) 8 SCC 648."
[Emphasis added]
09. Hence, the actual financial benefits will be available to the petitioners with effect from 01.03.2018, three years prior to the day of institution of the writ petition. From the date of revision of pay under ROP Rules, 1988 till 01.03.2018, the petitioners will be entitled to the notional benefits. The arrears as would accrue W.P.(C). No. 141 of 2021 Page 10 of 11 for the above direction, be paid to the petitioners within a period of 4(four) months from the date when the petitioner shall supply a copy of this order to the respondents.
Having observed thus, this petition stands allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Moumita W.P.(C). No. 141 of 2021 Page 11 of 11