Tripura High Court
Sri Swapan Kumar Bhattacharya vs The State Of Tripura on 31 January, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) 219 OF 2015
Sri Swapan Kumar Bhattacharya,
son of late Tara Mohan Bhattacharya,
of Police Quarters No. C-69,
P.S. A.D. Nagar,
P.O. A.D. Nagar,
District : West Tripura,
PIN : 799003
...............Petitioner
- Vs -
1. The State of Tripura,
represented by Secretary,
Home Department,
P.S. New Capital Complex,
P.O. Kunjaban,
District : West Tripura,
PIN : 799006
2. The Superintendant of Police,
(Communication)
of A.D. Nagar,
P.S. A.D. Nagar,
P.O. A.D. Nagar, Agartala,
District : West Tripura,
PIN : 799003
3. The Accountant General
Tripura, Office of the Accountant General (A&E),
Malanchanibas, Agartala,
PIN : 799006,
West Tripura
...............Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Ms. S. Deb Gupta, Advocate For the respondents : Mr. T.D. Majumder, G.A. Date of hearing : 14.11.2016 W.P.(C) No.219 of 2015 Page 1 of 22 Date of Judgment & Order : 31.01.2017 Whether fit for reporting : YES JUDGMENT & ORDER The petitioner who is now working as the Supervisor Technical (SI) initially filed this petition by challenging the office order No.3343-45/F.34/PAY/RSV/SP(Com)/2013 dated 15.03.2014 and the process of re-fixation of pay thereon in cancellation of ACP-III by the communication under No. DO 298 dated 13.03.2014 and urging for further direction for refunding the amount that has been deducted from his salaries by virtue of the said order dated 15.03.2014.
2. It is the admitted position that after filing of the counter affidavit, the respondents had indulged in a fresh exercise and passed the office order bearing DO No.569 dated 06.06.2016 by which the petitioner's pay has been re-fixed in cancellation of the earlier DO No.268 dated 22.03.1994. In terms thereof, the respondents had also issued an office order bearing No.4386-88/F.34/PAY/RSV/SP(Comn)/2013 dated 06.06.2016 for recovery of the overdrawn amount to the extent of Rs.5,26,440/- in instalments from the salary bills of the petitioner till his retirement. Those officer orders [Annexure-11 collectively] have been challenged by way of amendment. As a result, the challenge against the office order dated 13.03.2014 W.P.(C) No.219 of 2015 Page 2 of 22 [Annexure-6 to the writ petition] and the order dated 15.03.2014 [Annexure-7 to the writ petition] have become infructuous as the respondents themselves have cancelled those orders dated 13.03.2014 and 15.03.2014. However, to appreciate the controversy the foundation of those orders would be relevant.
3. There is no controversy that the petitioner was initially appointed as the Radio Technician (ASI) on 03.09.1984 by the memorandum dated 21.08.1984. Thereafter, the petitioner was directly recruited in the post of Supervisor Technical (SI) in the Home Department (Communication wing) on 09.12.1993. On 01.12.1994 the petitioner's pay was fixed at Rs.1,870/- in the scale of pay of Rs.1,450-3710 following FR 22(C), meaning on addition of one increment according to his previous pay scale meant for the post of Radio Technician (ASI) i.e. in the scale of Rs.1250-2890/-. In the previous scale, the petitioner's pay as on 09.12.1993 was Rs.1,760/- and by adding therewith one increment of Rs.110, the pay in the new scale i.e. Rs.1450-3710/- was fixed at Rs.1870 on 09.12.1993 with next date of increment on 01.12.1994. The said fixation can be gathered from [Annexure-8 to the writ petition]. Thereafter, by the DO No.1022 dated 07.08.2007 the petitioner was moved to the scale of pay of Rs.5,500-10,700 (the Revised Pay Scale) on completion of 7(seven) years continuous and satisfactory service as SI without promotion, in terms of TSCS(Revised Pay) Rules, W.P.(C) No.219 of 2015 Page 3 of 22 1999, on treating the same as the CAS-II. On 09.12.2000 the petitioner's pay was thus fixed at Rs.6,700/- and on 01.12.2001 it came to be Rs.6,850 having the increment released. The petitioner had approached this court being aggrieved by the DO No.298 dated 13.03.2014 whereby the Superintendant of Police (Communication) had re-fixed his pay in cancellation of the earlier order dated 10.10.2012 and 26.11.2013 whereby the benefit of ACP-III was given to the petitioner in terms of the TSCS (Revised Pay) Rules,2009. For purpose of reference, the said order dated 13.03.2014, is reproduced hereunder :
Government of Tripura Office of The Superintendant of Police (Comn) Tripura Agartala D.O. No. 298 Dated: 13/03/2014 Subject : Re-fixation of pay in cancellation of ACP-
III of Supervisor (Tech)(S.I) Swapan Kumar Bhattacharjee.
In pursuance of Govt. of Tripura, Home Deptt. No. F.1(26)/PD/2011 dated 10.10.2012 and PHQ approval No. 53357/F.40/PC/PHQ/SP(Commn)/NGO's/2013, dated 26th November, 2013. ACP-III benefit in respect of Supervisor(Tech)Swapan Kumar Bhattacharjee of Police Communication Orgn. Is hereby cancelled which was granted Vide D.O. No. 517 dated 08.06.2010 as the same is not entitled to him as per TSCS(RP) Rules, 2009, he has already been consumed 3(three) scale unpliftment like (1)4200-8650/-(II) 5000-10300/- and (III) Rs.5500-10700/- as per clarification No. 10 of FD's Memo 6(1)FIN(PC)/2008 dated 14.09.2009.
Accordingly his pay is refixed at Rs.
18800/- (Pb-16200/- with GP-Rs.2600 w.e.f. 03.09.2009 instead of Rs. 19770/-(Pb-16670/- with GP-Rs.3100/-).
The fixation has been done in the following manner and the overdrawn money in respect of ACP-III is to be recovered from the salary bill:
W.P.(C) No.219 of 2015 Page 4 of 22
Sl. Name Existing Pay in the Pay Pay fixed in the Pay Re- No. & Rank Band PB/GP W.E.F. Band, GP with Date marks & DNI Supervisor Rs.560/- Rs. 1475/- w.e.f.
(Tech)(S.I) As on 03.09.1986 01.01.1988 under
Sri Swapan Kumar (560-1300/-) TSCS(RP)Rules,
Bhattacharjee 1988 in the pay
scale of Rs. 1250-
2890/- with DNI
01.09.1988
D.O.A. on Rs.1870/- w.e.f.
03.09.1984 as Rs. 1760/- 09.12.1993 Pay has
R/Tech.(ASI) On 09.12.1993 been fixed in the
pay scale of Rs.
1450-3710/-
On 09.12.1993 applying rule FR.
As Supervisor 22.C (Direct
(Tech)(Direct appointment as
appointment) Supervisor(Tech)(S.
I.)with DNI-
Rs.2060/- 01.12.1994
As on 01.12.1996
Rs.1930/- w.e.f.
Rs. 6560/- 01.12.1994
As on 01.12.2000 Rs.1995/- w.e.f.
01.12.1995
Rs. 7450/- Rs.2060/- w.e.f.
As on 01.01.2006 01.12.1996
Rs.6040/- w.e.f.
01.12.1996 under
TSCS(RP) Rules,
1999 in the pay
scale of Rs.5000-
10300/- with DNI-
01.12.1997
Rs.6170/- w.e.f.
01.12.1997
Rs.6300/- w.e.f.
01.12.1998
Rs.6430/- w.e.f.
01.12.1999
Rs.6560/- w.e.f.
01.12.2000
Rs.6700/- w.e.f.
09.12.2000 on
CAS-II in the higher
pay scale of Rs.
5500-10700/-
(after completion of
7(seven) years
service without
promotion) with
DNI- 01.12.2001
Rs.6850/- w.e.f.
01.12.2001
Rs.7000/- w.e.f.
01.12.2002
Rs.7150/- w.e.f.
01.12.2003
Rs.7300/- w.e.f.
01.12.2004
Rs.7450/- w.e.f.
01.12.2005
W.P.(C) No.219 of 2015
Page 5 of 22
Rs. 7450 + 150 +
150 x 1.86 = Rs.
14420 and GP-
2600/- total Rs.
17020 w.e.f.
01.01.2006 under
TSCS(RP)(Sixth
amendment) Rules,
2012 in PB-3 Rs.
9570-30000/- with
DNI- 01.07.2006
Rs.17450/- w.e.f.
01.07.2006
Rs.17890/- w.e.f.
01.07.2007
Rs.18340/- w.e.f.
01.07.2008
Rs.18800/- w.e.f.
01.07.2009
Rs.19370/- w.e.f.
01.07.2010
Rs.19960/- w.e.f.
01.07.2011
Rs.20560/- w.e.f.
01.07.2012
Accordingly his pay
raised at Rs.
21180/- (18580/-
and GP- 2600/-)
w.e.f. 01.07.2013
with DNI-
01.07.2014
The above Fixation/Re-Fixation are provisional and subject final check-up by the Accountant General(Audit), Tripura in due course.
(Santanu Devvarma) Superintendant of Police(Communication), Tripura : Agartala No. 3227-31/F.34/COMN/RSV(H/PAY)/13 Dated 13.03.2014
4. In view of the above fixation, another order dated 15.03.2014 was issued for recovery of Rs.81,600/- from the salaries of the petitioner in 41 instalments. The text of the said order under No.3343-45/F.34/PAY/RSV/SP(Com)/2013 dated 15.03.2014 is extracted hereunder :
"Subject : Deduction of Overdrawn money from the salary bill of Supervisor (Tech)(S.I.)Swapan Kumar Bhattacharjee In pursuance of Govt. of Tripura, Home Deptt. No. F.I(26)/PD/2011 date 10.10.2012 and PHQ No. 53357/F.40/PC/PHQ/SP(Com)/NGO's/2013 date 26.11.2013, the ACP-III benefit has cancelled w.e.f 03.09.2009, Vide D.O. No. 298 dated 13.03.2014 and pay W.P.(C) No.219 of 2015 Page 6 of 22 has been re-fixed at Rs. 18800/-(PB-16200/- with GP- Rs.2600/- instead of Rs. 19770/-(PB-16670/- with GP- Rs. 3100/-).
The Overdrawn money in respect of ACP-III w.e.f. 03.09.2009 to 31.03.2014 comes to Rs. 81,600/- is to be recovered from the salary bill of Swapan Kumar Bhattacharjee, Supervisor (Tech)(S.I.) by 40th instalment @ Rs.2000/- p.m. w.e.f. April 2014 and last instalment is Rs. 3600/-.
(Santanu Devvarma) Superintendant of Police (Communication), Tripura: : Agartala"
5. As stated earlier, the respondent No.2 by the order dated 06.06.2016 under No. 568/2016 had cancelled the D.O. No. 268 dated 22.02.1994 and as such, the pay of the petitioner as fixed at Rs.1,870/- with DNI 01.12.1994 by the said order dated 23.02.1994, applying Rule FR22(C) has been cancelled, as according to the respondents the said fixation was done erroneously. As consequence of that order dated 06.06.2016 [Part of Annexure-12 collectively] the pay of the petitioner was fixed afresh in the scale of pay of Rs.1,450-3,710/- as on 09.12.1993 without any advance or additional increment. Thus his pay evolved to Rs.6,100/- with effect from 09.12.2003 in the scale of pay of Rs.5,500-10,700 with DNI 01.12.2004. On 01.12.2004 the petitioner's pay was Rs.6,250/-. Thereafter on evolution of pay the petitioner was given ACP-II on 09.12.2010 and on that day his pay was fixed at Rs.15,770/- with DNI 01.07.2011. On 01.07.2011 his pay was Rs.20,990/-. For purpose of elaborate reference, the entire text of DO No.569 dated 06.06.2016 is extracted hereunder : W.P.(C) No.219 of 2015 Page 7 of 22
"Government of Tripura Office of The Superintendant of Police(COMN) Tripura, Agartala D.O. No. 568/2016 Dated 06.06.2016 Subject :- Cancellation of previous D.O. No. 268 dated 23.02.1994 Sri Swapan Kumar Bhattacharjee was directly appointed as Supervisor (Technical) vide D.O. 1809 dated 08.12.1993 and his joining was accepted w.e.f. 09.12.1993 vide D.O. No. 1830 dated 10.12.1993.
His pay was fixed to Rs. 1870/- with D.N.I. 01.12.1994 vide D.O. No. 268 dated 23.02.1994 applying rule FR 22-C is hereby cancelled as the fixation was done erroneously.
Now, his pay is Re-fixed as per admissible rule as a fresh appointment in the pay scale of Rs. 1450- 60-1930-65-2450-70-3710.
Superintendant of Police(Comn) Tripura, Agartala No.4380-81/F.34/Pay/COMN/RSV Dated 06.06.2016"
6. In terms of the said order dated 06.06.2012 the respondents found that the petitioner had overdrawn a sum of Rs.5,26,440/- till 31.05.2016 and the said amount has been directed to be recovered from his salary bills by instalments till the month of superannuation. The said direction has been made by a separate order dated 06.06.2016 [Part of Annexure-12 collectively]. With the said order, the due drawn statement as has been prepared in terms of DO No.568 dated 06.06.2016 for the period from 09.12.1993 to 31.05.2016 has been supplied. By way of amendment of the writ petition, the petitioner has challenged the orders and fixation of pay dated 06.06.2016 [Annexure-12 collectively].
W.P.(C) No.219 of 2015 Page 8 of 22
Government of Tripura Office of The Superintendent of Police(Comn) Tripura Agartala D.O. No. 569 Dated : 06.06.2016 Pay of Sri Swapan Kumar Bhattacharjee, Supervisor (Tech) of Police Commn. Orgn. has been fixed/re-fixed initially in cancellation of earlier D.O. No. 268 dated 23.02.1994. He was appointed directly on 09.12.1993 in the pay scale of Rs. 1450-60-1930-65-2450-70-3710 Pay fixation has been done in the following manner Sl. Name & Rank Existing Pay in Pay fixed in the Pay Band, GP Re-
No. the pay Band with Date & DNI marks PB/GP W.E.F. Supervisor (Tech) Direct Rs. 1450/- w.e.f. 09.12.1993 (S.I.) Sri Swapan appointment (Direct appointment as Kumar as Supvr Supervisor(Tech)(S.I.) in the pay Bhattacharjee (Tech).(S.I.) scale of Rs. 1450-60-1930-65- 2450-70-3710/-) with DNI-
On 09.12.1993 01.12.1994 in the Pay D.O.A. on scale of Rs.
09.12.1993 as 1450-3710/-
Supervisor (Tech) Rs.1510/- w.e.f. 01.12.1994 (Direct appointment) in the pay scale of Rs.1570/- w.e.f. 01.12.1995 Rs. 1450-3710/-
Rs.1630/- w.e.f. 01.12.1996 Supervisor (Tech) Rs.6250/- As (S.I.)Sri Swapan on 01.01.2006 Rs.5000/- w.e.f. 01.01.1996 Kumar under TSCS(RP) Rules, 1999 in Bhattacharjee the pay scale of Rs.5000-130- 6690-150-8940-170- 10300 with DNI-01.12.1996 Pb- Rs.
15180/- and GP- Rs. 4400/-
as on 09.12.2010 Rs. 5130/- w.e.f. 01.12.1996 Rs. 5260/- w.e.f. 01.12.1997 Rs. 5390/- w.e.f. 01.12.1998 Rs. 5520/- w.e.f. 01.12.1999 Rs. 5650/- w.e.f. 01.12.2000 Rs. 5780/- w.e.f. 01.12.2001 Rs. 5910/- w.e.f. 01.12.2002 Rs. 6040/- w.e.f. 01.12.2003 Rs. 6100/- w.e.f. 09.12.2003 on CAS-I, in the higher pay scale of Rs. 5500-150-7750-175-9500- 200-10700/-(after completion of 10(Ten)years service without W.P.(C) No.219 of 2015 Page 9 of 22 promotion) with DNI-01.12.2004 Rs. 6250/- w.e.f. 01.12.2004 Rs. 6400/- w.e.f. 01.12.2005 Rs. 6400 + 150 + 150 x 1.86 = Rs. 12470 and GP-4400/- total Rs. 16870/- w.e.f. 01.01.2006 undr TSCS(RP)(Twelfth amendment) Rules, 2015 in PB-3 Rs. 10230-34800/- with DNI-
01.07.2006 Rs.17380/- w.e.f. 01.07.2006 Rs.17910/- w.e.f. 01.07.2007 Rs.18450/- w.e.f. 01.07.2008 Rs.19010/- w.e.f. 01.07.2009 Rs.19580/- w.e.f. 01.07.2010 Rs. 15180 + 590 = Rs. 15770/-
and GP- Rs. 4600/- total Rs.
20370/- w.e.f. 09.12.2010 on ACP-II under TSCS(Revised Pay)(Twelfth amendment) Rules, 2015 with DNI-01.07.2011 Rs.20990/- w.e.f. 01.07.2011 Rs.21620/- w.e.f. 01.07.2012 Rs.22270/- w.e.f. 01.07.2013 Rs.22940/- w.e.f. 01.07.2014 Accordingly his pay raised at Rs.
23630/-(19030/- and GP-4600/-) w.e.f. 01.07.2015 with DNI-
01.07.2016 The above Fixation/Re-Fixation is provisional and subject to final check-up by the Accountant General (Audit), Tripura in due course.
Superintendent of Police(Communication) Tripura: Agartala No. 4382-85/F.34/COMN/RSV(H/PAY)/08 Dated 06.06.2016
7. According to the petitioner, the cancellation of the D.O. No.268 dated 23.02.1994 by the D.O. No.568 dated 06.06.2016 has been issued in contravention of FR 22(I)(a)(1). W.P.(C) No.219 of 2015 Page 10 of 22 Thus it has been further prayed that the order dated 15.03.2014, D.O. No. 568 and D.O. No. 569, both dated 06.06.2016 be quashed and as consequence thereof, the fixation shall be made on applying FR 22(C) as amended or substituted.
8. Ms. S. Deb Gupta, learned counsel appearing for the petitioner has submitted that the gross impact of the order dated 13.03.2014 was cancellation of ACP-III, meaning withdrawing the benefit as granted by the DO No.517 dated 10.06.2010 [Annexure P/5].
9. From the fixation as made by the order dated 13.03.2013 it would be apparent that the CAS-II was given to the petitioner after completion of the seven years of service fixing his pay at Rs.6,700/- with effect from 09.12.2000 with DNI 01.12.2001. It is apparent that the direct appointment of the petitioner was treated as CAS-I. Such fixation was grossly oppressive in nature inasmuch as by the memorandum under No. F.6(1)-FIN(PC)/2008 dated 14.09.2009 various points relating to revision of pay structure as per TSCS(RP) Rules, 2009 was given by the Finance Department. The part of the clarifications which has been relied by Ms. Deb Gupta is reproduced hereunder :
Sl. Point of which clarification sought Clarifications No.
2. As per Rule 10(2) of the TSCS (RP)Rules, Since the 2009 while determining eligibility of the concerned Government employees under the ACP, it employee had W.P.(C) No.219 of 2015 Page 11 of 22 should be considered how many times the availed benefit concerned employees got the benefit of of pay scale up-gradation including promotion protection after his direct entry into the service in along with the State Government or a case may be fixation benefit after a direct entry into the cadre service at the time of of the State Government in which he is entry in the presently servicing. A few cases have cadre service, been noticed where persons employed in this should be the Govt. had qualified in the examination treated as for direct entry in the cadre, accordingly consumption appointed as direct recruit and enjoyed of 1st CAS or, benefit of pay protection along with as the case fixation benefit. Now clarification has may be, ACP been sought whether such cases will be in their cases.
treated as consumption of ACP for determining his further entitlement of ACP.
3. A few cases have been noticed where the As the basic employee got the benefit of higher pay pay of the scale/higher Grade Pay scale under CAS employee on during period 01.01.1999 to 31.12.2005 the concerned but without any change in the basic pay date had not and even without any change of DNI on been changed the ground that at the relevant time scale at time of such of lower pay scale and higher pay CAS scale/higher Grade Pay scale become movement and exactly equal and date of increment and also under the date of CAS also fall on the same date. process DNI Now clarification has been sought also had not whether such cases would be treated as been changed, consumption of ACP for determining it would not be eligibility for providing future benefit counted as under ACP. consumption of ACP while determining eligibility for future ACP.
[Emphasis added]
10. The pay of the petitioner was fixed in the scale of pay of Rs.1,450-3,710/- and later on to the corresponding revised pay scale of Rs.5000-10,300/- and he was never placed in the scale of Rs.4,200-8,650/-. From the fixation statement as prepared on 26.08.1994 it would be apparent that the petitioner's pay was fixed on 19.12.1993 initially at Rs.1,760/- in the scale of pay of Rs.1,450-3,710/- and by applying FR 22(C) W.P.(C) No.219 of 2015 Page 12 of 22 he was given one increment and thus the pay became Rs.1,870/- on 09.12.1993 with DNI 01.12.1994. Thereafter on 01.01.1996 he was brought to the pay scale of Rs.5000- 10,300/- with DNI 01.12.1996 giving the benefit of revision as brought by TSCS (RP) Rules, 1999. But by the order dated 06.06.2016 the fixation was entirely changed. The pay of the petitioner was fixed at Rs.1,450 on 09.12.1993 without giving any protection of pay or adding an advance increment. Moreover the CAS-I was released on completion of 10(ten) years of service i.e. 09.12.2003 and on that day the pay of the petitioner was fixed at Rs.6,100/- with DNI 01.12.2004 and after completion of 17(seventeen) years of service the petitioner was given the ACP-II with effect from 09.12.2010 and his pay was fixed at Rs. 20,370/- [According to the relevant Pay-Band- Rs.15,180/- + Grade Pay Rs.4,400/-]. Following this fixation, a due drawn statement has been prepared and communicated to the petitioner by the letter dated 06.06.2016 with a direction for recovery of the over drawn amount of Rs.5,26,440/-.
11. Ms. Deb Gupta, learned counsel has emphatically submitted that the impugned order/communication dated 06.06.2016 has been issued on misconstruction of FR 22(I)(a)(1) and in contravention FR 22(I)(a)(1), which has been restructured by the Fundamental (3rd Amendment) Rules, 1989 (Annexure/10 to the writ petition) and which now reads as under:
W.P.(C) No.219 of 2015 Page 13 of 22
"(a)(1) where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or .... in a substantive, temporary or officiating capacity as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at whish such pay has accrued or rupees twenty five only , whichever is more.
Save in cases of appointment on deputation to an ex- cadre post, or to a post on ad-hoc basis, the Government servant shall have the option , to be exercised within one month from the date of promotion or appointment as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be re- fixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad-hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment :
Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time scale of the lower post, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time scale of the lower post or rupees twenty five, whichever is more ;"
[Emphasis added]
12. The said central rule has been adopted in the State of Tripura by the Fundamental (Tripura Amendment) Rules, 1999 with effect from 01.01.1996. There cannot be any amount of doubt as pointed out by Ms. S. Deb Gupta that the amended provisions of FR 22(I)(a)(1) is substantively identical to FR 22(C). Thus, Ms. Deb Gupta, learned counsel has submitted W.P.(C) No.219 of 2015 Page 14 of 22 that, withdrawal of protection of pay and fixation of pay on applying FR 22(C) is grossly illegal. Similarly, Ms. Deb Gupta, learned counsel has contended that withdrawal of the benefit of the CAS as released till the stage of ACP-III is arbitrary and colourable exercise of power.
13. From the other side, Mr. T.D. Majumder, learned G.A. appearing for the respondents has submitted that the petitioner was directly appointed on 09.12.1993 in the post of Supervisor Technical. Erroneously, the initial pay of the petitioner in the said post was fixed on applying FR 22(C), which according to the respondents, is applicable in cases of promotion. Even the petitioner was not entitled to pay protection inasmuch as there is no such condition of service. Further for the respondents it has been submitted that the grant of CAS or ACP as per Rule 10(2) of the ROP Rules, 2009 had no application in the case of the petitioner inasmuch as his past service cannot be the basis for grant for his further up-gradation in terms of Rule 10 of the ROP Rules, 2009. The due drawn statement as prepared by the order dated 06.06.2016 has been correctly drawn up inasmuch as the petitioner did not complete 25 years of service on 08.06.2010 nor was he entitled to get the benefit of protection of pay with one advance increment under FR 22(C). Thus the writ petition is bereft of the merit and there is no infirmity in cancellation of DO No. 268 dated 23.02.1994 and in withdrawing the benefit of ACP-III by correctly fixing his pay and W.P.(C) No.219 of 2015 Page 15 of 22 preparing due drawn statement. Thus the petitioner is under obligation to refund the overdrawn amount to the extent of Rs.5,26,440/-.
14. From the rival contentions as recorded above and from the averments of the parties, the pertinent questions those arose for response are:
(i) Whether the petitioner is entitled to get pay protection and fixation of pay by adding one advance increment on applying FR22(C) while fixing his pay on 09.12.1993 in the post of Supervisor Technical, as was so done by the order dated 23.02.1994? and
(ii) Whether the petitioner is entitled to CAS-II on completion of his 17(seventeen) years of service including his service in the post of Radio Technician (ASI), or not?
15. From the Recruitment Rules for the post of Supervisor Technical in Tripura Police Radio Organisation, it appears that experience in Wireless/Radio Communication has been made essential qualification for those do not have B.Sc. or B.E.. There is no controversy that the petitioner has served as the Radio Technician since 03.09.1984 till 08.12.1993 and the petitioner being qualified to participate in the selection by Direct Recruitment, he applied for the post. The petitioner was selected and appointed in the post of Supervisor Technical (S.I.) with effect from 09.12.1993. From the memorandum dated 20.11.1993 [the offer of appointment] it appears that, "other conditions of service will be governed by the relevant rules and orders from time to time." When the petitioner joined the said post on 09.12.1993 the petitioner's pay was fixed in terms of the W.P.(C) No.219 of 2015 Page 16 of 22 D.O. No. 268 dated 23.02.1994 [Annexure 8 to the writ petition] on applying FR 22(C) at Rs.1870/. There cannot be any controversy that the petitioner's service unless regulated by any specific rules in general or in particular, provisions of FR would apply to create right in favour of the petitioner. FR 22(C) had been deleted by the Government of India in exercise of the powers conferred by proviso to Article 309 read with Clause 5 of Article 148 of the Constitution and after consultation with the Comptroller and Auditor General(CAG) and in substitution thereof FR 22(I)(a)(1) has been substituted. Even though the said amendment was carried out by the notification dated 30.08.1989 [Annexure 10 to the writ petition] but the Government of Tripura adopted such substitution much later by bringing Fundamental (Tripura Amendment) Rules, 1999 by giving its retrospective operation from 01.01.1996. The said amendment was notified on 03.10.1999 [Annexure-E to the supplementary affidavit filed by the petitioner]. Hence FR 23(C) was in force in the State of Tripura till 31.12.1995.
16. Now this court would delve whether the provisions of FR 22(C) provides that since the petitioner was serving in the feeder post or in a substantive post under the same employer, he would be entitled to (a) the protection of pay and (b) one advance increment for purpose of fixation of pay. FR 22(C) provides that, notwithstanding anything contained in the fundamental rules, where a government servant holding a post W.P.(C) No.219 of 2015 Page 17 of 22 in a substantive, temporary or officiating capacity is promoted or appointed in a substantive or temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued. However, exception has been curved out that the said rule shall not apply where a Government servant holding a Group-A post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to a higher post which is also a Group-A post. Thus on two occasions FR 22(C), as un-amended, would have applied, namely (i) in the event of promotion to a post carrying duties and responsibilities of greater importance than the post from where the promotion has been made and (ii) in the event of appointment in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than the post which the employee held before such appointment. Here is the case that the petitioner held the substantive post of Radio Technician (ASI) borne in the scale of pay of Rs.430-850/- and he applied for the post of Supervisor Technical through proper channel, as is apparent from the applications dated 31.07.1992 and 24.11.1993.
W.P.(C) No.219 of 2015 Page 18 of 22
17. Mr. Datta Majumder, learned G.A. has raised an objection that since the petitioner joined after resigning from his previous post, the petitioner cannot be brought under the umbrage of FR22(C). In this regard the clarification as provided by the Government of India, in the Ministry of Finance, by their notification No.F.(9)E III(A)/74 dated 30.10.1974 is relevant for reference. In the said notification, as quoted in Swamy's Compilation of FR & SR, the following has been provided :
"Normally, the benefit of past service is given only in those cases where such service has not been terminated by resignation, removal/dismissal. But it has been decided that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purpose of fixation of pay in the new post treating the resignation as a 'technical formality'."
18. If the above decision is read with the principal part of FR22(C) there would be no confusion to hold that the petitioner was entitled to the benefit of protection of pay and to get fixation of pay in the time scale of the higher post at the next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage where such pay had accrued. Thus in the existing pay scale, the pay scale of Rs.1,250-2,890/-, for the post of the Radio Technician (ASI) as on 09.12.1993, the petitioner would have received the pay of Rs.1,760/- in terms of FR22(C) by adding one increment in the scale of pay of Rs.1,250-2,890, the pay of the petitioner had been correctly fixed at Rs.1,870 in the scale of pay of W.P.(C) No.219 of 2015 Page 19 of 22 Rs.1,450-3,710/- on 09.12.1993. Hence there is no infirmity in the fixation of pay as made by the D.O. 268 dated 23.02.1994 [Annexure 8 to the writ petition].
19. Having held so, this court is of the further view that impugned D.O. No. 568/2016 dated 06.06.2016 along with the D.O. No. 568 dated 06.06.2016, whereby the fixation of pay has been done afresh in terms of the D.O. No.568/2016 and the letter dated 06.06.2016 issued by the Superintendent of Police (Communication) cannot stand the scrutiny and accordingly those are interfered with and set aside. The fixation of pay caused by D.O. No. 268 dated 23.02.1994 [Annexure 8 to the writ petition] is restored as consequence thereof. Hence on 09.12.1993 the petitioner's pay shall be treated as fixed at Rs.1,870/-.
20. The other question is, whether the petitioner would get the benefit of CAS-II after 17(seventeen) years of service in terms of TSCS (RP) Rules, 1999 and ACP-III on completion of 25(twenty five) years of service in terms of TSCS (RP) Rules, 2009? It is to be noted that the past service of the petitioner as rendered in the post of Radio Technician (ASI) has been counted by this court for purpose of effecting protection of pay and fixation of pay in terms of FR22(C). As referred by Ms. S. Deb Gupta, learned counsel appearing for the petitioner that the case of the petitioner is substantially covered by the clarification provided by the memorandum dated 14.09.2009 [Annexure 3 to W.P.(C) No.219 of 2015 Page 20 of 22 the writ petition], where it has been clarified that if an employee had availed benefit of pay protection along with fixation benefit at the time of entry that should be treated as consumption of 1st CAS. This clarification has not been challenged, rather the petitioner has relied on this clarification. The words 'cadre/service' appearing in the Column for clarification in Serial No.2, has to be read both as 'service' and 'cadre'.
21. In view of the above clarification, the appointment of the petitioner shall be treated as the consumption of the 1st CAS and the petitioner would be entitled to get the CAS-II in the higher scale of pay of Rs.5,500-10,700/- with effect from 09.12.2000 and further the petitioner would be entitled to the ACP-III with effect from 03.09.2009 in the higher pay band with grade pay, corresponding to the pay scale of Rs.5,500-10,700/-. The respondents are directed to draw up a fresh due drawn statement in terms of the above and to take necessary action accordingly. It is made clear that any order passed by the respondents in conflict with the above observation and direction shall be treated as quashed. This court has refrained from passing any order in respect of D.O. No. 298 dated 13.03.2014 [Annexure-6 to the writ petition] and the order dated 15.03.2014 [Annexure-7 to the writ petition] as those have been by implication superseded by the impugned departmental orders bearing D.O. No.568 dated 06.06.2016, D.O. No. 569 dated W.P.(C) No.219 of 2015 Page 21 of 22 06.06.2016 and the letter dated 06.06.2016 [Annexure-12 collectively to the writ petition].
22. In the result, the writ petition is allowed to the extent as indicated above. There shall be no order as to costs.
The records as produced by Mr. T.D. Majumder, learned G.A. is returned under a sealed cover.
JUDGE Sabyasachi.B W.P.(C) No.219 of 2015 Page 22 of 22