Tripura High Court
Sri Monoranjan Naha vs The State Of Tripura on 26 April, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 255 of 2014
W.P.(C) No. 114 of 2016
In W.P.(C) No. 255 of 2014
Petitioner:
Sri Monoranjan Naha,
son of late Shital Chandra Naha, Pharmacist
[with Diploma in Pharmacy] under
Directorate of Health Services, Government
of Tripura
-now posted at Dhanpur Primary Health
Centre, P.O. Dhanpur, P.S. Sonamura, Sub-
Division- Sonamura, Sepahijala District, for
himself and on behalf of all the Pharmacists
with Diploma in Pharmacy under the
Directorate of Health Services, Government
of Tripura
By Advocate :
Mr. C.S. Sinha, Advocate
-Versus-
Respondents:
1. The State of Tripura, represented by the Secretary, Finance Department, Government of Tripura, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura,
2. The Additional Secretary, to the Government of Tripura, Finance Department, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura
3. The Joint Secretary, to the Government of Tripura, Finance Department, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura [2]
4. The Director of Health Services, Government of Tripura, having its office at Pandit Nehru Complex, Gurkhabasti, P.O. Kunjaban, P.S. New Capital Complex, District - West Tripura By Advocate :
Mr. G.S. Bhattacharji, Advocate In W.P.(C) No. 114 of 2016 Petitioner:
Sri Tapan Kumar Deb, son of late Umesh Chandra Deb, resident of Sri Pally, beside SBI Dukli Branch), P.O. Madhuban, PIN-799003, P.S. Amtali, Agartala, District - West Tripura By Advocate :
Mr. C.S. Sinha, Advocate
-Versus-
Respondents:
3. The State of Tripura, represented by the Secretary, Finance Department, Government of Tripura, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura,
4. The Additional Secretary, to the Government of Tripura, Finance Department, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura
3. The Joint Secretary, to the Government of Tripura, Finance Department, having his office at New Secretariat Complex, P.O. Secretariat Complex, PIN-799010, P.S. New Capital Complex, District - West Tripura W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 2 of 12 [3]
4. The Director of Health Services, Government of Tripura, having its office at Pandit Nehru Complex, Gurkhabasti, P.O. Kunjaban, P.S. New Capital Complex, District - West Tripura By Advocate :
Mr. G.S. Bhattacharji, Advocate BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA Date of hearing and delivery of Judgment & Order : 26.04.2017 Yes No Whether fit for reporting : √ JUDGMENT & ORDER Heard Mr. C.S. Sinha, learned counsel appearing for the petitioners as well as Mr. G.S. Bhattacharji, learned counsel appearing for the respondents.
[2] These writ petitions being W.P.(C) No.225 of 2014 [Sri Monoranjan Naha vs. The State of Tripura & Others] and W.P.(C) No.114 of 2016 [Sri Tapan Kumar Deb vs. The State of Tripura & Others] are clustered for disposal by a common judgment as the learned counsel appearing for the petitioners and the respondents are in consensus that both these cases are covered by a previous decision of this court in Sutapa Majumder vs. the State of Tripura & others [the judgment and order dated 15.12.2016 delivered in W.P.(C) No.144 of 2014 etc.]. W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 3 of 12 [4] [3] The petitioner in W.P.(C) No.225 of 2014, namely Monoranjan Naha was appointed on 02.01.1984 to the post of Pharmacist [with Diploma in Pharmacy] in the scale of pay of `560- 1300/-. There is no dispute that in terms of the Tripura State Civil Services (Revised Pay) Rules, 1988 his pay was fixed in the scale of pay of `2000-4410/- by way of revision. But suddenly by the memorandum dated 24.09.1988 his scale was lowered down to `1300-3220/-. To challenge the said memorandum dated 24.09.1988, the petitioner filed a writ petition being Civil Rule No.48 of 1995 in the Gauhati High Court, which had the territorial jurisdiction over the State of Tripura at the relevant point of time.
By the judgment and order dated 04.09.2001, the said memorandum dated 24.09.1988 was quashed. However, the respondents preferred an appeal being W.A. No.134 of 2001 against the said judgment and order dated 04.09.2001. According to the writ petitioner, the said writ appeal was pending before a Division Bench of the Gauhati High Court. By the notification dated 19.06.2002 the said lower pay scale was given effect retrospectively from 01.01.1986. The said Division Bench had remitted the matter on quashing the judgment dated 04.09.2001 to the learned Single Judge for hearing afresh. After the amendment of the writ petition as carried out by the petitioner, by the judgment and order dated 26.07.2010, the said writ petition was dismissed with liberty reserved to the petitioner to submit a fresh representation to the competent authority with further direction W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 4 of 12 [5] that if such representation is filed that shall have to be disposed within 3(three) months by a speaking order. The petitioner however filed an appeal being W.A. No.26 of 2010 against the said judgment and order dated 26.07.2010. By the judgment and order dated 23.09.2010, a Division Bench of the Gauhati High Court had dismissed the said appeal against which the petitioner had approached the apex court by filing a Special Leave Petition being SLP(C) No.198 of 2011. On 28.03.2011, the said special leave petition was disposed of, giving liberty to the petitioner to file the representation and accordingly, the petitioner filed representation on 20.04.2011 but no response came from the competent authority which circumstance pushed the petitioner to file another representation on 23.07.2011. By the letter dated 27.10.2011, the petitioner was asked to appear before the competent authority in the Finance Department, Government of Tripura on 31.10.2011.
Since the representation was not being disposed of, the petitioner filed another writ petition being W.P.(C) No.342 of 2012. By the judgment and order dated 11.09.2013, the said writ petition was disposed of directing the Secretary, Finance Department, Government of Tripura for hearing the representation dated 07.09.2011 as was submitted by the petitioner and to pass the reasoned order within a period of 6(six) weeks from that day. The Additional Secretary, Finance Department, Government of Tripura asked the petitioner to attend the hearing again on 23.10.2013 for disposal of his representation and accordingly, he attended and W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 5 of 12 [6] unfolded his pleas for consideration of the Government. But no order was passed. Again the petitioner approached this court by filing a writ petition being W.P.(C) No.54 of 2014 for further direction for disposal of his representation dated 07.09.2011. By the order dated 17.02.2014, the said writ petition was disposed of.
As in the order under No.F.4(6)-FIN(PC)/88/222-224 there was reflection that the appropriate decision will be taken on his representation, the petitioner took no further step. Accordingly, by the order dated 31.10.2013, the competent authority had observed as under:
"However, as the pay scale of Rs.1300-3220/- meant for Pharmacist [with Diploma in Pharmacy] under TSCS (Revised Pay) Rules, 1988 had been revised to Rs.4200-8650/- under TSCS (Revised Pay) Rules, 1999, which had been revised subsequently to PB-2 (Rs.5310-24,000/-) + G.P Rs.2400/- under TSCS (Revised Pay) Rules, 2009 effective from 01.01.2006, the Pharmacist (with Diploma in Pharmacy) deserve separate pay scale than existing pay scale/structure allowed to them in view of their qualification compared to the non-
diploma Pharmacists."
But the said order dated 31.10.2013 did not spell out what separate scale than the existing pay scale and structure, the post of Pharmacist [with Diploma in Pharmacy] will carry. As a result, the petitioner filed one demand notice on 20.03.2014.
According to the petitioner, the said order dated 31.10.2013 is an incomplete order. Hence, the petitioner has filed this writ petition.
[4] Similarly, the writ petitioner in W.P.(C) No.114 of 2016, namely Tapan Kumar Das was appointed in the post of Pharmacy [with Diploma in Pharmacy] in the scale of pay of `560-1300 under W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 6 of 12 [7] the Tripura State Civil Services (Revised Pay) Rules, 1982. On introduction of Tripura State Civil Services (Revised Pay) Rules, 1988 his pay was revised in the scale of pay of `2000-4410/-.
Without assigning any reason by the memorandum dated 24.09.1988, his pay scale was lowered down to `1300-3220/-.
According to the petitioner, the said scale of `1300-3220/- is also the pay scale for the Pharmacists [non-Diploma] whereas earlier there was two distinct scales for the Pharmacists [with Diploma in Pharmacy] and the Pharmacists [non-Diploma] but by the said memorandum dated 24.09.1988, the said distinction which was maintained till the memorandum dated 24.09.1988 was issued by the Finance Department, Government of Tripura has been obliterated. Later on, by a notification dated 19.06.2002, the respondents giving some reasons denied to roll back the basic pay scale, rather the said lower pay scale was given retrospective effect from 01.01.1986. However, in the cases of both the petitioners, the respondents later on fixed the pay in the scale of pay of `1450- 3710/- for the Pharmacists [Grade-II) in consideration of their pre-
revised scale of pay of `560-1300/- w.e.f. 01.01.1986. It is to be noted here that for such revision, the petitioner was bound to lose his first career advance (CAS) benefit. The petitioner when came to know about the notification dated 31.10.2013 filed this petition for asserting his constitutional right in parity of the pay-scales in the same post. The said notification dated 31.10.2013 is reproduced hereunder for making reference, wherever it may so be necessary.
W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 7 of 12 [8]"GOVERNMENT OF TRIPURA FINANCE DEPARTMENT SECRETARIAT, TRIPURA No.F.4(6)-FIN(PC)/88/222-224 Dated, Agartala, 31st October, 2013 WHEREAS, Hon‟ble Supreme Court in its proceeding dated 28.03.2011 dismissed the Special Leave Petition to Appeal (Civil) No.(S) 198/2011 filed by Shri Manoranjan Naha & others with a stipulation that the petitioner would like to make a representation to the authorities concerned;
AND WHEREAS, as per the Judgement dated 28.03.2011 of the Hon‟ble Supreme Court and the representation dated Nil of Shri Manoranjan Naha & others, thereon Shri Manoranjan Naha (Alone petitioner) was given hearing on 06.07.2011 by the State of Tripura in Finance Department vide letter No.F.4(6)-FIN(PC)/88 dated 30.06.2011 and accordingly, Shri Manoranjan Naha and others along with their legal counsel Mr. S. Nanda Kumar, Advocate, Supreme Court of India presented them in the hearing on the day and submitted their grievances/contention/ argument in writing;
AND WHEREAS, further High Court of Tripura, Agartala in its Judgment in connection with W.P.(C) No.342/2012 filed by Shri Manoranjan Naha has directed the Joint Secretary (Now Additional Secretary), Finance Department to hear the Petitioner again on his representation dated 07.09.2011 and pass a reasoned order in accordance with Law;
AND WHEREAS, representation dated 07.09.2011 in pros and cons of the Petitioner (Shri Manoranjan Naha) has been heard on 31.10.2013 at the Chamber of the undersigned;
NOW THEREFORE, the entire matter has been re-examined taking all aspects into account. The non-diploma Pharmacist (re-designated from formerly „Compounder/Clerk-cum-Compounder‟ in receipt of pre- revised pay scale of Rs.430-850/-) was provided the revised pay scale of Rs.1300-3220/- under TSCS (Revised Pay) Rules, 1988. The Pharmacists (with Diploma in Pharmacy) in receipt of the time pre-revised pay scale of Rs.560-1300/- appointed prior to 01.01.1986 were placed in the Pharmacist Gr.II with revised pay scale of Rs.1450- 3710/- under the TSCS (Revised Pay) Rules, 1988. The revised pay scale of Rs.1300-3220/- was provided to the Pharmacist Gr-III, as initial appointment, under the Hospital & Miscellaneous Services of the Health and Family Welfare Department w.e.f. 01.01.1986 under the TSCS (Revised Pay) Rules, 1988 read with its Tenth Amendment to TSCS (Revised Pay) Rules, 1988 issued vide Notification No.F.4(6)-FIN(PC)/88 dated 25.04.2009. As per principle of „scale to scale revision of pay‟ as adopted by the State Government for revision of pay of the employees, the revised pay scale of Rs.1450-3710/- under TSCS (Revised Pay) Rules, 1988 is the one, which W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 8 of 12 [9] corresponds to the pre-revised pay scale of Rs.560- 1300/- under TSCS (Revised Pay) Rules, 1982. Therefore, the claim of the Petitioner for the revised pay scale of Rs.
-4410/- as erroneously shown in the TSCS (Revised Pay) Rules, 1988 in Sl. No.13 at Page-71 of the same rules is very much higher compared to revised pay scale corresponding to pre-revised pay scale of Rs.560-1300/-. Accordingly, considering the representation made by Shri Manoranjan Naha both in person and writing on their merit, the claim of the Petitioner cannot be agreed to.
However, as the pay scale of Rs.1300-3220/- meant for Pharmacist (with Diploma in Pharmacy) under TSCS (Revised Pay) Rules, 1988 had been revised to Rs.4200- 8650/- under the TSCS (Revised Pay) Rules, 1999, which had been revised subsequently to PB-2(Rs.5310-24000/-) + G.P. Rs.2400/- under TSCS (Revised Pay) Rules, 2009 effective from 01.01.2006, the Pharmacists (with Diploma in Pharmacy) deserve separate pay scale than existing pay scale/structure allowed to them in view of their higher qualification to the non-diploma Pharmacists.
Sd/ Illegible (A. Roy) Addl. Secretary to the Government of Tripura To Shri Manoranjan Naha, Village-North Maheshpur, P.O. Kathalia, Sonamura Dist-Sepahijala District, P.S. Jatrapur, Pin-799181"
[The emphasis put above is supplied] [5] This Court in Sutapa Majumder (supra) has dwelled upon the issue elaborately and observed as under:
[29] On scrutiny of the records and having due regard to the submission made by the learned counsel for the parties, this Court should on due consideration make the initial observations which are as under:
(i) This Court cannot examine the validity of the corrigendum whereby the scale of pay of `2000-4410/- had been withdrawn inasmuch as that aspect has been considered by the judgment and order dated 23.09.2010 in W.A. No.26 of 2010.
(ii) The observation made in the memorandum dated 04.01.2010 under No.F.2(2-17)-
MS/ESTT-II/09 has been clarified by the Finance Department by the notification under No.F.4(6)-FIN(PC)-88 dated 25.04.2009 that the Pharmacist having Diploma in Pharmacy who were recruited prior to publication of TSCS (ROP) Rules, 1988 and in receipt of pre-revised pay scale of `560-1300/- under ROP (RP) Rules, 1982 were eligible to get pay scale of `1450-3710/- as per TSCS (ROP) Rules, 1988 W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 9 of 12 [10] [revised to `5000-10300/- under TSCS (ROP) Rules, 1999]. But after publication of TSCS (ROP) Rules, 1988 the entry level pay scale of Pharmacists was prescribed at `1300-3220/- [revised to `4200-8650/- under TSCS (ROP) Rules, 1999]. So, providing the scale of pay of `1300-3220/- to those Pharmacists with Diploma in Pharmacy who were recruited after publication of TSCS (ROP) Rules, 1988 has been held to be justified.
Further, it has been clarified that the Pharmacists recruited prior to publication of TSCS (ROP) Rules, 1988 were provided with the pay scale of `1450-3710-/- and they should be treated as if they had consumed the CAS-1 at that stage. It exemplifies that the pay scale which the Pharmacists were enjoying even prior to 01.01.1986 has been downgraded retrospectively, in a veiled manner.
The said clarification clearly shows further that even the Pharmacists who were appointed prior to introduction of the ROP Rules, 1988 were also provided the revised pay scale of `1300-3220/- whereas from their pre-revised scale of `560-1300/- the pay scale was revised to `1450- 3710/-, meaning that virtually their pre-revised pay scale was downgraded to `430-850/- which is equivalent to the pay scale of the Pharmacist [Non-Diploma] Grade-III of the Hospital Services in terms of the ROP Rules, 1982. Is it not a clear breach of Article 14? It is. Unequals have been treated equally.
[30] Therefore, in the premises as noted above, the questions those falls for consideration of this Court are
(a) whether by means of revision the pay scale can be downgraded on taking away the right that was vested by the ROP Rules, 1982 and (b) whether non-consideration of the expert committees‟ recommendation to give the Pharmacist the pay scale of `1450-3710/- in the ROP Rules, 1988 is the continuation of the arbitrary action or non-consideration of the relevant factors, despite the order dated 31.10.2013 is giving rise to the legal action involving the jurisdiction of the court for mandating the respondents to allow the Pharmacist [with Diploma in Pharmacy] the pay scale of `1450-3710/- in terms of the ROP Rules, 1988 by way of severance?
[31] This Court is of the view that when by the order/notification dated 31.10.2013, Annexure-P/11 to the writ petition being W.P.(C) No.144 of 2014, it has been clearly admitted by the Government that the Pharmacist [with Diploma in Pharmacy] deserves separate pay scale then the existing pay scale/structure allowed to them in view of their higher qualification compared to the non-Diploma Pharmacist. Even the Anomaly Committee and 4th Tripura Pay Commission had clearly recommended, in view of the higher qualification, to make parity with the posts requiring diploma after passing the H.S. (+2 stage) examination in order to provide the Pharmacist [with Diploma in Pharmacy] the scale of pay of `1450-3710/- with the next scale of pay of W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 10 of 12 [11] `1700-3980/-. Moreover, the Pharmacist [Non-Diploma] by operation of the ROP Rules, 1982 were enjoying the pre-revised pay scale of `430-850/- and that pay scale has been revised to `1300-3220/-. Therefore, the Pharmacist [Non-Diploma] may not have any grievance or prejudice if the recommendation is implemented and they have not expressed such grievance anywhere, at least such grievance is not borne in the records. But making the pay scale of the Pharmacist [with Diploma in Pharmacy] equal to the pay scale of the Pharmacist [non-Diploma] in view of the reasons given by the Pay Anomaly Committee and 4th Pay Commission as reproduced in the Paragraph-8 above that the post requiring diploma after H.S. (+2 stage) examination shall be given the pay scale of `1450- 3710/- has been belatedly accepted by the State by the order/notification dated 31.10.2013, Annexure-P/11 to the writ petition being W.P.(C) No.144 of 2014. Despite such clear acceptance, the State has not arbitrarily implemented the said recommendation. Such non- implementation is opposed to Article 14 of the Constitution of India. Even in the matter of the pay scale when the High Court or the apex court finds that the recommendation is informed with reason and such reason has been accepted by the State, but the recommendation has not been implemented, the court has the power to direct the state to implement the said recommendation notwithstanding that the court ordinarily does not exercise its jurisdiction regarding the policy matters, particularly, in respect of any fiscal decision. But here is the case where the State did not act in accordance with the constitutional prescription, even on agreeing with the reason, based for recommendation.
[32] Having held so, the respondents are directed to provide the scale of pay of `1450-3710/- with the corresponding revised pay scales including the movement to the higher pay scale in terms of Rule 10 of the ROP Rules, 1999 or the ROP Rules, 2009 or their subsequent amendments or furtherance to the Pharmacist, irrespective of their appointment before or after 01.01.1986, when the ROP Rules, 1988 was given effect to. Their pay shall be fixed in terms of the ROP Rules, 1988 in terms of the said pay scale and the notifications issued for its implementation for time to time, except those which stands contrary to the above direction. Those notifications as stands contrary to the above direction, are hereby interfered with and quashed.
[33] So far the prayer in respect of recovery is concerned, in view of the said direction the said relief has become infructuous. In other words, no recovery shall be made from the petitioners where they are under order for recovery in terms of the impugned notifications.
[34] It is further declared that since the petitioners have approached this court belatedly even though they may embark on the cause to approach this court in view of the order/notification dated 31.10.2013, their pay shall be fixed notionally w.e.f. 01.01.1986 or from their date of appointment in the scale of pay of `1450-3710/-(pre- revised) and in the corresponding revised pay scales to a date, 3(three) years prior to the date of filing of the writ petitions and the actual pecuniary benefits shall be W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 11 of 12 [12] released from those dates as given hereinunder to the petitioners.
The petitioners are also entitled to the similar benefits inasmuch as, the petitioners are similarly circumstanced.
[6] Hence, the petitioners are entitled to have the pay-
scale of `1450-3710 w.e.f. 01.01.1986. As the petitioners are already getting the said pay scale, no payment is required to be made in addition what they have received. But it is made clear that that pay-scale shall for all purposes be treated 'the revised pay-
scale' under the ROP Rules, 1988.
[7] In terms of the above, the respondents shall release the benefits to the petitioners, as might accrue, within a period of 3(three) months from the day when the petitioners shall furnish a copy of this order.
[8] In the result, the writ petitions are allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Sujay W.P.(C) No. 255 of 2014 W.P.(C) No.114 of 2016 Page 12 of 12