Tripura High Court
The State Of Tripura vs Shri Ajit Chakraborty on 28 May, 2019
Author: Sanjay Karol
Bench: Sanjay Karol, Arindam Lodh
Page - 1 of 26
HIGH COURT OF TRIPURA
AGARTALA
W.A. No.46/2014
1. The State of Tripura, Represented by the Chief Secretary, to
the Government of Tripura, in the Public Works Department,
having his Office at New Secretariat, P.O. Kunjaban, P.S. New
Capital Complex, West Tripura.
2. The Commissioner & Secretary to the Government of
Tripura, Public Works Department, having his office at Capital
Complex, Gorkhabasti, PO-Kunjaban, PS-East Agartala, Sub-
Division-Agartala, District-West Tripura.
3. The Joint Secretary, Finance Department, Government of
Tripura, having his Office at Capital Complex, Gorkhabasti, PO-
Kunjaban, PS-East Agartala, Sub-Division-Agartala, District-West
Tripura.
4. The Deputy Secretary, Public Works Department,
Government of Tripura, having his office at Capital Complex,
Gorkhabasti, PO-Kunjaban, PS-East Agartala, Sub-Division-
Agartala, District-West Tripura.
5. The Engineer-in-Chief, Public Works Department,
Government of Tripura, having his office at Capital Complex,
Gorkhabasti, PO-Kunjaban, PS-East Agartala, Sub-Division-
Agartala, District-West Tripura.
---- Appellant(s).
Versus
1. Shri Ajit Chakraborty, S/o Late Ramendra Narayan
Chakraborty, Resident of PWD Quarter Complex, PO & PS
Kailasahar, District- Unokoti (erstwhile North Tripura), PIN-
799277.
2. Shri Goutam Roy, S/o of Late Aswini Kumar Roy, Resident of
Hospital Road, Sarat Palli, PO-Dharmanagar, PS- Dharmanagar,
District-North Tripura, PIN- 799250.
3. Shri Goutam Pal, S/o Sri Gouranga Pal, Resident of Town
Pratapgarh, Road No.1, PO Aralia, PS East Agartala, District-West
Tripura, PIN-799001.
4. Sri Amal Chandra Das, S/o Sri Anil Chandra Das, Resident of
Netaji Nagar, Teliamura, PO- Teliamura, District-Khowai (erstwhile
West Tripura District), PIN-799201.
5. Shri Surajit Debnath, S/o Sri Krishnadas Debnath, Resident
of Nityakrishnananda Kutir, PO-Agartala College, PS- East
Agartala, District-West Tripura, PIN-799004.
Page - 2 of 26
6. Shri Sanjib Kumar Deb, S/o Sri Swadesh Chandra Deb,
Resident of Ramnagar Road No.9, Agartala, PO-Ramnagar, PS-
West Agartala, District- West Tripura, PIN-799002.
7. Shri Biswajit Paul, S/o Sri Hari Sankar Paul, Resident of
Ramnagar Road No.7, Agartala, PO-Ramnagar, PS-West Agartala,
District-West Tripura, PIN-799002.
8. Shri Subir Chaudhuri, S/o Sri Pramod Ranjan Chaudhuri,
Resident of S.D. Mission Road, PO-A.D.Nagar, PS- Amtali, District-
West Tripura, PIN-799003.
9. Shri Pradip Nandi, S/o Late Ramani Mohan Nandi, Resident
of Village-Hapania (Sukanta Palli), PO-ONGC, PS-Amtali, District-
West Tripura, PIN-799014.
10. Shri Nirmal Kanti Paul, S/o of Kamini Mohan Paul, Resident
of village-Barabhaiya, PO-Bagma Bazar, PS-R.K.Pur, District-
Gomati (erstwhile South Tripura), PIN-799119.
11. Shri Chayan Das, S/o Madhusudhan Das, Resident of
Pabiachera, PO, PS & Sub-Division- Kumarghat, District-Unakoti
(erstwhile Dhalai District) Tripura, PIN-799264.
12. Shri Babul Sen, S/o Madhu Sudhan Das, Resident of Village
& PO Gangacherra, Udaipur, District-Gomati (erstwhile South
Tripura) PIN-799125.
13. Sri Puru Saha, S/o Shri Tapan Kumar Saha, Resident of
Quarter No.Type-III/21, Housing Board Quarter Complex,
Rajarbag, PO-R.K.Pur, PS-R.K.Pur, District-Gomati (erstwhile
South Tripura), PIN-799120.
14. Shri Mrinal Kanti Nath, S/o Late Mahananda Nath, Resident
of Ramnagar Road No.7, PO-Ramnagar, PS-West Agartala,
District-West Tripura, PIN-799002.
15. Shri Partha Roy, S/o Shri Ramapada Roy, Resident of Old
Kalibari Road, Krishnanagar, PO-Agartala, PS-West Agartala,
District-West Tripura, PIN-799001.
16. Shri Supriya Datta, S/o Shri Sachindra Chandra Datta, Near
Gandhi H/S School, PO-Agartala College, PS-East Agartala,
District-West Tripura, PIN-799004.
17. Shri Pradyot Das, S/o Late Brajeswar Das, Resident of
Kunjaban Township Quarter No.T/III/22, PO-Kunjaban, PS-New
Capital Comples (erstwhile East Agartala), District-West Tripura,
PIN-799006.
18. Shri Jhulan Malla, S/o Late Raimohan Malla, Resident of
Santirbazar, PO-Debdaru, PS-Baikhora, District-South Tripura,
PIN-799141.
Page - 3 of 26
19. Shri Biplab Bhowmik, S/o Shri Harilal Bhowmik, Resident of
Dhaleswar, Jail Ashram Road, PO-Dhaleswar, PS-East Agartala,
Agartala, District-West Tripura, PIN-799007.
20. Shri Rajesh Saha, S/o Shri Matilal Saha, Resident of
Banamalipur, Jorapukurpar (west) P.O-Agartala, P.S East
Agartala, District-West Tripura, PIN-799001.
21. Shri Rabin Dey, S/o Ranadhir Chandra Dey, Resident of
Quarter No.III/23, Kunjaban, PO - Kunjaban, PS-New Capital
Complex (erstwhile Kunjaban), District-West Tripura, PIN-799006.
22. Smt. Apika Das, W/o Shri Achinta Dey, Resident of Opposite
of ETDC, ITI Road, Indranagar, PO Kunjaban, P.S- East Agartala,
District-West Tripura, PIN-799006.
23. Smt. Mithu Roy, W/o Shri Rajib De, Resident of Badharghat
Matri Palli, PO-A.D.Nagar,District-West Tripura, PIN-799003.
24. Shri Sudipta Bhowmik, S/o Late Hasi Narayan Bhowmik,
Resident of Dhaleswar, PS-East Agartala, District-West Tripura,
PIN-799007.
25. Shri Joy Choudhuri, S/o Late Dilip Kumar Chaudhuri,
Resident of Ramnagar Road No.8, PO-Ramnagar, PS-West
Agartala, District- West Tripura, PIN-799002.
26. Shri Biswajit Majumder, S/o Shri Bijoy Krishna Majumder,
Resident of Town Bordowali, South side of Gangail Road Rest
House, PO-Agartala, PS-West Agartala, Agartala, District- West
Tripura, PIN-799001.
27. Shri Somen Das, S/o Lakshman Chandra Das, Resident of
Village Dhaleswar, Water Supply Road, PO-Agartala College, PS-
East Agartala, District-West Tripura, PIN-799001.
28. Shri Himangshu Majumder, S/o Shri Jitendra Lal Majumder,
Resident of Surjya Sen Road No.1, PO-Dhaleswar, PS-East
Agartala, Agartala, District-West Tripura, PIN-799007.
29. Shri Sudip Das Chowdhuri, S/o Late Sukumar Das
Chowdhuri, Resident of Joynagar 2/3 Lane (Near Juba Samaj
Club), PO-Agartala, PS- West Agartala, District-West Tripura, PIN-
799001.
30. Shri Shimitabha Chakraborty, S/o Shri Sunil Kumar
Chakraborty, Resident of Shyamali, PO-Jogendranagar, PS-East
Agartala,District-West Tripura, PIN-799004.
---- Respondent(s).
Page - 4 of 26
Connected with
WP(C) No.316/2012
1. Shri Sourav Reang, S/O. Shri Surendra Kumar Reang,
village-Jagannathpur, PO & Sub-Division-Ambassa, District- Dhalai
Tripura.
2. Shri Bathe Jamatia, S/O. Shri Saptam Dayal Jamatia, Vill-
Mohorpara, PO-Uttar Pulinpur, PS-Teliamura, West Tripura.
3. Shri Bishnu Sarkar, S/O. Late Bhuban Sarkar, Vill-60 Cards,
PO Gandacherra, District-Dhalai Tripura.
4. Shri Dulal Chandra Baidya, S/O. Late Toani Kumar Baidya,
Vill-Dharmanagar, PO- Hrishyamukh, P.S. Belonia, District-South
Tripura.
5. Shri Sanjib Debbarma, S/O. Shri Prabir Kumar Debbarma,
Vill-Durlabhdaspara, PO-Champaknagar, PS-Jirannia, West
Tripura.
6. Shri Rajesh Debbarma, S/O. Bishnu Kumar Debbarma, Vill-
Kalabaganpara, PO-Belbari, West Tripura.
7. Smti. Pratima Debbarma, W/O. Shri Sakhadhan Kalai, Vill-
Ujan Abhoynagar, PO-Abhoynagar, District-West Tripura.
8. Smti. Lata Debbarma, D/O. Kartik Debbarma, Vill & PO-
Nagicherra, PS- Sreenagar, District- West Tripura.
9. Smti. Tandrima Debbarma, W/O. Amlan Sankar Debbarma,
Thakurpalli Road, PO-Agartala, Krishnanagar near T.R.T.C. Office,
District-West Tripura.
---- Petitioner(s).
Versus
1. The State of Tripura, Represented by the Secretary to the
Government of Tripura, Power Department, Civil Secretariat
Complex, Agartala-799006.
2. The Secretary to the Government of Tripura, Power
Department, Civil Secretariat, New Capital Complex, Agartala-
799006.
3. The Chairman-Cum-Managing Director, Tripura State
Electricity Corporation Ltd., Corporate Office, Bidyut Bhavan,
Banamalipur, Agartala-799001.
---- Respondent(s).
Page - 5 of 26
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE ARINDAM LODH
In W.A. No.46/2014
For the appellants : Mr. Arun Kanti Bhowmik,
Advocate General,
Mr. Mangal Debbarma,
Addl. G.A.
For the respondents : Mr. Somik Deb, Advocate,
Mr. Koomar Chakraborty,
Advocate.
In WP(C) No.316/2012
For the petitioners : Mr. S.M. Chakraborty,
Senior Advocate,
Ms. Paramita Sen,
Advocate.
For the respondents : Mr. Arun Kanti Bhowmik,
Advocate General,
Mr. Mangal Debbarma,
Addl. G.A.
Dates of hearing : 17.04.2019 & 20.04.2019.
Date of judgment : 28.05.2019.
Whether fit for reporting : YES.
JUDGMENT & ORDER
(Sanjay Karol, C.J.)
In terms of the impugned judgment, the learned Single
Judge has held the petitioners entitled to the benefit of Career
Advancement Scheme (hereinafter referred to as CAS-I) to be
given after completion of 8 years of service, instead of their
entitlement as canvassed by the State, to the benefit of Assured
Career Progression (hereinafter referred to as ACP).
Page - 6 of 26
ACP gets the employees higher monetary benefits than
CAS-I.
2. Before us it is not in dispute that even though the writ
petitioners claimed several reliefs, yet their petition was allowed,
limited only to such prayer and no challenge for rejection/non-
consideration of other prayers is laid before us.
A brief background to the filing of the writ petition:
3. Pursuant to advertisement dated 16.04.1997
(Annexure-P/1 to the writ petition), vide office order dated
05.08.1997, writ petitioners were appointed as Junior Engineer
(Civil) on a fixed pay of `2,500/- per month. Crucially, such
appointment was purely temporary in nature, on fixed pay basis
and in any event, not to confer any right for appointment on
regular basis.
4. It appears that petitioners represented, and vide
memorandum dated 30.04.2002, the Government took a decision
of granting a regular pay scale to such of those employees who
were recruited on fixed pay basis. Such benefit was admissible
w.e.f. 01.05.2002. In the department of Public Works, the pay
band was fixed in the scale of `7,450-13,000/- for Degree Holder
Fixed Pay Junior Engineer and `5,000-10,300/- for Diploma Holder
Fixed Pay Junior Engineer. Paragraph-3 of the said memorandum
itself clarified that petitioners' appointment as Junior Engineers,
would be treated only as "ex-cadre" on the post to which they
Page - 7 of 26
were appointed. It is a matter of record that petitioners continued
to avail and get benefit of such pay scale.
5. Subsequently, vide notification dated 28.07.2007,
persons who were categorized as "ex-cadre" Junior Engineer, were
"encadred" in their respective grades of Tripura Engineering
Service (TES) which was retrospectively w.e.f. 30.12.2003.
6. It appears that petitioners raised a dispute with regard
to their entitlement of the benefits of CAS-I, as stipulated under
the Tripura Engineering "Service Rules", 1987, which grievance,
amongst other issues, was considered by the Government vide
memorandum dated 21.11.2009 (Annexure-P/6 to the writ
petition) in the following terms:-
"NO.F.6(21)-PWD(E)/06(S-II)
GOVERNMENT OF TRIPURA
PUBLIC WORKS DEPARTMENT
Dated, Agartala, November, 21, 2009
Sub : Regularization of Ex-cadre Junior Engineers and benefit of
their pay, pension etc.
MEMORANDUM
In the year 1990, a number of Jr. Engineers (Both Degree
and Diploma holders) were recruited in P.W.D. 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(37)-PWD(E)/89(S-II) dated 26-12-1992 of P.W.D., 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 mean time, a section out of those Ex-
cadre Jr. Engineers were recruited through T.P.S.C. competitive
examination as regular Jr. Engineer in P.W.D. and were allowed to
join in Tripura 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.
Page - 8 of 26
during same time. On 28th July, 2007, with a decision of the
Government, the ex-cadre Jr. Engineers who were in service of
PWD outside TES, were en-cadred and brought into Cadre of
Tripura Engineering Service w.e.f. 2003.
With a view to settle the different issues as arising out, a number
of applications/representations received from nay applicants to
consider the following issues:
(1) Allowing upgradation 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.
(2) Counting of past service for pension, retirement etc. benefit as
Ex-cadre Jr. Engineers from the date of joining.
(3) Pay protection to those Ex-cadre Junior Engineers who were
recruited subsequently through TPSC in the year 2003.
(4) CAS for the Ex-cadre Junior Engineers irrespective of their
subsequent status of service in the department.
The issues were referred to the Finance Deptt. Govt. of Tripura
and accordingly the following decisions have been communicated
with approval of the Government for implementation in due
course.
(i) All the involved Engineers who were in service under Public
Works Deptt. 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 who were recruited I
1990 should 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 (RP) Rules, 1999. Wherever 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 of cadre service.
(iii) The Diploma holder Ex-cadre Junior Engineers who were
recruited in the year of 1990 and obtained 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.4(40)-FIN(PC)/90 Dt. 16-07-2009, their benefit will
remain unchanged.
Page - 9 of 26
(iv) The concerned Ex-cadre Junior Engineers who were recruited
as Junior Engineer on regular basis through TPSC in the year of
2003, they will be provided the benefit of protection of pay for
their Ex-cadre period of service in the PWD 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) The incumbents eligible to get benefit of higher pay scale
or/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 impounded in their respective GPF accounts. This
impounding would be continued upto 31st March, 2009.
(vi) The seniority of the Ex-cadre Junior Engineers who were
regularized and brought into cadre service (TES) 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
regularization vide No.F.6(21)-PWD(E)/06(Shadow) dated 28-7-
2007 of the Deputy Secretary, PWD, Govt. of Tripura.
(vii) They will exercise their option as per Rules of the
Government as prevailing as per order of the Finance
Department.
This is issued with the approval of the Government as
communicated vide UO No.71/FIN(PC)/09 Dt. 25-08-2009 and
No.116/FIN(PC)/09 Dt. 19.11.09 of the Finance Department,
Govt. of Tripura.
By order of the Governor of Tripura."
(Emphasis supplied)
7. Quite evidently, the Government accorded benefit of
CAS-I only to such of those employees who were recruited in the
year 1990 and by that time had completed 8(eight) years of
service [i.e. with receipt of regular pay scale].
8. With regard to the petitioners, no such decision was
taken for the reason, as it appears, that by this time they had not
completed 8(eight) years of their service. It is in this backdrop,
writ petitioners laid challenge to the said order dated 21.11.2009
Page - 10 of 26
(Annexure-P/6 to the writ petition) by way of a writ petition,
subject matter of the present appeal.
9. At this juncture, we find it appropriate to reproduce the
entire prayers made by the petitioners which read as under:
"I) ISSUE RULE, calling upon the respondents and
each one of them, to show cause as to why a Writ of
Certiorari and/or in the nature thereof, shall not be
issued, for directing them, to transmit the records,
relevant to the subject matter of this writ petition, for
rendering substantial and conscionable justice to the
petitioner, and for quashing/setting aside the part of
the impugned Memorandum dated 30.04.2002
(Annexure-P3 supra), whereby the petitioners have
only been granted the regular scale of pay of Rs.7,450-
13,000/-, with effect from 01.05.2002, and thereby
denying their regular scale of pay, from their respective
dates of joining till 30.04.2002,
(b) the impugned Office Order dated 16.05.2002
(Annexure-P4 supra), whereby the petitioners have
been treated as ex-cadre Junior Engineers,
(c) that part of the impugned Notification dated
28.07.2007 (Annexure-P5 supra), whereby the
petitioners have been encadred, only with effect from
30.12.2003, and thereby, treating the services
rendered by them, from their respective dates of
joining till 29.12.2003, as ex-cadre service, and
(d) the impugned Memorandum dated 21.11.2009
(Annexure-P6 supra), whereby the petitioners have
been denied the benefit of CAS-I, even on completion
of 8 years of uninterrupted service, and thereby, the
petitioners have been discriminated vis-à-vis the
Page - 11 of 26
Degree-holder ex-cadre Junior Engineers, recruited in
1990;
II) ISSUE RULE, calling upon the respondents and
each one of them, to show cause as to why a Writ of
Mandamus and/or in the nature thereof, shall not be
issued, for mandating/directing them, to revoke/rescind
that part of the impugned Memorandum dated
30.04.2002 (Annexure-P3 supra), whereby the
petitioners have only been granted the regular scale of
pay of Rs.7,450-13,000/-, with effect from 01.05.2002,
and thereby denying their regular scale of pay, from
their respective dates of joining till 30.04.2002,
(b) the impugned Office Order dated 16.05.2002
(Annexure-P4 supra), whereby the petitioners have
been treated as ex-cadre Junior Engineers,
(c) that part of the impugned Notification dated
28.07.2007 (Annexure-P5 supra), whereby the
petitioners have only been encadred with effect from
30.12.2003, and thereby, treating the services
rendered by them, from their respective dates of
joining till 29.12.2003, as ex-cadre service, and
(d) the impugned Memorandum dated 21.11.2009
(Annexure-P6 supra), whereby the petitioners have
been denied the benefit of CAS-I, even on completion
of 8 years of uninterrupted service, and thereby, the
petitioners have been discriminated vis-à-vis the
Degree-holder ex-cadre Junior Engineers, recruited in
1990.
III) ISSUE RULE, calling upon the respondents and
each one of them, to show cause as to why a Writ of
Mandamus and/or in the nature thereof, shall not be
issued, for mandating/directing the respondents, to
grant the regular scale of pay of Rs.7,450-13,000/-, in
favour of the petitioners, with effect from their
Page - 12 of 26
respective dates of joining, and grant the pay scale of
Rs.10,000-15,100/-, on completion of 8 years of
service, to be reckoned from their respective dates of
joining, and further treat the petitioners, as cadre
Junior Engineers, with effect from their respective dates
of joining, for all purposes including pensionary
benefits.
IV) ISSUE RULE, calling upon the respondents and
each one of them, to show cause as to why a Writ of
Prohibition and/or in the nature thereof, shall not be
issued, for restraining/ prohibiting them, from acting in
any manner, in furtherance of that part of the
impugned Memorandum dated 30.04.2002 (Annexure-
P3 supra), whereby the petitioners have only been
granted regular scale of pay of Rs.7,450-13,000, with
effect from 01.05.2002, and thereby denying their
regular scale of pay, from their respective dates of
joining till 30.04.2002,
(b) the impugned Office Order dated 16.05.2002
(Annexure-P4 supra), whereby the petitioners have
been treated as ex-cadre Junior Engineers,
(c) that part of the impugned Notification dated
28.07.2007 (Annexure-P5 supra), whereby the
petitioners have only been encadred, with effect from
30.12.2003, and thereby, treating the services
rendered by them, from their respective dates of
joining till 29.12.2003, as ex-cadre service, and
(d) the impugned Memorandum dated 21.11.2009
(Annexure-P6 supra), whereby the petitioners have
been denied the benefit of CAS-I, even on completion
of 8 years of uninterrupted service, and thereby, the
petitioners have been discriminated vis-à-vis the
Degree-holder ex-cadre Junior Engineers, recruited in
1990;
Page - 13 of 26
V) In the ad-Interim, and thereafter, on hearing the
parties, in the Interim, and ORDER in terms of prayers
i), ii) and iii) above;
VI) CALL FOR THE RECORDS appertaining to this
petition;
VII) After hearing the parties, be pleased to make the
RULE ABSOLUTE in terms of i) to iv) above;
VIII) COSTS of and incidental to this proceeding;
IX) Any other RELIEF(s) as to this Hon'ble High Court
may deem fit and proper."
10. Significantly, after considering the material placed on
record, learned Single Judge held the petitioners not entitled to
any one of the reliefs, save and except for their entitlement to the
benefit of CAS-I and this, despite observing that otherwise
petitioners being ineligible, their prayer for encadrement w.e.f.
30.04.2002 was legally not tenable, more so, for the reason that
they had not completed 8(eight) years of their service.
11. It is here we find the reasoning adopted by the learned
Single Judge in allowing a limited prayer, holding the writ
petitioners entitled to the benefit of CAS-I, to be self-
contradictory.
12. Independent of the observation made by the learned
Single Judge, we proceed to examine the petitioners' case on
merits, as canvassed before us, clarifying that it is on a limited
point of their entitlement for the benefit under CAS-I.
Page - 14 of 26
13. At this point in time, we may also observe that though
belatedly writ petition was filed only in the year 2013 and prior
thereto, i.e. w.e.f. 17.11.2004, writ petitioners were drawing their
salary in terms of the Tripura State Civil Services (Revised Pay)
(fifteenth amendment) Rules, 2004. Their appointments were in
terms of the Tripura Engineering Service Rules, 1987 (hereinafter
referred to as the "Service Rules"). Thus we are dealing with the
situation where the appointment is under the "Service Rules" but
salary is fixed and drawn under what we shall, for the purpose of
reference, term as "Pay Rules". We may also observe that CAS-I is
provided under the "Service Rules".
14. We now proceed to trace the legislative history of both
set of these rules, i.e. "Service Rules" and "Pay Rules". However,
for a bird's eye view, they are placed in a tabulated form as
under:
PAY RULES
Sl. Name of Rules Come into Issued/notified
No. force w.e.f. on
1. Tripura State Civil Services
(Revised Pay) Rules, 1999 01.01.1996 06.02.1999
(referred to as the "Pay
Rules").
2. Tripura State Civil Services
(Revised Pay) (Fifteenth 01.01.1996 17.11.2004
Amendment) Rules, 2004
(referred to as the "15th
Amendment Pay Rules").
3. Tripura State Civil Services
(Revised Pay) Rules, 2009 01.01.2006 05.05.2009
(referred to as the "Revised
Pay Rules").
Page - 15 of 26
SERVICE RULES
Sl. Name of Rules Come into Issued/notified
No. force w.e.f. on
1. Tripura Engineering Service 11.03.1987 05.03.1987
Rules, 1987 (referred to as
the "Service Rules").
2. Tripura Engineering Service
(2nd Amendment) Rules, 31.07.1989 31.07.1989
1987 (referred to as "2nd
Amendment Service Rules").
3. Tripura Engineering Service
(3rd Amendment) Rules, 11.03.1987 19.03.2007
2007 (referred to as the "3rd
Amendment Service Rules").
4. Tripura Engineering Service
(5th Amendment) Rules, 30.05.2009 30.05.2009
2009 (referred to as the "5th
Amendment Service Rules").
5. Tripura Engineering Service
Rules, 1987 (7th 10.06.2014 10.06.2014
Amendment, 2014) (referred
to as the "7th Amendment
Service Rules").
15. The "Service Rules" is divided into 22 parts (chapters).
It deals with the procedure for recruitment, selection, promotion,
absorption and fixation of pay scales of the members of the
Engineering Services of the Department of Public Works,
Government of Tripura consisting of Roads & Building Wings,
Irrigation Flood Control & PHE Wing and other wings placed under
their supervision. Part-VI specifically provides for various scales of
pay to which an officer is entitled to, relevant portion whereof
reads as under:
" PART-VI SCALES OF PAY:
The scales of pay attached to the different grade(s) are as
follows:
Grade-I a) Rs.2100-125-2600/-
b) Rs.1800-100-2500/- (plus special pay Rs.100/-
P.M.)
Page - 16 of 26
Grade-II Rs.1800-100-2500/-
Grade-III Rs.1200-60-1380-65-1900-100-2100/-
Grade-IV Rs.800-50-1050-55-1380-60-1860/-
Grade-V a) Rs.750-45-1155-50-1255-55-1750/-
b) Rs.600-35-950-40-990-45-1440/-
But may change as per Govt. orders from time to time."
(Emphasis supplied)
16. Pay scale with regard to Grade-V, with which we are
concerned, was revised from `2000-4410/- and `1450-3710/-,
vide the Tripura Engineering Service (2nd Amendment) Rules,
1987 (referred to as the "2nd Amendment Service Rules"), notified
on 31.07.1989.
17. On 19.03.2007, the State restructured these "Service
Rules" by notifying the Tripura Engineering Service (3rd
Amendment) Rules, 2007 (referred to as the "3rd Amendment
Service Rules"). Here, we are concerned with two provisions, i.e.
Rule 30 and Rule 34. Rule 10 of Parent/Principal "Service Rules"
was amended as Rule 30, to read as under:
"30. Pay and Allowances:
(1) The scales of pay attached to various grades of the service
shall be as follows:-
...............................................
(vi) Grade-V(A):-
(a) For Degree-holder direct Recruits at the entry stage - Rs.7,450/- 13,000/-
(b) For Diploma-holder promotees - Rs.7,450/-13,000/-
(c) For Degree-holders, after 8 years of service (under the Career Advancement Scheme) - Rs.10,000/-15,100/-
...............................................
Provided that the Government may from time to time revise the scales of pay."
Page - 17 of 26
18. Rule 18 of the Parent/Principal "Service Rules" was modified as Rule 34 to read as under:
"34. Residuary matters:
In regard to matters not specifically covered by these rules or by regulations or orders issued thereunder or by special orders, the members of the service shall be governed by the rules, regulations and orders applicable to the officers of the same status serving in connection with the affairs of the State Government."
19. The major turn of events, insofar as Rule 30 is concerned, took place with the Tripura Engineering Service (5th Amendment) Rules, 2009 (referred to as the "5th Amendment Service Rules") being notified on 30.05.2009. Here the principal provision of Rule 30 was substituted to read as under:
"12. For Rule 30 of the Rules, the following shall be substituted, namely -
30. Pay, other benefits, Dearness and other allowances shall be paid to persons holding duty posts in respective grades at such rates as may be determined by the Government from time to time."
(Emphasis supplied)
20. Yet, with the Tripura Engineering Service Rules, 1987 (7th Amendment, 2014) (referred to as the "7th Amendment Service Rules"), notified on 10.06.2014, Rule 30 was amended to read as under:
"30. Pay and allowances:
[Pay and other benefits, Dearness and other allowances shall be paid to persons holding duty posts in respective grades at such Page - 18 of 26 rates as may be determined by the Government from time to time]."
(Emphasis supplied)
21. It appears that insofar as fixation of pay is concerned, the State in its wisdom decided to have a separate set of rules, specifically dealing with the pay scale of the employees appointed in regular scales of pay to the services and posts in connection with the affairs of the State of Tripura, of course with certain exceptions, not being subject matter of present lis.
22. As such, in exercise of its powers conferred by virtue of Article 309 of the Constitution of India, on 06.02.1999, the State notified rules termed as the Tripura State Civil Services (Revised Pay) Rules, 1999 (hereinafter referred to as the "Pay Rules"). Significantly, by virtue of sub-rule (ii) of Rule 1, these rules were deemed to have come into force w.e.f. 01.01.1996. It is not in dispute that petitioners do not fall within any one of the exempted categories stipulated under Rule 2.
23. Rule 10, with which we are concerned, deals with the Career Advancement Scheme (CAS-I) as modified w.e.f. 01.01.1999, in terms whereof, employees of the State Government would have benefit of scale advancement by way of promotion, failing which, by time bound movement, in a higher scale as per the table annexed as Annexure-A to the said rules. The effect of the rule being that an employee would have benefit of 3(three) scale advancements (10, 7, 7 years). Sub-clause (d) of the said Rule provides that employees of Cadre service would Page - 19 of 26 have scale advancement w.e.f. 01.01.1999 as prescribed in Annexure-B and as per the said annexure, insofar as employees of Tripura Engineering Service are concerned, the prescribed pay scale is:
Existing Scale Scale w.e.f. Grade Scale w.e.f. Remarks Pay Grade 1-1-96 w.e.f. 1-1-99 fixation 1-1-99 1 2 3 4 5 6 7 Tripura Engineering Service/Tripura Power Engineering Service V(A) 2100-4530 7450-13000 V(A) 7450-13000 Entry for 22(a)(i) Degree Holder. He will move to CAS I after 8 years of CAS I 10000-15100 service. 22(a)(i) Most crucially and significantly, the "Pay rules"
mandated amendment of respective "Service Rules" of employees entitled to the pay scale in terms thereof.
24. Resultantly, these "Pay Rules" were amended vide Tripura State Civil Services (Revised Pay) (Fifteenth Amendment) Rules, 2004 (referred to as the "15th Amendment Pay Rules") as notified on 17.11.2004 but w.e.f. 01.01.1996. Here only, we may observe that Rule 10 of the Parent/Principal "Pay Rules" was amended, upon which much emphasis stand laid by the petitioners, but we find the same not to be applicable for the reason that no notification modifying the relevant recruitment/ "Service Rules" was ever issued by the Government, making the petitioners entitled to time bound movement to higher scale of pay under CAS-I. Hence, relevance of Annexure-I annexed with Page - 20 of 26 the said rules, to which our attention is invited, would be of no consequence, for it cannot be said that in the absence of any notification in relation to "Service Rules", the Junior Engineers Grade-I belonging to all the Departments outside the cadre services viz. Tripura Engineering Service and Tripura Power Engineering Service would be entitled to CAS-I scale on completion of 8(eight) years of continuous and satisfactory service.
25. However, sometime in the year 2009, the Government took a decision to again revamp the "Pay Rules" and on 05.05.2009, notified the Tripura State Civil Services (Revised Pay) Rules, 2009 (referred to as the "Revised Pay Rules") to be effective from 01.01.2006. These rules, by virtue of Rule 2, were to apply to persons appointed in regular scales of pay to services and posts in connection with affairs of the State Government of Tripura, subject to certain exceptions with which we are not concerned. The State contends that petitioners do fall within this category, and, in our considered view rightly so.
26. By virtue of Rule 5, save as otherwise provided in these rules, Government employees are to draw their pay in the revised pay structure applicable to the posts to which they stand appointed. However, by virtue of the proviso contained in the said rule, as also Rule 6, employees could exercise their option of continuing with the existing pay scale or the revised pay scale as notified in terms of "Revised Pay Rules". Most importantly, about which fact there is no dispute, none of the petitioners ever Page - 21 of 26 exercised such option, expressing their desire to continue with the old pay structure under the "Revised Service Rules" and as such, by virtue of the deeming provision [sub-rule (3) of Rule 6], they got themselves elected to be governed by these rules w.e.f. 01.01.2006.
27. In terms of these "Revised Pay Rules", existing system of CAS-I was replaced with the new scheme, titled as "Assured Career Progression" (ACP) Scheme, entitling all Government employees to three financial upgradations (10, 7, 8 years) unlike CAS-I which provided for (10, 7, 7 years). By virtue of Rule 18, all old provisions and more specifically, relating to CAS/ACP, stood repealed.
28. It is in this backdrop, we now proceed to discuss the petitioners' case. The "Service Rules", till the time they stood amended by virtue of "5th Amendment Service Rules", categorically empowered the Government to change the pay scales from time to time, which of course, had to be in accordance with law. Prudently, the Government thought it appropriate to bring in a set of unified rules, dealing with the pay scales of most of its employees, including the petitioners, separately notified as the "Pay Rules" as amended from time to time.
29. It was in the year 1999 such decision was taken with the first of such rules being notified on 06.02.1999, though w.e.f. 01.01.1996. It is in line of such events and the legislative backdrop that by virtue of the 5th Amendment, the Government decided to amend Rule 30 of "Service Rules" which categorically Page - 22 of 26 provided for the pay scale of the Junior Engineers. The petitioners not having exercised their option and without laying any challenge to the 5th Amendment Rules, subjected themselves to be governed by the "Pay Rules", 2009 entitling themselves to the benefit of ACP instead of CAS-I.
30. Most crucially, petitioners cannot be held entitled to the benefit of CAS-I either on the basis of parity or otherwise, also for the reason that as on 01.01.1996, the date of the 15th Amendment, petitioners had not completed their 8(eight) years of regular service in a regular pay scale. To contend that such amendment was made effective retrospectively w.e.f. 01.01.1996, thus ipso facto making them entitled to the benefit of CAS-I, without completing 8(eight) years of service, is legally impermissible. 15th Amendment nowhere provided that such of those persons who had not completed 8(eight) years of regular service would also be entitled to the benefit of CAS-I. It is in this backdrop, petitioners' case was dispassionately considered and their request of being considered at par with the Junior Engineers appointed in the year 1990, rightly turned down by the Government.
31. Repetitively, we reiterate that petitioners had not exercised their option of being continued to be governed under the "Service Rules" for the purposes of pay scale and other allowances. Not only that, they continued to take benefit under the "Pay Rules" revised from time to time by the Government and Page - 23 of 26 only at a belated stage, which remains unexplained, did the petitioners rather belatedly, raise their demand.
32. Mr. Somik Deb, learned counsel appearing for the petitioner-respondents, painstakingly invited our attention to the several decisions rendered by the Apex Court, in support of his contention that the "Pay Rules" could not have impliedly repealed Rule 30 of the "Service Rules". We need not labour on the said decisions or go into such an issue. We are dealing with a different fact situation. Here, by virtue of the 5th Amendment, Rule 30 stood amended. Significantly, such amendment in the "Service Rules", brought in on 30.05.2009, was pursuant to "Pay Rules", 2009 notified on 05.05.2009. This was so done so as to harmonize the relevant "Pay Rules" and the "Service Rules".
33. Mr. Somik Deb, learned counsel, citing the decision rendered by the Apex Court in Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise and another, (2016) 3 SCC 643 contends that even if validity of Rule is not under challenge, sub-ordinate legislation, if found to be discriminatory and arbitrary, still can be quashed in a writ jurisdiction. Well, we do not find the "Revised Pay Rules" or the "5th Amendment Service Rules", in any manner, to be arbitrary. The petitioners' pay scale stands revised from time to time. It is only with regard to the benefit resulting on account of stagnation, be it CAS or ACP that they feel aggrieved of, which in fact, is beneficial in nature.
Page - 24 of 26
34. In all fairness, we must record the other decisions cited by Mr. Somik Deb, learned counsel for the petitioners, and the learned Advocate General during the course of hearing.
35. Mr. Somik Deb, learned counsel for the petitioner- respondents, has referred to other decisions of the Apex Court in Trust Mai Lachhmi Sialkoti Bradari vs. Chairman, Amritsar Improvement Trust and others, AIR 1963 SC 976; Municipal Council, Palai through the Commissioner of Municipal Council, Palai vs. T.J. Joseph, AIR 1963 SC 1561; Maharaja Pratap Singh Bahadur vs. Thakur Manmohan Dey and others, AIR 1966 SC 1931; Northern India Caterers (Private) Ltd. and another vs. State of Punjab and another, AIR 1967 SC 1581; Municipal Corporation of Delhi vs. Shiv Shanker, (1971) 1 SCC 442; Paradip Port Trust, Paradip vs. Their Workmen, (1977) 2 SCC 339; Lakshmi Ammal vs. K.M. Madhavakrishnan and others, (1978) 4 SCC 15; Justiniano Augusto De Piedade Barreto vs. Antonio Vicente Da Fonseca and others, (1979) 3 SCC 47; R.S. Raghunath vs. State of Karnataka and another, (1992) 1 SCC 335; A.B. Krishna and others vs. State of Karnataka and others, (1998) 3 SCC 495; Kishorebhai Khamanchand Goyal vs. State of Gujarat and another, (2003) 12 SCC 274; Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and another, (2014) 8 SCC 319; Subramanian Swamy vs. Director, Central Bureau of Investigation and another, (2014) 8 SCC 682; & Pepsico India Holding Private Page - 25 of 26 Limited vs. Grocery Market and Shops Board and others, (2016) 4 SCC 493.
36. Mr. Arun Kanti Bhowmik, learned Advocate General appearing for the appellants, has also referred to the decisions of the Apex Court in Dharangadhra Chemical Works vs. Dharangadhra Municipality and another, (1985) 4 SCC 92; & Yogender Pal Singh and others vs. Union of India and others, AIR 1987 SC 1015.
37. It is only reflective of their industry and since they do not deal with the issue with which we are concerned, we do not feel it necessary to discuss the ratio or the principles laid down therein.
38. In view of the aforesaid discussions, we find the findings returned by the learned Single Judge in paragraph-16 of the impugned judgment to be absolutely erroneous. We are in agreement with the submission made by the learned Advocate General on this count.
39. Though the learned Single Judge dismissed the petitioners' prayer for entitlement of pay scale in terms of "Service Rules", yet granted benefit of CAS-I under the very same "Pay Rules" which was wholly impermissible in law, rendering the view taken to be absolutely perverse and illegal, warranting intervention by this Court.
40. Hence, we quash and set aside the impugned judgment dated 26.02.2014 passed by the learned Single Judge of this Page - 26 of 26 Court in case No. WP(C) 266 of 2013, titled as Shri Ajit Chakraborty & others vrs. The State of Tripura & others. Accordingly, appeal filed by the State-respondents is hereby allowed.
41. Claims based on similar facts are legally not sustainable and as such, WP(C) No.316/2012, titled as Shri Sourav Reang & others vrs. The State of Tripura & others, need to be dismissed and, accordingly, we do so.
42. Resultantly, both the appeal and writ petition stand disposed of.
Pending application(s), if any, also stands disposed of.
(ARINDAM LODH), J (SANJAY KAROL), CJ Pulak