HIGH COURT OF TRIPURA
AGARTALA
WP(C) 142 OF 2023
1. Pranab Kumar Baishya, son of Sri Mohan Lal Baishya, resident of
Village Chinaihani, P.O. & P.S. Airport Agartala, District-West
Tripura, Pin-799009, Age-46 years.
2. Kaushik Majumder, son of Sri Bimalendu Bikash Majumder, resident
of Village-Dhaleswar, Road No.16, P.O. Dhaleswar, P.S.-East Agartala,
District-West Tripura, Pin-799007, Age-43 years.
Petitioners.
……
Vrs.
1. The State of Tripura, represented by the Commissioner & Secretary to
the Department of Industries & Commerce, Government of Tripura, New
Secretariat Complex, Gurkhabasti, Agartala, P.O. Kunjaban, P.S. New
Capital Complex, Sub-Division-Sadar, District-West Tripura.
2. The Director of Industries & Commerce, Government of Tripura,
Khejurbagan, Agartala, District-West Tripura, Pin-799006.
3. The Commissioner & Secretary, Finance Department, Government of
Tripura, New Secretariat Complex, Gurkhabasti, Agartala, P.O. Kunjaban,
P.S. New Capital Complex, Sub-Division-Sadar, District-West Tripura.
4. The Commissioner & Secretary, Department of Higher Education,
Government of Tripura, New Secretariat Complex, Gurkhabasti, Agartala,
P.O. Kunjaban, P.S. New Capital Complex, Sub-Division-Sadar, District-
West Tripura.
5. The Director of Higher Education, Government of Tripura, Shiksha
Bhavan, Office Lane, Agartala, District-West Tripura, Pin-799001.
. Respondents.
….
For the petitioner (s) : Mr. P. Roy Barman, Senior Advocate.
Mr. Samarjit Bhattacharjee, Advocate.
Mr. K. Nath, Advocate.
Ms. A. Debbarma, Advocate.
Mr. K. Chakraborty, Advocate.
For the respondent (s) : Mr. D. Sarma, Addl. G.A.
Date of hearing and
: 28.06.2024
date of delivery of
judgment and order
Whether fit for
: No
reporting
2
HON’BLE MR.JUSTICE ARINDAM LODH
Judgment & Order(Oral)
By means of filing the instant writ petition, the petitioners have
prayed for following reliefs:
le, calling upon the Respondents and each one of
“(i) Issue Ru
them, to show cause as to why a Writ of Mandamus and/or in the nature
thereof, shall not be issued, mandating/directing them, to revoke/rescind
the impugned Order dated 13.10.2015 (Annexure-10 supra), insofar as it
relates to grant of regular pay scales to the Petitioners, after completion
of 8 years of service on fixed pay basis, under the Government of Tripura;
(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, mandating/directing them, to count the past
services, as rendered by the Petitioners in the former post of Mechanic
(Electronics), under the Directorate of Higher Education, Government of
Tripura, on fixed pay basis (w.e.f. 13.12.2007 to 24.05.2010), for the
purpose of granting regular pay scales in their favour, in terms of the
-11
Finance Department’s Memorandum dated 16.10.2007 (Annexure
supra), and thereupon, to grant them the regular pay scales, with effect
from the date of their respective completion of 5 years of service on fixed
pay basis (i.e. w.e.f. 13.12.2012) along with all consequential benefits,
including arrears thereof;
(iii) Call for the records, appertaining to this Writ Petition;
(iv) After hearing the parties, be pleased to make the Rule
absolute in terms of (i) & (ii) above;
(v) Costs of an incidental to this proceeding;
(vi) Any other Relief(s) as to this Hon’ble High Court may
deem fit and proper.”
2. The facts leading to the filing of this writ petition are that the
petitioners initially joined in service on 13.12.2007 as Mechanic (Electronics)
under the Directorate of Higher Education, Government of Tripura, on fixed
pay basis. Subsequently, the petitioners having noticed an advertisement
issued by the Directorate of Industries & Commerce, Government of Tripura
inviting aspirants for filling up some vacant posts of Senior Instructor
(Electronics) & Senior Instructor (IT & ESM) applied their candidature
through proper channel for the said posts. In furtherance thereof, they obtained
nd had appeared in the
‘No Objection’ from the Director of Higher Education a
selection test for the posts of Senior Instructor under the Directorate of
3
Industries & Commerce. The petitioners got successful in the selection test
and subsequently, they were issued offer of appointment to the posts of Senior
Instructor (Electronics) and Senior Instructor (IT & ESM) respectively.
Thereafter, on acceptance of their offers of appointment, the Director of
Industries & Commerce, Government of Tripura on 10.05.2010 issued Orders
appointing the petitioners to the said respective posts on fixed pay basis.
2.1 Pursuant to the issuance of the said orders of appointment, the
petitioners had tendered their technical resignation on 13.05.2010 to the
‘ ’
Director of Higher Education requesting to permit them to join their new
assignments. Accordingly, their technical resignation was allowed and on
‘ ’
being released from the Department of Higher Education, they had joined on
24.05.2010 as Senior Instructors under the Directorate of Industries &
Commerce, Government of Tripura on fixed pay basis.
2.2 It is the plea of the petitioners that the period of service they
rendered under the previous employer has to be taken into consideration while
counting the total period of 5 years’ of service on fixed pay basis.
3. It is the grievance of the petitioners that they were not granted
regular pay scales despite completion of 5 years service on fixed pay basis
’ of
on 13.12.2012. According to the petitioners, the respondents most illegally
and arbitrarily provided them regular pay scales w.e.f. 24.05.2015 [Annexure-
10 The
to the writ petition] e.i. after 8 years’ of service on fixed pay basis.
petitioners submitted their representations praying for granting them regular
pay scales w.e.f. 13.12.2012 i.e. after completion of five years of service
’
from their initial appointment under the Department of Higher Education, but,
they did not get any redress from the respondents. Hence, this writ petition.
4
4. I have heard Mr. Koomar Chakraborty, learned counsel appearing
for the petitioners and Mr. D. Sarma, learned Addl. G.A. appearing for the
State-respondents.
5. Mr. Chakraborty, learned counsel appearing for the petitioners at
the very outset has candidly submitted that the petitioners were entitled to get
regular pay scales from the date of completion of total five years of service
’
on fixed pay basis i.e. w.e.f. 13.12.2012, but, most illegally and arbitrarily the
petitioners have been deprived of the said benefit. Mr. Chakraborty, learned
counsel referring to the Memorandum dated 16.10.2007 [Annexure-11 to the
writ petition] pointed out that from the said Memorandum, it manifestly
reveals that after opening the service book of a fixed pay employee and on
completion of 5 years of service from the date of his joining, he shall be
’
provided with the regular pay scales. It is pertinently reiterated by Mr.
Chakraborty, learned counsel that the prime employer of the petitioners is the
Government of Tripura under whom they had initially joined in service on
13.12.2007 i.e. the department of Higher Education on fixed pay basis and
subsequently, they had joined the department of Industries & Commerce
under the same employer i.e. the Government of Tripura and their respective
service books were transferred to the latter department.
5.1 Mr. Chakraborty, learned counsel relied upon a common
judgment passed by a co-ordinate bench of this Court in WP(C) No.234 of
2020 [Tarendra Reang & Anr. Vs. The State of Tripura & Ors.] along with
other connected writ petitions whereby the learned Single Judge (A. Kureshi,
the then CJ) had allowed the writ petitions directing the State-respondents to
grant the benefit of regular pay scales to the writ petitioners after counting
their past service on fixed pay basis.
5
5.2 With the above submissions, Mr. Chakraborty, learned counsel
has urged before this Court to direct the respondents to provide regular pay
scales to the petitioners with effect from the date of their completion of 5
years of service on fixed pay basis i.e. 13.12.2012 along with all other
’
consequential benefits including arrears thereof in the same terms of Tarendra
Reang (supra).
6. In rebuttal, Mr. Sarma, learned Addl. G.A. appearing for the
respondents in reference to the contention made at Para 12 of the counter
affidavit filed by the respondents has submitted that the matter was referred to
the Finance Department, Govt. of Tripura and accordingly, the Finance
Department under Order No. 415/Fin(G)/13, dated 26.06.2013 has opined that
Finance Department concurs with the proposal of the department for
‘
counting of past fixed pay services rendered for the purpose of pension and
pensionery benefits, however, fixed pay period rendered by the incumbent in
the previous post should not be counted for computing completion of required
5(five) years services in the present fixed pay post for the purpose of
Thus, Mr. Sarma, learned Addl. G.A. contended that there
regularization.’
was no illegality and arbitrariness from the side of the respondents for not
granting regular pay scales to the petitioners counting their past service after
completion of five years on fixed pay basis.
7. Considering the facts and submissions of learned counsel
appearing on behalf of the parties to the lis, in my opinion, the only issue lies
in this writ petition is that the petitioners are entitled to get regular pay scales
after completion of 5 years of service on fixed pay basis. It is clear and
’
cogent that they had served in their earlier department i.e. the department of
6
Higher Education for a certain period on fixed pay basis and later they had
joined the department of Industries & Commerce and have been continuing
their service. It is pertinent to mention that after total 8 years of their service
’
under these two departments of the State Government, the petitioners were
provided with the regular pay scales most illegally and arbitrarily.
8. Here, it is seen that the petitioners had discharged their duties in
the department of Higher Education under the Government of Tripura to the
post of Mechanic (Electronics) and later, on being noticed the advertisement
published from the department of Industries & Commerce, Government of
Tripura they applied through proper channel for the post of Senior Instructor
(Electronics) & Senior Instructor (IT & ESM) respectively. After being
selected for the
said posts, they submitted ‘technical resignations’ from their
previous posts which were accepted and consequently, they were relieved
from their previous employment so as to enable them to join in their new
assignments. Upto this level, all the Government actions were rightly done. It
has come to fore that they had been appointed further on fixed pay basis in the
later department in the year 2010 and were provided them the regular pay
scales in the year 2015 without counting previous service period. In my
opinion, it seems to be very unjust and unreasonable action on the part of the
respondents.
9. In this aspect, I have gone through the judgment passed by a
coordinate bench of this court in Tarendra Reang (supra) along with other
connected writ petitions which has been relied upon by Mr. Chakraborty,
learned counsel appearing for the petitioners wherein the coordinate bench had
vividly discussed the issue at Para 3, 6 & 7 which is reproduced here-in-below
for just and proper decision of the instant writ petition.
7
“[3] Before we address the central controversy, a peripheral issue
arising in some of the petitions may first be disposed of. We have noticed that
there are some cases in which Teachers who were appointed in the year 2012 in
fixed salary basis were not granted regular pay scale even after completion of 5
years of service. The stand of the Government was that these Science Teachers
were not engaged against regular vacancies and that, therefore, they cannot get
the benefit of the Government notifications providing for grant of regular pay
scale to Group C and D employees after completion of 5 years of service in
fixed salary. This issue was decided by this Court in case of Snehangshu Das
and others Vs. State of Tripura and Ors. in WP(C) No.89/2020 and connected
petitions in a judgment dated 18 December, 2020. Following observations may
th
be noted:
“24. There is yet another angle to the whole issue. All the
petitioners are discharging duties as teachers in primary and
secondary divisions in Government schools where the very
foundation of the students who would form the future generation of
the society is laid. For over 8 years the Government refuses to
remunerate these teachers at fair wages which are paid to other
similarly situated teachers with same qualifications and nature of
work. If the only argument of the Government is that they cannot
stake their claims over regular pay scales because there are no
sanctioned posts, there has to be something seriously wrong with
the Government policy formation. As many as 1450 school teachers
cannot be kept against unsanctioned posts. The fact that the work
exists for them and precisely that is why they have been engaged is
beyond dispute. When the work is of such perennial nature and the
work is of such importance, can the Government argue that
because the posts are not sanctioned the petitioners will not get fair
wages. Obviously the answer has to be in the negative. Continuing
the petitioners on fixed salary in perpetuity and at the same time
expecting full dedication, efficiency and sincerity in their discharge
of the duties would be a dichotomy.
25. In the result, all the petitions are allowed by providing that the
petitioners will be brought over to regular pay scale upon
completion of 5 years of service from initial engagement. This shall
be with all consequential benefits including past arrears of wages
and pay fixations. All the benefits of Government notifications
issued from time to time concerning their past services will also be
available to the petitioners. Entire exercise shall be completed
within a period of six months from today
”
In all cases where Assistant Science Teachers after their engagements in the
year 2012 on fixed salary basis have not been granted regular scale upon
completion of 5 years of service, would receive the benefit as held in case of
Snehangshu Das(supra). They would have to be brought over to regular scale
upon completion of 5 years of service with all consequential benefits.
[6] The formula of engaging employees in Group C and D posts for initial
period of 5 years on fixed salary is a device adopted by the State Government,
principally by way of cost cutting exercise. From time to time, resolutions have
been passed under which by keeping the regular posts in abeyance for a period
of 5 years temporary engagements are made on fixed salary basis. This is,
however, always preceded by regular selection process and is done against
regular posts which are vacant. These resolutions also provide that upon
8
completion of continuous satisfactory 5 years of service, the person so engaged
on fixed salary basis will be brought to regular scales of pay. Benefit of the past
service is also recognized for the purpose of pension and other benefits. In
short thus, the formula of engaging Group C and D staff on fixed salary basis is
merely advice to enable the Government to reduce its salary burden for a
temporary period. All these petitioners thus having been initially engaged in
fixed salary regime, were brought over to regular scale or ought to have been
brought over to regular scale as held by this Court in case of Snehangshu Das
(supra) and which declaration has already been made in this judgment earlier.
[7] In this context, the question would be can these petitioners now be asked to
be placed at the very bottom in their new assignments by asking them to work
for 5 years on fixed salary before they would be brought over to regular pay
scales and in the process, their past service of more than 5 years would be
wiped out for all purposes? This question has to be examined from the context
of relevant rules and regulations. FR.22(1) provides for regulation of the pay of
a Government servant appointed to a post on time scale of pay and envisages
different situations where a Government servant holding one post on
substantive or temporary basis is promoted or appointed in a substantive,
temporary or officiating capacity on some other post. It primarily envisages
protection of past pay on new engagement. It is not necessary to take detail
stock of this rule, except for referring to a judgment of this Court in case of Sri
Khokan Debnath Vs. State of Tripura and Ors. reported in (2018) 1 TLR 175 in
which the learned Single Judge held and observed that FR.22(1)(a)(1) is not
confined to regulation of pay scale of a Government servant on promotion. The
same would apply also in case of his appointment on a post different from one
he was previously holding in the Government.
10. I may gainfully refer here again Para 17 & 18 of the judgment
passed in Tarendra Reang (supra) which read as follows:
[17] The objection of the Government that the petitioners accepted their
“
appointment with full knowledge and, therefore, they are stopped from raising
their grievances is possible of the summery disposal. Neither the recruitment
rules nor the advertisement nor the offer of appointment can override the
service rules, regulations and statutory provisions. Even if the advertisement
provided that an appointee shall be placed under fixed pay for a period of 5
years, never clarified that even if the rules and regulations so provide, the past
service of a job aspirant who has been a Government servant already for over 5
years would be wiped out, nor could it have been so prescribed.
[18] Under the circumstances, all the petitions are allowed. In cases where the
petitioners were already enjoying pay fixations in regular scales, their entire
past service shall be protected for the purpose of pay and allowances including
leave encashment and post-retiral benefits as per their appointments in new
posts. Where the petitioners have not been granted regular pay scales even
after completion of 5 years of service, they would be first brought over to
regular pay scale from due dates. Upon their fresh engagements as Teachers,
their past
service similarly shall be protected…..”
9
11. Having gone through the above propositions as delineated by the
coordinate bench of this Court, I find that the facts of the case of Tarendra
Reang (supra) are squarely applicable to the facts of the instant case. Since the
factual aspects of the present writ petition are similar and identical to the
subject matter of the case of Tarendra Reang (supra), this writ petition is also,
therefore, allowed and disposed of in the same terms.
12. Accordingly, the respondent no.2 is directed to provide the
regular pay scales to the petitioners upon completion of 5 years of service
from their initial appointment under the previous department (Directorate of
Higher Education, Govt. of Tripura) on fixed pay basis i.e. w.e.f. 13.12.2012
along with all other consequential benefits including arrears thereof within a
period of 6(six) months from today.
JUDGE
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2024.07.02 17:00:30 +05'30'
sanjay