Allowed

Pramode Ch. Saha and 45 Ors. v. State of Tripura and 2 Ors.

Tripura HC13 Jun 2017WP(C)/309/2011

Case brief

AI extract

What is this about?

The High Court of Tripura held that Assistant Teachers who acquired higher qualifications after a 1982 cutoff are eligible for a higher pay scale as per a 1992 government memorandum. The court allowed the writ petition, granting pay fixation from 1988 and financial benefits from 2008, excluding laches as a continuing wrong.

What did the court decide?

Petitioners entitled to higher pay scale from 01.01.1988; financial benefits from 26.07.2008; retired petitioners to have last pay re-fixed for pension revision.

Pramode Ch. Saha and 45 Ors. Vs State of… — Pension and Retirement Benefits | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) No.309 of 2011

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Pramode Ch. Saha, Assistant Teacher, son of late Harendra Ch. Saha, Joynagar Road No.5, P.O. Agartala, Agartala, West Tripura

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Swapan Kumar Sen, Assistant Teacher, son of late Aswini Kumar Sen, Bardowali, P.O. A.D. Nagar, Agartala, West Tripura

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Narayan Ch. Ghosh, Assistant Teacher, son of late Harendra Ch. Ghosh, Vill & P.O. Sekerkote, Bishalgarh, West Tripura

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Ahid Miah, Assistant Teacher, son of late Abdul Alim, village – West Pratapgarh, P.O. A.D. Nagar, West Tripura

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Swapan Kumar Acharjee, son of late Harendra Acharjee, VillUpendrapara, West Joynagar, Agartala, West Tripura

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Dilip Deb, Assistant Teacher, son of late Jogendra Ch. Deb, P.O. College Tilla, Agartala, West Tripura

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Kalipada Datta, retired Headmaster [Primary], son of late Bireswar Datta, Joynagar Road No.5, Agartala, West Tripura

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Indrajit Saha, retired Assistant Teacher, son of late Khetra Mohan Saha, near Milan Sangha, Agartala, West Tripura

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Dipak Chowdhury, Assistant Teacher, son of late Jyotorimoy Chowdhury, P.O. A.D. Nagar, Agartala, West Tripura

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[2]

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10.Ahindra Saha,
Assistant Teacher, son of late Surendra Kumar Saha, Agartala, West Tripura
11.Sudarshan Chakraborty, Assistant Teacher, son of late Brajalal Chakraborty, College Tilla, Agartala, West Tripura
12.Nandalal Acharjee, retired Assistant Teacher, son of late Jatindra Mohan Acharjee, Vill & P.O.
Suryamaninagar, Agartala, West Tripura
13.Swapan Chakraborty, Assistant Teacher, son of late Sudhir
Kumar Chakraborty, Vill & P.O. Office tilla, Bishalgar, Sepahijala, Tripura
14.Subash Chakraborty, Assistant Teacher, son of late Jogesh Chakraborty, Vill & P.O. Sekerkote, Bishalgar, Sepahijala, Tripura
15.Swapan Kumar Bhowmik,
Assistant Teacher, son of late Roy
Haran Bhowmik, Vill & P.O.
Melaghar, Sonamura, Sepahijala, Tripura
16.Ranadhir Sukla Baidya,
Assistant Teacher, son of Dharani
Dhar Sukla Baidya, Vill- Masterpara,
P.O. Kumarghat, North Tripura
17.Sribash Chandra Deb, Assistant Teacher, son of late
Shyamsundar Deb, Vill- Masterpara,
P.O. Kumarghat, North Tripura
18.Prabhat Ch. Das,
Assistant Teacher, son of Sri Ganesh
Ch. Das, Vill- Netaji Chowmuhani,
near Old Gramin Bank, Kumarghat,
North Tripura
19.Jahar Lal Sarkar,
Assistant Teacher, son of Nabadwip
Ch. Sarkar, Vill & P.O. Khayerpur
[Madhyapara], Tripura West

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W.P.(C) No.309 of 2011 Page 2 of 15

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Archana Dey, Assistant Teacher, wife of Aparna Deb, VillPiyari Babur Bagan, Joynagar, Agartala, West Tripura

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Gajendra Kumar Deb, Assistant Teacher, son of Sri Darika Chandra Deb, Vill - Fakirbad, Ichabpan, Kumarghat, Unakoti, Tripura

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Sailendra Datta, retired Assistant Teacher, son of late Jamini Mohan Datta, Vill- Bhagyapur, P.O. Pachardhar, Kailashahar, Unakoti Tripura

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Pritimoy Dey, Assistant Teacher, son of late Jogesh Ch. Dey, Vill & P.O. Amrabasa, Kailashahar, Unakoti Tripura

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Binod Bihari Dhar, Assistant Teacher, son of Brajendra Kumar Dhar, Vill & P.O. Saidabari, Fatikroy, North Tripura

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Nikesh Dey, Assistant Teacher, son of Nishi Bhusan Dey, Vill & P.O. Kumarghat, Unakoti, Tripura

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Pankaj Datta, Assistant Teacher, son of late Prandhyana Datta, Vill & P.O. Kailashahar, Unakoti, Tripura

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Durlav Ch. Das, Assistant Teacher, son of Durga Charan Das, Vill- Manughat, P.O. Longtarai, Dhalai, Tripura

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Gouranga Ch. Paul, Assistant Teacher, son of late Narendra Kumar Paul, Vill & P.O. Gobindapur, Kailashahar, Unakoti, Tripura

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Haripada Majumder, Assistant Teacher, son of Akhil Chandra Majumder, Vill & P.O.

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W.P.(C) No.309 of 2011 Page 3 of 15

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Birchandranagar, Kailashahar, Unakoti, Tripura

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1. Nalinesh Goswami, Assistant Teacher, son of Nikunja Behari Goswami, Vill & P.O. Saidabari, Kailashahar, Unakoti, Tripura

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1. Niranjan Das, Assistant Teacher, son of late Manoranjan Das, Vill –Durgapur, P.O. Paiturbazar, Kailashahar, Unakoti, Tripura

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1. Nitai Banik, Assistant Teacher, son of Madhusudhan Banik, Kailashahar, Unakoti, Tripura

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1. Shymal Kanti Das, Assistant Teacher, son of Pulin Behari Das, Vill & P.O. Sonaimuri, Kumarghat, Unakoti, Tripura

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1. Dinabandhu Goswami, Assistant Teacher, son of Joydra Goswami, Bidangar, Kirtantali, Kailashahar, Unakoti, Tripura

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1. Haridas Bhowmik, retired Assistant Teacher, son of late Jatindra Chandra Bhowmik, C/OIndranil Chakraborty, Bhati Abhoynagar, Paschim Para, Agartala, West Tripura

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1. Bikash Ch. Deb, Assistant Teacher, son of Mani Lal Deb, Vill & P.O. Baulpasa, Kailashahar, Unakoti, Tripura

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1. Ujjala Malakar, Head Mistress, wife of Ranjit Malakar, Vill- Nowapathar, P.O. Tilla Bazar, Kailashahar, Unakoti, Tripura

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1. Abdul Kader, Assistant Teacher, son of Abdus Salam, Vill & P.O. Nurpur, Kailashahar, Unakoti, Tripura

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W.P.(C) No.309 of 2011 Page 4 of 15

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[5]

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39.Amal Barman, Assistant Teacher, son of Rajendra Barman, Radhamadhavpur, P.O. Rudi Jala, Melaghar, Sepahijala, Tripura
40.Dulal Chakraborty, Assistant Teacher, son of late Ramesh Chakraborty, Vill- A.D. Nagar, Agartala, West Tripura
41.Subash Ch. Nama, Deputy I.S, son of late Prafulla
Kumar Nama, Vill- Yubarajnagar, P.O. Baburbazar, Kailashahar, Unakoti, Tripura
42.Janardhan Das, Assistant Teacher, son of Akhil Ch. Das, Vill –Durgapur, Vill & P.O. Vilaspur, Birchandranagar, Chailengta, Dhalai, Tripura
43.Senapati Singha, Assistant Teacher, son of Krishnamani Singha, Vill & P.O. Fultali, Kailashahar, Unakoti, Tripura
44.Indramani Singha, Assistant Teacher, son of Fula Singha, Vill & P.O. Dalugaon, Kailashahar, Unakoti, Tripura
45.Pratap Ranjan Paul, Assistant Teacher, Kailashahar, Unakoti, Tripura
46.Tarun Mohan Bhowmik, retired Assistant Teacher, son Ananga Mohan Bhowmik, Vill-
Nischintapur, Ishanchandranagar, Agartala, West Tripura V e r s u s	……Petitioners
1. The State of Tripura, represented by the Secretary, Education Department, Government of Tripura, having his office at New Secretariat Complex, P.O. Secretariat
Complex, Agartala, District- West Tripura

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W.P.(C) No.309 of 2011 Page 5 of 15

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The Director of School Education, Government of Tripura, P.O. Agartala, District- West Tripura

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The Secretary,

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Finance Department, Government of Tripura, New Secretariat Complex, P.O. Secretariat Complex, Agartala, District- West Tripura

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.….. Respondents

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BEFORE

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THE HON‟BLE MR.JUSTICE S. TALAPATRA

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For the petitioners : Mr. C.S. Sinha, Advocate For the respondents : Mr. N. Majumder, Advocate Date of hearing and : 13.06.2017 delivery of judgment & order Yes No Whether it is fit for reporting : √

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JUDGMENT & ORDER (ORAL)

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Heard Mr. C.S. Sinha, learned counsel appearing for

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the petitioners as well as Mr. N. Majumder, learned counsel appearing for the respondents.

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[2] The petitioners were/are working as the Assistant Teacher [in short the AT] in different schools under the Directorate of School Education, now the Directorate of Elementary Education and the petitioners were initially appointed under the primary school establishment. It is stated that the petitioners after joining the service had acquired the higher qualification of Bachelor of Arts etc. Having disputed the date of publication of the result in respect of 3(three)

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petitioners, the respondents have generally stated that the averments made in Para-2 of the writ petition are correct. In terms of the averments made in Para-2 of the writ petition, the following table is formed showing the name of the writ petitioner, date of appointment and the date of acquisition of higher education as per the date of publication of the result.

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Table : Appointment and Acquisition of higher qualification.

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Sl. No.	Name of the petitioner	Date of appointment	Date of acquisition of higher education
1	Pramode Ch. Saha	18.06.1979	11.07.1983
2	Swapan Kumar Sen	22.07.1981	11.07.1983
3	Narayan Ch. Ghosh	11.10.1974	11.07.1983
4	Ahid Miah	16.06.1978	11.07.1983
5	Swapan Kumar Acharjee	28.02.1973	11.07.1983
6	Dilip Deb	17.11.1977	11.07.1983
7	Kalipada Datta	11.04.1970	11.07.1983
8	Indrajit Saha	05.02.1965	24.09.1985
9	Dipak Choudhury	02.01.1974	06.02.1985
10	Ahindra Saha	24.07.1981	25.09.1985
11	Sudarshan Chakraborty	30.10.1980	11.07.1983
12	Nandalal Acharjee	10.10.1974	01.07.1983
13	Swapan Chakraborty	12.03.1980	11.07.1983
14	Subash Chakraborty	21.02.1975	11.07.1983
15	Swapan Kumar Bhowmik	04.10.1974	11.07.1983
16	Ranadhir Sukla Baidya	20.06.1978	18.02.1987
17	Sribash Chandra Deb,	16.06.1979	31.03.1982
18	Prabhat Ch. Das	05.03.1986	31.10.1988
19	Jahar Lal Sarkar	22.03.1985	03.02.1982

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W.P.(C) No.309 of 2011 Page 7 of 15

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20	Archana Dey	16.06.1978	19.09.1985
21	Gajendra Kumar Deb	22.09.1982	19.09.1985
22	Sailendra Datta	24.07.1981	31.03.1982
23	Pritimoy Dey	16.11.1982	18.02.1987
24	Binod Bihari Dhar	16.06.1979	19.09.1985
25	Nikesh Dey	20.09.1986	21.01.1985
26	Pankaj Datta	18.11.1982	31.03.1982
27	Durlav Ch. Das	25.03.1985	31.01.1985
28	Gouranga Ch. Paul	23.03.1985	26.07.1986
29	Haripada Majumder	22.03.1985	11.07.1983
30	Nalinesh Goswami	22.03.1985	19.09.1985
31	Niranjan Das	17.09.1980	31.03.1982
32	Nitai Banik	05.03.1986	21.01.1985
33	Shymal Kanti Das	21.03.1985	21.01.1985
34	Dinabandhu Goswami	03.12.1982	11.07.1983
35	Haridas Bhowmik	18.08.1985	11.07.1983
36	Bikash Ch. Deb	24.07.1981	16.02.1987
37	Ujjala Malakar	16.06.1978	11.07.1983
38	Abdul Kader	25.09.1980	16.03.1983
39	Amal Barman	05.03.1986	06.10.1986
40	Dulal Chakraborty	01.08.1973	11.07.1983
41	Subash Ch. Nama	24.07.1981	11.07.1983
42	Janardhan Das	23.03.1985	28.02.1986
43	Senapati Singha	05.03.1986	11.07.1983
44	Indramani Singha	23.03.1985	11.07.1983
45	Pratap Ranjan Paul	15.09.1989	09.01.1990
46	Tarun Mohan Bhowmik	05.03.1965	11.07.1983

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*** Veracity shall remain subject to the verification of the relevant original records.**

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W.P.(C) No.309 of 2011 Page 8 of 15

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It would be apparent from the records that all the writ petitioners had acquired their higher qualification after 22.04.1982. The fact which has not been disputed by the respondents that none of the writ petitioners was given the benefit of the office memorandum under No.F.4(62)-FIN(PC)/92 dated 07.12.1992, Annexure-1 to the writ petition. In Sabyasachi Bhattacharji vs. the State of Tripura, reported in 1997 (1) GLT 354, the Gauhati High Court has observed as under while granting the benefits of higher scale for acquisition of the higher qualification to the primary teachers:

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“13. We have also independently examined the decision given by the learned Single Judge in the Second Appeal and also the decision given by the Division Bench in the Civil Rules on 22.2.92. In our opinion, the view taken by the learned Single Judge was a plausible view. In view of the fact that the Advocate General for the State of Tripura has himself conceded that item No.44 itself does not indicate that the benefit is restricted to any particular category of Graduate teachers. The learned Single Judge in the Second Appeal has taken that view in the good year 1979 which interpretation was prevailing for more than fourteen years and even in the year 1994, even though a challenge was made before the Supreme Court, the same was not pressed on merits and SLPs were got dismissed on the ground that the benefit is being extended to the petitioners. Clearly, at the time of making of the statement, the stand of the State of Tripura was that the interpretation which had been given to item 44 by the learned Single Judge in the Second Appeal and by the Division Benches in a large number of Civil Rules later on was being extended and not contested by the State of Tripura.

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14. We are thus of the opinion that on the principle of State Decisis, the interpretation of item 44 which has been the law prevailing in the State of Tripura will not be unsettled by this Court. Even otherwise on merits, we are of the opinion that the view taken by the learned Single Judge in the Second Appeal and which has been followed later on by the Division Bench cannot be said to be incorrect. The Civil Rule is accordingly allowed. There shall be no order as to costs.”

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W.P.(C) No.309 of 2011 Page 9 of 15

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[3] In the premises as narrated above, the Gauhati High Court has interpreted that the higher pay scale for acquisition higher qualification is not related to any establishment or a category of teachers but it is equally applicable for all categories of teachers. At the same time, it cannot be disputed by the petitioners that grant of the higher pay scale based on acquisition of higher qualification was discontinued by a policy decision taken by the Government vide Memorandum No.F.2(1124)-DSE/80(iv) dated 23.04.1982, from 23.04.1992. From the memorandum dated 29.06.1982, Annexure-R/4 to the reply filed by the respondents, it appears that the decision of the Government as available in the said memorandum was made inoperative by the said memorandum dated 23.04.1982. The decision which is appearing in the said memorandum dated 29.06.1992 is as under:

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“It is clarified that Asst. Teachers borne on the Primary establishment who obtained the bachelor‟s degree prior to 23.04.82 but who could not be given the scale of Rs.325-665/- earlier for some reason or other may also be allowed to draw pay in the scale of Rs.325-665/- w.e.f. the date of their acquiring degree, or the date of appointment, whichever is later, subject to the fulfillment of conditions embodied in this Deptt‟s Memo. No.F.2(10-23)-DSE/79 dt. 7.3.81.”

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In the said memorandum, it has been clearly laid

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down that as per the government’s decision communicated by the department’s memorandum under No.F.2(11-24)DSE/80(IV) dated 23.04.1982, the Assistant Teachers are entitled to the pay scale of the post to which he is appointed and not the pay scale of the post to which he is eligible to be appointed on the basis of his educational qualification. In other

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W.P.(C) No.309 of 2011 Page 10 of 15

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words, the Assistant Teachers are not eligible for the higher scale of pay on the basis of qualification alone w.e.f. 23.04.1982. However, it is not in dispute that the respondents later on reconsidered the entire matter and by the memorandum dated 07.12.1992 has provided as under, amongst other provisions:

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“(F) For the school teachers and similar other employees such as Physical Instructor, Librarian, Coach, Classical Teacher, Hindi Teacher, Vernacular Teacher, Drawing Teacher, Craft Instructor/Teacher Etc. who acquired higher academic qualification in their respective trade/subject to which they are attached, on or after 24.04.1982.

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(i) They shall be granted higher pay scales according to their qualification w.e.f. 01.01.1988 or the date of publication of result, whichever is later;

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(ii) The benefit shall be admissible only for those incumbent who acquired higher qualification upto the period of 31.12.91 (date of publication of result);

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(iii) Pay shall be notionally fixed under the provision of FR.22(a) (1) upto 31.12.91 with actual Financial benefit from 01.01.1992.

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However, after fixation of pay under F.R.22(a) (i), date of next increment of the concerned employees shall be due on the date of their earning of periodical increment as usual;

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(iv) Such benefit admissible on the event of acquiring higher qualification shall be restricted only for the graduation/Graduation with Honours/Post Graduation Degree (Not Diploma/Certificate) in the particular trade/subject to which the particular incumbents belongs to;

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(v) Pay scales for the posts of „Librarian‟ and „Physical Instructor‟ on acquiring higher qualification, shall be determined in accordance to Sl. Nos. 1 and 2 as shown under (D) above.

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Pay scales for the posts of „Coach‟ and „Senior Coach‟ on acquiring higher qualification, shall be determined in accordance to Sl. Nos. 3 and 4 as shown under (D) above.

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(vi) Benefit or movement from lower grade to higher or highest grade under Part-B or Part-C or Notes at Page-59 (for School Teacher) under Schedule-III of the ROP Rules, 1988 shall be allowed after calculating the period of service from the date of enjoying such higher pay scales, pay scales in such cases shall be determined in

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W.P.(C) No.309 of 2011 Page 11 of 15

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the light of scales mentioned at (B) and (D) above.

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(vii) The aforesaid benefits shall also be admissible in respect of such categories of employees who acquired higher qualification in the respective trade/subject prior to 24.04.82, but were not granted the appropriate scale according to their qualification.”

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This benefit is subject to the conditions as laid down under Para-F in the said office memorandum dated 07.12.1992. It may be true that some of the dates as provided by the petitioners in Para-2 of the writ petition are not correctly given but for this error their claim cannot be curbed.

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[4] Having regard to the provisions of Para-7 of the office memorandum dated 07.12.1992 read with the decision of Gauhati High Court in Sabyasachi Bhattacharji (supra), this court is of the view that the petitioners were entitled to the higher pay scale, meaning the pay scale of `325-625/- not from the date when they acquired the higher qualification but from 01.01.1988 and such benefit shall be notionally carried forward till 31.12.1991 and the actual financial benefit will be entitled to them from 01.01.1992.

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[5] Mr. N. Majumder, learned counsel appearing for the respondents has submitted that this writ petition is hit by the principle of laches inasmuch as the petitioners’ right whatever has accrued from the memorandum dated 07.12.1992 from the day when the said memorandum was issued, but they had not approached the respondents for granting them the said benefit.

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W.P.(C) No.309 of 2011 Page 12 of 15

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[6] Mr. C.S. Sinha, learned counsel appearing for the petitioners having referred to the decision of State of M.P. & Ors. vs. Yogendra Shrivastava, reported in (2010) 12 SCC 538 has contended that the principle of laches cannot be applicable in the present case. On the contrary, the doctrine of continuing wrong would apply inasmuch as every month when the petitioners are drawing pay or other financial benefit accrued therefrom, they are getting less, otherwise their pay or financial accrual would have been comparatively higher. In Yogendra Shrivastava (supra) the apex court has culled out the law as under:

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“18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India : (1995) 5 SCC 628, and Union of India vs. Tarsem Singh : (2008) 8 SCC 648.”

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[7] Having regard to this, this court is of the view that this writ petition cannot be held to be hit by the doctrine of laches. However, the principle as laid down in Yogendra Shrivastava (supra), the financial benefit of the petitioners shall be available from a day exactly 3(three) years prior to

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W.P.(C) No.309 of 2011 Page 13 of 15

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filing of the writ petition. For purpose of record it is observed that the writ petition was filed on 25.07.2011. The respondents are, therefore, directed to fix the pay of the petitioners in the said scale of `325-625/- from 01.01.1988 or any date when they have acquired their higher qualification, if the qualification is acquired within 31.12.1991 as per the Para-F of the office memorandum dated 07.12.1992. Thereafter, the pay shall be fixed till 25.07.2008 notionally and the petitioners shall be entitled to financial benefits from 26.07.2008. Needless to mention that after fixing the pay of the petitioners on 01.01.1988 or the date when they have acquired their qualification within 31.12.1991, their pay shall be fixed in terms of the revision of scales as subsequently carried out and accordingly, their financial benefit shall be released w.e.f. 26.07.2008.

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Mr. Sinha, learned counsel appearing for the petitioners has pointed out that some of the petitioners have retired by now. It is also clarified that the last pay of the petitioners who have retired from the service shall be re-fixed for purpose of revision of the pension and other retiral benefits, if any, in terms of this order.

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A copy of this judgment and order shall be furnished by the petitioners to the respondent No.2, the Director of School Education, now the Director of Elementary Education and after receipt of the copy of the said judgment and order, the respondents shall take all steps for releasing the financial

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W.P.(C) No.309 of 2011 Page 14 of 15

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benefits to the petitioners within a period of 8(eight) months therefrom. The petitioners shall furnish, if they have not furnished, the proof in respect of the date of publication of the result to the respondent No.2 for verifying those records before release of their financial benefits. Only the eligible teachers would get the benefit of this judgment and order.

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With this observations and direction, this writ petition stands allowed to the extent as indicated above.

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There shall be no order as to costs.

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JUDGE

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Sujay

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W.P.(C) No.309 of 2011 Page 15 of 15

Pramode Ch. Saha and 45 Ors. v. State of Tripura and 2 Ors.

Case brief

What is this about?

What did the court decide?

Pramode Ch. Saha and 45 Ors. v. State of Tripura and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

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