KESHAB DEBNATH Vs. STATE OF TRIPURA

JUDGEMENT

(1.) Whether a senior Medical Officer is entided to get his pay stepped up to the pay of his junior in the given facts and circumstances of the case is the only question this court is called upon to decide in the present writ petition.

(2.) The factual position, which is almost undisputed, giving rise to the present controversy in a short compass is that the petitioner Dr. Keshab Debnath was appointed as Medical Officer in Grade-V of the Tripura Health Service (for short THS') on 17.11.1975 on ad hoc basis. Dr. Guru Prasad Debroy, the fifth respondent herein, was appointed to the same Grade of THS on ad hoc basis on 8.7,1974. Dr. Jagannath Muhury, the sixth respondent herein, was appointed to that Grade of THS on 18.11.1975 on ad hoc basis. All the three Medical Officers were appointed on regular basis on the recommendation of the Tripura Public Service Commission (for short TPSC') on 7.5.1976 showing tliem at serial Nos. 2, 3 and 6 respectively in the notification dated 21.6.1976. Dr. (Mrs.) Ruplekha Chakraborty, the seventh respondent herein, was directly appointed on regular basis on 31.1.1977. Thus the above three respondents are admittedly juniors to the petitioner. This has been reflected in the seniority list of Medical Officers in Grade-V of THS in which the petitioner has been shown at serial No. 55, fifth, sixth and seventh respondtents at serial Nos. 56, 59 and 66 respectively. On 16.4.1982, thirteen Medical Officers including the above three respondents were promoted to Grade-IV of the THS on ad hoc basis leaving the petitioner in the lower Grade. It is his grievance that while promoting the above respondents to Grade-IV, the petitioner, though senior to all of them, was not considered for promotion to that Grade. The result was the junior Medical Officers started to get higher pay scale while the petitioner remained in the lower scale of pay. On 19.4.1982, the petitioner submitted a representation seeking redress, but the same could evoke no response. During 1982-83 he along with seventh respondent were sent to Calcutta University for Diploma in Child Health (for short 'DCH'), which he completed successfully. Both of them were given an additional increment with effect from 21.11.1983 in terms of the Rules. On 11.4.1983, nineteen Medical Officers including the petitioner and the above three respondents were promoted to Grade-IV of the service, but while in the case of above three respondents including some others the date of effect of such promotion was given from 1.3.1983, in case of petitioner it was specifically provided that the promotion would take effect from the date of his joining in the Grade. At that time the petitioner was prosecuting DCH in Calcutta University on completion of which he could join the higher Grade only on 17.9.1983. He submitted his second representation on 20.2.1988 for stepping up of his pay to his three juniors, whose pay was fixed at a higher stage because of their earlier promotion on ad hoc basis and because of the petitioner's joining in the promotion Grade at a later date However, on 17.3.1990 a corrigendum was issued providing that the date of effect of promotion of the petitioner in Grade-IV of the THS would take effect from 1.3.1983, the same date when the promotion of fifth, sixth and seventh respondents had taken effect. This was an attempt to remove grievances of the petitioner. But though his promotion had taken effect from 1.3.1983 by virtue of the corrigendum, the fact remained that the petitioner could join the higher Grade only on 17.9.1983 and, therefore, his pay in the higher Grade was fixed counting his pay from the date of joining in the promotion Grade resulting thereby continued lesser pay than his above three juniors. From a memorandum dated 6.11.1992 (Annexure-8), showing release of increments of the Medical Officers, the petitioner for the first time came to know that in November, 1992, his pay was much less than sixth and seventh respondents. While his basic pay was only Rs. 4560/-, the sixth and the seventh respondents were drawing the basic pay of Rs. 4660/- and 4865/- respectively. On 16.6.1994, the petitioner submitted another representation for stepping up of his pay, which was considered by the appropriate State respondent and on 18.9.1995, the Director of Health Services (for short 'DHS'), the fourth respondent herein, intimated the petitioner that there is no provision in the Revision of Pay Rules, 1988 (for short 'ROP, 1988') for stepping up the pay of the petitioner equal to the pay drawn by his juniors in the facts and circumstances of his case. By this writ petition the petitioner has sought appropriate direction for redress of his grievance that due to ad hoc promotion of the above three juniors on 16.4.1982 superseding him and his promotion to Grade-IV w.e.f. 1.3.1983 without corresponding financial benefit resulted to the pay anomaly is not sustainable in law.

(3.) The State respondents filed a consolidated counter-affidavit admitting that the petitioner is senior to the fifth, sixth and seventh respondents in both Grade-V and Grade-IV of THS, but contending, inter alia, that the reasons for the juniors drawing higher pay are different, which cannot be said to be unjustified in the given facts and circumstances of the case. As regards seventh respondent, the contention is that before induction in Grade-V of THS on 31.1.1977, she was a Medical Officer in the Central Health Services since June, 1972. Considering her past service, her pay was fixed in Grade-V of the THS at the stage of Rs. 660/- plus Rs. 20/- personal pay in the scale of Rs. 500-1300/- with the date of next increment on 31.1.1978 under Fundamental Rule 27 (for short 'FR27'). This was done in accordance with the Govt. of India's decision No. 35 below FR 27 with the concurrence of the Finance Department. As a result of such fixation, she became entitled to draw higher pay than the normal pay of the Grade. As regards Dr. Jagannath Muhury, the sixth respondent herein, it is contended that he exercised option of coming over to the revised pay scale of Rs. 3200-5600/- w.e.f. 28.9.1987 though the ROP, 1988 came into effect from 1.1.1986. On the other hand, the petitioner exercised his option for the revised pay w.e.f. 21.11.1987. The options were exercised by them in terms of the provisions of the ROP, 1988, which came into effect from 1.1.1986. The said Rules provides for the manner of fixation of pay following the exercise of option according to which the existing emolument has to be worked out and then fixed to a stage of the revised scale of pay next above the emolument so worked out. Thereafter, one increment for 15 years of total continuous service rendered by the officer before 1.1.1986, one for every five years of total continuous service from the date of coming over to the revised pay scale subject to maximum of two increments were added. While making the fixation in accordance with the provisions of the said ROP, 1988, the respondent No. 6 had to be given one more increment on his completion of five years in Grade-IV from the date of his coming over to the revised scale of pay as per the option exercised by him. But as the petitioner did not complete five years of service in Grade-IV on the date of his coming over to the revised pay as per option exercised by him, he could not be given the benefit of another increment like the sixth respondent. Further contention of the respondents is that the fifth and sixth respondents were appointed in Grade-IV of the THS on ad hoc basis vide notification dated 16.4.1982 and as their services were utilized since then, they were entitled to the monetary benefit of the higher pay scale and increments which fact is also an important factor for the petitioner drawing a pay lesser than them. Thus the pay differences between the petitioner and the three respondents as noted above, which is not the result of any arbitrary or illegal action and has been caused due to fixation of pay in accordance with the Rules, cannot be the subject matter of the writ proceeding.