The question of removing anomaly in pay can arise only if both the senior and the junior belong to the same cadre: High Court of Tripura

 HIGH COURT OF TRIPURA WP(C) No.3319 Sri Subhas Chandra Barman @ Sri Subhas roy Chowdhury son of Sri Amulya Roy Chowdhury Regt. No.98050515 resident of HQR 2nd Battalion TSR village R.K. Nagar PO Khas Noagaon PS Bodhjungnagar District West Tripura. ......Petitioner(s) 1. The State of Tripura represented by the Secretary & Commissioner Department of Finance Government of Tripura having his office at New Secretariat Complex Gorkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. 2. The Secretary & Commissioner Department of Finance Government of Tripura having his office at New Secretariat Complex Gorkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. 3. The Commissioner & Secretary Department of Home Government of Tripura having his office at New Secretariat Complex Gorkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West Tripura. 4. The Under Secretary Home Department Government of Tripura having his office at New Secretariat Complex Gorkhabasti Agartala PO Kunjaban PS New Capital Complex Sub Division Sadar District West 5. The Director General of Police Government of Tripura having his office at Police Head Quarters PO Agartala PS West Agartala Sub Division Agartala West Tripura. 6. The Assistant Inspector General of Police Government of Tripura having his office at Police Head Quarters PO Agartala PS West Agartala Sub Division Agartala West Tripura. ......Pro forma Respondent(s) ......Official Respondent(s) 7. Sri Rabiya Debbarma son of Subindra Debbarma Regt. No.98050529 resident of HQR 2nd Battalion TSR village R.K. Nagar PO Khas Noagaon PS Bodhjungnagar District West Tripura Pin 799008. _B_E_F_O_R_E_ HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI For Petitioner(s) For Respondent(s) Date of Judgment & Order : 24th September 2021. : Mr. Somik Deb Sr. Advocate : Mr. Mangal Debbarma Addl. G.A. Mrs. Riya Chakraborty Advocate Whether fit for reporting : NO. JUDGMENT & ORDERThe petitioner has challenged a communication dated 20th August 2018 as at Annexure 11 to the petition and further prayed that his pay may be upgraded at par with the respondent No.7 who happens to be his junior. 2] Brief facts are that the petitioner joined the duty in Tripura State Rifles as a Riflemanon 02.11.1998. As against this respondent No.7 who is admittedly his junior joined the service in the same cadre on 24.12.1998. Thereafter the career graphs of the petitioner and respondent No.7 took slightly different turns. Reference to these relevant events would be made later. For the time being to notice the grievance of the petitioner he was drawing less pay than the respondent No.7 for the period between November 2001 till 01.07.2010 and thereafter again during the period between 10.02.2014 till 01.07.2016. The petitioner made a representation to the department on 07.07.2018 seeking removal of the anomaly in the pay. This representation came to be rejected by impugned order dated 20.08.2018 on the ground that the case of the petitioner does not fall within the rules pertaining to stepping up of pay. Thereupon the petitioner has approached this Court. 3] The respondents have appeared and filed reply in which the entire history of the pay fixations of the petitioner and respondent No.7 has been given and which reads as under : No.98050515 Nb Sub(Clerk) Subhas Chandra Barman alias Subhas Roy ChowdhuryNo.98010529 Nb Sub(MTO) Rabia Debbarma Proforma Respondent No.7) 1. Date of appointment as Rfn(GD) on 02.11.1998. 1. Date of appointment as Rfn(GD) on 24.12.1998. 2. Appointed to the post of Havildar on 10.02.2004 by way of transfer without promotional benefit as per Recruitment Rules. 2. Promoted to the post of L Naik on 28.11.2001. 3. Pay was stepped up with the pay of his junior colleague NK(Operator) Pankaj Malakar of 2nd Bn TSR w.e.f. 02.11.2008. 4. Further promoted to the post of Nb Subedaron 19.10.2009. 3. Promoted to the post of Naik on 4. Promoted to the post of Havildar on 5. Further promoted to the post of Nb Subedaron 10.02.2014. initially appointed as Rifleman(GD) on He was 02.11.1998 and his pay was fixed at Rs.950 in the pre revised scale of pay Rs.950 2180 under TSCS Revised Pay) Rules 1988 with DNI on 01.11.1999. initially appointed as Rifleman(GD) on He was 24.12.1998 and his pay was fixed at Rs.950 in the pre revised scale of pay Rs.950 2180 under TSCS Revised Pay) Rules 1988 with DNI on 01.12.1999. Thereafter under the TSCSRules 1999 his pay was revised at Rs.3 200 w.e.f. 02.11.1998 in the pre revised scale of pay Rs.3200 90 4280 100 5480 110 6030 with DNI on 01.11.1999. Thereafter under the TSCSRules 1999 his pay was revised at Rs.3 200 w.e.f. 24.12.1998 in the pre revised scale of pay Rs.3200 90 4280 100 5480 110 6030 with DNI on 01.12.1999. Pay raised as on 01.11.1999 Rs.3 290 Pay raised as on 01.12.1999 Rs.3 290 Pay raised as on 01.11.2000 Rs.3 380 Pay raised as on 01.12.2000 Rs.3 380 Pay raised as on 01.11.2001 Rs.3 470 He was promoted to the post of L Naik(A T) on 28.11.2001 and as per option exercised by him his pay was fixed at Rs.3 380 w.e.f. 28.11.2001 to 30.11.2001 and thereafter at Rs.3 650 w.e.f. 01.12.2001 under FR 22(I)(a)(1) in the pre revised scale of Rs.3200 6030 with DNI on Pay raised as on 01.11.2002 Rs.3 560 Pay raised as on 01.12.2002 Rs.3 740 Pay raised as on 01.11.2003 Rs.3 650 Pay raised as on 01.12.2003 Rs.3 830 He was appointed to the post of Havildar on 10.02.2004 by way of transfer form Rfn(GD) in the of Rs.3300 7100 without promotional benefit for transfer post as per Recruitment Rules. Accordingly his pay was fixed in the next above stage of corresponding scale at Rs.3 700 w.e.f. 10.02.2004 under FR.22(I)(a)(2) with DNI on He was promoted to the post of Naik(A T) on 11.03.2004 and his pay was fixed at Rs.4 010 w.e.f. 11.03.2004 under FR 22(I)(a)(1) in the pre revised scale of Rs.3200 6030 with DNI on Pay raised as on 01.02.2005 Rs.3 800 Pay raised as on 01.03.2005 Rs.4 100 Under the TSCS(RP)(12th Amendment) Rules 2015 his pay was revised in the pre revised scale of PB 2 Rs.5700 24000 with GP Rs.2 200 as under: Under the TSCS(RP)(12th Amendment) Rules 2015 his pay was revised in the pre revised scale of PB 2 Rs.5700 24000 with GP Rs.2 100 as under: Pay as on 01.01.2006 : Pay as on 01.01.2006 : Total : Spl. Pay as Naik : Rs.120 Total : Rs.4 100 Rs.4 220 Rs.7 850 Rs.2 100 Factor 1.86 : Grade Pay : Revised Pay as on : 01.01.2006 DNI Factor 1.86 : Grade Pay : Revised Pay as on : Rs.3 800 Rs.3 800 Rs.7 070 Rs.2 200 Rs.9 270 01.01.2006 DNI Rs.9 950 Pay raised as on 01.07.2006 Rs.9 550 Pay raised as on 01.07.2006 Rs.10 250 Pay raised as on 01.07.2007 Rs.9 840 Pay raised as on 01.07.2007 Rs.10 560 8460 + 2100) with DNI on 01.07.2008. He was further promoted as Hav(A T) on 15.11.2007 and his pay was fixed at Rs.10 980 w.e.f. 15.11.2007 under FR 22(I)(a)(1) in the pre revised scale of pay PB 2 Rs.5700 24000 and GP Rs.2 200 with DNI on 01.07.2008. Pay raised as on 01.07.2008 Rs.10 140 Pay raised as on 01.07.2008 Rs.11 310 Under TSCS(RP)Rules 2013 his pay was stepped up with the pay of his junior colleague namely Naik(Opr) Pankaj Malakar of 2nd Bn TSR at Rs.10 510 w.e.f. 02.11.2008 in the pre revised scale of pay PB 2 Rs.5700 24000 and GP Rs.2 200 with DNI on 01.07.2009. Pay raised as on 01.07.2009 Rs.10 830 with DNI on 01.07.2010 Pay raised as on 01.07.2009 Rs.11 650 He was promoted to the post of Nb Sub(Clerk) on 19.10.2009 and his pay was re fixed notionally at the entry pay of Rs.13 500 9300+4200) w.e.f. 19.10.2009 in the pre revised scale PB 2 Rs.5700 24000 and Grade Pay of Rs.4 200 with DNI on FD’s Memo.No.F.6(1) FIN(PC) 2008 dated 26.08.2019 Pay raised as on 01.07.2010 Rs.13 910 Pay raised as on 01.07.2010 Rs.12 000 Pay raised as on 01.07.2011 Rs.14 330 Pay raised as on 01.07.2011 Rs.12 360 Pay raised as on 01.07.2012 Rs.14 760 Pay raised as on 01.07.2012 Rs.12 730 Pay raised as on 01.07.2013 Rs.15 210 Pay raised as on 01.07.2013 Rs.13 120 with DNI on 01.07.2014 Pay raised as on 01.07.2014 Rs.15 670 fixed at Rs.15 120 He was promoted to the post of Nb Sub(MTO) on 10.02.2014 and as per option exercised by him his pay 10920+4200) w.e.f. 10.02.2014 to 30.06.2014 and thereafter at Rs.15 930 10920+400+410+4200) w.e.f. 01.07.2014 under FR 22(I)(a)(1) in the pre revised scale PB 2 Rs.5700 24000 and Grade Pay of Rs.4 200 with DNI on Pay raised as on 01.07.2015 Rs.16 140 Pay raised as on 01.07.2015 Rs.16 410 Pay raised as on 01.07.2016 Rs.16 630 with DNI on 01.07.2017 Pay raised as on 01.07.2016 Rs.16 910 with DNI on 01.07.2017 Under the TSCS(RP) Rules 2017 his pay was revised at Rs.38 520 w.e.f. 01.04.2017 the Pay Matrix’2017 at Level 10 and Cell 09 with DNI on Under the TSCS(RP) Rules 2017 his pay was revised at Rs.38 520 w.e.f. 01.04.2017 in the Pay Matrix’2017 at Level 10 and Cell 09 with DNI on 01.07.2017. Pay raised as on 01.07.2017 Rs.39 680 Pay raised as on 01.07.2017 Rs.39 680 Pay raised as on 01.07.2018 Rs.40 880 Pay raised as on 01.07.2018 Rs.40 880 Under the TSCS(RP)Rules 2018 his pay was revised at Rs.48 000 w.e.f. 01.10.2018 in the New Pay Matrix’2018 at Level 10 and Cell 12 with DNI on 01.07.2019. Under the TSCS(RP)Rules 2018 his pay was further revised at Rs.48 000 w.e.f. 01.10.2018 in the New Pay Matrix’2018 at Level 10 and Cell 12 with DNI on 01.07.2019. Pay raised as on 01.07.2019 Rs.49 400 with DNI on Pay raised as on 01.07.2019 Rs.49 400 with DNI on 4] Learned counsel for the petitioner pointed out that after his initial appointment as a Rifleman on 02.11.1998 the petitioner was appointed on the post of Havilderon 10.02.2004 which was treated as a transfer though the post of Havilderwas two stages higher than the post of RiflemanNo.330 of 2019 in which according to him under similar circumstances the Court had directed the department to fix the pay of the petitioner by upgrading it to the level of his junior. 5] However in my view the case of Tejaram Khareshyais not comparable. In the case of Tejaram Khareshyathe petitioner and his junior Dulal Chandra Das both started their service in Tripura State Rifles as Riflemanon 23.08.2001 by way of transfer without any financial benefits. Sometime thereafter Dulal Chandra Das was promoted to the post of Lance Naik on 01.03.2002. This resulted into benefit of one pay fixation on promotion in favour of Dulal Chandra Das which the petitioner therein lost out since his posting on the higher post was considered only a transfer and not promotion. This resulted into pay anomaly between the petitioner and the private respondent and continued for a long time. It was under such circumstances the Court had directed the department to upgrade the pay of the petitioner to that to the level of his junior. 6] In the present case the crucial difference is that both the petitioner and respondent No.7 having entered service as Riflemanin the year 1998 respondent No.7 was first promoted to the post of Lance Naik on 28.11.2001. Naturally therefore respondent No.7 started receiving pay in the promotional post which would be higher than that of the petitioner. The petitioner did not raise any grievance or challenge to the promotion of respondent No.7 to his exclusion. It is true that subsequently in the year 2004 the petitioner was posted on a higher post by way of transfer without benefit of pay fixation. This was a subsequent event and had nothing to do with the claim of the petitioner for promotion to the post of Lance Naik when respondent No.7 was promoted nearly three years earlier. If the petitioner was unhappy about this promotion he ought to have challenged the same. The rest of the pay fixations follow the same pattern and the consequent disparity in pay of the petitioner vis a vis his junior stem from this fact. As is well settled the question of removing anomaly in pay by upgradation of the pay of the senior to the level of his junior can arise only if both the senior and the junior belong to the same cadre and upon promotion to the same next promotional post which is also the same for both the senior starts drawing less pay than the junior. These vital conditions are not fulfilled in the present case. Under the circumstances Petition is dismissed. Pending application(s) if any also stands disposed of. CJ 7] 8] 

Summary: The question of removing anomaly in pay by upgradation of the pay of the senior to the level of his junior can arise only if both the senior and the junior belong to the same cadre and upon promotion to the same next promotional post which is also the same for both, the senior starts drawing less pay than the junior as held by the Hon’ble High Court of Tripura through the learned bench led by Justice Akil Kureshi in the case of Sri Subhas Chandra Barman v. The State of Tripura and Ors. (WP(C) No.332 of 2019). Brief facts are that the petitioner joined the duty in Tripura State Rifles as a Rifleman (GD) on 02.11.1998. As against this, respondent No.7 who is admittedly his junior, joined the service in the same cadre on 24.12.1998. Thereafter, the career graphs of the petitioner and respondent No.7 took slightly different turns. For the time being to notice the grievance of the petitioner, he was drawing less pay than the respondent No.7 for the period between November, 2001 till 01.07.2010 and thereafter again during the period between 10.02.2014 till 01.07.2016. The petitioner made a representation to the department on 07.07.2018 seeking removal of the anomaly in the pay. This representation came to be rejected by impugned order dated 20.08.2018 on the ground that the case of the petitioner does not fall within the rules pertaining to stepping up of pay. Thereupon, the petitioner has approached this Court. The Hon’ble Court held, “ In the present case, the crucial difference is that both the petitioner and respondent No.7 having entered service as Rifleman (GD) in the year 1998, respondent No.7 was first promoted to the post of Lance Naik. Naturally therefore, respondent No.7 started receiving pay in the promotional post which would be higher than that of the petitioner. The petitioner did not raise any grievance or challenge to the promotion of respondent No.7 to his exclusion. It is true that subsequently in the year 2004 the petitioner was posted on a higher post by way of transfer without benefit of pay fixation. This was a subsequent event and had nothing to do with the claim of the petitioner for promotion to the post of Lance Naik when respondent No.7 was promoted nearly three years earlier. If the petitioner was unhappy about this promotion, he ought to have challenged the same. The rest of the pay fixations follow the same pattern and the consequent disparity in pay of the petitioner vis-a-vis his junior, stem from this fact. The vital conditions of removing anomaly in pay are not fulfilled in the present case. Under the circumstances, Petition is dismissed.”