Article 309 Constitution | Right To Receive Correct Salary & Allowances Under Relevant Statutory Rules Is A Vested Right: Tripura High Court

The observation came from Justice T Amarnath Goud:

"It has been further submitted that the ROP Rules, 2009 and the subsequent amendments thereof, are instances of statutory laws, enacted by the government of Tripura under the Proviso to Article-309 of the Constitution of India, which has ipso jure created a vested right, in favour of the petitioners and hence, by mere issuance of a letter in the style & fashion of the memorandum i.e. the memorandum dated 26.08.2019, the said vested right of the petitioners cannot be impaired. It is the trite law that the right to receive the correct salary & allowances under the relevant statutory rules is a vested right and such vested right cannot be impaired by an administrative instruction/circular letter."

The case of the petitioners is that the petitioners were promoted to the post of Subedar (Accountant) and Subedar (Head Clerk), under the department of TSR. They alleged to have been deprived from getting their legitimate pay fixation benefits on their promotion, resulting in pecuniary loss.

The petitioners sent a demand notice, thereby urging before the respondents to re-fix their pay, in conformity with the prescriptions, contained in Rule-12(i) of the ROP Rules, 2009.

Before High Court the Petitioner argued that initially on 28.04.2001, the petitioners were appointed to the post of Rifleman, under the Tripura State Rifles (TSR, for short) and subsequently, on transfer or promotion they were promoted to the Subedar (Accountant) TSR and similar to this post. In exercise of the powers conferred under the Proviso to Article-309 of the Constitution of India, for regulating the pay and related benefits of the employees of the State of Tripura, the government of Tripura had framed the Tripura State Civil Services (Revised Pay) Rules, 2009.

He argued that the basic pay drawn in the feeder/lower post, just prior to the promotion to the post of Subedar (Accountant) was less than the minimum revised pay of higher PB-3, to which the petitioners were promoted. Moreover, the sum of computed pay of feeder/lower post along with grade pay of higher post to which they were promoted (Computation methodology refers to Rule 12(i) of the ROP Rules, 2009) was also less than the minimum revised basic pay of the post to which they were promoted.

"Due to some inconsistent guidelines along with some examples, contained in the memorandum dated 21.06.2013, issued by the Deputy Secretary, Finance Department, Government of Tripura, for fixation of pay of a government employee on promotion to a higher post or grade, the petitioners have been deprived from getting their legitimate pay fixation benefits on their promotion to their respective posts." Petitioner submitted

Addl. Government counsel submitted that all the petitioners' rate of increment will be lesser because of the fact that rate of increment has been calculated 21 /2 % as the petitioners were got promotion on or before 30th June, 2010. But employees who got promotion on or after 1st July, 2010 rate of increment will be calculated 3% as per Rule-12 of the ROP Rules, 2009.

He submitted that as per TSCS (Revised Pay) 12th Amendment, Rules 2015 the promotion to the post of Subedar (Account) involves a change in the pay band i.e. from PB2 Rs. 5,700-24,000 along with Grade Pay of Rs.4,200/- to the higher PB-3 Rs. 10,230-34,800/- along with Grade Pay of Rs.4,800/-. Moreover, pay of the petitioner on promotion to the higher post of Subedar (Accountant) has already re-fixed at the entry pay of the promotion post notionally.

Court noted that it is trite law that under the substantive part of Article-309 of the Constitution of India both the Parliament as well as the State Legislature has the legislative competence, to make laws regulating the recruitment, and conditions of service of persons, appointed to public services and posts in connection with the affairs of the Union/State, subject however, in case of Parliament, such law, made under the substantive part of Article-309 of the Constitution of India is not in abrogation with a law, made under entry-70 of List-I of the 7th Schedule of the Constitution of India.

It was further observed that it is trite law that under the substantive part of Article-309 of the Constitution of India both the Parliament as well as the State Legislature has the legislative competence, to make laws regulating the recruitment, and conditions of service of persons, appointed to public services and posts in connection with the affairs of the Union/State, subject however, in case of Parliament, such law, made under the substantive part of Article-309 of the Constitution of India is not in abrogation with a law, made under entry-70 of List-I of the 7th Schedule of the Constitution of India.

After perusing the documents on record and submissions made by the two sides, the counsel argued that the rules of 2017 which came into force subsequent to 2009 and the cutoff date for the purpose of considering the case of the petitioners' for monitory benefits. Hence, the 2017 rules cannot have the retrospective effect and thus, the case of the petitioners needs to be considered.

"ROP Rules, 2009 and the subsequent amendments thereof, are the instances of statutory laws, enacted by the government of Tripura under the Proviso to Article-309 of the Constitution of India, which has ipso jure created a vested right, in favour of the petitioners and hence, by mere issuance of a letter in the style & fashion of the memorandum" Court said

In view of the above, the court opined that the present batch of petitions shall be allowed and directed the respondents to consider the case of the petitioners without reference to the impugned memorandum.

Case Title : Sri Nayan Das V The State Of Tripura And Ors With Connected Matters

Citation: 2022 LiveLaw (Tri) 30

Click Here To Read/Download Judgment