IN THE HIGH COURT OF TRIPURA

A G A R T A L A

W.P.(C) No.446 of 2024

Sri Chittaranjan Das,

son of late Jatindra Kumar Das, resident of

village & P.O. Fulkumari, P.S. R.K. Pur,

District- Gomati Tripura, PIN-799013

……… Petitioner (s)

– V e r s u s –

1. The State of Tripura,

represented by the Commissioner &

Secretary to the Department of Agriculture &

Farmers Welfare, 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,

Department of Agriculture & Farmers

Welfare, Government of Tripura, Krishi

Bhavan, Akhaura Road, P.O. Agartala, P.S.

West Agartala, Sub-Division- Sadar, District-

West Tripura

3. The Deputy Director,

Horticulture, South Tripura, Government of

Tripura, Shantirbazar, District- South Tripura

4. The Accountant General (A & E),

Tripura, P.O. Kunjaban, P.S. New Capital

Complex, Sub-Division- Sadar, District- West

Tripura

5. The Senior Accounts Officer,

Office of the Accountant General (A & E),

Tripura, P.O. Kunjaban, P.S. New Capital

Complex, Sub-Division- Sadar, District- West

Tripura

………… Respondent(s)

Page 2 of 15

For the Petitioner (s) : Mr. Koomar Chakraborty, Adv.

For the Respondent (s) : Mr. Kohinoor N. Bhattacharya, GA

Mr. N. Majumder, Adv.

Date of hearing : 07.10.2024

Date of delivery of : 27.03.2025

Judgment & order

Whether fit for reporting :

HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA

JUDGMENT & ORDER

The case of the petitioner, in brief, is that he was

appointed as Lower Division Clerk vide office order dated

25.05.1987 issued by the respondent No.2 in the pay scale of

Rs.430-850/-. Accordingly, he joined to the post on 15.06.1987

and on completion of 10 years of satisfactory service, he was

provided first financial upgradation w.e.f. 15.06.1997. Thereafter,

vide office order dated 13.05.2002 (Annexure-2 to the writ

petition) he was promoted to the post of Upper Division Clerk and

finally he was promoted to the post of Head Clerk vide office

order dated 11.08.2011 (Annexure -3) in the pay scale of

Rs.5000-10300/- (pre-revised). By the lapse of time, on attaining

the age of superannuation, the petitioner ultimately went on

retirement on 31.05.2021 from the post of Head Clerk from the

office of the Deputy Director, Horticulture Department,

Government of Tripura, South Tripura, Shantirbazar with his last

basic pay of Rs.60,800/-.

YES NO

√

Page 3 of 15

[2] On his superannuation, the Deputy Director of

Horticulture vide sanction memo dated 28.05.2021 (Annexure-4)

calculated his total gratuity amount to be Rs.10,03,400/- (with

the maximum ceiling limit of Rs.10,00,000/-) and 75% of the

said amount i.e. Rs.7,50,000/- was sanctioned as provisional

gratuity and the rest 25% was withheld . Similarly vide another

sanction memo dated 28.05.2021 an amount of Rs.6,26,240/ -

was sanctioned as amount of leave salary and both the amounts

were calculated treating his basic pay to be Rs.60,800/-.

[3] After the pension proposal of the petitioner was

forwarded to the office of the Accountant General, the letter

dated 25.08.2021 (Annexure-5) was communicated by the

Assistant Accounts Officer of the office of Accountant General (A

& E) to the said Deputy Director of Horticulture, Shantirbazar

indicating that the fixation of pay of the petitioner under ROP

Rules, 2009 appeared to be incorrect in the service book and his

pay ought to have been fixed at Rs.5,160/- instated of Rs.5,280/-

as on 01.01.2006 i.e. having a difference of Rs.120/-. As per said

calculation, the office of the Accountant General came to the

conclusion that the last basic pay of the petitioner would be

Rs.59,000/- instead of Rs.60,800/- and a request was made by

them to said Deputy Director of Horticulture to resubmit the

service book of the petitioner after making proper entries of

refixation of pay under ROP, 2009 and ROP, 2017 along with

revised IPS and connected due and drawn statement of pay and

Page 4 of 15

allowances w.e.f. 01.01.2009 to 30.11.2012 under factor

1.74, w.e.f 01.12.2012 to 31.03.2015 under factor 1.86,

Grade Pay w.e.f. 01.04.2015 to 31.03.2017 and thereafter,

w.e.f. 01.07.2017 to 31.05.2021 along with leave salary for

finalisation of the case at their end. It was also stated in the said

communication that the pension and commuted value of the

pension were already released on the basis of last pay of

Rs.59,000/- as per the above said fixation of pay regulation

withholding gratuity which would be released on receipt of the

reply from the office of the Deputy Director of Horticulture.

[4] Another letter was also issued on 27.10.2021

(Annexure-7) by the Senior Accounts Officer of said office to said

Deputy Director of Horticulture stating further that the refixation

of pay of the petitioner under ROP, 1999 also appear ed to be

incorrect inasmuch as it was not clearly mentioned in the service

book about the change of DNI as on 01.01.1998 instead of

01.06.1998 and therefore, request was made from the office of

the Accountant General to the said office of Deputy Director of

Horticulture to re-examine the matter again. Another ground was

also raised from the office of the Accountant General through

their another communication dated 04.01.2022 addressed to said

Deputy Director of Horticulture, Shantirbazar stating that in view

of the notification dated 24.06.2008 issued by the Finance

Department, the substituted provision of FR-22(I) (a) (2) as per

notification No.F.19(1)-FIN(G)/83 dated 03.10.1999 shall be

Page 5 of 15

applicable in case of movement under CAS of Tripura State Civil

Services (Revised Pay) Rules, 1999 and the date of next

increment (DNI) along with the scope for exercising option shall

be regulated as per provision of FR-22(I) (a) (2) w.e.f.

01.01.1999 but as per service book of the petitioner, it was found

that he got the first gradation on 15.06.1997. Therefore, further

request was made to the said Deputy Director to re-examine the

matter and in case of necessity to communicate with the Finance

Department and to resubmit the service book after proper

fixation of pay regulation along with views of Finance Department

and the revised IPS & LPC. Again similar letter on 20.12.2022

(Anexure-7) was also issued by Senior Accounts Officer. Further

on 08.06.2023 (Annexure-8) the senior Accounts Officer

communicated said Deputy Director of Horticulture with a request

to furnish the revised LPC at Rs.59,000/- as per refixation of pay

in the service book of the petitioner along with such due and

drawn statement under proper attestation for authorisation of the

gratuity at their end.

[5] A specimen of the due and drawn statement of the

petitioner was also sent along with the said communication under

Annexure 8 to the office of the Deputy Director by the Senior

Accounts Officer wherein an amount of Rs.1,24,576/- was shown

to be paid in excess from the pay and allowances and further

Rs.18,540/- was shown to be paid as excess payment of leave

salary.

Page 6 of 15

[6] The petitioner then sent a representation to the

respondents on 26.12.2023 (Annexure-9) with a request to

release his rest amount of gratuity along with interest @ 9% per

annum and also to reissue his PPO correcting the same to be

Rs.60,800/- and also to calculate his pensionary bene fits

considering his last basic pay to be Rs.60,800/ - in place of

Rs.59,000/-.

[7] As no response was received from the respondents by

the petitioner in respect of the said representation, he also issued

one legal notice on 01.05.2024 (Annexure-10) through his

learned counsel ventilating his grievances again, to which the

Deputy Director of Horticulture, Shantirbazar vide his letter dated

21.05.2024 (Annexure-11) informing that as per the demand of

the petitioner, the application along with service book and due

and drawn statement were sent to the office of the Director,

Horticulture and Soil Conservation vide letter dated 08.08.2023

and then same was sent to the office of Director of Agriculture &

Farmers Welfare, Tripura for correction of his basic pay. The

Senior Accounts Officer also sent a reply against the said legal

notice vide his letter dated 03.05.2024 (Annexure-12) informing

the above said communications made by them and the replies of

their office letters dated 20.12.2022 and 08.06.2023 from th e

concerned department with views of the Finance Department

were still awaited and therefore, they were not in a position to

issue GPO in favour for the petitioner unless and until the proper

Page 7 of 15

reply is received from the concerned department. The petitioner

thereafter has approached this court under Article 226 of the

Constitution seeking redresses.

[8] It is also agitated that other two employees, namely

Dhirendra Kumar Das and Badal Majumder as similarly situated

with the petitioner who joined in the service with the petitioner

and also got promotion in the post of UDC by the same

notification, went on retirement on 30.06.2021 and 31.01.2019

respectively and in the case of Dhirendra Kr. Das, his last basic

pay was maintained at Rs.60,800/ - and the last basic pay of

Badal Majumder was determined to be Rs.59,000/ - considering

his early date of retirement but illegally the last pay of the

petitioner was reduced.

[9] During hearing, Mr. Koomar Chakraborty, learned

counsel appearing for the petitioner argues before this court that

before reducing such last basic pay of the petitioner, no show

cause notice was issued to him and actually, the bunching benefit

by way of one increment of Rs.120/- was not provided to the

petitioner w.e.f. 01.01.2006 by the office of the Accountant

General rather it was provided w.e.f. 01.06.2006 wrongly and for

that reason, illegally the last basic pay of the petitioner was

reduced to Rs.59,000/-. In this regard, learned counsel Mr.

Chakraborty also referred to Rules 3 (1)(k) and 7 of the ROP

Rules, 2009 which are extracted hereunder:

Page 8 of 15

3(1)(k) bunching benefit-the term bunching benefit means that

the older employee shall be given the benefit of one increment in

the existing pay for 10 completed years of service from the date of

entry into the State Govt. service under regular scale and two

increments for 20 completed years of service from the date of entry

in the State Govt. service under regular scale. The benefit provided

shall be treated as a one time measure at the time of fixation only

under these rules i.e. on the date of coming over to the revised

scale;

………. ………. ……….

7. Fixation of initial pay in revised pay structure-(1) The initial

pay of the Government employee who e lects or is deemed to have

elected under rule 6 to be governed by the revised pay structure

incorporated in these rules on and from the 1

st

day of January,

2006, shall, unless in any case the Governor by special order or

otherwise directs, be fixed in the following manner, namely:-

(i) for the purpose of fixation of initial pay in the

revised pay structure effective from 1

st

January,

2006 bunching benefit in the form of one increment

shall be provided in the existing scale of pay of the

concerned employee for 10 completed years of

service from the date of his/her direct entry in the

cadre service of the State Government or, as the

case may be, in the State Government Department.

Subject to fulfilment of these criterion, those who

have completed further 10 years of service, i.e. total

20 years of service wil l be provided further one

increment in the existing scale for the purpose of

fixation of initial pay in the revised pay structure.

The reference date for calculation of completed

years of service of 10/20 years will be 31

st

December, 2005. This -bunching benefit would be

admissible only as a one time measure for the

purpose of revision under these rules .

(ii) on providing the bunching benefit, increment(s)

provided under rule 11 & 13 and benefits provided under

rule-14 of these rules for the eligible cases to the existing

basic pay, pay in the pay band of the employee who

continued in service after 31

st

December, 2005, shall be

determined notionally as on 1

st

day of January, 2006 or

the date of coming over to the revised pay scale as per

option exercised, by way of multiplying with a factor of

1.74 and rounding off the resultant figure to the next

multiple off 10;

Provided that if the minimum of the revised pay band is

higher than the amount so arrived at in accordance with

the provisions of this item, the pay shall be fixed at the

minimum of the revised pay band;

(ii) After the pay in the pay band so determined, grade

pay corresponding to the existing scale shall be added;

(2) Subject to compliance of rule-6, the initial substantive pay of the

employee in the permanent post on which he holds lien or would

have held a lien had his lien not been suspended, and in respect of

his pay in the officiating post held by him shall be fixed separately in

the manner indicated in sub rule(1);

Page 9 of 15

[10] It is also argued by Mr. Chakraborty, learned counsel

that the deduction of any amount on the ground of wrong fixation

for a period w.e.f. 01.01.2006 or w.e.f. 01.01.1998 as the case

may be, was not permissible in view of the decision of the Apex

Court rendered in State of Punjab and others vs. Rafiq Masih

(White Washer) and others , (2015) 4 SCC 334. According to

Mr. Chakraborty, learned counsel, illegally the gratuity amount

has been withheld which is required to be released immediately

with interest and the last pay of the petitioner should be fixed at

Rs.60,800/- in place of Rs.59,000/-.

[11] Mr. Kohinoor N. Bhattacharya, learned GA appearing

for the State-respondents submits that the rest amount of

gratuity was withheld by the office of the Accountant General for

the reason of erroneous pay fixation of the pay of the petitioner

and the petitioner also submitted one option form by way of

undertaking to refund to the government the excess payment, if

any, drawn by him on account of erroneous fixation in the revised

pay structure. He also submits that when the erroneous fixation

was detected by the office of the Accountant General, the last

basic pay was also reduced after making necessary correction as

per rules and nothing illegality or arbitrary was done by the

respondents.

[12] Mr. N. Majumder, learned counsel appearing from the

side of the Accountant General i.e. the respondents Nos.4 & 5,

Page 10 of 15

submits that as per Rule 7 of ROP Rules, 2009 proper calculation

of the fixation of pay of the petitioner was done from the office of

the Accountant General as per norms and therefore, no

irregularity and illegality were committed by the respondents

No.4 & 5. He also refers to the letter dated 25.08.2021 of

Assistant Accounts Officer under Annexure -5 addressed to the

Deputy Director of Horticulture as discussed earlier. According to

Mr. Majumder, learned counsel , the last basic pay of the

petitioner was correctly refixed at Rs.59,000/- from the office of

the Accountant General and therefore, there is no merit in the

writ petition.

[13] Regarding the plea raised from the side of the

petitioner about not providing the bunching benefit by way of one

increment of Rs.120/- under Rule 7 of the ROP Rules, 2009 w.e.f.

01.01.2006 on completion of 10 years of service from the date of

direct entry in the service, Mr. Majumder, learned counsel during

hearing on 25.09.2024 submitted that an additional affidavit in

this regard would be submitted on behalf of the respondents No.4

& 5 with further clarification as to whether such benefit was

provided to the petitioner or not and then an additional affidavit

was also submitted from the side of the said respondents ,

inter alia, in the following terms:

“……..In this instant case the pay regulation was found

incorrect w.e.f. 01.01.1998 because the concerned

Department had wrongly fixed the pay giving benefit of 1

st

Gradation after 10 years from the date of joining as per

office order vide F.2(516) -Agri(Estt)/2011-12/10221-84,

Page 11 of 15

dated 05.05.2012, which does not match with the

Notification issued by the Finance Department, Govt. of

Tripura vide No.F.6(1)-FIN(PC)/98, dated 24.06.2008 at Sl.

No.2(c) wherein it has been mentioned that the Date of next

increment (DNI) alongwith the scope for exercising option

shall be effective from 01.01.1999 but the writ petitioner had

got this benefit w.e.f. 01.01.1998. In this connection the

concerned Department fixed the pay w.e.f. 01.01.2006 at

Rs.5,280/- and had been found incorrect for revised pay

regulation under RO P, 2009 and this office communicated

the concerned Department on several occasions regarding

this wrong fixation of pay vide letter dated 27.10.2021,

04.01.2022, 20.12.2022 & 08.96.2023 (which are mentioned

in the writ petition, this office communicated with the

concerned Department on several occasions re garding the

wrong fixation of pay regulation vide letter dated

27.10.2021, 04.01.2022, 20.12.2022 & 08.06.2023 (which

are mentioned in the writ petition). On receipt of reply from

the concerned department along with the correct pay

regulation this office will authorized withheld pensionary

benefits.

[14] However, no straight forward reply was given by the

respondents No.4 & 5 in the said additional affidavit about

providing of bunching benefit under Rule 7 of ROP Rules, 2009.

In support of the plea of St ate-respondents in respect of

execution of ‘undertaking’ by the petitioner, they submitted such

undertaking as Annexure-E with their counter affidavit but it

manifests that the same was executed on 05.08.2021 i.e. after

two months of the retirement of the petitioner and not at the

time of fixation of pay as per ROP or prior thereto. Therefore, the

said document is not much relevant. However, another option

form was also signed by the petitioner regarding fixation of his

pay w.e.f. 01.01.2006, as relied on by State-respondents, giving

the undertaking that he would be liable to refund the excess

amount drawn by him in case of any wrong fixation. Be that as it

may, said fact will be examined in different perspective in the

light of the judgment of the Apex Cou rt as to whether such

Page 12 of 15

refund after retirement about any wrong fixation done long ago

would be harsh and iniquitous towards the petitioner or not.

[15] Now 2(two) questions c ome up for consideration

before this court i.e. (i) the matter of alleged wrong fixation of

pay by the office of the Accountant General and (ii) the matter of

recovery of amount on the ground of alleged wrong fixation. So

far the second question i.e. the matter of recovery is concerned,

from the correspondences made from the office of the Accountant

General, it is clear that the wrong fixation was either w.e.f.

01.01.1998 or latest by 01.01.2006. Admittedly, the petitioner

was a Group-C employee and he had no contribution in such

wrong fixation, if any. In Rafiq Masih (supra), some situations

have been postulated by the Hon’ble Supreme Court wherein

recoveries by the employer was held to be impermissible in law

and the relevant paragraph No.18 thereof, is extracted

hereunder:

18. It is not possible to postulate all situations of

hardship, which would govern employees on the issue

of recovery, where payments have mistakenly been

made by the employer, in excess of their entitlement. Be

that as it may, based on the decisions referred to

hereinabove, we may, as a ready reference, summarise

the following few situations, wherein recoveries by the

employers, would be impermissible in law:

(i) Recovery from employees belonging to Class -III and

Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employe es who

are due to retire within one year, of the order of

recovery.

(iii) Recovery from employees, when the excess

payment has been made for a period in excess of five

years, before the order of recovery is issued.

Page 13 of 15

(iv) Recovery in cases where an employee has

wrongfully been required to discharge duties of a higher

post, and has been paid accordingly, even though he

should have rightfully been required to work against an

inferior post.

(v) In any other case, where the Court arrives at the

conclusion, that recovery if made from the employee,

would be iniquitous or harsh or arbitrary to such an

extent, as would far outweigh the equitable balance of

the employer's right to recover.

[16] It is already noted that the petitioner was a Group-C

employee and the alleged recovery from the employee on the

ground of excess payment is for a period far beyond 5[five] years

from the date when such order of recovery was proposed and

already the petitioner has gone on superannuation. Therefore,

the case of the petitioner is covered by above said decision.

Consequently, it is held that recovery of any such amount at a

belated stage after retirement will be very much harsh, iniquitous

and impermissible at law. So far the matter of alleged wrong

fixation is concerned, nothing could be shown from the side of

the respondents that before making any such decision of wrong

fixation, the petitioner was given a scope to be heard. Therefore,

any order passed against his interest alleging wrong fixation is

violative of principle of nat ural justice. Therefore, the

respondents cannot be allowed to give effect to the letter dated

25.08.2021 (Annexure-5) and the letters dated 27.10.2021,

04.01.2022, 20.12.2022 and 08.06.2023 (under Annexure-7 and

Annexure-8) of the office of Accountant Gene ral unless the

petitioner is given a scope to be heard and to explain his own

stand.

Page 14 of 15

[17] So far the matter of withholding of rest amount of

gratuity of the petitioner is concerned, it is also not the case of

the respondents that there was any outstanding dues recoverable

from the petitioner at the time of retirement in terms of Rules 70

and 75 of the CCS Pension Rules, 1972 as adopted in Tripura .

Moreover, it appears that if, the gratuity is calculated treating his

last basic pay to be Rs.59,000/- in place of Rs.60,800/-, the

difference with the amount what has been calculated earlier, will

not be very significant. Therefore, the gratuity already calculated

shall remain unaltered.

[18] Considering thus, the writ petition is partly allowed. It

is held that proposed recovery of any amount by the respondents

on the ground of wrong fixation of pay of the petitioner is held to

be harsh, iniquitous and impermissible at law and therefore, the

respondents are directed not to recover any amount from the

petitioner on the ground of any such wrong fixation. However,

the respondents will have the liberty to revisit the pay fixation of

the petitioner to examine and verify it’s correctness for the

purpose of fixation of his last basic pay and pension, but while

doing so, the petitioner shall be notified and shall be given the

opportunity to be heard and to place any document(s), if so

desire, in support of his contention.

The respondents are also directed to release the

balance amount of gratuity immediately along with interest @ 7%

Page 15 of 15

per annum w.e.f. 30 [thirty] days from the date of retirement of

the petitioner, till payment is made.

The entire exercise of revisit of fixation of the pay of

the petitioner, if any, and the release of rest amount of gratuity

as ordered, shall be done within 8(eight) weeks from the date of

receipt of a copy of this judgment.

With such observation s and directions, this writ

petition is disposed of.

Pending application(s), if any, also stand disposed of.

JUDGE

Sujay