HIGH COURT OF TRIPURA AGARTALA W.P.(C) No.814 of 2024 Sri Biswanath Dey, Son of late Rasaraj Dey, Resident of P.O. Arundhati Nagar, Road No.9, Agartala, District: West Tripura, PIN: 799 003 ----Petitioner (s) Versus 1. The State of Tripura , To be represented by the Secretary/Principal Secretary, GA (P&T) Department, Government of Tripura, New Secretariat Building, New Capital Complex, Agartala, West Tripura, PIN: 799 010 2. The Secretary, Department of Finance, Government of Tripura, New Secretariat Building, New Capital Complex, Agartala, West Tripura, PIN:799 010 3. The Deputy Director, PWD (R &B),Government of Tripura, New Secretariat Building, New Capital Complex, Agartala, West Tripura, PIN: 799 010 4. The Chief Engineer, Public Works Department, New Secretariat Building, Agartala, West Tripura, PIN:799 010 5. The Superintending Engineer, Second Circle, Agartala, Office of the Superintending Engineer, Second Circle, Agartala, Gurkhabasti, PIN: 799 010 6. The Accountant General, Office of the Accountant General (A & E), Agartala, Tripura, PIN: 799 006 7. The Senior Accounts Officer, Office of the Accountant General (A & E), Agartala, Tripura, PIN: 799 006 ---- Respondents (s) For Petitioner(s) : Mr. Purusuttam Roy Barman, Senior Advocate Mr. Kawsik Nath, Adv. For Respondent(s) : Mr. Shaktimoy Chakraborty, Advocate General Ms. Pinki Chakraborty, Adv. Mr. Pradyumna Gautam, Adv. Mr. Debalaya Bhattacharya, Sr. Adv. Mr. Soumyadeep Saha, Adv. Date of Hearing : 07.03.2025 Date of delivery of Judgment and Order : 27.03.2025 Whether fit for Reporting : YES HON’BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order By means of filing this writ petition the petitioner has prayed for the following reliefs: (i) Issue Rule upon the Respondents to show cause as to why a writ in the nature shall not be issued whereby directing the Respondents to cause full and final payment to the Petitioner on the basis of Ceiling Limit of Rs.10,00,000/- by taking into account 40 years of service as rendered by the Petitioner and the last Basic pay of Rs.23,930/- and his Dearness Allowance of Rs.17,708 /- after adjusting the payment already made to the Petitioner. (ii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondents to cause payment of interest @ 9% per annum on the balance amount of gratuity w.e.f. the date on which gratuity became payable i.e. 30 days after retirement from service till the date payment is made. (iii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby declaring that the Notification, dt. 05.05.2009, issued by the Finance Department, Govt. of Tripura, must be made in consonance with the Payment of Gratuity Act so far determination of gratuity and ceiling limit of gratuity are concerned. (iv) Make the rules absolute. (v) Call for records. (vi) Pass any further order/orders as this Hon’ble High Court considered fit and proper. 02. Heard Learned Senior Counsel Mr. P. Roy Barman assisted by Mr. K. Nath, Learned counsel appearing for the petitioner as well as Learned Advocate General Mr. S. M. Chakraborty assisted by Ms. P. Chakraborty along with Mr. P. Gautam, Learned Sr. G.A. appearing for the State- respondents and also heard Learned Senior counsel Mr. D. Bhattacharya assisted by Mr. S. Saha, Learned counsel appearing for the respondents No.6 and 7. Page 4 of 28 03. The gist of the petition filed by the petitioner is that the petitioner had joined service on 11.07.1979 as LDC under the Public Works Department. By memo dated 06.07.1979 issued by the Superintending Engineer, Co- ordination, Second Circle, Agartala, Tripura the petitioner was offered a purely temporary post of LDC under the Public Works Department for a period of three months on a monthly pay of Rs.240/- in the scale of Rs.240-440/- along with other admissible allowance. The petitioner later on got promotion to a higher post and retired as UDC under the office of the Executive Engineer, Resource Division, Panchamukh, Agartala, Tripura. On attaining the age of superannuation, the petitioner retired from service w.e.f. 29.02.2016. At the time of retirement, the last basic pay of the petitioner was Rs.23,930/- and D.A. was Rs.17,708/- and the petitioner was holding the post of UDC having in his credit about 36 years of service. Thereafter vide memo dated 19.08.2016 issued by the Senior Accounts Officer, office of the Accountant General (A & E), Tripura an amount of Rs.2,95,135/- was sanctioned to the petitioner as provisional DCRG. An additional amount of Rs.99,710/- was sanctioned in favour of the petitioner at a later date, thereby making the total amount received by the petitioner to be Rs.3,94,845/-. After his retirement regular monthly pension under CCS(Pension) Rules 1972 has been sanctioned in favour of the petitioner and he is getting regular monthly pension accordingly. On retirement from service, the petitioner became entitled to full and final payment of gratuity within 30 days from the date of retirement in terms of Section 7(3) of the Payment of Gratuity Act, 1972. As the petitioner retired from service on 29.02.2016, so the petitioner became liable to discharge their obligation of causing full and final payment of gratuity to the petitioner within the next 30 days i.e. positively by 01.04.2016 as per Payment of Gratuity Act, 1972. On retirement of the petitioner the petitioner was paid an amount of Rs.3,94,845/- towards purported full and final payment of gratuity. The said amount of Rs.3,94,845/- was paid to the petitioner much beyond the statutory period of 30 days from the date of retirement from service. 04. According to the petitioner Section-4 of the Payment of Gratuity Act, 1972 mandate that the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5 years- (a) on his superannuation, or (b) on his retirement or resignation or (c) on his death or disablement due to accident or disease. Section 4(2) also provides as to how the amount of gratuity payable to the employee is to be determined. Section 4(3) stipulates that amount of gratuity payable to the employee shall not exceed the ceiling limit of Rs.10,00,000/-. According to the petitioner the Payment of Gratuity Act, 1972 was amended by the Payment of Gratuity (Amendment) Act, 2010. The said amendment came into force w.e.f. the date on which the notification regarding the amendment was published in the Gazette of India, Extraordinary Issue, Part-II, Section-3, Sub-Section (ii) dated 24.05.2010. In view of the amendment of the Payment of Gratuity Act, 1972 is Sub Section (3) of the Section 4, the word Rs.3,50,000/- was substituted by the word Rs.10,00,000/- thereby raising the ceiling limit of Rs.3,50,000/- to Rs.10,00,000/-. In view of such amendment which raised the ceiling limit of gratuity, the petitioner became entitled to determination of gratuity keeping in view the ceiling limit of Rs.10,00,000/-. 05. According to the petitioner at the time of retirement the last basic pay of the petitioner was Rs.23,930/- and his DA was Rs.17,708/-. As such, he was entitled to 8,64,790/- as gratuity. The petitioner submitted one representation dated 20.08.2021 to the Executive Engineer, Resource Division, Panchmukh, Agartala raising to pay gratuity in view of the ceiling limit of Rs.10,00,000/- with effect from 24.05.2010. But most arbitrarily his gratuity was calculated and paid to him and as a result, full and final payment of gratuity was not caused to the petitioner. Further according to the petitioner the rest amount of gratuity should be paid to the petitioner keeping in view of the ceiling limit of Rs.10,00,000/- which came into effect from 24.05.2010. He was entitled to interest @ 9% per annum. So finding no way the petitioner approached the Hon’ble High Court by filing a case bearing No.WP(C)112/2022. This High Court vide judgment dated 06.09.2022 dismissed the said writ petition. After that the petitioner preferred an appeal bearing No.W.A.210 of 2022 against the judgment dated 06.09.2022 passed in WP(C)112 of 2022. The Division Bench of this High Court vide judgment and order dated 27.02.2024 disposed of the writ appeal No.W.A. 210 of 2022 by giving liberty to the petitioner to submit representation to the respondents with all relevant documents and the Hon’ble High Court also directed the respondents to dispose of the matter within a period of four months. The petitioner made detailed representation dated 29.04.2024 to the Principal Secretary, Welfare of Schedule Caste and the Director, Directorate of Welfare of Schedule Caste. It was further submitted that other similarly situated persons have been visited with a rejection orders issued by the Competent Authority rejecting the claim of the petitioner. The respondents did not take into consideration the ceiling limit of gratuity payable to the State Govt. employees as revised/enhanced by the State Government from time to time to bring parity in between the Payment of Gratuity Act, 1972 and Rule 9 of TSCS (Revised Pension) Rules. 06. The Finance Department, Govt. of Tripura issued one notification on 05.05.2009 and the said notification was in respect to the provision regulating pension and other pensionary benefits. By the said notification TSCS (Revised Pension) Rules, 2009 was notified and the said Rules so far as payment of gratuity is concerned, provides as under: Length of Service Rate of Gratuity Less than 1 year 2 times of emoluments 1 year or more but less than 5 year 6 times of emoluments 5 year or more but less than 20 years 12 times of emoluments 20 years or more ½ (half) of every Completed 6 monthly period of qualifying service subject to a maximum 30 times of emoluments. The term revised emoluments for the purpose of calculation of DCRG shall mean the last pay, i.e., the pay in the pay band plus the grade pay of the employees concerned on the date of retirement. 07. The petitioner further submitted that the Rules, 2009 is in derogation of the letter and spirit of the Payment of Gratuity Act, 1972 wherein the Act 1972, vide Section 4 (2) clearly provides that for every completed year of service or part of thereof in excess of 6 months the employer shall pay gratuity to an employee @ 15 days wage based on the date of wages last drawn by the employee concerned, any Rule cannot override and supplant the clear and unambiguous mandate of Section 4(2) of the Act and moreso, the said Rules has also supplanted the provisions of Section 4(3) of the Payment of Gratuity Act, 1972 by fixing the ceiling limit which is below the ceiling limit laid down by the Section 4(3) of the Act. In determining the amount of gratuity payable to the petitioner, in view of the provision of Rule 8 of Tripura State Civil Service Revised (Pension) Rules, 2009, it is provided that qualifying service of 33 years shall be taken into account for determining gratuity, the total length of service of the petitioner was not taken into consideration and it was against the mandate of Section 4(3) of the Payment of Gratuity Act, 1972. 08. The petitioner further submitted that one Tarun Kr. Sinha filed a Writ Petition bearing No.WP(C)No.204 of 2020. In the said writ petition the petitioner contended that on retirement from service he ought to have been paid gratuity taking into consideration the enhanced ceiling limit of gratuity i.e. Rs.20,00,000/- which was introduced by the amendment of Section 4(3) of the Payment of Gratuity Act, 1972 w.e.f. 29.03.2018. But his gratuity was paid in terms of Rule 9 of Tripura State Civil Service (Revised Pension) Rules, 2017 on the basis of ceiling limit of Rs.10,00,000/- provided by Rule 9 of Tripura State Civil Service (Revised Pension) Rules, 2017. According to the petitioner by the order dated 27.01.2021, Hon’ble the High Court disposed of the Writ Petition No.204/2020 and in the said judgment/order this High Court held that the State Government shall revisit Rule 9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 and to take proper decision enhancing maximum limit of gratuity as has been done by the Central Govt. by notification dated 29.03.2018 and this High Court also expected that parity in payment of gratuity be maintained as has been earlier maintained by the State Govt. in terms of Section 4(3) of the Payment of Gratuity Act, 1972 and until such exercise is done the petitioner shall be paid gratuity for the time being on the basis of maximum limit of Rs.10,00,000/-. 09. The Learned Single Judge at the time of disposal of the said case relied upon the judgment dated 13.02.2020 passed in connection with WP(C)No.1054/2019 (Sri Bhupati Debnath vs. The State of Tripura & Ors.), judgment/order dated 20.02.2020 passed in connection with WP(C)1209/2019 (Lal Zakim Rokhum vs. Tripura Road Transport Corporation and Ors.) and the judgment and order dated 13.02.2020 passed in connection with WP(C)1057 of 2019 (Smt. Mamata Singha Roy vs. State of Tripura and Another) and it was also observed that the revised ceiling limit of gratuity effected by the Payment of Gratuity Act would apply to all the establishment irrespective of whether they are controlled or governed by the State or Central Govt. as the appropriate Governing body. Finally the petitioner took the plea that the petitioner has been deprived of the actual entitlement of gratuity by invoking arbitrary ceiling limit of gratuity of Rs.4,00,000/- and he is entitled to a total gratuity of Rs.8,64,790/- as per the provisions of the Payment of Gratuity Act, 1972 with interest @ 9% per annum. It was further submitted that as per notification dated 08.04.1997 issued by the Joint Secretary, Government of Tripura, Finance Department the petitioner is also entitled to the statutory interest in case of delay. Hence, the petitioner has filed the writ petition. 10. The state-respondents have contested the case by filing the counter-affidavit. In para No.10 the state- respondents have mentioned the following facts: “10. That, in regard to the statements made in paragraph 3 to 21 of the writ petition it is stated that, the Petitioner was offered to join in the post of Lower Division Clerk under Public Works Department, Government of Tripura on temporary basis for a period of 03 (three) months on a monthly pay of Rs.240/- in the pay scale of Rs.240-8- 320-440/- (E.B. after 8th & 15th stage) plus othr allowances as may be admissible from time to time and other terms & conditions as laid down in Order No.F.6(170)/S/4394-4495, dated 06.07.1979 of the Superintending Engineer, Co-ordination, Second Circle, Agartala (Annexure 1 to the Writ Petition). Accordingly, the petitioner accepted the offer of appointment for the post of Lower Division Clerk & intimated the same to the appointing authority i.e. Superintending Engineer, Co-ordination, Second Circle, Agartala vide his letter dated 07.07.1979 (Annexure-2 to the Writ petition). Subsequently, he had joined the post of Lower Division Clerk on 11.07.1979 (Forenoon)(Annexure 2 to the Writ petition). Now after 36 years months of Service rendered in the Public Works Department, Government of Tripura Shri Biswanath Dey, the petitioner got retired from Government Service on superannuation on 29.02.2016 in the capacity of Upper Division Clerk from office of the Executive Engineer, Resource Division, Panchamukh, Agartala & released from Government Service in the afternoon of 29.02.2016 vide Office Order No.F.EE/RESO/DN/P(C)/148/3414-21, dated 29.02.2016 of the Executive Engineer, Resource Division, Panchmukh. Accordingly, the pensionary benefit like Death cum Retirement Gratuity etc. was sanctioned by the Executive Engineer, Resource Division, Panchmukh vide Office Order No.151, dated 04.03.2016 i.e. within 30 days from the date of retirement of Shri Dey. It is pertinent to be mentioned here that, when Shri Biswanath Dey, UDC, the petitioner was retired from Government Service on superannuation on 29.02.2016 at that time Tripura State Civil Service (Revised Pension) Rules, 2009 was in force. The said Rule was published by the Finance Department, Government of Tripura vide Notification No.F.8(3)-FIN(G)/09, dated 05.05.2009 (Annexure-6 to the Writ petition). And, the said Tripura State Civil Service (Revised Pension) Rules, 2009 was applicable to him to compute leave salary, Death cum retirement gratuity, Commutation of pension etc. In the instant case the Petitioner didn’t ignore that at the time of his retirement from Government Service Tripura State Civil Service (Revised Pension) Rules, 2009 was in force and his pension & pensionary benefits was guided by this Rules. Further, as per Rule 8 of the Tripura State Civil Service (Revised Pension) Rules, 2009 Death Cum Retirement Gratuity is described as “The existing ceiling limit of Death-cum-Retirement Gratuity is enhanced from Rs.2.00 lakhs to 4.00 lakhs for employees proceeded on superannuation/retirement with effect from 01.01.2009. Page 12 of 28 The other conditions of the existing formula of computation of DCRG amount will remain unchanged. In case of death in harness the following table shall continue to be followed:- Length of Service Rate of gratuity Less than one year 2 times of emoluments 1 year or more but less than 5 years 6 times of emoluments 5 years or more but less than 20 years 12 times of emoluments 20 years or more ½ (half) of emoluments for every completed 6 (six) monthly period of qualifying service subject to a maximum of 33 times of emoluments The term revised emoluments for the purpose of calculation of DCRG shall mean the last pay i.e the pay the pay band plus the grade pay of the employees concerned on the date of retirement/death. A Detailed method of calculation of D-C-R-G as per Tripura State Civil Service (Revised Pension) Rules, 2009 is furnished in Illustration No.V as stated as stated herein below: "An employee has retired from service on 31.1.2009 w revised basic pay Rs. 7370/- (stage of pay Rs. 6110) the Pay Band-1 (Rs. 4530-13000/-) plus Grade Pay 1200 on the date of retirement. He entered in the serve on 11.3.1980. The pension & DCRG of the employ concerned shall be reckoned as under: Date of entry in the Service :11.3.1980 Date of retirement : 31.1.2009 Qualifying service: 28 years 10 months 24 days = 58smp Last Basic pay (revised): Rs. 7370/- Pension :Rs. 3685/- (50% of last pay) DCRG: 7370 X 58 = Rs. 1,06,865/- " 4 In the instant case, the Last Basic pay of Shri Biswanath Dey, Ex UDC, the petitioner as on 29/02/2016 was Rs.23,930/- (in the Pay Band: 2, Pay Band Scale: Rs.5700-24000/-, Grade pay: 4200). And, he had joined in Government Service as on 11/07/1979. His qualifying Service is 36 Years 07 Months 19 days i.e., 66 SMP (maximum). Therefore, as per Rule 8 of Tripura State Civil Service (Revised Pension) Rules, 2009 Death Cum Retirement Gratuity amount comes to = (23930x66)+4 Rs.3,94,845/-. Accordingly, pensionary benefit like Death cum Retirement Gratuity etc. of the petitioner was computed & as well as sanctioned by the Executive Engineer, Resource Division, Panchamukh vide letter No.F.RESO/DN/P(C)/148/3534-42, dated 04/03/2016 i.e., within 30 days from the date of retirement of the petitioner. And, a sum of Rs.2,96,135/- (3/4th of Gratuity amount) less Rs.1000/- being checking of IPS i.e. amounting to Rs.2,95,135/- as a provisional gratuity was paid to the Petitioner vide Bill No.16, dated 05/04/2016 i.e. within 30 days from the date of retirement of the petitioner. And, the rest amount (Rs.3,94,845.00 Rs.99,710/- Rs.2,95,135.00) was paid to the Petitioner on 19/08/2016 by the office of the Accountant General (A&E), Tripura, Agartala (Annexure 4 to the Writ Petition). Further in para No.13-15 the State-respondents have averred that: 13. That, in regard to the statements made in paragraph 30 to 36 of the writ petition it is stated that, the Petitioner had join to the Government Service to post of Lower Division Clerk under Public Works Department, Government of Tripura as per terms and conditions laid down to his offer of appointment issued by Superintending Engineer, Co-ordination, Second Circle, Agartala vide his Order No.F.6(170)/S/4394-4495, dated 06/07/1979 (Annexure 1 to the Writ petition).In the above mentioned offer of appointment at Point No. 2(IV) of Terms of appointment it was clearly mentioned that "Other condition of service will be governed by the relevant rules and orders in force from time to time". Accordingly petitioner accepted the offer of appointment for the post of Lower Division Clerk & intimated the same to the appointing authority i.e. Superintending Engineer, Co-ordination, Second Circle, Agartala vide his letter dated 07/07/1979 (Annexure 2 to the Writ petition). Subsequently he had joined in the post of Lower Division Clerk on 11/07/1979 (Forenoon) (Annexure -2 to the Writ petition). In this case the petitioner had joined in to Government Service in Public Works Department, Government of Tripura. Hence, from the common observation it can be said that Rules and Regulations as adopted or revised time to time by the Government of Tripura for its employee is also applicable to him. Further, Finance Department, Government of Tripura vide Notification No.F.1(3)- FIN(G)/77,dated 08/08/1978 has adopted the Central Civil Services (Pension) Rules, 1972 which shall be applicable to the Government Servants including the petitioner in connection with the affairs of the Government of the Tripura State subject to certain modification. as Further, as per CCS (Pension) Rules, 1972 adopted in the state of Tripura the Pension & other pensionary benefits like Death cum Retirement Gratuity etc. is rationally guided by Rule 2 read with Rule 45, Rule 50, Rule 54 & Rule 55 etc. of the CCS (Pension) Rules, 1972. In the instant case like other State Government employees, the Petitioner also comes under the purview of above rule 2, Rule 45 & Rule 50 and is rationally applicable to him as because Government of Tripura has adopted the aforesaid CCS (Pension) Rules, 1972 for its employees on 08/08/1978 i.e., prior to joining of the petitioner in Public Works Department under Government of Tripura. Page 14 of 28 In the instant case petitioner's pension & other pensionary benefit shall also be governed by the Rules and Regulation as adopted by the Government of Tripura in the light of Central Civil Services Pension Rules, 1972 & as well as Tripura State Civil Service (Revised Pension) Rules, 2009 (Annexure- 10 to the Writ Petition). Further, eligibility to Death-Cum-Retirement- Gratuity and family pension is governed by Rule 45of CCS Pension Rules, 1972 is describe as follows:- "(1) A Government servant who has opted for clause (b) of Rule 42 shall be eligible for the death-cum-retirement gratuity as admissible under rule 50 and family pension as admissible under rule 54 or rule 55. (2) The pension as admissible under rule 44 shall be reduced by the pension equivalent of such gratuity to be calculated in accordance with the table prescribed by the Governor under the Civil Pensions (Commutation) Rules, applicable to the Government servant at the time of retirement". Further, Payment of Gratuity Act, 1972 is described as "An Act to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto". Further, as per Sub- Section (3) (a) of Section-1 of the Payment of Gratuity Act, 1972, it is clearly stated that "it shall apply to every factory, mine oilfield, plantation, port and railway company". Further, as per Sub- Section (3) & Sub- Section (4) of Section-2 of the Payment of Gratuity Act, 1972, it is clearly stated that " in any establishment, factory, mine, oilfield, plantation, port, railway, company,shop, to do any skilled, semi skilled or un skilled, manual, supervisory, technical or clerical work, whether the terms of such employment are expressed or implied. and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity". In the instant case, the Petitioner is a regular employee of the State Government worked in Public Works Department under Government of Tripura. Even Public Works Department (R&B) Government of Tripura is not an under taking company or public sector Unit under the Government of Tripura, rather it is a pensionable Department under the State Government. Hence entire Rules Regulations & norms of calculation of Gratuity as governed by Payment of Gratuity Act, 1972 as well as amended by the Payment of Gratuity (Amendment) Act, 2010 shall not be applicable in case of the Petitioner. Page 15 of 28 14. That, in regard to the statements made in paragraph 37 to 39 of the writ petition it is stated that, the petitioner had joined in Government Service on 11/07/1979 under Public Works Department, Government of Tripura & got retired from Government Service in the capacity of UDC on superannuation on 29/02/2016 i.e. prior to publication of Tripura State Civil Service (Revised Pension) Rules, 2017 which came into force on 01/04/2017. And, as per Rule 9 of Tripura State Civil Service (Revised Pension) Rules, 2017 Death Cum Retirement Gratuity is described as "The existing ceiling limit of Death-cum-Retirement Gratuity shall stand enhanced from R. 4.00 lakhs to 10.00 lakhs for employees proceeded on superannuation /retirement on or after 01.04.2017. The other conditions of the existing formula of computation of DCRG amount will remain unchanged". But, in the instant case, the Petitioner had retired from Government Service prior to effective date i.e., 01/04/2017. Hence, the petitioner is not entitled to get the Death Cum Retirement Gratuity, keeping in view the existing ceiling limit of Rs.10,00,000/- of Death-cum-Retirement Gratuity. Moreover the Petitioner had also claimed that he is entitled to get Death Cum Retirement Gratuity keeping in viewthe Ceiling Limit of Rs. 10,00,000/- as per Section 3 of Sub Section (II) of the Payment of Gratuity (Amendment) Act, 2010 which came into effect on 24/05/2010. The Petitioner was a regular State Government employee worked in Public Works Department under Government of Tripura and the Public Works Department (R&B) Government of Tripura is not an under taking company or public sector Unit under State Government of Tripura rather it is a pensionable Department under the state Government. Hence, the entire Rules Regulations & norms of calculation of Gratuity as governed by Payment of Gratuity (Amendment) Act, 2010 shall not be applicable for determination of Death Cum Retirement Gratuity in case of the Petitioner. In the instant case when the petitioner was retired from Government Service on superannuation on 29/02/2016 at that time Tripura State Civil Service (Revised Pension) Rules, 2009 was in force. The said Rule was published by the Finance Department, Government of Tripura vide Notification No.F.8(3)-FIN(G)/09, dated 05/05/2009(Annexure- 10 to the Writ Petition). And, the said Tripura State Civil Service (Revised Pension) Rules, 2009 was applicable to him to compute leave salary, Death-cum-Retirement Gratuity, commutation of pension etc. Accordingly Death cum retirement gratuity was Computed followed by the manner as prescribed in Rule 8 of Tripura State Civil Service (Revised Pension) Rules, 2009 (Annexure- 10 to the Writ Petition). Now, as per Rule 8 of Tripura State Civil Service (Revised Pension) Rules, 2009 (Annexure- 10 to the Writ Petition) Death Cum Retirement Gratuity is described as "The existing ceiling limit of Death- cum-Retirement Gratuity is enhanced from Rs. 2.00 lakhs to 4.00 lakhs for employees proceeded on superannuation/retirement with effect from 1.1.2009. The other conditions of the existing formula of computation of DCRG amount will remain unchanged". Accordingly, the pensionary benefit like Death cum Retirement Gratuity etc. in respect of the petitioner was sanctioned by the Executive Engineer, Resource Division, Panchamukh vide letter No.F.RESO/DN/P(C)/148/3534-42, dated 04/03/2016 i.e. within 30 days from the date of retirement of Shri Dey. And, a sum of Rs.2,96,135/-(3/4th of Gratuity amount) less Rs.1000/- being checking of IPS i.e. amounting to Rs.2,95,135/- as a provisional gratuity was paid to the Petitioner vide Bill No.16, dated 05/04/2016 i.e. within 30 days from the date of retirement of Shri Dey. Further, from the Notification No.F.8(13) Fin (G)86 dated 08/04/1997 of the Finance Department, Government of Tripura (Annexure 16 to the Writ Petition) it is apparent that in case of nonpayment of Gratuity beyond 3 months after the gratuity becomes due and up to 1 year 7% per annum interest rate may be imposed. But, such claim of the petitioner doesn't hold good because a sum of provisional gratuity amounting to Rs.2,95,135/- was paid to the Petitioner vide Bill No.16, dated 05/04/2016 i.e. within 30 days from the date of retirement of the petitioner & rest amount Rs.99,710/- ( Rs.3,94,845.00 Rs.2,95,135.00) was paid to the Petitioner on 19/08/2016 (Annexure-4 to the Writ Petition) by the office of the Accountant General (A&E), Tripura, Agartala within 3 months from the date of receipt of the letter. Further, the Petitioner was a State Government employee worked under a pensionable department like Public Works Department. But, in case of WP(C) No.1091/2021 filed by one Shri Samir Kumar Ghosh was an employee of Agartala Municipal Corporation and WP(C) No.1054/2019 was filed by one Shri Bhupati Debnath who was an employee of Tripura Handloom and Handicrafts Development Corporation Limited, similarly WP(C) No.1057/2019 was filed by one Smt.Mamata Singha Roy was an employee of Fish Farmer Development Agency. From the above reading, it is crystal clear that, the above mentioned petitioners were not the regular employees under the State Government Office of Government of Tripura directly & due to which they do not come under the purview of Central Civil Services (Pension) Rules, 1972 as adopted in the state of Tripura on 18/09/1978 i.e. date of Gazette notification. Hence, in those cases concept of computation of Death Cum Retirement Gratuity may not be followed. But, in this case the petitioner is a regular employee appointed substantively to Civil Services and posts in connection with the affairs of the State of Tripura which are borne on pensionable establishment i.e., Public Works Department, Government of Tripura & he cannot deny to accept the Rules & regulation as adopted by the State Government from time to time. Therefore, in the case of the petitioner Death cum retirement gratuity was computed as per Rule 8 of Tripura State Civil Service (Revised Pension) Rules, 2009 (Annexure- 10 to the Writ Petition) which was in force at the time of retirement from Government Service & is found to be justified. Therefore, from the comparative study it is crystal clear that, case of the petitioner is not squarely fitted to the above mentioned petitioners & for this reason entire Rules Regulations & norms of calculation of Gratuity as governed by Payment of Gratuity Act, 1972 as well as amended by the Payment of Gratuity (Amendment) Act, 2010 shall not be applicable in case of the Petitioner. Further, it is to be mentioned that as per the averment made by the petitioner, he joined a post which has been created under Public Works Department and he also served the Public Works Department till his retirement. Since he is an employee who served a post under the State Government Department (not a PSU) so he is covered by the CCS (Pension) Rules as adopted in the State of Tripura read with TSCS (Revised Pension) Rules, as in force at the time of his retirement. He cannot claim benefit beyond the prescribed Pension Rules so as to suit his needs. Further, the Payment of Gratuity Act is applicable to ports, railways, oilfields, shops etc. The Public Works Department, Government of Tripura does not come under the ambit of those establishments. Therefore, the petitioner is not entitled to gratuity as per Payment of Gratuity Act. Neither the formula prescribed in the gratuity Act for calculation for gratuity can be extended to the petitioner in contravention of settled Rules. Further that, as per averment of the petitioner, he retired in the year 2016 and he is drawing pension as per the TSCS (Revised Pension) Rules, 2009. Therefore, it is clear that he is not drawing pension under EPF Act. Since it is clear that he is not under the ambit of EPF Act, therefore, it established that the petitioner do not come in the ambit of Payment of Gratuity Act. As a result of these factors, the petitioner has been allowed with DCRG as per Rule 45 of adopted Pension Rules read with relevant clause of TSCS (Revised Pension) Rules. Now in the year 2016, TSCS (Revised Pension) Rules 2009 was in force. Since the petitioner retired in 2016 so he should be guided by TSCS (Revised Pension) Rules 2009. Under TSCS (Revised Pension) Rules, 2009 there is no provision of adding up Dearness Allowance to Basic Pay for determining the gratuity amount. Also the TSCS (Revised Pension) Rules prescribe Rs. 4.00 lakhs as the higher limit of gratuity. So, the petitioner has been paid the gratuity amount of Rs. 3,94,845/- keeping conformity with the adopted CCS (Pension) Rules, 1972 by the State of Tripura read with TSCS (Revised Pension) Rules, 2009. Further, that at the time of retirement of the petitioner during 2016, the Revised Pension Rules 2017 was not in force because it came into force only w.e.f. 01.04.2017. Though under Revised Pension Rules 2017 the gratuity limit was revised to Rs. 10.00 lakhs but the same cannot be extended to the petitioner as because he retired on 2016 which is much before the implementation of Revised Pension Rules 2017. Therefore, the benefit of gratuity as determined by the Department in favour of the petitioner holds good as per the Revised Pension Rules 2009 which was effective during the time of his retirement. It is not a correct proposition of the petitioner to fit the formula of gratuity calculation as prescribed under Payment of Gratuity Act in the framework of the TSCS (Revised Pension) Rules as because the genesis of these two Rules as well as their applicability is substantially separate. Further, the cases cited by the petitioner like Samir Ghosh[in WP(C) 1091 of 2021], Bhupati Debnath [in WP(C) 1054 of 2019], Lal Zakhim Rokhum [in WP(C) 1209 of 2019], Mamta Singha Roy [in WP(C) 1057 of 2019] etc., involve persons who were serving under PSUs (like TRTC, AMC etc.). PSUs may not be treated at par with Government Department like Public Works Department. Further, that in the case of Sri Tarun Kumar Sinha, the State Government had preferred an appeal before the High Court of Tripura and, the Hon'ble Division Bench of the High Court of Tripura vide interim Order dated 12/04/2022 passed in IA 01 of 2022 in connection with Writ Appeal WA 61 of 2022 has stayed the Judgment & Order dated 27/01/2021 delivered in WP(C) 204 of 2020 by the Ld. Single Judge in which the concerned petitioner was directed to be allowed payment of gratuity @ Rs. 20.00 lakhs as per the Payment of Gratuity Act. Further, in the case of Sri Tarun Kumar Sinha, the State Government had also preferred a Civil Appeal Nos. 9198-9199 of 2018 before the Supreme Court of India. And, the matter is pending before the Apex Court for hearing. Hence, in the light of the aforesaid circumstances, there is no cause of action on the part of the petitioner to claim gratuity in terms of the Payment of Gratuity Act. 15. That, in regard paragraph 40 to 43 to the statements made in of the writ petition, it is stated that, the instant Writ Petition has no merit and same is liable to be dismissed in limine for the reasons mentioned in the foregoing paragraphs.” 11. The respondents No.6 and 7 also have submitted separate counter-affidavit. In para No.8-12 to the counter- affidavit the said respondents No.6 and 7 in have made the following assertions: “8. That, with respect to Paragraphs No.8 to 15, I say that the authority of Gratuity subject to ceiling limit of Rs.4,00,000 as per ROP’2009 of Notification vide No.F.8(3)-FIN(G)/09, dated 05.05.2009 was issued by the Finance Department, Govt. of Tripura, and the Answering Respondents have calculated taking into account the Basic pay only for the purpose of calculation of the Gratuity as per rules as per ROP’s Notification, Amendment etc. issued by the Finance Department, Govt. of Tripura from time to time. 9. That, with respect to Paragraphs No.16 and 17, I say that the Gratuity has to calculated i.e. Rs.29,970x66/4= Rs.4,94,505/- subject to maximum Rs.4,00,000/- as per rules of Notification, Amendment etc. issued by the Finance Department, Govt. of Tripura under ROP’2009 and for which the ceiling limit of Gratuity was Rs.4,00,000/-. 10. That, with respect to Paragraph No.18, I say that the Hon’ble High Court of Tripura, Agartala vide common Judgment and Order dated 06.09.2022 in WP(C) 106 of 2022, WP(C)109 of 2022, WP(C)111 of 2022, WP(C)112 of 2022, WP(C)113 of 2022, WP(C) 114 of 2022, WP(C)115 of 2022 and WP(C)116 of 2022, opined that the writ petitions merit no consideration and accordingly dismissed the demand of final payment of Gratuity of the petitioner. 11. That, with respect to Paragraphs No.19 to 20, I say that the ceiling limit of Gratuity Rs.10,00,000/- is admissible for those who have retired/died on or after 01.04.2017 as per ROP’2017, but the petitioner was retired from his service on 30.04.2015 under ROP’2009 and for which the ceiling limit of Gratuity was Rs.4,00,000/-. 12. That, with respect to Paragraph No.21, I say that as per Notification issued by the Finance Department vide No.F.8(13)/Fin(G)/86, dated 08.04.1997 hereby mentioned that interest on gratuity shall be payable @ 7% per annum for period from beyond 3 months upto one year.” Finally the respondents by their counter-affidavit prayed for dismissal of this writ petition with the plea that this present writ petition is not maintainable. 12. The crux question to be decided in this writ petition as to whether the state government employees are entitled to get the benefit of the ceiling limit as prescribed under the Payment of Gratuity Act in respect of payment of gratuity on their retirement. Admittedly the present petitioner is a retired government employee. He retired from service on superannuation on 29.02.2016 and this present writ petition is the 3rd round litigation because earlier this present petitioner filed another writ petition before this High Court bearing No.WP(C)112 of 2022 which was dismissed by judgment dated 06.09.2022 and after that the present petitioner preferred appeal which was also disposed of with a direction when the respondents to consider the representation of the petitioner within a period of four months and after that the petitioner submitted representation on 29.04.2024 to the respective authority but as the same was not considered so again the present petitioner has been compelled to file the present writ petition. 13. When the present petitioner was retired from service that time Tripura Civil Services Revised Pension Rules, 2009 (in short Pension Rules, 2009) was in existence. The petitioner was in the post of UDC and definitely it was under the control of State Government. In course of hearing Learned Senior Counsel Mr. P. Roy Barman for the petitioner submitted that the petitioner should be entitled to get the amount of gratuity to Rs.10,00,000/- which was made in pursuance of the Payment of Gratuity (Amendment) Act, 2010 under sub-Section 3 of Section-4. Learned Senior Counsel further submitted that previously Learned Single Judge of this court in connection with WP(C) No.204 of 2020 directed the State Government to revisit the Rule-9 of ROP Rules, 2017 with further direction to the state government to bring parity in determining the gratuity at par with the ceiling limit, prescribed under the Payment of Gratuity Act. 14. On the other hand, Learned Advocate General Mr. S. M. Chakraborty assisted by Ms. P. Chakraborty, Learned Counsel along with Mr. P. Gautam, Learned Sr. G.A. appearing on behalf of the state-respondents submitted that the case of the petitioner is not covered by Payment of Gratuity Act, 1972 as the petitioner is not covered as an ‘employee’ as per the definition of ‘employee’ as mentioned in the Payment of Gratuity Act. As such the present petitioner is not entitled to get the ceiling limit of Rs.10,00,000/- as made by the Payment of Gratuity (Amendment) Act, 2010 in sub-section 3 of Section-4. Now for the sake of convenience, I would like to refer herein below the definition of employees as mentioned in Section 2(e) of the Payment of Gratuity Act which reads as under: “2[(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applied, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity;]” 15. On perusal of the said definition it is clear that the law makers excluded the employees of state government as well as the central government from the applicability of the Payment of Gratuity Act, 1972 in case their payment of gratuity is regulated or governed by the separate Act or Rules. Here in the State of Tripura and since the petitioner was a state government employee and there is no such evidence on record that the state government has adopted the relevant provision of the Payment of Gratuity Act. As such, it appears that the status of the present petitioner as an ‘employee’ of the State Government is separated from the definition of ‘employees’ like factory, mine, oilfield, plantation, port, railway company or shop or other establishment in respect of payment of gratuity. 16. In course of hearing of argument it was fairly submitted that the petitioner was paid gratuity as per the Pension Rules of 2009 by which he was governed and during the service tenure the petitioner was governed by the Tripura State Civil Services (Revised) Pension Rules, 2009 (in short Pension Rules, 2009) which makes specific provision to regulate payment of gratuity to the employees of the state government and Rule-8 of the Pension Rules prescribes ceiling limit of 4,00,000/- for the employees proceeded for superannuation/retirement w.e.f. 01.01.2009. As already stated the petitioner was retired from service on superannuation on 29.02.2016. Now for the sake of convenience, I would like to mention here the relevant provision of Rule-8 of the Tripura State Civil Service Revised (Pension) Rules, 2009 which reads as follows: “8.DEATH-CUM-RETIREMENT GRATUITY: The existing ceiling limit of Death-cum-Retirement Gratuity is enhanced from Rs.2.00 lakhs to 4.00 lakhs for employees proceeded on superannuation/retirement with effect from 01.01.2009. The other conditions of the existing formula of computation of DCRG amount will remain unchanged. Page 23 of 28 In case of death in harness the following table shall continue to be followed- Length of Service Rate of Gratuity Less than 1 year 2 times of emoluments 1 year or more but less than 5 year 6 times of emoluments 5 year or more but less than 20 years 12 times of emoluments 20 years or more ½ (half) of every Completed 6 monthly period of qualifying service subject to a maximum 30 times of emoluments. 17. Since there is no evidence on record that the State of Tripura has adopted the Payment of Gratuity (Amendment) Act, 2010 specifically the provision of sub- section-3 of Section 4 as such the petitioner being an employee of the state government would be entitled to get the benefit of gratuity as per Pension Rules, 2009 as the petitioner retired from service while the said pension rules was in force. 18. The state-respondents already in their counter- affidavit stated that the petitioner was given amount Rs.3,94,845/- considering the ceiling limit of Rs.4,00,000/- as gratuity following the notification of the Finance Department dated 05.05.2009 and by the said notification bearing No.F.8(3)-FIN(G)/09 the Finance Department revised the pension and other pensionary benefits of the state government employees enhancing the ceiling limit of death cum retirement gratuity from Rs.2,00,000/- to Rs.4,00,000/- and at that material period when the petitioner was retired from government service on superannuation on 29.02.2016 the said ceiling limit of Death-Cum-Retirement-Gratuity was in force. So it appears to this court that the state-respondents have not committed any error in making payment of gratuity to the present petitioner to the extent of ceiling limit of Rs.4,00,000/-. Now we are to see the observation of the judgment made by Learned Single Judge in connection with WP(C)204 of 2020 as advanced by Learned Senior Counsel Mr. P. Roy Barman in course of argument that by the said judgment the state-respondents were directed to consider the matter of payment of gratuity bringing parity with the Central Act in respect of determination of ceiling limit of gratuity. I have also gone through the said judgment. For the sake of convenience I would like to refer herein below the relevant paragraphs of the judgment which runs as follows: “9. Having appreciated the submissions of the learned counsel appearing for the parties, an apparent conflict between Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 and Section-4(3) of the Payment of Gratuity Act has emerged. Since, the Central Government has enhanced the maximum limit of gratuity to Rs.20,00,000/- by the notification as stated above and it is noticed that in the past the state has followed the maximum limit for payment of gratuity coterminus to what had been determined by the Central Government, there is a pressing necessity to revisit the said provision. In view of the definition of “employee” as provided in Payment of Gratuity Act and for separation of power [6] between the Central Government and the State Government in respect of the employment and other related areas regarding the state government employees, no doubt that the state government has the authority to determine the pay and allowances and other benefits of the state government employees. But Payment of Gratuity Act, 1972 being a piece of central legislation has its own sway. Therefore, the state government is not expected to take a contrary stand, even though, the notification determining the maximum limit of the payment of gratuity Act has been issued by the Central Government pursuant to the power conferred by Sub-Section-3 of Section-4 of the Payment of Gratuity Act, 1972. Page 25 of 28 10. A former notification for amendment by the state government would dispel the confusion that is reigning for the time being. In defining „employee‟, it has been provided that the central government and the state government employees have been excluded from the definition of employee for purpose of the Payment of Gratuity Act, 1972 if their payment of gratuity is regulated by the separate Act or the Rules. Those employees who are working under the central government or the state government would stand excluded from the definition of employee [see Section-2(1) of the Payment of Gratuity Act, 1972], in the event if their payment of gratuity is governed by any other Act or by any Rules providing for payment of gratuity. In the present case, the state government employees are governed by Tripura State Civil Services (Revised Pension) Rules, 2017. As such, the petitioner may not be treated as „employee‟ for general purpose of applying the provisions of the Payment of Gratuity Act, 1972.” 19. On perusal of the said judgment of the Learned Single Judge i.e. another Coordinate Bench of this High Court it appears that by said judgment Learned Single Judge did not issue any direction to the state-respondents to amend the Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 rather asked the Govt. to revisit the Rule-9 to bring parity. Until and unless the said rule is amended or there is any specific amendment in the Payment of Gratuity Act specifically the definition of Section 2(e) i.e. ‘employees’ it appears that it would be difficult on the part of the state-respondents to consider the claim of the present petitioner. From the Act of 1972 it is clear that the said act was enacted to provide payment of gratuity to the employees engaged in factories, mines, oilfield, plantation, port, railway companies, shop or other establishment and for the matters connected therewith and incidental there to. Page 26 of 28 20. After going through the Payment of Gratuity Act it appears that in Section 1(3) of the said Act it was mentioned the name of the ‘organization’ where the act would apply. Further Section 2(a) defines ‘appropriate government’, Section 2(d) defines ‘controlling authority’, Section 2(f) defined ‘employer’, Section 2(g) defines ‘factory’, Section 2(i) defines ‘major port’, Section 2(j) defines ‘mine’, Section 2(k) defines ‘notification’, Section 2(l) defines ‘oilfield’, Section 2 (m) defines ‘plantation’, Section 2 (n) defines ‘port’ and Section 2(p) defines ‘railway company’. From the definition of the aforesaid provisions it is crystal clear the legislature at the time of making of laws clearly intended to apply and extended the benefit of to the employees of the aforesaid organization only including the employees of the establishment belonging to or under the control of central government or the state government but excluded the person who holds post under the central government or the state government and are governed by other act or by any rules providing for payment of gratuity have not been brought within the ambit of Payment of Gratuity Act, 1972. 21. 21. Further, for determining the maximum ceiling limit of gratuity to an employee it is entirely rests upon the policy matter of the Government and until and unless the rule is amended by the state or any amendment is made in the original Central Act at the instance of the State Government the maximum limit of gratuity of amounting to Rs.10,00,000/- as per Payment of Gratuity(Amendment) Act, 2010 cannot be directed to be given to the petitioner by the State-respondents. So the matter requires decision of the State Government. There is no dispute on record that the present petitioner is governed by Rule-8 of the Pension Rules of 2009 as an employee of the state government in respect of payment of gratuity. 22. Situated thus, at this juncture invoking the jurisdiction under Article 226 of the Constitution of India, this court does not find any scope to direct the State Government to make any policy decision in this regard. But it is open for the state government to consider the matter if the government so desires. In the light of the discussions made above, the present writ petition bears no merit and accordingly the same stands dismissed. No order is passed as to costs. However, the present petitioner may approach to the State department to consider his grievance if he is so advised. Further it is clarified that if interest or anything remains pending in that case the petitioner shall be at liberty to claim for interest in view of the notification of vide No.F.8(13)Fin(G)/86 dated 08.04.1997 of the Finance Department to the appropriate authority and in that case the respective authority shall consider the matter of interest if it is found that the petitioner is actually entitled to get the same. Page 28 of 28 With this observation, this writ petition stands disposed of. Pending applications, if any, stands disposed of. JUDGE Moumita MOUMITA DATTA Digitally signed by MOUMITA DATTA Date: 2025.04.07 23:47:36 +05'30'