Rakesh Ranjan Kar v. Commissioner of Income Tax, Assam Nagaland
1968-01-17
C.S.NAYUDU, P.K.GOSWAMI
body1968
DigiLaw.ai
NAYUDU, C. J.: The only point that arises for consideration in this petition under Art. 226 of the Constitution is whether the petitioner Sri Rakesh Ranjan Kar, a temporary Government servant, who had rendered service in a temporary capacity and had ceased to continue in service and was subsequently re-engaged and thereafter confirmed in service, could claim the benefit of the service previously rendered by him in a temporary capacity for purposes of counting for calculation of his pension. (2) Briefly the facts are that the petitioner served as a temporary Clerk in the Income Tax Department, Silchar from 14-6-1930 to 31-8-1930. Then he ceased to hold any post in the Department. Subsequently on 10-3-1931 he was re-employed in a temporary post in the Income Tax Department, Silchar. This post he held till 31-8-1931. Here again there was apparently no place for him thereafter in the Department and the petitioner was discharged from service. Thereafter on 3-12-1931 he was re-employed as a temporary lower division clerk in the same Department, which post he held till 30-6-1936, that is, for a period of 4 years 6 months and 28 days. Thereafter as there was no need for extra hands and the extra hands apparently had to be retrenched, the petitioner had to leave service on 30-6-1936. More than three years later, on 19-10-1939 the petitioner was again employed in Government service in the Income Tax Department. This time he was lucky in that he was allowed to continue in service and was later confirmed in the post he was holding, the time of such confirmation being about the year 1940. Having thus got a permanent footing in Government service, he continued to serve till 1st July, 1965, when he apparently attained superannuation and retired from service. (3) The point that Mr. Bhattacharjee, the learned counsel for the, petitioner very strongly urged is that as the petitioner was in service from 3-12-1931 to 30-6-1936, although in a temporary capacity, and as he had been discharged on retrenchment, it must be held having regard to the language of Article 420 of the Civil Service Regulations, Volume I, 4th Edition, 1960, that there was no interruption in his service, and, therefore, he could count that service of 4 years 6 months 28 days as qualifying service for purposes of calculating his pension.
In this context he placed reliance on Articles 361 and 368 of the Civil Service Regulations. Article 361 incorporates the conditions of qualifications of service for pension. It reads as follows: "361. The service of an officer does not qualify for pension unless it conforms to the following three conditions - First - - The service must be under Government. Second - The employment must be substantive and permanent. ^. Third - The service must be paid by Government". Article 368 runs as follows:- "368. Service does not qualify unless the officer holds a substantive office on a permanent establishment. Provided that in the case of an officer retiring from service on or after the 22nd April, 1960, if he was holding a substantive office on a permanent establishment on the date of his retirement, temporary or officiating service under the Government of India, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of (i) Periods of temporary or officiating service in non-pensionable establishments; (ii) Periods of service in work charged establishment; and (iii) Periods of service paid from contingencies". (4) It is clear from the above Article that if a person holds a substantive office on a permanent establishment on the date of his retirement and he retires from service on or after 22nd April 1960, temporary or officiating service under the Government of India can be counted as qualifying service, provided the substantive service continued without interruption of the temporary or officiating service. (5) Mr. Bhattacharjee also placed reliance on Article 420 of the Civil Service Regulations, relevant portions of which are as follows: "420. An interruption in the service of an officer entails forfeiture of his past service, except in the following cases:- (d) abolition of office or loss of appointment owing to reduction of establishment'. From the above provision Mr. Bhattacharjee contended that as he was retrenched on 30-6-36, the retrenchment implying the abolition of his office which he was holding, the interruption caused by his leaving the service between the date he left the service and the date he rejoined the service, which is nearly 3 years 4 months, cannot be treated as an interruption. (6) The simple answer to this argument is that the permanent service has not followed the temporary or officiating service without any interruption.
(6) The simple answer to this argument is that the permanent service has not followed the temporary or officiating service without any interruption. In the first place, what followed his temporary service was a period of total inaction so far as Government service is concerned. Secondly there was clear interruption in service, because his previous temporary service was terminated according to the terms of his engagement and subsequently he was engaged some years later. We are clearly of the opinion that the provisions of Article 420 read with Article 368 make it abundantly clear that these provisions apply only to permanent Government servants in permanent Government service. (7) Mr. Bhattacharjee contended that there is no provision in Article 420 which says that it applies only to permanent Government servants and not temporary hands. But this is inherent in the Article itself. We have absolutely no doubt that Articles 420 and 368 only apply to those cases where temporary service precedes the permanent service immediately before it and there is no gap or interruption between the two services. We feel, therefore, that there is no substance in this contention. (8) Another contention raised on behalf of the petitioner by Mr, Bhattracharjee is that we should issue a writ to the authorities to condone the gaps in service under Article 422 of the Civil Service Regulations. This Article provides: "Upon such conditions as it may think fit in each case to impose, the authority competent to fill the appointment held by an officer at the time condonation is applied for were he to vacate that appointment, may condone all interruptions in his service". The very language of the article shows that discretion is given to the authorities concerned to apply their mind to each case and decide on the facts of that case whether condonation should be granted in respect to the interruption in the service. Where matters are left to the discretion of the authorities, this Court should not bind down their discretion by issue of a writ of Mandamus or the like under Article 226 of the Constitution. This Court cannot compel the authority, which has got discretion in the matter, to exercise his discretion only in one particular way as directed by this Court. We consider that this is not a fit case, where we should issue such direction. (9) It is true, as Mr.
This Court cannot compel the authority, which has got discretion in the matter, to exercise his discretion only in one particular way as directed by this Court. We consider that this is not a fit case, where we should issue such direction. (9) It is true, as Mr. Bhattacharjee points out, that when a person has rendered a number of years' service, although in a temporary capacity, the mere fact that his service is interrupted by absence on account of retrenchment, should not cause hardship and should not stand in the way of the person having the benefit of that temporary service. In other words, his contention is that interruption between the temporary service and the permanent service, however long that interruption may be, should not operate as a handicap to the employee. On this matter of policy" the Government is the best judge. But we do feel that some way should be found to meet cases which really cause undue hardship. (10) With these observations, we dismiss this petition but make no order as to costs. Petition dismissed.