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2013 DIGILAW 713 (GAU)

Nihoto Shohe v. State of Nagaland

2013-09-27

INDIRA SHAH

body2013
JUDGMENT Dr. Indira Shah, J. 1. Heard Mr. A. Zhimomi, learned counsel appearing for the petitioner as well as Mr. S. Mere, learned State counsel. The petitioner herein is working as Managing Director in Nagaland Industrial Development-cum-Corporation Limited (NIDC, in short). The petitioner was initially appointed in the Nagaland Pulp and Paper Company as Assistant Purchase Officer on 27.09.1978. He was promoted in the rank of Senior Executive (Purchase). In the later part of 1984, through an interview conducted by Nagaland Industrial Development Corporation, the petitioner was appointed in the Corporation as Project Manager. He was then placed on probation for a period of 1 (one) year. It has been stated that NIDC is an undertaking of Government of Nagaland. According, to the petitioner, the employee of NIDC are not Government servants and their services are governed by rules under the name and style "the Service Rules of NIDC, 1991". The State Government of Nagaland retirement from Public Employment Amendment Act, 2009 laid down the criteria for superannuation as 35 years of service or attaining 60 years of age. The NIDC, followed the criteria of the State Government for superannuation of its employees. 2. The petitioners' case is that after his resignation from NPPC on 11.02.1985, he was appointed in the NIDC on 13.02.1985, his appointment in the NIDC was a new and fresh appointment. The issue of his entry into the service in the NIDC arose in the year 2011. The petitioner submitted a representation highlighting the history of his service and prayed for appropriate fixation of his entry into the service in the NIDC. However, the representation submitted by the petitioner was rejected by letter dated 03.08.2011 and he was informed that his duty of joining the NPPC would be taken as date of joining of his service in NIDC. The petitioner submitted another representation requesting appropriate action in relation to his entry into the service, which was also rejected vide order dated 17.05.2013, wherein his date of entry into the service of the NIDC is shown as 28.09.1978 and his date of retirement of completion of 35 years of service is shown as 30.09.2013. The petitioner submitted another representation requesting appropriate action in relation to his entry into the service, which was also rejected vide order dated 17.05.2013, wherein his date of entry into the service of the NIDC is shown as 28.09.1978 and his date of retirement of completion of 35 years of service is shown as 30.09.2013. The petitioners' contention is that he entered into the service of NIDC on 13.02.1985 and therefore his date of superannuation should be on completion of 60 years of age or 35 years of service and he reaches the age of superannuation only in the year 2015. 3. The respondent No. 2 in his affidavit-in-opposition denied that the petitioner was appointed through an interview conducted by the NIDC. According, to respondent No. 2, who was appointed as Project Manager through a selection process was subsequently promoted to the post of General Manager and thereafter the petitioner vide application dated 29.01.1985 applied for appointment in the said resultant vacancy and authorities considering his application appointed him to the said post of Project Manager. 4. It is averred that Rule 20 of NIDC Rule 1991 clearly provides that an employee shall retire at the age of prescribed by the State Government from time to time attaining the age of superannuation, an employee shall retire from the service of corporation and the Nagaland retirement from Public Employment Act, 2009 is therefore applicable for the employees of NIDC. 5. In fact, the member employees of NIDC have been retiring from service on completion of 35 years of service or attaining age of 60 years as provided under the Act. It is, further, contended that the applicability of Nagaland employee from Public Employment Act, 2009 to the employees of NIDC was dealt in the case of WPC No. 236(k) 2012. The said writ petition was disposed of by this Court holding that the corporation is following the Act of Government of Nagaland and as such the Act of the State Government is applicable to NIDC. 6. It is also contended that after joining the NIDC, the petitioner submitted the representation stating that as he has joined NIDC through proper channel, his pay should be protected following the provision under Fundamental Rules. His representation was considered by the NIDC, in consultation with the Finance Department and his basic pay was fixed at Rs. 6. It is also contended that after joining the NIDC, the petitioner submitted the representation stating that as he has joined NIDC through proper channel, his pay should be protected following the provision under Fundamental Rules. His representation was considered by the NIDC, in consultation with the Finance Department and his basic pay was fixed at Rs. 1725 per month in the scale of 1175-50-1725-EB-50-1975-55-2305 per month w.e.f. 13.02.1985. 7. Thus the issue of pay protection was settled in the year 1985 itself. The petitioner has been filing representations to the Managing Director for protection of his service on several times, wherein he had prayed for the benefit of the past service treating his resignation as a technical formality under FR-22 (B). 8. Considering his representation, the board resolved that the petitioner be given one day's joining time after his release from Tuli Paper Mill and in order to maintain continuity of his service, the break of his service was condoned. The service of the continuity of the petitioner is thus maintained and as such his appointment in the NIDC is not a fresh appointment but there is continuity in the service in as much as petitioner has availed all the service benefits without any break except seniority. Therefore, the entry of the petitioner in the service of NIDC was taken as 28.09.1978 and the petitioner shall complete 35 years of service on 28.09.2013. 9. In the cited case of WP (C) 236 (K) 2012, the issue was whether the NIDC has fully adopted the Government Service Rules as regards the length of his service for the purpose of retirement and whether the benefit of condonation of probation period of one year can be granted. In the present case, the issue is whether the length of service of the petitioner in some other public enterprise should be computed for the purpose of superannuation. 10. There is no dispute that the petitioner was granted joining time in order to maintain continuity of his service without break. However his past service was not to be counted towards fixation of his seniority in NIDC. 11. The contention of the petitioner is that since his service for the purpose of seniority rendered at Tuli Paper Mill cannot be counted for the purpose of retirement on superannuation, his length of service in previous enterprise should also not be counted. 12. However his past service was not to be counted towards fixation of his seniority in NIDC. 11. The contention of the petitioner is that since his service for the purpose of seniority rendered at Tuli Paper Mill cannot be counted for the purpose of retirement on superannuation, his length of service in previous enterprise should also not be counted. 12. It appears from the representation submitted by the petitioner dated 6th July, 2011 that he joined NIDC through proper channel with expectation that he will be given free furnished accommodation, brand new vehicle and his salary of previous organization and services will be protected. Therefore, the principle of legitimate expectation is to be considered. 13. In the case of J.P. Bansal Vs. State of Rajasthan & Anr. (2003) 5 SCC 134 , it was held:- "26" The basic principles in this branch relating to "legitimate expectation" were enunciated by Lord Diplock in Council of Civil Service Unions Vs. Minister from the Civil Service, it was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either, (i) He had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment, or (ii) He as receive assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. 14. In the case of Union of India & Anr. Vs. International Trading Co. & Anr. (2003) 5 SCC 437 , it was held:- '21' As observed in Attorney General for New Southwales vs. Quin to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Court adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. It a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary discriminatory, unfair or biased gross abuse of power or violation of principle of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. 15. Here, in this case, the petitioner vide his representation dated 21.04.1990 claimed the benefit of his post service and should be given treating his resignation as technical formality. It is also averred in the affidavit-in-opposition that the petitioner vide his representation dated 26.04.1985 stated that as he has joined NIDC through a proper channel, his pay should be protected following the provision of fundamental rules. According to his representation he was given one day joining time after his release from his previous service and his continuity of service was maintained. He availed all the service benefits without break except the seniority. The petitioner was aware of the seniority list of the employees of the corporation, wherein date of appointment and date of superannuation was clearly mentioned. At no point of time, he claimed his seniority after joining NIDC and at the day end of his service and he claimed that his appointment in the NIDC was fresh appointment. Moreover, the petitioner failed to establish that any constitutional right of the petitioner has been violated. Considering all the aspect and observations, this writ petition stands dismissed without any cost. Petition dismissed