Research › Search › Judgment

Meghalaya High Court · body

2014 DIGILAW 229 (MEG)

Danny G. Momin v. State of Meghalaya

2014-09-23

T.NANDAKUMAR SINGH

body2014
ORDER : 1. Initially in the present writ petition, the petitioner prayed for directions to the respondents to regularize his service and also for providing all service benefits like seniority, higher grade pay scale; from the date of his initial appointment as Arts and Crafts teacher on temporary basis on 10.06.1988, the petitioner is, now, praying only for a direction to the respondents to consider his temporary service as Arts and Crafts teacher from the date of his initial appointment on 10.06.1988 till his regular appointment as Art Adviser on the recommendation of the Meghalaya Public Service Commission on 15.07.1995 as "qualifying service" for pensionary benefits. Heard Mr. AH Hazarika, learned counsel for the petitioner and Mr. KP Bhattacharjee, learned GA appearing for the respondents. 2. The concise fact leading to the filing of the present writ petition is briefly noted. 3. The petitioner's technical qualification is Bachelor of Fine Arts. Initially, the petitioner was appointed as Arts and Crafts teacher in the scale of Rs. 475-935/- PM plus usual allowance as admissible under the rules w.e.f. the date of his joining the post under the order of the Joint Director of Public Instruction (E&W), Garo Hills, Tura dated 10.06.1988 on temporary basis pending regular appointment through the Meghalaya Public Service Commission (for short 'MPSC'); and pursuant to that initial appointment order, the petitioner joined his service as Arts and Crafts teacher and had continued to serve without any break. When the petitioner was continuing as Arts and Crafts teacher in Tura Public School, Tura on temporary basis, the petitioner in response to an advertisement by the MPSC for appointment to the post of Art Adviser in the office of the Directorate of Information & Public Relations Department, Shillong applied to the said post i.e. Art Adviser. The MPSC under its letter dated 15.02.1995, recommended the petitioner for appointment to the post of Art Adviser. On the recommendation of the MPSC, the Director of Information & Public Relations, Shillong issued the order dated 15.07.1995 for appointing the petitioner as Art Adviser in the pay scale of Rs. 1450-2515/- PM plus other allowances as admissible under the rules w.e.f. from the date of his joining the post. 4. On the recommendation of the MPSC, the Director of Information & Public Relations, Shillong issued the order dated 15.07.1995 for appointing the petitioner as Art Adviser in the pay scale of Rs. 1450-2515/- PM plus other allowances as admissible under the rules w.e.f. from the date of his joining the post. 4. The petitioner was also released from his duties under the order of the Director of Public Instruction, Meghalaya, Shillong dated 09.10.1995, from Tura Public School for enabling him to join his new assignment as Art Adviser in the Directorate of Information & Public Relations, Meghalaya, Shillong. The petitioner approached the Director of Information & Public Relations, Meghalaya, Shillong for protecting the period of his past service as Arts and Crafts teacher till his new appointment as Art Adviser in the Directorate of Information & Public Relations, Meghalaya, Shillong. The Director of Information & Public Relations, Meghalaya, Shillong under his letter dated 10.09.1996 sought the advice of the Commissioner & Secretary to the Govt. of Meghalaya, Information & Public Relations as to whether or not the last pay drawn by the incumbent (petitioner) and also his date of increment can be protected. For easy reference, the letter of the Director of Information & Public Relations, Meghalaya, Shillong dated 10.09.1996 (Annexure-VII to the writ petition) is quoted hereunder:- "GOVERNMENT OF MEGHALAYA DIRECTORATE OF INFORMATION & PUBLIC RELATIONS: No. DAE. 26/95/25 Dated Shillong, the 10th Sept 1996 To, The Commissioner & Secretary to the Government of Meghalaya, Information & Public Relations Department Sub: Fixation of Pay of Shri D.G. Momin, Art Adviser. Sir, I am to inform you that on the recommendation of the Meghalaya Public Service Commission, Shri Danny G. Momin was appointed as Art Adviser under this Directorate in the Scale of Pay of Rs. 1450-40-1650-EB-45-1965-55-2515/- Pm. He joined the Post on 27.9.95 and is drawing Pay at the initial stage. Prior to his joining in this Department the incumbent had been serving as Arts and Crafts Teacher under Tura Public School in the scale of Pay of Rs. 1450-2515/- since 17.6.88. Shri Momin was drawing Pay at Rs. 1740/-Pm in the above scale of Pay in the Post of Arts and Crafts Teacher. The incumbent has now requested for fixation of his pay in the Post of Art Adviser. 1450-2515/- since 17.6.88. Shri Momin was drawing Pay at Rs. 1740/-Pm in the above scale of Pay in the Post of Arts and Crafts Teacher. The incumbent has now requested for fixation of his pay in the Post of Art Adviser. But from records available in this office it was noticed that his services in the Post of Arts and Crafts Teacher has not yet been regularized. In this connection, copy of this office letter No. DAE.26/95/23 dated 30.7.1996 and letter No. 5-3/TPS/96/2307 dated 30.8.1996 and Last Pay Certificate received from Headmistress In-charge Tura Public School, Tura are enclosed herewith for perusal. I am now to request you to kindly move Government in the Finance (E) Department for their advice whether the last Pay drawn by the incumbent and also his date of increment can be protected. Service Book is also enclosed herewith which may kindly be returned when done-with. Enclo: As stated Yours faithfully, Sd/- Director of Information & Public Relations, Meghalaya, Shillong." 5. The Govt. of Meghalaya under the letter of the Under Secretary to the Govt. of Meghalaya, Information & Public Relations Department dated 29.05.1997, informed the Director of Information & Public Relations, Meghalaya, Shillong that since the service of the petitioner as Arts and Crafts teacher was not regularized by the MPSC, his pay as an Arts and Crafts teacher in the Directorate of Information & Public Relations cannot be protected. By another letter of the Under Secretary to the Govt. of Meghalaya, Information & Public Relations Department dated 15.05.2002, further informed the Director of Information & Public Relations, Meghalaya, Shillong that as there is also no lost of pay as the incumbent (petitioner) is drawing pay of Rs. 4250/- PM w.e.f. 01.01.1996 in the new post whereas, he (petitioner) was drawing Rs. 1790/- PM in the old post, the petitioner's case for grant of personal pay as per FR. 7(19) cannot be considered. The petitioner being aggrieved by the said orders dated 29.05.1997 and 15.05.2002, under which the Govt. of Meghalaya had declined his request to protect his past service for the purpose of deciding the pay of the petitioner in his new post i.e. Art Adviser filed this writ petition. 6. 7(19) cannot be considered. The petitioner being aggrieved by the said orders dated 29.05.1997 and 15.05.2002, under which the Govt. of Meghalaya had declined his request to protect his past service for the purpose of deciding the pay of the petitioner in his new post i.e. Art Adviser filed this writ petition. 6. The State respondents had filed affidavit-in-opposition; and the case of the respondents in their affidavit-in-opposition that as the past service of the petitioner as Arts and Crafts teacher was not regularized by the MPSC, his past service cannot be protected for the purpose of determining the pay of the petitioner in his new post i.e. Art Adviser and also that the appointment of the petitioner as Arts and Crafts teacher was purely ad-hoc and temporary in nature and not regularized under Regulation 3(f) of the Meghalaya Public Service Commission (Limitation of Functions) Regulations, 1972. For easy reference, Regulation 3(f) of the Meghalaya Public Service Commission (Limitation of Functions) Regulations, 1972 is quoted hereunder:- "3(f) When an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the posts has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in sub-clause (3) of Article 320 of the Constitution." 7. Now the question to be considered in the present writ petition is as whether the past service of the petitioner as Arts and Crafts teacher on temporary basis could be considered as qualifying service for the purpose of pensionary benefits or not?. The meaning of "qualifying service" is defined under Rule 3(p) of the Meghalaya Civil Services (Pension) Rules, 1983. Rule 3(p) of the Meghalaya Civil Services (Pension) Rules, 1983 reads as follows:- "3(p) 'Qualifying service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules." 8. On bare perusal of Rule 3(p) of the Meghalaya Civil Services (Pension) Rules, 1983, it is clear that the service rendered while on duty or otherwise shall be taken into account for the purpose of pensions and gratuities admissible under the rule. On bare perusal of Rule 3(p) of the Meghalaya Civil Services (Pension) Rules, 1983, it is clear that the service rendered while on duty or otherwise shall be taken into account for the purpose of pensions and gratuities admissible under the rule. The service of the petitioner as Arts and Crafts teacher under the initial appointment order dated 10.06.1988 will be on duty; and even by any stretch of imagination, it cannot be said that the service of the petitioner as Arts and Crafts teacher under the said appointment order dated 10.06.1988 was not on duty. Had the petitioner not joined on duty, the petitioner would not get his salary as Arts and Crafts teacher. The Govt. paid the salary to the petitioner for his service as Arts and Crafts teacher utilized by the Govt. From when qualifying service of the Govt. servant would start is clearly provided under Rule 10 of the Meghalaya Civil Services (Pension) Rules, 1983. Rule 10 of the Meghalaya Civil Services (Pension) Rules, 1983 reads as follows:- "10. Subject to the provisions of these rules qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Provided further that: (a) in the case of a Government servant in a Class IV service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April 1950, service rendered before attaining the age of sixteen years shall not count for any purpose. (b) in the case of a Government servant not covered by clause (a) service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity". 9. Under Rule 10 of the Meghalaya Civil Services (Pension) Rules, 1983, the qualifying service of a Govt. servant shall commence from the date he takes charge of the post to which he was first appointed either substantively or in an officiating or temporary capacity. 9. Under Rule 10 of the Meghalaya Civil Services (Pension) Rules, 1983, the qualifying service of a Govt. servant shall commence from the date he takes charge of the post to which he was first appointed either substantively or in an officiating or temporary capacity. It is nobody's dispute that the initial appointment of the petitioner as Arts and Crafts teacher under the initial appointment order dated 10.06.1988 was on temporary capacity and also that the petitioner had joined his service as an Arts and Crafts teacher pursuant to the initial appointment order dated 10.06.1988 and continued to serve without any break till the petitioner had been appointed on the recommendation of the MPSC as Art Adviser under the order of the Director of Information & Public Relations, Meghalaya, Shillong dated 15.07.1995. On conjoint reading of Rule 3(p) and Rule 10 of the Meghalaya Civil Services (Pension) Rules, 1983 and the initial appointment order of the petitioner as Arts and Crafts teacher on temporary basis under the initial appointment order dated 10.06.1988, it is clear that the period of service rendered by the petitioner as Arts and Crafts teacher pursuant to his initial appointment order dated 10.06.1988 should be taken as a qualifying service for the purpose of pension under the Meghalaya Civil Services (Pension) Rules, 1983. 10. Mr. KP Bhattacharjee, learned GA appearing for the respondents contended that there is no specific prayer in the writ petition for direction to the respondents to the extent that the period of service rendered by the petitioner as Arts and Crafts teacher on temporary basis pursuant to the initial appointment order dated 10.06.1988 till his new appointment as Art Adviser on the recommendation of the MPSC vide order dated 15.07.1995 should be treated as a qualifying service for pension. But it is fairly settled that the writ court in a writ proceeding can mould the relief on the fact pleaded in the writ petition supported by documentary evidence. But it is fairly settled that the writ court in a writ proceeding can mould the relief on the fact pleaded in the writ petition supported by documentary evidence. In the present case, the petitioner had categorically pleaded in the writ petition that his initial appointment as Arts and Crafts teacher vide initial appointment order dated 10.06.1988 was on temporary basis, and had continued to serve as Arts and Crafts teacher till he was appointed as Art Adviser on the recommendation of the MPSC vide order of the Director of Information & Public Relations, Meghalaya, Shillong dated 15.07.1995 and such case of the petitioner in the writ petition is supported by the documents such as Annexure-I i.e. the initial appointment order dated 10.06.1988, Annexure-IV i.e. recommendation by the MPSC for appointment of the petitioner as Art Adviser and also Annexure-VI i.e. order of the Director of Information and Public Relations, Meghalaya, Shillong dated 15.07.1995 for appointing the petitioner as Art Adviser on the recommendation of the MPSC. For the foregoing reasons, this writ petition is allowed to the extent that the period of service of the petitioner as Arts and Crafts teacher on temporary basis from the date of initial appointment dated 10.06.1988 without any break till his appointment as Art Adviser on the recommendation of the MPSC vide order of the Director of Information & Public Relations, Meghalaya, Shillong dated 15.07.1995 will be considered as a qualifying service for the purpose of pension under the Meghalaya Civil Services (Pension) Rules, 1983 and the respondents are further directed to calculate the amount of pension and gratuity of the petitioner by counting the period of his qualifying service from the date of his initial appointment dated 10.06.1988 within a period of 5 (five) months from the date of receipt of a certified copy of this judgment and order.