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2015 DIGILAW 70 (MAN)

T. Manzaching v. State of Manipur and Ors.

2015-05-18

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

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JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The petitioner in this writ application questions the legality of the order passed by the Director, Rural Development and Panchayati Raj (RD & PR for short) Manipur at Annexure-A/18 dated 6.1.2014 terminating her service with retrospective effect from 31.3.2006. 2. The petitioner was initially appointed as a substitute LDC(Dev) against a vacancy caused due to resignation of another substitute who had been appointed against the said vacancy caused because of promotion. She continued as a substitute LDC from 1986 and while continuing in service as a substitute LDC, she also contributed to GPF. It appears that Computerisation of Personal Information System (CPIS) of the Government employees known as MGEL was introduced by the Government of Manipur w.e.f. 1.4.2006 and name of the petitioner did not appear in the MGEL of the Department due to the nature of appointment. Therefore, she was served with the notice in Annexure-A/12 dated 12.8.2013 to explain as to why her service should not be terminated due to her illegal appointment. The petitioner submitted her reply but ultimately the order of termination was passed with retrospective effect from 31.3.2006 by order of the Director(RD & PR) under Annexure-A/18. 3. Learned counsel for the petitioner submitted that after initial appointment as substitute LDC in Nov.1986, the petitioner was allowed to continue in service till 2014 when the order of termination was passed. In between steps were taken even for her regularisation in service. It was further submitted by the learned counsel for the petitioner that the petitioner was allowed to continue as substitute LDC in the department from 1986 without break and therefore under the provisions of Central Civil Services Temporary Service Rules, 1965, she could not be terminated from service without following the procedure prescribed in the said Rules. 4. Mr. H. Raghumani, learned State counsel, referring to the counter affidavit, submitted that the initial appointment of the petitioner in the year, 1986 by the Deputy Commissioner, Churachandpur was without any authority and therefore such appointment was illegal. It was further submitted on behalf of the State that even though such illegal appointment had been made, the petitioner continued in service as a substitute LDC till July, 2006 as per the Attendance record maintained in the office and her pay and allowances were paid till March, 2006. Thereafter, payment of salary was discontinued. It was further submitted on behalf of the State that even though such illegal appointment had been made, the petitioner continued in service as a substitute LDC till July, 2006 as per the Attendance record maintained in the office and her pay and allowances were paid till March, 2006. Thereafter, payment of salary was discontinued. In the meantime, MGEL was introduced and name of the petitioner did not appear in the list of employees working in the department because of the nature of her employment. The MGEL was made effective from 1.4.2006 and since the name of the petitioner did not appear in the list of employees working in the department, her service was terminated w.e.f. 31.3.2006. 5. The first question raised by the learned counsel for the petitioner is with regard to non compliance of the provisions contained in the Central Civil Service Temporary Services Rules, 1965. The said rules are applicable only to a person who holds a civil post whose salary is paid from the Defence Service Estimate under the Govt. of India as well as to persons who are employed temporarily in work charged establishment and who have opted for the pensionary benefits. Admittedly, the petitioner does not come under either of the two categories and therefore the provisions contained in the 1965 Rules have no application to her case. 6. The nature of employment, as is evident from Annexure-A/1, is as a substitute LDC. On reading of the appointment order, we find that the petitioner was appointed as substitute LDC against the vacancy created by resignation of another substitute LDC who had been appointed as a substitute against the vacancy created because of officiating promotion of the permanent LDC working in the post. 7. Law is well settled that a substitute LDC has no right to claim for continuance in service. However, the petitioner continued in service from Nov.1986 till 31.3.2006 though the order of termination was passed on 6.1.2014 with retrospective effect. An objection was raised by the learned counsel for the State that the Deputy Commissioner, Churachandpur did not have any authority to give such appointment. In this connection, reference may be made to an order dated 25.1.1982 under Annexure-A/11. By order of the Governor of Manipur dt. An objection was raised by the learned counsel for the State that the Deputy Commissioner, Churachandpur did not have any authority to give such appointment. In this connection, reference may be made to an order dated 25.1.1982 under Annexure-A/11. By order of the Governor of Manipur dt. 25.1.82 it was directed that the existing system of District Cadres for each District in respect of all Class-III & IV posts in the Districts and District Level recruitment to these posts inclusive of LDCs and Stenographers by the District Level D.P.Cs concerned with respective Deputy Commissioners as Head of Cadre shall cease with immediate effect and there should be no District level recruitment to these posts. In view of the said order passed by the Governor of Manipur dated 25.1.1982, the Deputy Commissioner had no authority to appoint the petitioner as a substitute LDC which is undisputably in the district cadre. Even if we accept the contention of the learned counsel for the petitioner that the appointment was only as a substitute and not as a regular employee and in order to meet exigency the Deputy Commissioner, Churachandpur could pass such order, the nature of appointment being a substitute LDC, she has no right to claim continuance in the post. Admittedly, the petitioner continued in the post at least till July 2006 as revealed from Annexure-A/15, i.e. a letter written by the Block Development Officer, Thanlon to the Director, RD and PR. It is stated in the said letter that the petitioner was attending office regularly till July, 2006 as per attendance record maintained in the office and she had been paid pay and allowances till March, 2006 as per the record and discontinued thereafter. However, she continued to attend and report to the office as claimed by her on the ground that her service had not been terminated. Therefore, the petitioner had worked upto July, 2006 whereas she had been paid upto March, 2006. 8. The question as to whether petitioner worked after July 2006 or not is not borne out from the record. Though the petitioner claims that she continued to work till the order of termination was passed, nothing has been placed before the Court to support such claim. 8. The question as to whether petitioner worked after July 2006 or not is not borne out from the record. Though the petitioner claims that she continued to work till the order of termination was passed, nothing has been placed before the Court to support such claim. On the other hand, from Annexure-A/15 it appears that after July 2006 the petitioner has not signed any Attendance Register but continued to come to office on the ground that her service had not been terminated. The question as to whether the petitioner physically worked in the office after July 2006 being a disputed question of fact, it cannot be adjudicated in the writ petition and the petitioner, if so advised, has to approach civil court and establish her claim that she had physically worked in the office after July, 2006 till the order of termination was passed. Another question was raised by the learned counsel for the petitioner to the effect that the order of termination could not be passed with retrospective effect. The background as stated earlier is that the petitioner was continuing as a substitute LDC from 1986 but when MGEL was introduced, her name did not appear in the list of employees working in the department. MGEL was introduced and made effective from 1.4.2006. Therefore, the order of termination has been made effective from 31.3.2006 though the petitioner, admittedly, worked upto July, 2006. Therefore, in the facts and circumstance of the case the order of termination should have been from July, 2006 instead of March, 2006. The decision relied upon by the learned counsel for the petitioner, i.e. (i) Radhakant Jha vs. Chief Commissioner & Ors., AIR 1987 SC 1791 and (ii) R. Jeevaratnam vs. State of Madras, AIR 1966 SC 951 have no application to the facts of the present case. There being a dispute as to whether petitioner worked after July 2006 or not, we do not find any infirmity in the order of termination with retrospective effect though we are of the view that the order of termination could not be made w.e.f. 31.3.2006 and could only be made from July 2006. 9. There being a dispute as to whether petitioner worked after July 2006 or not, we do not find any infirmity in the order of termination with retrospective effect though we are of the view that the order of termination could not be made w.e.f. 31.3.2006 and could only be made from July 2006. 9. For the reasons stated above, we do not find any merit in the writ application but direct that admittedly the petitioner having worked upto July, 2006, her pay and allowances having been paid upto March, 2006, the pay and allowances for the months of April, May, June and July 2006, if not paid to the petitioner, be paid to her within three months from the date of communication of this order. With the above direction, writ petition is dismissed.