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2016 DIGILAW 145 (MAN)

Senjam Bimola Devi v. Union of India Represented by the Secretary, Department/Ministry of Woman and Child Development, New Delhi

2016-08-24

KH.NOBIN SINGH

body2016
JUDGMENT AND ORDER : 1. Heard Shri Ng. Jotindra, the learned counsel appearing for the petitioner; Shri Y. Nirmolchand, the learned counsel appearing for the respondent Nos. 2, 3 and 5, Shri S. Rupachandra, the learned ASG appearing for the respondent No. 1 and Smt. Th. Sobhana, the learned Government Advocate appearing for the respondent No. 4. 2. In the instant writ petition, there are as many as six prayers but during the course of hearing, the learned counsel appearing for the petitioner has confined to prayer (i) being the prayer for direction to the respondents to count the past service of the petitioner as qualifying service, for the period from 24-10-1985 till 01-03-2013, for purpose of pensionary benefits and other retirement benefits. 3. According to the petitioner, the Chairman, Manipur State Social Welfare Board issued an Advertisement dated 01-10-1985 inviting applications from amongst the eligible candidates for appointment of a Clerk-cum-Typist and in response thereto, she applied for it. On the recommendation of an Interview Board, the petitioner was appointed temporarily as Clerk-cum-Typist for a period of three months on a consolidated pay of Rs. 500/- vide order dated 24-10-1985 and her service was extended from time to time till 01-03-2013 when she was appointed on regular basis. But the grievance of the petitioner is that the past service rendered by her was not counted as qualifying service for the purpose of pensionary and other monitory benefits. Being aggrieved by the inaction on the part of the respondents, the petitioner submitted representations through proper channel with the prayer that the period of her past service rendered by the petitioner from 18-10-1985 till 01-03-2013 be counted as qualifying service for the purpose of pensionary benefits and also to give other financial benefits from the financial year, 1999. Since no action was taken by the respondents on the said representations, the instant writ petition has been filed by the petitioner. 4. The writ petition is contested by the respondents by filing their respective affidavits-in-opposition. In the affidavit filed on behalf of the respondent No. 1, it is stated that the Central Social Welfare Board does not have the power for creation of post and as per Rule 8 of the Rules of the State Social Welfare Boards, posts are required to be created by the Central Social Welfare Board with the approval of the Union of India. Since no approval for creation of post was obtained, the temporary appointment of the petitioner and its subsequent extensions were unauthorised. Moreover, when the Voluntary Action Bureau (VAB) was replaced by FCC, the continuation or extension of service of the petitioner was unethical. Similarly, in the affidavit filed on behalf of the respondent No. 2, it is stated that the petitioner was initially appointed against a temporary/contractual post on a consolidated pay and not against a substantive post; that the petitioner was regularised against the post vacated by Shri Ch. Iboyaima Singh on attaining the age of his superannuation and that in any of the orders passed by the Hon’ble Gauhati High Court, Imphal Bench there is no any direction to regularise the ad-hoc service of the petitioner retrospectively and hence, the regularisation of the petitioner’s service with effect from 24-10-1985 is neither practicable nor is it applicable. The stand of the respondent Nos. 4 and 5 in their affidavit is that the matter pertains to the Government of India, the Central Social Welfare Board and the Manipur State Social Welfare Board and they have nothing to do with it. It is further stated in their affidavit that no decision was taken by the Committee of Officers in its meeting held on 25-05-2009 to grant financial benefits to the petitioner. 5. Admittedly, the petitioner was initially appointed as Clerk-cum-Typist on ad-hoc basis for a period of three months on a consolidated pay of Rs. 500/- and at that point of time, no post had been created as is evident from the correspondences, amongst the authorities, which are on record and only when the post was vacated by Shri Ch. Iboyaima Singh, the petitioner was appointed on regular basis vide order dated 01-03-2013, with effect from 01-03-2013, which came to be challenged by her with prayer (ii) in the present writ petition. But since, during the course of hearing, the petitioner’s counsel had given up that prayer, there is no need of going into that issue. The Manipur State Social Welfare Board is an autonomous and statutory body and therefore, the petitioner who is an employee of the said Board, cannot be said to be an employee of the State of Manipur and cannot be treated at par with the employees of the State of Manipur. Shri Ng. The Manipur State Social Welfare Board is an autonomous and statutory body and therefore, the petitioner who is an employee of the said Board, cannot be said to be an employee of the State of Manipur and cannot be treated at par with the employees of the State of Manipur. Shri Ng. Jotindra, the learned counsel appearing for the petitioner has not produced any document like order, office memorandum, guidelines etc., by which the petitioner will be entitled to counting of her past service as qualifying service for purpose of pensionary benefits. However, the learned counsel appearing for the petitioner has relied upon the judgment and order dated 09-08-2010 passed by the Hon’ble Gauhati High Court, Imphal Bench in W.A. No. 89 of 2009 and judgment and order dated 27-05-2013 passed by this court in Review Petition No. 14 of 2013. On perusal of the said judgment and orders, it is seen that they have been passed on a different factual position and are, therefore, not applicable to the facts and circumstances of the present case. In those cases, the respondents were regularised under the various schemes framed by the State of Manipur, from time to time, like the Office Memorandum dated 24-05-1986 and moreover, the State Government issued an Office Memorandum dated 05-07-2003 by which linking up of service rendered as ad-hoc / officiating was permissible for counting as qualifying service for pension subject to the conditions mentioned therein. In the present case, there is no such office memoranda being issued by the competent authorities nor is there any order issued by them adopting the said office memoranda. In other words, there is no any provision of law by which her past service can be counted as qualifying service for pensionary benefits and therefore, it cannot be held that her legal rights or fundamental rights have been violated by the respondents. 6. In view of the above, the instant writ petition is disposed of with the direction that the respondents and in particular, respondent Nos. 2 and 3 may consider the case of the petitioner sympathetically, within a period of two months from the date of receipt of a copy of this judgment and order, keeping in mind the service rendered by the petitioner on ad-hoc basis prior to her regular appointment and issue an order in respect thereof.