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2016 DIGILAW 30 (MAN)

Nameirakpam Manichandra Singh v. State of Manipur

2016-03-03

N.KOTISWAR SINGH, R.R.PRASAD

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JUDGMENT AND ORDER : RR Prasad, J. This appeal is directed against the judgment and order dated 5.5.2005 passed by the learned single Judge in WP(C) No.109 of 2012 whereby and whereunder the prayer made by the appellants-petitioners for counting the period of service rendered as adhoc Workshop Attendant for the purpose of pensionary benefit and other service benefits, was rejected. 2. It is the case of the appellants that they had applied for being appointed on the posts of Workshop Attendant, Government Polytechnic. Upon approval being granted by the Government the appellant, pursuant to orders dated 7.5.1999 and 15.11.1998 were initially appointed for a period of six months. Subsequently, the periods were extended from time to time without any break. Ultimately, the petitioners were appointed on regular basis w.e.f. 13.4.2008 on the recommendation of a DPC. 3. The appellants having been appointed on regular basis made to the concerned authorities for counting the period of service, rendered during their discharge of their duties as Workshop Attendant on ad hoc basis as qualifying service for the purpose of pension and other service benefits in terms of Office Memorandum dated 5.7.2003 issued by the State Government. Since no order was passed, the appellants filed writ application bearing WP(C) No.109 of 2012 for redressal of their grievance. Before the Writ Court, the learned counsel appearing for the appellants-petitioners by putting reliance on certain part of clause (1)(ii) of the said Office Memorandum submitted that since services of the appellants-petitioners have been regularised on the recommendation of a DPC they are entitled to get benefit of the past services rendered as Workshop Attendant on adhoc basis. 4. However, contention which was made on behalf of the State is that the said clause upon which reliance is being placed on behalf of the petitioners is never applicable, rather the case of the appellant-petitioners comes within the parameter of clause (2)(ii) of the said Office Memorandum dated 5.7.2003, stipulating therein that the persons who rendered service on ad hoc basis are entitled to benefit of the past services for the purpose of pension and other service benefits provided four conditions enumerated therein are fulfilled. But the appellants-petitioners do not seem to have fulfilled those conditions and thereby prayer made by the appellants-petitioners is fit to be rejected. 5. But the appellants-petitioners do not seem to have fulfilled those conditions and thereby prayer made by the appellants-petitioners is fit to be rejected. 5. The learned single Judge after having regard to the provisions as contained in clause 1(ii) as well as 2(ii) and also the sub missions advanced on behalf of the parties did find that the case of the appellant petitioners never falls within the parameter of clause (1)(ii) rather it falls within the parameter of clause 2(ii) of the said Office Memorandum, which stipulates certain conditions to be fulfilled for counting the period of service rendered as ad hoc employee. But the petitioners completely failed to establish that they fulfil those conditions and thereby the writ application was dismissed. Being aggrieved with the judgment and order dated 5.5.2015 this appeal has been preferred. 6. Learned senior counsel appearing for the appellants has taken the same plea which had been taken before the writ court. However, emphasis was given to certain portions of clause (1)(ii) which reads as follows: “1(ii)... ... However, in case of employees who became a regular appointee by way of direct recruitment duly recommended by a competent DPC, then their past ad-hoc service if there is no break may be regularised for counting pensionary benefits only.” By referring to those portion of clause 1(ii), learned counsel submits that since services of the petitioners have been regularised on the recommendation of DPC they become entitled to benefit of the past services rendered on ad hoc basis. As against this, learned GA appearing for the State took the same stand which had been taken before the writ court that the said clause is never applicable in case of the appellants-petitioners, rather clause 2(ii) is applicable which lays down certain conditions to be fulfilled for getting benefit of the past service. But the appellants never fulfil those conditions and thereby they are not entitled to get benefit of the past service rendered as Workshop Attendant on ad hoc basis. 7. In the context of the submission, one needs to take notice of the provisions of the Office Memorandum dated 5.7.2003 which reads as follows: “No.23/15/90-DP(Pt) Departments of the Government have been seeking views/concurrence of Department of Personnel to allow requests for counting the service rendered in either ad-hoc or officiating or any other form as qualifying service prior to their regular service for pensionary and other benefits. The proposals have been examined in consultation with the Finance Department for a comprehensive guidelines in this regard and decided as follows: 1. In cases where the Hon’ble Court has directed the Govt. to regularize the service retrospectively with effect from the dates they were appointed on ad-hoc or officiating basis either only for pensionary benefits or has also directed that, their seniority be fixed as per the relevant Service Rules based on the retrospective regularization Administrative Department may take action as below: (i) As per Rule 13 of the Manipur Civil Services (Pension) Rules, 1977, as amended, qualifying service of a Govt. servant for pension purposes commences from the date he takes charge of post to which he is first appointed either substantively or in the officiating or in temporary capacity provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or another post. Therefore, in cases where the above conditions are satisfied and Courts have directed for counting of qualifying service for pension benefits the Court orders may be complied with immediately without referring to Department of Personnel. As regards other benefits of seniority etc action as per rules may be taken up. (ii) In cases where the Court directions are in respect of ad-hoc service rendered before their regular appointment, their cases may also be considered by the concerned Administrative Departments after ascertaining how they became a regular appointee. This is important because in case their ad-hoc service was regularized in pursuance of various directions for regularsation of ad-hoc employees issued by the Government, for instance the OMs bearing Nos.3/2/85DP(I) dt, 31.5.1986, 12/13/92-AQ/DP(Pt) dt, 9.10.92 & 14.1.94-ADhoc/DP dated 22.8.1994, then their retrospective regularization should not be from the dates prior to the date of issue of applications OM as retrospective regularization was not allowed by these OMs and it should be the responsibility of the concerned Head of Department/Administrative Department to get the orders of the Court vacated by filing appeal petition for such cases immediately. However, in case of employees who became a regular appointee by way of direct recruitment duly recommended by a competent DPC, then their past ad-hoc service if there is no break may be regularized for counting pensionary benefits only. However, in case of employees who became a regular appointee by way of direct recruitment duly recommended by a competent DPC, then their past ad-hoc service if there is no break may be regularized for counting pensionary benefits only. (iii) Where the Court has ordered for linking up of past service in favour of employees who had break in service in between ad-hoc service and regular appointment, Head or Department/Administrative Deptt. Shall take step to vacate the order of the Court by filing Appeal petition as linking-up of such service is not provided in the existing Pension Rules except in cases covered under the provisions of Rules 25 & 28 of Pension Rules which are applicable to regular employees only. 2. (i) In case of employee’s request for counting of uninterrupted service rendered in ad-hoc/officiating capacity just preceding their regular appointment, as qualifying service only for pensionary purposes, the same may be agreed to in case of officiating service. (ii) In case of ad-hoc service, it may be remembered that pension Rules does not recognise ad-hoc service and therefore there is no provision under Rules to consider their request. However, the Govt. in some earlier cases and agreed to treat ad-hoc service as qualifying service for pensionary benefits. Therefore, their cases be re by the concerned Head of Department/Administrative Departments whether they had became regular appointee in pursuance of the directions for regularisation of ad-hoc employees issued by the Govt. As mentioned in para 1(ii) above. If so, then their retrospective regularisation shall be reviewed as retrospective regularisation was not allowed by these OMs and from becoming a precedent for future consideration. In case they have not been regularised as above, then their cases may be considered subject to the following conditions. (a) That the ad-hoc appointments should be made on the recommendation of a duly constituted Selection Committee/Departmental Promotion Committee; (b) That the initial ad-hoc appointments should be allowed by regular appointments without any break of service; (c) That the ad-hoc employees should fulfill the criteria/provisions contained in the respective recruitment rules for appointment to the post at the time of initial appointment; (d) That the ad-hoc appointment was made against the clear vacancy of the post. 3. 3. In case of employees with break in service in between their subsequent regular appointment, the concerned Administrative Departments may condone the break in service and allow counting of service prior to regular appointment for pensionary purposes only in the case of officiating appointment and not in case of ad-hoc service. 4. This is issued in consultation with Finance Department (PIC), Government of Manipur.” From its perusal, it does appear that the Government on account of reason of several orders of the High Court being there with respect to regularisation of the services of the ad- hoc employees with retrospective effect and also on the face of several requests being there of the employees for counting period of services rendered as ad hoc/ officiating or temporary basis, was constrained to come out with the scheme expounding the circumstances in which, one who had rendered services in officiating or temporary basis or even on ad hoc basis can have the benefit of past services for the purpose of pension or other service benefits and also the circumstances in which one is not entitled to said benefit. Clause (1)(i) does stipulate that if one was appointed in officiating or in temporary capacity, which culminated into substantive appointment without interruption, he will have benefit of past services rendered in the capacity of officiating/temporary if the count has passed order for treating that period as qualifying service. Whereas, Clause 1(ii) is related to the employee who had rendered services on ad hoc basis and subsequently his service was regularised in the light of provisions of certain Office Memorandum issued in the matter of regularisation and where there has been order of the court relating to counting of the period of past services. But such regularisation would not have retrospective effect, rather, regularisation would be with effect from the date of respective Office Memorandums. However, the part of the said clause reads as follows, upon which much emphasis has been laid down. “However, in case of employees who became a regular appointee by way of direct recruitment duly recommended by a competent DPC, then their past ad-hoc service if there is no break may be regularised for counting pensionary benefits only.” According to learned senior counsel appearing for the appellants, since services of the appellants have been regularised, they in view of the aforesaid clause, are entitled to have benefit of past services. But the stand which had been taken appears to be misconceived as on reading of the clause (1)(ii), it would be apparent that if one has been appointed on ad hoc basis, not on the recommendation of competent DPC and his service is subsequently regularised then regularisation would be w.e.f. the date of Office Memorandum and not with retrospective effect. However, if the appointment has been made on the recommendation of a competent DPC on ad hoc basis he can have benefit of past service. No such case is there of the petitioner that they had been appointed as Workshop Attendant on ad hoc basis by a competent DPC. 8. In that event, the learned single Judge seems to be absolutely justified in saying that the case of the appellant is covered under clause (2)(II), which speaks that the period of the service rendered on ad hoc basis cannot be taken into account for pensionary benefit and, therefore, even some order has been passed in the past by the authority for giving past benefit that needs to be reviewed. However, it further stipulates that such employees who have rendered services on ad hoc basis can have benefit of past service for the purpose of pension provided the conditions mentioned in clause (a) to (d), be fulfilled. It has been recorded by the learned single Judge that the petitioner appellants have failed to establish that they have been fulfilling all those conditions as mentioned in clause (a) to (d). In such event cases relied upon which had also been pressed into service before the learned Judge, also being of the period prior to Office Memorandum dated 05.07.2003 will not be of any help to the appellants. Under the circumstance, we do find that the learned single Judge was absolutely justified in rejecting the prayer of the petitioners appellants. Hence, the order passed by the learned single Judge never warrants any interference by this Court. Accordingly, this appeal stands dismissed.