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2016 DIGILAW 624 (GAU)

Suren Talukdar (II) v. State of Assam

2016-07-14

MANOJIT BHUYAN

body2016
JUDGMENT : 1. The petitioner who is an ex-serviceman was appointed as a Sub-Inspector on 21.12.1993 in terms of the Scheme formulated by the Government of India called the Prevention of Infiltration of Foreigners Additional Scheme dated 03.06.1987. The said Scheme was brought about for strengthening the Assam Government machinery towards detection and deportation of foreigners. Such appointment of the petitioner was made through a Selection Board and to a post which had been duly sanctioned under the aforesaid PIF Additional Scheme dated 03.06.1987. On attaining the age of superannuation, the petitioner retired from the said civil employment on and from 31.12.2014. 2. The instant writ petition is instituted seeking a direction to the respondents for regularising the break-in-service of the petitioner for the period from 21.12.1998 to 07.02.1999 with consequential benefits in respect of the arrear salary for the said period and with all his pensionary benefits together with benefits of leave encashment that stands to his credit to a maximum of 300 days. 3. For the purpose of adjudication, the issue with regard to regularisation of the break-in-service for the period from 21.12.1998 to 07.02.1999 is taken-up first and if the said issue stands decided in favour of the petitioner, the other two issues would not be required to be gone into in details. 4. The status of an ex-serviceman employed under the aforesaid PIF Additional Scheme had received consideration of this Court in Civil Rule No. 2065 of 1995 and Civil Rule No. 1698/1995 and eventually by the Apex Court in the case of Md. Abdul Kadir and Another v. Director General of Police, Assam, reported in (2009) 6 SCC 611 . One of the issues that was considered by the Apex Court is in respect of the Circular dated 17.03.1995 issued by the Inspector General of Police (Border), Assam which had laid down the procedure for appointment and continuation of ex-servicemen as Adhoc Border Staff. The said Circular of 17.03.1995 having introduced an element of uncertainty with regard to the service of the Adhoc Border Staff, the same was tested vis-a-vis the Original PIF Scheme as well as the Additional PIF Scheme which has been continued from the year 1987 without break. The said Circular of 17.03.1995 having introduced an element of uncertainty with regard to the service of the Adhoc Border Staff, the same was tested vis-a-vis the Original PIF Scheme as well as the Additional PIF Scheme which has been continued from the year 1987 without break. The Apex Court while holding that persons employed under the aforesaid Scheme are not entitled to regularisation in service nor to the security of tenure and service benefits available to the regular employees, however, affirmed the views of the learned Single Judge of this Court that such employees should be allowed to continue as long as the Scheme is continued by the Government of India. In that respect the Circular dated 17.03.1995 was interfered with by holding that the Scheme does not contemplate periodical termination and reappointment. The Apex Court made it absolutely clear that the adhoc appointments under the Scheme are normally co-terminus with the Scheme in question subject, however, to any termination that may be made either on medical or disciplinary grounds or for unsatisfactory service or on attainment of normal age of retirement. 5. In the above backdrop Mr. D. Choudhury, learned counsel for the petitioner submits that the petitioner had continued in service uninterruptedly for the period from 21.12.1993. As regards the break of 52 days, it is contended that the petitioner had discharged duties even during that period and it was only on account of the inaction on the part of the Superintendent of Police (B), Darrang that such break in service occurred. According to Mr. Choudhury, the very fact that a subsequent order was issued on 08.02.1999 allowing him to work on adhoc basis for another one year itself goes to show that it was because of his good performance that his service had been renewed. Mr. Choudhury also submits that the petitioner’s adhoc appointment being co-terminus with the Scheme, as such, the said gap is an artificial one and cannot be relied upon to deny salary for the said period as well as in respect of all consequential benefits that he is legitimately entitled to for having served as Sub-Inspector for more than twenty-one years. In respect of the petitioner’s entitlement to pension, Mr. In respect of the petitioner’s entitlement to pension, Mr. Choudhury refers to the Order dated 23.09.2011 issued by the Government of Assam in the Home (A) Department which reproduces the views expressed by three departments, namely, the Judicial Department, the Pension and Public Grievances Department and the Finance (Establishment-A) Department. The said order ex-facie indicates that ex-servicemen will not only get the benefit of time-scale-of-pay w.e.f. the date of their initial appointment together with annual increments but would also be entitled to pension against their services in civil employment, specially on completion of the qualifying period of service in terms of Rule 176 of the Assam Services (Pension) Rules, 1969. According to Mr. Choudhury, the petitioner having completed more than 20 years in civil employment, he is entitled to the benefit of pension in terms of the aforesaid order of the Government of Assam dated 23.09.2011. As regards the entitlement to Leave Encashment, Mr. Choudhury makes reference to the Circular dated 13.12.2011 issued from the Office of the Director General of Police (Border) to show that ex-servicemen working in the Border Organisation are entitled to accumulation of Earned Leave upto a maximum of 300 days standing to his credit w.e.f. the date of effect of the Revision of Pay Rules of 2010. According to Mr. Choudhury, both pension and Leave Encashment are due to the petitioner, in as much as, he has rendered service as a Sub-Inspector uninterruptedly for the period from 21.12.1993 to 31.12.2014. 6. Per contra, Mr. B.J. Talukdar, learned counsel representing the State Respondents submit that the petitioner is not entitled to the reliefs as prayed for, he not having completed the qualifying service of 20 years as Sub-Inspector i.e. in civil employment. Mr. Talukdar refers to the affidavit-in-opposition filed on behalf of the respondent no. 4 to say that the service of the petitioner was terminated on 21.12.1998 due to his poor performance on the basis of the report received from the Superintendent of Police, Border, Darrang. Thereafter, he was freshly appointed on 08.02.1999. Having regard to the above, Mr. Talukdar submits that the question of regularisation of the period from 21.12.1998 to 07.02.1999 does not arise for consideration, as during that period the petitioner was not in service. In fact, it was only upon an application that had been made that the petitioner was freshly appointed as Sub-Inspector (Border) after complying with all formalities. 7. Talukdar submits that the question of regularisation of the period from 21.12.1998 to 07.02.1999 does not arise for consideration, as during that period the petitioner was not in service. In fact, it was only upon an application that had been made that the petitioner was freshly appointed as Sub-Inspector (Border) after complying with all formalities. 7. Arguments advanced by Mr. Talukdar is rebutted by the petitioner and to this end Mr. Choudhury refers to the statements and averments made in paragraph 13(C) of the writ petition. It is contended that, first and foremost, no order of termination was ever served upon the petitioner and the ground of termination, even if taken in its face value, is wholly unsustainable as because if the performance of the petitioner was poor, he could not have been asked to resume duties again on and from 08.02.1999. It is also submitted that the ground assigned is wholly irrelevant and finds no support from the Scheme in question. Lastly, Mr. Choudhury submits that the service of a person being co-terminus with the Scheme in question, which aspect has been upheld by the Apex Court, the gap in service is utterly an artificial break and cannot stand to deny any benefits accruing upon the petitioner towards rendering service for the period from 21.12.1993 to 31.12.2014. 8. I have heard the learned counsels at length and have also perused the materials available on record. Vital point for consideration is whether the period from 21.12.1998 to 07.02.1999 can be held to be a break-in-service of the petitioner. The statements made in the affidavit-in-opposition at paragraph 4 thereof is to the effect that the petitioner’s service was terminated w.e.f. 21.12.1998 and that he was given fresh appointment on 08.02.1999. This statement is sworn to be made on the basis of records. However, no documents have been placed on record to justify the stand of the State Respondents that the petitioner was terminated from service w.e.f. 21.12.1998. Assuming that there was indeed an order terminating the service of the petitioner on and from 21.12.1998, there is no statement or grounds taken that the same had been done after affording opportunity of hearing to the petitioner. In all, there is neither any record justifying the termination nor any statements justifying compliance of the principles of natural justice. Assuming that there was indeed an order terminating the service of the petitioner on and from 21.12.1998, there is no statement or grounds taken that the same had been done after affording opportunity of hearing to the petitioner. In all, there is neither any record justifying the termination nor any statements justifying compliance of the principles of natural justice. The ground assigned that it was due to poor performance that the petitioner was shunted out from service, do not inspire the confidence of this Court, in as much as, having regard to the object of the Scheme and the duties and responsibilities cast upon a person employed under the Scheme, it cannot be comprehended that a person with poor ability can again be taken back into service. The petitioner had stated on oath that during his tenure he was instrumental in the detection of about 3000 numbers of “D Voters” which, perhaps, is a substantial number. In respect of any break-in-service, the Apex Court in the case of Md. Abdul Kadir (supra) have unequivocally held that adhoc appointments under the Scheme is co-terminus and would continue as long as the Scheme continues. Break in service can be contemplated if termination results from medical or disciplinary grounds and/or for unsatisfactory service or on attainment of the normal age of retirement. Although the ground of unsatisfactory service has been urged by the State Respondents, however, the same is shorn of any documentary support. To reiterate, the Scheme only contemplates appointment of ex-servicemen found eligible through a regular selection process. The petitioner having accepted the post in question legitimately expected that he would continue in service as long as the PIF Additional Scheme continued. In fact, he continued uninterruptedly on and from 21.12.1993 but for some reason or the other a break-in-his service was recorded for the period from 21.12.1998 to 07.02.1999. This break do not conform to any of the provisions under the Scheme or finds support from the judgment of the learned Single Judge in Civil Rule No. 2065 of 1995 and Civil Rule No. 1698/1995, which was eventually affirmed by the Apex Court holding that service should be allowed to continue as long as the Scheme is continued by the Government of India. Even otherwise, and as alluded to above, the alleged termination from service w.e.f. 21.12.1998, not being justified in the absence of any documentary proof, the said period from 21.12.1998 to 07.02.1999 cannot be held to be a break/gap while computing the period of service of the petitioner. 9. The aforesaid discussion leads to the inevitable conclusion that the petitioner should be regarded as having served under the Scheme uninterruptedly for the period from 21.12.1993 to 31.12.2014 and in that view of the matter he also stands entitled to Pension and Leave Encashment in terms of the aforesaid Order dated 23.11.2011 issued by the Government of Assam in the Home (A) Department and that of the Circular dated 13.12.2011 issued from the Office of the Director General of Police (Border), Assam. 10. In view of the above, this writ petition stands allowed with direction to the State Respondents to forthwith regularise the break-in-service of the petitioner for the period from 21.12.1998 to 07.02.1999 and to compute and pay salary and increments as admissible to the petitioner after regularisation of the break-in-service for the period aforesaid together with pensionary benefits that is due to him as well as the benefits of Leave Encashment to which the petitioner is entitled to under the law. The exercise to be undertaken by the respondents be completed as expeditiously as possible, preferably within an outer limit period of 4(four) months from today. 11. Writ petition stands allowed. The parties shall bear their own costs.