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2016 DIGILAW 91 (TRI)

Nidul Kanti Deb v. State of Tripura

2016-03-31

DEEPAK GUPTA, U.B.SAHA

body2016
ORDER : Deepak Gupta, C.J. The short question which arises for decision in this writ petition is whether half of the service rendered by the petitioner as Muster Roll employee should be counted towards the qualifying service for calculating his pension and other retiral benefits. 2. Briefly stated the admitted facts of the case are that the petitioner started working as Muster Roll worker with effect from 3rd May, 1970 and continued to work as such till 29th August, 1977. Thereafter with effect from 30th August, 1977 he was temporarily appointed as Khalashi for three months but continued to work as Khalashi till 26th July, 1979 when he was regularly appointed as Lower Division Clerk (LDC) and joined the post on 27th July, 1979. The petitioner retired from service on 31st March, 2008 and while calculating the retiral benefits the qualifying service of the petitioner has been taken only from 27.07.1979 till 31.03.2008 and the service rendered by the petitioner as Muster Roll worker or as Khalashi has not been taken into consideration. The grievance of the petitioner is that his entire service should be counted and taken into consideration. 3. In the counter affidavit filed by the State in para-12 it is stated that since the petitioner was appointed as Khalashi on regular scale as such he is eligible for full benefit of the service as Khalashi for determining the qualifying service to his pension. Therefore, even according to the State the service rendered as Khalashi is to be counted towards the qualifying service. 4. Therefore, only dispute which remain is with the regard to the service rendered by the petitioner on Muster Roll basis. In this behalf the petitioner has relied upon the memorandum dated 16th August, 1978 relevant portion of which reads as follows: “***The question, as to how the past services of Contingent employees, brought on to the regular establishment, may be counted for the purpose of pension, increment etc. has been under consideration of the state government for some time past. After considering all the aspects, the Governor has been pleased to decide that counting of service of Contingent workers towards pension etc. has been under consideration of the state government for some time past. After considering all the aspects, the Governor has been pleased to decide that counting of service of Contingent workers towards pension etc. will be guided on the following conditions:- (a) Half the period of continuous service rendered by a Contingent employees paid from “WAGES” and engaged on full time may be counted towards pension when followed by employment in regular pensionable service;****” Thereafter another memorandum was issued on 19th July, 1982 relevant portion of which reads as follows: “**** The question of counting of past services towards pension of piece-rated Copyists/Typists/ Extra-Moharars etc. who have been brought on the regular establishment, as has been done in case of other contingent employees, has been under consideration of the Govt. for sometime past. Reference are also being received seeking clarification, including references from the Accountant General, Tripura, on earlier orders issued in this regards in respect of contingent employees. After careful consideration the Governor has been pleased to decide that past services of contingent workers and – above stated categories of piece-rated workers, who are brought on to regular establishment without any break will be counted to the extent and in the manner indicated below: (a) Half the period of services of the following categories of employees will be counted for the purpose of pension: (i) All contingent employees (except part time contingent employees) (ii) Piece rated Typists/Copyists/Extra-Moharars of Registration Department and Civil/Criminal Courts. (iii) Piece-rated workers/Compositors of Govt. press. (iv) Piece-rated industrial workers of other Deptt.*****” There is another memorandum of 25th February, 2010 relevant portion of which reads as follows: “***2] After careful consideration of the matter, the Governor has been pleased to decide that the benefit of counting of half of the period of continuous service rendered by the …Ws(sic)/Contingent Workers/Monthly Rated Workers/Casual Workers who were engaged on full time basis and paid from ‘Wages’ would be counted towards pension following their regularization with the approval of the Finance Department. The benefit provided under this circular will not have any relevance in declaration of employees as quasi permanent/permanent/counting of seniority/counting of period for the purpose of determining eligibility for extending benefit of CAS/ACP” 5. The benefit provided under this circular will not have any relevance in declaration of employees as quasi permanent/permanent/counting of seniority/counting of period for the purpose of determining eligibility for extending benefit of CAS/ACP” 5. It is submitted by Sri P. Roy Barman that the case of the petitioner is squarely covered by the three memorandums and the petitioner being a Muster Roll worker is entitled to get half of the service rendered by him from 3rd May, 1970 to 29th August, 1977 counted for purposes of calculating his qualifying service. 6. On the other hand, Sri J. Majumder, learned counsel appearing on behalf of the State submits that in all the three memorandums the phrase used is “past services of contingent employees, brought on the regular establishment” and according to Sri Majumder this benefit will only be available to those contingent employees who are regularized on the post on which they are working as contingent employees and will not be available to those employees who apply separately for a higher job and get selected on merit. His submission is that the work rendered as Muster Roll worker by the petitioner has no connection with his appointment as LDC and therefore, is cannot be taken into consideration. 7. We are not in agreement with the submission made on behalf of the State. Pension is granted for services rendered. It is immaterial at what post the services are rendered. A person may join service as a Class-IV employee but he may during the course of his service attain higher qualifications and be promoted to higher posts or may even laterally through proper channel apply for a another job in the Government. Even in such an eventuality he is entitled to count his past service rendered. Counting of past service has no connection with the post on which past services rendered but has direct relation only to the question as to whether that service is pensionable or not. 8. As far as contingent service is concerned there can be no doubt that as per the pension rules the contingent service was not a pensionable service. However, the government took a conscious decision that if contingent service was followed by regularization then the half of the contingent service would be counted for purposes of calculating the qualifying service. 9. 8. As far as contingent service is concerned there can be no doubt that as per the pension rules the contingent service was not a pensionable service. However, the government took a conscious decision that if contingent service was followed by regularization then the half of the contingent service would be counted for purposes of calculating the qualifying service. 9. We are unable to accept the plea of the State Government that this benefit will only enure in favour of those employees who are regularized on the post on which they were working as contingent employees. This would be creating an artificial division between those who are selected on the higher posts on their own merits and those who are regularized and who could not get a job on their own merit at a higher level. We cannot interpret the law in such a manner that those who are more meritorious and get higher position are deprived of the benefit of past service but those who are regularized in the lower scale are given the benefit of such memorandum. When we read the memorandum as a whole it is more than obvious that the question raised was how the contingent service has to be dealt with if it is followed by regular employment. 10. We, therefore, clearly of the view that if an employee who was serving on contingent basis is regularized than whether he is regularized on the same post or he is appointed by fresh appointment but the service is continuous then he shall be entitled to the benefit of counting half of the contingent service, for purpose of calculating his qualifying service. 11. In view of the above discussion we allow the writ petition and direct as follows: (i) That half of the service rendered by the petitioner from 3rd May 1970 to 29th August, 1977 shall be counted towards the qualifying service for calculating his pension and other retiral benefits. (ii) That the entire service rendered by the petitioner from 30th August, 1977 till his retirement on 31st March, 2008 shall be treated to be qualifying service. (iii) That the retiral benefits of the petitioner be recalculated in terms of the judgment rendered within three months from today and the benefits be paid latest by 31st October, 2016. (ii) That the entire service rendered by the petitioner from 30th August, 1977 till his retirement on 31st March, 2008 shall be treated to be qualifying service. (iii) That the retiral benefits of the petitioner be recalculated in terms of the judgment rendered within three months from today and the benefits be paid latest by 31st October, 2016. In case the amount of arrears is not paid by 31st October, 2016 than the State shall be liable to pay interest @ 12% per annum from 1st April, 2015 till payment of the arrear. 12. The writ petition is disposed of in the aforesaid terms. No costs.