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2016 DIGILAW 96 (GAU)

Nabam Protima v. State of Arunachal Pradesh

2016-02-11

SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. Heard Mr. T. Tagum, learned counsel for the petitioner in WP(C) No. 447 (AP) 2014 as well as Mr. L. Perme, learned counsel appearing for the writ petitioner in WP(C) No. 232(AP) 2014. Also heard Ms. G. Deka, learned Sr. Govt. Advocate. Arunachal Pradesh appearing for the State respondents in both the writ petitions. 2. Since the aforementioned writ petitions raises common question of law, hence, both the petitions are taken up for disposal by this common judgment and order. 3. In WP(C) No.447 (AP) 2014:- The petitioner's case, in brief, is that pursuant to the advertisement notice dated 07.08.2000 (Annexure-3 to the writ petition) issued by the respondent No.4 inviting candidature for tilling up a few vacant post of Group-“D” under the establishment of the respondent No.4, the petitioner besides other candidates had duly submitted their candidatures. Thereafter, by a call letter dated 25.08.2000, the petitioner was called for interview for the post of Group-1) and eventually, by the appointment order dated 14.09.2000 issued by the respondent No.4, the petitioner was appointed as a Forest Guard under the establishment of Deputy Chief Wild Life Warden, Naharlagun in the scale of pay of Rs.2750-4400/- p.m. for a period of 2 years on probation. 4. In terms of the appointment order dated 14.09.2000. the petitioner had duly joined service in the post of Forest Guard and has been rendering her duty in the said post with utmost sincerity and honesty. Being satisfied with the service rendered by the petitioner, she was retained in service after completion of the probation period and the petitioner was also paid her annual increment from time to time since 01.09.2001 to uptill 01.07.2011. However, since the year 2012, no annual increment has been paid to the petitioner for reasons not known to her. 5. While the petitioner was continuing to render her service as a Forest Guard under the respondent authority, by the letter dated 23.12.2010 issued by the Conservator of forests (HQ), an offer was made to the petitioner and several other similarly situated persons to accept her date of appointment w.e.f. 31.07.2008 on the ground that her initial appointment during the year 2000 was without any clear vacancy or by following the due procedure under the Recruitment Rules. However, by the representation dated 27.12.2010, the petitioner had rejected the aforesaid offer made by the Department. 6. However, by the representation dated 27.12.2010, the petitioner had rejected the aforesaid offer made by the Department. 6. It is the further case of the petitioner that by the notification dated 09.08.2012, the Conservator of Forests (HQ), Itanagar had published a list of candidates who were entitled to receive benefits under the Modified Assured Career Progression Scheme ('MACP', in short). In the said list the name of the petitioner appeared at serial No.8 whereby, it was indicated that the writ petitioner would be entitled to receive the 1st MACP which falls due on completion of 10 years continuous service in one post. However, despite issuing the said notification and notwithstanding the fact that the petitioner had completed 10 years of continuous service in the existing post of Forest Guard, the benefit of 1st MACP has not been-given to her till date. In such circumstances, the petitioner has approached this Court by seeking a direction upon the respondent authorities for payment of the annual increment applicable w.e.f. the year 2012 and also for payment of her dues under the MACP Scheme. 7. In WP(C) No. 232(AP) 2014:- In the instant case also, the petitioner was appointed as a Forest Guard by the appointment order dated 14.09.2000 for a period of 2 years on probation in the scale of pay of Rs.2750-4400/- p.m. pursuant to a selection process conducted by the respondent No.4 based on the advertisement notice dated 07.08.2000. Being satisfied with his services, the petitioner was retained as a Forest Guard under the Department after completion of his probation period and he continued to discharge his duty with utmost sincerity and efficiently. Thereafter, by order dated 23.12.2010 issued by the Conservator of Forests (HQ), Itanagar, an offer was made to the petitioner to accept his date of joining in service w.e.f. 31.08.2008 since there was no clear vacancy in the department in (he post of Forest Guards in the year 2000 when the initial appointment was made. 8. By a letter dated 23.12.2010 the petitioner had communicated his acceptance of the said offer made by the notification dated 23.12.2010 as a result of which, by means of a separate order dated 23.12.2010, the services of the petitioner in the post of Forest Guard (Group-C) was regularised w.e.f. 31.08.2008 and he was posted in the office of the Deputy Chief Conservator of Forest, Naharlagun under wild life circle. 9. 9. It is the case of the petitioner that despite being in continuous service for more than 12 years and notwithstanding the fact that his service has been duly regularised by the department, neither any annual increment has been paid to the petitioner till date nor has the benefit of MACP has been offered to the petitioner although he was entitled to receive the same as per Rules. The petitioner, therefore, prays for appropriate direction from this Court for counting his seniority in service as well as the length of service w.e.f. the date of completion of probation i.e. from 01.10.2002. 10. The State respondents have filed their counter affidavit inter-alia contending that the petitioners in both the writ petitions were appointed dehors the rules and such appointment was not against the sanctioned vacancy. As such, the services of the writ petitioner in WP(C) No. 447 (AP) 2014 not being regularised against a sanctioned vacancy, she does not ful-fill the requisite criteria under the MACP of 10 years continuous service. In so far as the case of writ petitioner in WP(C) No. 232 (AP) 2014 is concerned, the stand of the State respondents is that the period of 10 years in his case would be counted only w.e.f. 31.08.2008 i.e. the date of regularisation in service and as such, the petitioner would be entitled to get the benefit of MACP only w.e.f. 31.08.2018 i.e. after completion of 10 years of regular service in the said post. 11. Mr. T. Tagum, learned counsel for the writ petitioner submits that the petitioner was appointed as a Forest Guard pursuant to a valid selection process undertaken by the departmental authority on the basis of the advertisement notice dated 07.08.2000. During the course of her service, the performance appraisal of the petitioner was made by the competent authority and the character and antecedent of the petitioner as well as other similarly situated employees were also duly verified by the authorities. On the basis of such verification of character and antecedent of the petitioner and on due appraisal of her performance. recommendations were made to the Principal Chief Conservator of Forest, Arunachal Pradesh, Itanagar seeking approval for release of her increment. Consequently, the annual increment as applicable under the rules had been paid to the writ petitioner until 01.07.2011. 12. On the basis of such verification of character and antecedent of the petitioner and on due appraisal of her performance. recommendations were made to the Principal Chief Conservator of Forest, Arunachal Pradesh, Itanagar seeking approval for release of her increment. Consequently, the annual increment as applicable under the rules had been paid to the writ petitioner until 01.07.2011. 12. The learned counsel submits that since the petitioner has been appointed through a valid selection process and considering the fact that she possesses the requisite qualifications as per the Recruitment Rules, hence, the mere fact that there was no clear sanctioned vacancy at the time of issuing the appointment order cannot be a justifiable ground to deny the annual increment to the petitioner after having paid the same for more than 10 years. The learned counsel for the writ petitioner further submits that after having appointed the petitioner in the year 2000, the authorities have never communicated to the petitioner at any stage that the appointment process suffers from any irregularities due to non existence of sanctioned vacancy. It was only on 23.12.2010 that the petitioner could come to know for the first time about the non existence of regular sanctioned vacancy against which she was appointed more than 10 years back. Since the aforesaid fact was never communicated by the departmental authority to the petitioner for nearly 10 years after her date of appointment and considering the fact that the authorities have been paying the regular salary and annual increment to the petitioner all these years, the learned counsel submits that the present is a clear case where the department has acquiesced as regard the appointment of the petitioner and would be estopped from questioning the legality and validity of the same this point of time. 13. Mr. Tagum further submits that the rejection of the offer made by the letter dated 23.12.2010 would be inconsequential for the purpose of paying the petitioner's service benefits inasmuch as notwithstanding the representation dated 27.12.2010 the petitioner has been allowed to continue against the regular vacancy by paying her pay and allowances as per the rules. Therefore, submits Mr. Tagum, the present is a fit case where the authorities be directed to pay the annual increment as well as the MACP dues to the petitioner. In support of his aforesaid arguments, Mr. Therefore, submits Mr. Tagum, the present is a fit case where the authorities be directed to pay the annual increment as well as the MACP dues to the petitioner. In support of his aforesaid arguments, Mr. Tagum has placed the reliance on the following decisions of the Hon’ble Apex Court :- (1) 1993 (3) SCC 591 (Dr. M.S. Mudhol & Anr. v. S. D. Halegkar & Ors.) Para-6 (2) 1990 (2) SCC 715 (Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors.) Para 13 & 47 (3) 1992 Supp (2) SCC 491 (M.B. Hiregoudar v. State of Karnataka & Ors.) Para 11 (4) 2003 (10) SCC 265 (Chief Commissioner of Income Tax & Ors. v. V. Subba Rao & Ors.) Para 5 (5) 1994(2) SCC 448 (Ms. Power Control Appliances & Ors. v. Sumeet Machines Pvt. Ltd.) Para 26 (6) 2014 (2) SCC 401 (J. Jayala-lithaa & Ors. v. State of Karnataka & Ors.) Para 14. 14. Adopting the arguments advanced by Mr. Tagum, Shri L. Perme, learned counsel for the petitioner in WP(C) No.232 (AP) 2014 submits that his ease is also identical to that of the writ petitioner in WP(C) No. 447 (AP) 2014 with the exception that his client had accepted the offer made by the notification dated 23.12.2010 pursuant to which the service of his client was regularised in the post of Forest Guard (Group-C) w.e.f. 31.8.2008 and that unlike the case of the petitioner in WP(C) No. 447 (AP) 2014, the authorities had never paid the annual increment to the petitioner till date. Mr. Perme submits that his client being similarly situated with that of the writ petitioner in WP(C) No. 447 (AP) 2014, would be entitled to the benefit of similar treatment at the hand of the authorities and as such the mere, fact that fie had accepted the offer made by the letter dated 23.12.2010 would not have any bearing in the facts and circumstances of the case. 15. Smti. G. Deka, learned Sr. Govt. Advocate. Arunachal Pradesh submits that the appointments made by the respondent No.4 in respect of both the petitioners cannot be held as valid appointment since the entire selection process was dehors the rules and the appointments were made without their being any sanctioned vacancies. 15. Smti. G. Deka, learned Sr. Govt. Advocate. Arunachal Pradesh submits that the appointments made by the respondent No.4 in respect of both the petitioners cannot be held as valid appointment since the entire selection process was dehors the rules and the appointments were made without their being any sanctioned vacancies. She submits that, taking note of the over all facts and circumstances of the case and also by adopting a human approach to the entire matter, the State Government had decided to retain the services of the petitioners and regularised their services w.e.f. the date of creation of regular vacancies. Smti. Deka submits that it is for that reason that the offer for regularisation in service from a later date was made vide notification dated 23.10.2010 since the regular vacancies arose on such date. However, although the writ petitioner in WP(C) No. 232 (AP) 2014 i.e. Mr. Tapa Gumja has accepted the said offer, Smti. Nabam Protima i.e. writ petitioner in WP(C) No. 447 (AP) 2014 had declined the said offer as a result of which her services could not be confirmed. 16. Smti Deka, learned Sr. Govt. Advocate submits that the case of Smti Tapa Gumja can be considered for conferment of benefit under the MACP Scheme only after completion of 10 years continuous service in the present post reckoned from 31.08.2008. However, Smti. Nabam Protima would not be entitled to the benefit of MACP since her services are yet to be regularised in the post of Forest Guard. It is for that reason, submits the learned Sr. Govt. Advocate, the MACP dues have not been paid to both the petitioners till date. Smti Deka, however, submits in all fairness that both the petitioners would be entitled to their annual increment as per the pay scale and hence, there is no difficulty in considering the prayer of the petitioners in so far as the payment of annual increment is concerned. 17. In support of her arguments, Smti Deka has placed reliance on an unreported judgment of the Hon’ble Supreme Court rendered in the case of Surendra Kumar & Ors v. Greater Noida Industrial Developmental Authority (Civil Appeal No. 4916 of 2015 arising out of SLP (Civil) 662 of 2014) as well as another decision of the Apex Court in the case of Secretary to Government. School Education Department, Chennai v. R. Govindaswamy & Ors., reported in (2014) 4 SCC 769 to contend that mere length of service in a temporary post shall not give right to an employee to claim regularisation if he is not working against the sanctioned post. 18. I have considered the rival submissions made by the learned counsels for the parties and have also perused the record produced by the learned Sr. Govt. Advocate. Arunachal Pradesh. Since it has been fairly conceded by Ms. Deka that the petitioners would be entitled to get the benefits of annual increment as per their entitlement w.e.f. the dale of their joining till the current date, as such, this Court need not be detained on the aforesaid issue. The issue stands answered in favour of the writ petitioners. Since the regularisation of service in a particular post is not a condition for payment regular salary and annual increment as per the Rules and considering the fact that the respondent authorities have been paying the annual increment to Smti Nabam Protima. hence, this court does not find any valid ground for discontinuation of the annual increment. Both the writ petitioners being similarly situated in the matter of payment of annual increment cannot be treated unequally by the departmental authorities. Hence, it is held that both the writ petitioners would be entitled to receive annual increment as per the Rules. 19. Coming to the next question of regarding claim made by both the writ petitioners as regard the benefit of MACP, it appears that the State Government of Arunachal Pradesh had earlier accepted the MACP for the Central Government Civil Employees as recommended by the 6th Central Pay Commission with certain modifications. 'Hie afore-said MACP was introduced in the State of Arunachal Pradesh vide notification dated 31.07.2009 in accordance with the approval of the Departmental Screening Committee. Consequently, the notification dated 09.08.2012 was issued covering the employees of the Forest Department who would be entitled to revive the first, second and third financial up-gradation under the MACP Scheme wherein the name of the writ petitioner Smti. Nabam Protima finds place. 20. As per the MACP Scheme, the financial up-gradation in the form of 1st MACP would be admissible to an employee who has completed 10 years of continuous service in the same grade pay. Nabam Protima finds place. 20. As per the MACP Scheme, the financial up-gradation in the form of 1st MACP would be admissible to an employee who has completed 10 years of continuous service in the same grade pay. There is nowhere mentioned in the scheme document that such tenure of 10 years must be against a regular sanctioned vacancy. As long as the employee completes 10 years of continuous service, the said person would acquire the eligibility for being considered for MACP benefit. In the case of Direct Recruit Class II Engineering Officers' Association (supra), the Constitution Bench of the Hon’ble Supreme Court has observed as follows: “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.” 21. In the present case, both the petitioners have continued in the post of Forest Guards since the year 2000 till today uninterruptedly and has been receiving regular salary as per the pay scale applicable to them. As has been noted herein above, the State is also not disputing their right to receive annual increment of pay effective from the date of their joining in service. As a matter of fact, the writ petitioner m WP(C) No. 447 (AP) 2014 i.e. Smti. Nabam Protima has been admittedly paid her annual increment since the year 2001 up till the year 2011 without any break. Since, the entitlement of the writ Petitioner Nabam Protima to regularisation of her services is not an issue involved in this proceeding, hence, this court need not go into that aspect of the matter. Nabam Protima has been admittedly paid her annual increment since the year 2001 up till the year 2011 without any break. Since, the entitlement of the writ Petitioner Nabam Protima to regularisation of her services is not an issue involved in this proceeding, hence, this court need not go into that aspect of the matter. Therefore, the only question that survives for consideration by the Court in the present batch of petitions is as to whether the continuous service rendered by the petitioners in the post of Forest Guard is liable to be counted for the purpose of considering their claim of seniority and for MACP benefits. 22. It is not in dispute that an advertisement notice was issued by the Recruiting Authority pursuant to which the selection process was held where-under both the petitioners were recruited to the post of Forest Guards. After having served the probation period, the service of the petitioners had been retained by the authorities. It is not the case of tire respondents that the petitioners did not fulfil the requisite qualifications as per the rules for being appointed to the post of Forest Guards. Therefore, having retained the petitioners in service for the continuous period since the year 2000, the arguments made on behalf of the State that the entry of the petitioners in service was dehors the rules merely because there were no sanctioned vacancies at the relevant point of time does not merit acceptance by this Court. I am therefore, unable to agree with the arguments advanced by the learned State Counsel to the effect that the services of the petitioners in the post of Forest Guards, not being against the regular vacancies, the same cannot be counted towards tire qualifying period of 10 years of continuous service which is mandatory requirements for availing the benefit of first MACP slab. 23. That apart, the learned Sr. Govt. Advocate has not been able to furnish any explanation as to why the name of the writ petitioner in WP(C) No. 232 (AP) 2014 was included in the list dated 09.08.2012, if she had not completed 10 years of continuous service in the opinion of the Department. 23. That apart, the learned Sr. Govt. Advocate has not been able to furnish any explanation as to why the name of the writ petitioner in WP(C) No. 232 (AP) 2014 was included in the list dated 09.08.2012, if she had not completed 10 years of continuous service in the opinion of the Department. Assuming that the offer made by the department by the notification dated 23.10.2010 proposing regularisation of services of the petitioners w.e.f. the dates mentioned therein is held to be valid even in that case the length of continuous service rendered by both the petitioners w.e.f. their date of appointment cannot be treated as null and void for the purpose of computing their seniority in service pursuant to such regularization. Once it is held that entry of an employee in the service is not through the back door but by following a proper selection process and the candidate had the requisite qualification under the Rules to be appointed as such, the benefit of seniority for the uninterrupted service will have to he given to the employee regardless of the fact that the post held in terms of such employment was a temporary post. In view of the authoritive pronouncement of the Constitution Bench of the Supreme Court in the case of Direct Recruit-II (supra) I do not deem it necessary to burden this judgment with the catena of decision rendered by the Hon’ble : Apex Court on the subject. 24. In view of what has been discussed herein above, I am of the un-hesitant view' that the services rendered by the writ petitioners in the post of Forest Guards since the year 2000 having been pursuant to a valid selection process and uninterrupted in nature, the petitioner’s aforesaid period of services would count towards determining their seniority in service and hence, would qualify for being counted as 10 years qualifying service necessary for conferring the benefit of MACP pay up-gradation. 25. Coming to the case of writ petitioner in WP(C) No. 232 (AP) 2014 an attempt has been made to non suit the petitioner taking the plea of delay in approaching the court in so far as the claim for annual increment is concerned. The said issue in my considered opinion does not survive for consideration in view of the stand taken by the learned Sr. Govt. Advocate as noted above. The said issue in my considered opinion does not survive for consideration in view of the stand taken by the learned Sr. Govt. Advocate as noted above. That apart, Shri Tapa Gumja i.e. writ petitioner in WP(C) No. 232 (AP) 2014 having been similarly situated with Smti Nabam protima cannot be meted out differential treatment in their place of employment since such a measure would be in direct contravention of the principles of the equality enshrined under the Articles 14 and 16 of the Constitution of India. It is settled law that delay cannot be a ground to extinguish fundamental right of a citizen. 26. In view of the determination made hereinbefore, the respondent authorities are now required to consider the claim of the petitioners for payment of benefit under the MACP Scheme as per their entitlement under the Rules by taking into account their continuous period of service in the post of Forest Guards. As regard the claim of the petitioners for payment of annual increment, the respondent authorities are directed to make payment of the annual increment to both the petitioners as per their entitlement under the law including the arrear dues, if any. After working out the entitlement of the respective' petitioners as regard their claim of MACP benefit as well as the annual increment, the respondent authorities would disburse the amounts found due within a period of 60 days from the date of receipt of a certified copy of this order. 27. With the above observations and directions, both the writ petitions stand allowed. No order as to cost.