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2018 DIGILAW 1638 (GAU)

Shikhu Saghu v. State of Nagaland

2018-11-22

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : Songkhupchung Serto, J. 1. I have heard Mr. Moa Jamir, learned counsel for the petitioner and Ms. V. Suokhrie, learned Addl. Sr. Government Advocate who appeared on behalf of the State respondents in all the writ petitions. 2. This writ petition was heard along with four writ petitions being W.P.(C) No. 267(K) of 2017, W.P.(C) No. 248(K) of 2017, W.P.(C) No. 247(K) of 2017, W.P.(C) No. 268(K) of 2017 & W.P.(C) No. 273(K) of 2017. However, I have decided to dispose of this writ petition separately in view of the slight differences in the fact and circumstances and the prayers. 3. Before I go any further, the facts and circumstances which lead to the filing of this writ petition are summed up here below; By Office order dated 03.08.1980, issued by the General Manager, Nagaland State Transport, Government of Nagaland, the petitioner was appointed as LDA in the pay scale of Rs. 255-6-325-EB-7-350-EB-10-400/- p.m. plus other allowance as are admissible under rules from time to time, on causal basis, for a period of three months from the date of his joining and the appointment being terminable automatically on expiry of the term, if not extended otherwise by the competent authority and with no entitlement for regular absorption to the post. Thereafter, on completion of his term of three months his service was terminated but after a gap of one or two days he was appointed afresh to the same post by issuing another appointment order for a limited period under the same condition. In the same manner several appointment and termination orders followed and that continued till 06.09.1986, the day, the term of his last casual appointment as LDA was over. After a gap of two days vide order No. NST/ESTT/3-C9PT)/81/357-64, dated 09.09.1986, issued by the General Manager, NST, the petitioner was appointed on casual basis for a period of three months as Booking Assistant/Ticket Examiner (Class-in service of NST) in the pay scale of Rs. 450-11-538-12-670-18-15-885/- p.m. plus other allowance as admissible under rules from time to time, with effect from the date of joining the post. Thereafter, by another order issued by the General Manager, NST, vide Memo No. NST/ESTT/1978/2193-100, dated 28.01.1987, the service of the petitioner along with that of similarly situated persons was extended till 31.03.1987. 450-11-538-12-670-18-15-885/- p.m. plus other allowance as admissible under rules from time to time, with effect from the date of joining the post. Thereafter, by another order issued by the General Manager, NST, vide Memo No. NST/ESTT/1978/2193-100, dated 28.01.1987, the service of the petitioner along with that of similarly situated persons was extended till 31.03.1987. After the end of the term of the petitioner's appointment his term of service was extended twice till 18.08.1987, vide Order No. NST/ESTT/1978/907-14, dated 27.04.1987, and Order No. NST/ESTT/1978/3115-21, dated 10.07.1987 respectively, both issued by Assistant General Manager, NST. On the day, the term of the petitioner's service ended, vide Order No. NST/ESTT/1978/414-21, dated 18.8.1987, issued by Assistant General Manager, NST, the service of the petitioner was terminated with immediate effect However, on the very next day, the General Manager, Nagaland State Transport, Dimapur, vide his Order No. NST/EST/3-C/Pt-IV/86/471-82, dated 19.08.1987, appointed the petitioner on regular basis to the same post, in the scale of pay of Rs. 450-11-538-12-670-EB-15-805/- p.m. plus other allowances as admissible under rules. After about 28 years, on 7.8.2015, the Divisional Manager, Nagaland State Transport, Government of Nagaland, vide his Office Memo No. NST/DM/K/ESTT/36/2015-16/175, issued an order releasing the petitioner from service in terms of section-3(1) & 3(2) of the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 read with P & AR Department Notification No. AR-3/GEN-174/2007(PT), dated 17.08.2009, along with other employees serving under the same Department purportedly for the reason that they have completed 35 years length of service counting from the date of their first appointment to Government service i.e. as LDA in the case of the petitioner. The same is reproduced here below; "Government of Nagaland Office of the Divisional Manager Nagaland State Transport, Kohima No. NST/DM/K/ESTT/36/2015-16/ Dated Order in terms of section 3(1) and section 3(2) of the Nagaland Retirement from Public Employment (Second Amendment 0 Act 2009 read with P & AR Department Notification No. AR-3/GEN-174/2007/(Pt) dtd. 17th August 2009, the under-noted Employees serving under the Department of Nagaland State Transport, Kohima is hereby released on completion of 35 years. Sl. Name of Employee Designation Office & place of posting Date of birth Date of joining in service Date of completion of 35 years Date of release 1. 2. C.Shikhu Saghu Thinu Rase Ticket Examiner Conductor DM Office NST Kohima DM Office NST Kohima 1.3.1959 6.11.1957 3.8.1980 3.9.1980 2.8.2015 2.9.2015 31.8.2015 30.9.2015 4. Sl. Name of Employee Designation Office & place of posting Date of birth Date of joining in service Date of completion of 35 years Date of release 1. 2. C.Shikhu Saghu Thinu Rase Ticket Examiner Conductor DM Office NST Kohima DM Office NST Kohima 1.3.1959 6.11.1957 3.8.1980 3.9.1980 2.8.2015 2.9.2015 31.8.2015 30.9.2015 4. Aggrieved by the above impugned order releasing him from service, the petitioner has come before this Court claiming that his length of his service was wrongly counted from 03.08.1980 i.e. the date on which he was first appointed to the post of LDA in the pay scale of Rs. 255-6-315-EB-7-350-EB-10-400/- p.m. for a period of three months and also claiming that his length of service should be counted only from 09.09.1986, i.e. the day he was first appointed as Booking Assistant/Ticket Examiner(Class-III service of NST) in the scale of pay of Rs. 450-11-538-12-670-EB-15-805/- p.m. vide order dated 19.08.1987, issued by the General Manager, Nagaland State Transport, Dimapur, since his earlier appointment as LDA was intervened by termination orders therefore, not connected with the next appointments and also because, the posts of LDA and the post of Booking Assistant/Ticket Examiner to which he was appointed later and regularised are two different posts and distinct from each other. It is also claimed by the petitioner that going by his date of birth he would be completing 60 years of age on 31.01.2019, therefore, he should be retiring only on that day as per the provisions of section-3(1) & 3(2) of the Nagaland Retirement from Public Employment Act as amended in 2009 and the para-3 & 5 of the Office Memorandum No. AR-3/GEN-231/2011, dated 01.08.2012, issued by the Government of Nagaland, P & AR Department (Administrative Reforms Branch). 5. Mr. Moa Jamir, learned counsel for the petitioner submitted that each and every appointment order issued by the authority appointing the petitioner as LDA was followed by termination order always keeping a break of one or two days. 5. Mr. Moa Jamir, learned counsel for the petitioner submitted that each and every appointment order issued by the authority appointing the petitioner as LDA was followed by termination order always keeping a break of one or two days. In support of his submission, the learned counsel took me through the first order of the appointment dated 03.08.1980, which was followed by an extension order dated 19.11.1980; the order dated 01.04.1982 terminating the service of the petitioner along with that of 10 others w.e.f. 31.03.1982 which was followed by another appointment order issued on 02.04.1982 appointing the petitioner to the same post, the order dated 15.07.1982, terminating the service of the petitioner along with that of 10 others w.e.f. 29.06.1982, the order dated 07.09.1982, extending the service of the petitioner along with that of 10 others up to 31.10.1982, the order dated Nil Jan. 1983, extending the service of the petitioner along with that of 9 others upto 31.12.1982 and the order dated 14.03.1983, terminating the service of the petitioner w.e.f. 31.12.1982 with that of 8 others, the termination dated 24.11.1983, terminating the service of the petitioner along with that of 4 others w.e.f. 01.05.1983, and the order dated 24.11.1983, appointing the petitioner and 4 others to the post of LDA w.e.f. 2.5.1983 till 31.12.1983, the order dated 24.02.1984, terminating the service of the petitioner w.e.f. 31.12.1984 followed by another order dated same reappointing the petitioner along with 6 others to the post of LDA w.e.f. 02.01.1984, the order dated 22.05.1984, terminating the service of the petitioner w.e.f. 30.04.1984 as LDA and another order issued on the same day appointing the petitioner to the same but w.e.f. 02.05.1984, and other several termination orders in the same manner appointing the petitioner to the same post and terminating on the date of expiry of his term but reappointing him keeping a gap of one or two days thereafter Last of such orders appointing him as LDA and terminating him from the same service are the order dated 05.08.1986 and 06.09.1986 which were issued by General Manager, NST, Dimapur and they are reproduced here below: "Government of Nagaland Office of the General Manager Nagaland State Transport, Dimapur. No. NST/ESTT/1978/86-88/721-27 Dt. Dimapur the 5th Aug' 1986. No. NST/ESTT/1978/86-88/721-27 Dt. Dimapur the 5th Aug' 1986. Order The undernoted persons are hereby appointed to the posts in the scale of pay as shown against the post and posted to the Offices/Stations as shown against them ........ ........ 11. Kohima Division 1. ........ 2................... 4. LDA Rs. 510-11-565-14-705-EB-14-775-15-895/- 1. Shri C. Shikhu Saghu Chozuba Terms and conditions; 1. The appointment is made purely on casual basis for a period of 3 (three) months from the date of joining. 2. The causal appointment does not confer on them any title or right for regular appointment to the post and is liable to be termination without any notice. Sd/- General Manager Nagaland State Transport, Dimapur." "Government of Nagaland Office of the General Manager Nagaland State Transport, Dimapur. No. NST/ESTT/P/1141 Dated: 06.09.1986 Office Order The casual services of the following LDA are hereby terminated with immediate effect. 1. Shri C. Shikhu Saghu - Chozuba 2. Shri Khonito Sema - Zunheboto Sd/- General Manager Nagaland State Transport, Dimapur." 6. After having taken me through the above stated orders of appointments and terminations, Mr. Moa Jamir, learned counsel submitted that from all these, it is evident that every appointment order was followed by a termination order and every termination order was followed by another appointment order but always by keeping one or two days gap between the last working day of the petitioner and the subsequent order. Therefore, the service of the petitioner as LDA cannot be taken into account in the calculation or reckoning of his length of service. Mr. Moa Jamir thereafter, referred to the order dated 09.09.1986, of the General Manager, NST, Dimapur, issued vide his Office Memo No. NST/ESTT/3-C9PT/81/357-64, by which the petitioner was appointed as Booking Assistant in the pay scale of Rs. 450-11-538-12-670-18-15-885/- p.m. plus other allowances as admissible from time to time on casual basis for a period of three months from the date of joining. The following is the contents of the order; "Government of Nagaland Office of the General Manager Nagaland State Transport, Dimapur. Office Order The undernoted persons are hereby appointed as Booking Assistant (purely on causal basis) in the scale of pay Rs. 450-11-530-12-670-13-15-805/- p.m. plus all other allowance as admissible from time to time with effect from the date of joining the post in their place of posting. Terms and conditions; 3. Office Order The undernoted persons are hereby appointed as Booking Assistant (purely on causal basis) in the scale of pay Rs. 450-11-530-12-670-13-15-805/- p.m. plus all other allowance as admissible from time to time with effect from the date of joining the post in their place of posting. Terms and conditions; 3. The appointment is made purely on casual basis for a period of 3 (three) months from the date of joining. 4. The causal appointment does not confer on them any title or right for regular appointment to the post and is liable to be termination without any notice. 5. (a) The appointment is made subject to the condition that they shall not claim for then-past services as casual LDA. (b) That they shall be within the age limit prescribed for direct recruitment. 4. That they shall have to appear before the selection board as and when called for. Sd/- General Manager Nagaland State Transport, Dimapur." 7. The learned counsel also referred to the subsequent orders extending the service of the petitioner from time to time; (i) Order No. NST/ESTT/1978/2193-100, dated 28.01.1987. (ii) Order No. NST/ESTT/1978/907-14, dated 27.04.1987. (iii) Order No. NST/ESTT/1978/3115-21, dated 10.07.1987. Thereafter, the learned counsel referred to order No. NST/ESTT/1978/414-21, dated 18.08.1987, issued by the General Manager, NST terminating the service of the petitioner with immediate effect and lastly, referred to order No. NST/ESTT/3-C/Pt-IV/86/471-82, dated 19.08.1987, which was also issued by the General Manager, NST whereby the petitioner was appointed temporarily on probation for one year as Booking Assistant/Ticket Examiner in the pay scale of Rs. 450-II-538-12-670-EB-15-805/- p.m. plus all other allowances as admissible under the rule from time to time and submitted that counting or reckoning of length of the petitioner's service, as per the Office Memorandum No. AR-3/GEN-231/2011, dated 01.08.2012, issued by the Government of Nagaland, P & AR Department, (Administrative Reforms Branch) for the purpose of determining the date of his retirement should start only from 09.09.1986 i.e. the date on which he was appointed to the post of Booking Assistant for a period of three months from the date of joining which was followed by three extension orders and his regular appointment to the same post vide order dated 19.08.1987. The learned counsel reasoned that the post of LDA and Booking Assistant are two different posts and moreover, the service of the petitioner as LDA was terminated and his appointment as Booking Assistant/Ticket Examiner was fresh appointment to a different post, therefore, the two cannot be joined together in the reckoned of the length of the service of the petitioner for determining his date of retirement. 8. Mr. Moa Jamir further submitted that the period of ad hoc service/contract/causal service can be counted for the purpose of counting the length of serving of a Government servant only if the same is followed by regularization of the Government servant, that too, if it is in the same post, without break or gap in service. Mr. Moa Jamir also submitted that in spite of the law prevailing at the relevant time the petitioner was made to retire on 07.08.2015 by taking into account his past service in the post of LDA, therefore, the same was illegal, as such, the petitioner submitted a representation to the General Manager, NST on 12.10.2016 and waited with the hope that the same would be considered and he would be reinstated in service But, since the same was never considered and disposed of even after waiting for quite a considerable time, the petitioner has come before this Court praying for quashing and setting aside of the released order dated 07.08.2015, which is impugned herein and praying for reinstatement to his service till the date of his superannuation i.e. till he attained 60 years of age or till completion of 35 years length of service counting from the date of his appointment to the post of Booking Assistant on causal basis whichever is earlier. 9. Ms. V. Suokhrie, learned Addl. Sr. Government Advocate appearing for the State Government/respondents referred to para-5 of the affidavit-in-opposition filed by the respondents No. 1, 2, 3, 4 & 5 and submitted that this paragraph is the concise opposition of the respondents to the case of the petitioner. The para-5 of the affidavit reads as follows; "5. That regards to the statements made in paragrapghs-7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the writ petition, the deponent states that there is a service break of 2(two) days as claimed by the petitioner. The para-5 of the affidavit reads as follows; "5. That regards to the statements made in paragrapghs-7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the writ petition, the deponent states that there is a service break of 2(two) days as claimed by the petitioner. However, the petitioner's salary (wages) for those 2(two) days has not been deducted, rather he has been paid full salary as if there were no such break. Further, assuming but not admitting that there were service break/gap as claimed by the petitioner, at the time of release from service on completion of 35(thirty five) years of service on retirement the petitioner never agitated Rather, the petitioner willingly accepted the retirement/release order and thereby availing all the retirement benefits as he is entitled under rules as provided by the Government. Yet, after a lapse of more than 2(two) years the petitioner approached the department on the plea that he had been released from service prematurely. The petitioner seeks to rely on the case of Mr. A. Imtilmsong, whose retirement order was revoked on the ground that his length of service was to count from the date of his regularization into service in as much as he has made his claim on time without waiving of his right. The instant petitioner waived off his right to claim on time in gratuity etc as entitled counting from the date of joining service as mentioned above. Since the facts of the present petitioner's case is different from that of Mr. A. Imtilmsong the same benefit cannot be given to the petitioner. Even if the petitioner is to be reinstated he should not be paid back wages under the principle of "No work no salary". Further going by the rules laid in Section-115 of the Evidence Act, his act of acquiesce amount to attract the principle of Estoppel. That means to say he is estopped from claiming any waived right". 10. From the documents submitted by the petitioner which contents are neither refuted nor denied by the respondents, it appears that the petitioner was appointed first as LDA and continued in that service from the first day of his appointment i.e. on 03.08.1980 till he was finally terminated on 18.08.1987 with intervening termination orders issued between the appointment orders. 10. From the documents submitted by the petitioner which contents are neither refuted nor denied by the respondents, it appears that the petitioner was appointed first as LDA and continued in that service from the first day of his appointment i.e. on 03.08.1980 till he was finally terminated on 18.08.1987 with intervening termination orders issued between the appointment orders. Further, it is also evident from the documents that the petitioner was appointed to the post of Booking Assistant/Ticket Examiner after his service was terminated from the post of LDA and he was regularized to that post of Booking Assistant/Ticket Examiner. The post of LDA and post of Booking Assistant/Ticket Examiner are two distinct and different posts. The petitioner was not regularized in the post of LDA but to the post of Booking Assistant/Ticket Examiner. Therefore, in view of the Section-3(1) & 3(2) of the Nagaland Retirement from Public Employment Act, 2009, and the memorandum issued under it i.e. the Government Office Memorandum, dated 01.08.2012, counting of length of service of the petitioner from the date of his initial appointment was patently wrong and, therefore, illegal. The relevant portions of the Section-3(1) & 3(2) and the Office Memorandum are given here below. Further, at the time of his released from service, the petitioner has also not completed 60 years of service i.e. age of superannuation for Government servant in Nagaland as fixed in the Nagaland Retirement from Public Employment Act, 2009. This is evident from his date of birth of the petitioner given in the impugned order No. NST/DM/K/ESTT/36/2015-16, dated 07.08.2015. The relevant portions of the sections mentioned above and the Office memorandum are given here below one after the other; "Section 3(1); Notwithstanding anything contained in any rule or order for the time being in force, a person in public employment shall hold office for a term of 35 years from the date of joining public employment or until he attains the age of 60 years whichever is earlier. Section 3(2); A person under public employment shall retire on the afternoon of the last day of the month in which he attains the age of 60 years, or in which he completes 35 years of public employment, whichever is earlier." "Government of Nagaland Personnel & Administrative Reforms Department (Administrative Reforms Branch) No. AR-3/GEN-231/2011 Dated, Kohima the 1st August, 2012. Office Memorandum Sub:-Counting of Contract/Adhoc services for retirement purpose ................................................... ........................... Office Memorandum Sub:-Counting of Contract/Adhoc services for retirement purpose ................................................... ........................... 3. And whereas, the Government of Nagaland, vide No. AR-13/2174, dated 8.7.1975, had earlier clarified that all ad hoc services which is followed by regularization or fresh appointment in the same post, should towards pension. 5. Therefore, all the above categories of service which are followed by regularization or regular appointment in the same post without break or gap in service, shall be counted as public employment, and included in calculation of length of service for the purpose of pension under the Nagaland Retirement from Public Employment (2nd Amendment) Act, 2009." Sd/- Lalthara Chief Secretary to the Government of Nagaland." 11. At the cost of repetition but for the sake of more clarity, it is further stated that on careful perusal of the above provisions of the relevant laws, it is quite clear that counting or taking into account of the petitioner's past service in the post of LDA while reckoning his length of service for determining his date of retirement has violated the same. Because, as per the Act and the Office Memorandum issued thereunder, it is clear that the past service of an ad hoc or contract or causal employee whose service is subsequently regularized can be counted in the reckoning of his length of service if only the past service rendered happens to be in the same post to which he is regularized. As such, the impugned order by which the petitioner was released from service by taking into account the length of his service in the post of LDA is clearly in violation of the letter and spirit of the Nagaland Retirement from Public Employment Act, 2009 and the Office memorandum issued thereunder. Accordingly, the same is quashed and set aside. The petitioner should be reinstated in service and allowed to continue in service till his date of superannuation by counting the length of service from the date of his first appointment to the post of Booking Assistant/Ticket Examiner i.e. on 9.9.1986. Since the petitioner did not voluntarily retired but was forced to retire by issuing the impugned order he cannot be blamed for not having work in the Department Therefore, he cannot be denied his entitlement as a Government servant. Since the petitioner did not voluntarily retired but was forced to retire by issuing the impugned order he cannot be blamed for not having work in the Department Therefore, he cannot be denied his entitlement as a Government servant. However, since his service was not utilized from the date he was released till today he should be given only his basic pay but from the day he rejoined his service, needless to say but he should be given his full pay and allowances as permissible under rule. The argument that the petitioner kept quiet when he was issued the released order, therefore, it should be assumed that he has accepted the same and for that very reason he is estopped from claiming reinstatement does not appear to be correct factually and not acceptable in law for two reasons; (i) Because his claim that he submitted representation to the authorities is neither denied nor refuted, (ii) Secondly, because if the petitioner cannot be blamed for the wrong committed by the respondents. With the reasons and observations and the orders and directions given above, the writ petition is disposed.