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2018 DIGILAW 33 (MEG)

Sujata Kaur v. Shillong Cantonment Board

2018-07-13

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. The petitioner prays for, issue of writ of mandamus so as to command the respondents to consider her as against the post of Safaiwala or any other post on compassionate ground. Further, be directed to sanction pension-cum-gratuity to which she is entitled. 2. The respondents in their counter affidavit have stated that the deceased husband of the petitioner was not a permanent employee of the Board therefore, the petitioner is not entitled to family pension-cum-gratuity and even compassionate appointment. 3. (Late) Jaswant Singh husband of the petitioner on proper selection was appointed as Safaiwala in the scale pay of Rs. 820-10-870-EB-15-975-20-1175/- plus admissible allowance against the vacancy created under conservancy agreement. The appointment order issued in favour of (L) Jaswant Singh dated 30.04.1996 reveals that after considering the work of the deceased for 10 months as Casual Worker on (Daily Wages) thereafter on selection was appointed as Safaiwala on probation for a period of six months in the first instance subject to the conditions as incorporated in the order of appointment which include that his service would be governed by the provisions of Central Fund Servants Rules, 1937 (CFSR, 1937) and other enactments applicable to the Cantonment employees from time to time. The deceased while in active service died on 23.04.2006 as is clear from the death certificate available on record. 4. According to the petitioner on her constant and persistent requests, the respondents have released GPF, salary arrears, DA arrears, leave encashment and group insurance but pension-cum-gratuity has not been released on the pretext that her husband was not a permanent employee of the Board, when her husband until death worked in the respondent-Board for long 10 years uninterruptedly. Her husband was also allotted a residential accommodation which after his death was under the occupation of the petitioner and her children but later on, she has been evicted. 5. In the reply affidavit, the respondents have not denied the appointment order of (L) Jaswant Singh and the applicability of CFSR, 1937. They have also not denied release of GPF, salary of 23 days of the month of April 2016, DA arrears, leave encashment and group insurance but have denied the pension-cum-gratuity on the ground that the deceased was not a permanent employee of the Board. Furthermore, in terms of the conservancy agreement compassionate appointment is not permissible. They have also not denied release of GPF, salary of 23 days of the month of April 2016, DA arrears, leave encashment and group insurance but have denied the pension-cum-gratuity on the ground that the deceased was not a permanent employee of the Board. Furthermore, in terms of the conservancy agreement compassionate appointment is not permissible. In support whereof, the learned counsel has produced a photo copy of the conservancy agreement for the year 1996-1997. 6. While considering the rival submissions as well as the record, it is clear that the petitioner admittedly pursuant to the order dated 30.04.1996 on selection that too after he had worked for 10 months as Casual Worker on (Daily Wages) was appointed in the regular pay scale against the post of Safaiwala on probation for a period of six months in the first instance. The record suggests that the period of probation was neither extended nor the service of the deceased was discontinued. 7. Rule 6 of the Cantonment Fund Servants Rules, 1937 (CFS Rules, 1937) provides that all first appointments under the Cantonment Board shall be made on probation for a period of six months in the cases of lower grade servants and two years in the case of others. Proviso to rule envisages that no person shall be confirmed in his first appointment till the appointing authority is satisfied that he is fit to hold such appointment. It further provides that the appointing authority may extend the period of probation by a further period not exceeding one year for reasons to be recorded in writing. 8. In tune with Rule 6 of CFS Rules, 1937, the deceased was appointed on probation for a period of six months in the first instance. But the period of probation which could be extended maximum up to one year was never extended. In terms of the proviso to Rule 6, confirmation in the first appointment has to be only on recording satisfaction of the appointing authority. 9. It is settled that unreasonable delay in issuing formal order, after satisfactory completion of probation is improper. Every case has to be looked into in its own factual background. In the case in hand, deceased had been appointed on probation for a period of six months. 9. It is settled that unreasonable delay in issuing formal order, after satisfactory completion of probation is improper. Every case has to be looked into in its own factual background. In the case in hand, deceased had been appointed on probation for a period of six months. Once he has been continued in service for a period of 10 years less by 7 days, he cannot be said to be temporary for want of formal order of confirmation. An employee after satisfactory completion of the period of probation has to be confirmed. 10. No reasons what to speak of justified reasons have been spelled out, as to why formal order of confirmation has not been issued when the period of probation, in terms of rules vis-a-vis deceased could not be beyond one year. For the default of the Board in not issuing the formal order of confirmation, the petitioner cannot be made to suffer. In my view, I am fortified by the judgment rendered by the Hon'ble Apex Court reported in (1996) 9 SCC 67 . 11. Learned counsel for the respondent Board today produced photo copy of the list of orders and also list of Safaiwalas who were appointed. In the said list, the deceased figured at serial No.40. The Sweepers who figured in the said list below him have been confirmed vide order dated 29.07.2011 issued by the Chief Executive Officer, Shillong Cantonment with effect from the date of their appointment i.e. 01.05.1996, the deceased too would have been confirmed w.e.f. the date of appointment i.e. from 1996 but for his death on 23.04.2006, which in turn would suggest that the issue of confirmation order was a formality. 12. The position as projected apart, learned counsel for the petitioner has rightly placed reliance on the Constitutional Bench judgment of Hon'ble Apex Court rendered in the case of "State of Punjab v. Dharam Singh" reported in (1968) 3 SCR 1 : AIR 1968 SC 1210 . In the reported judgment, while referring to Rule 6 of Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, it has been observed as under:- "6. The employees referred to in R. 6(1) held their posts in the first instance on probation for one year commencing from October 1, 1957. In the reported judgment, while referring to Rule 6 of Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, it has been observed as under:- "6. The employees referred to in R. 6(1) held their posts in the first instance on probation for one year commencing from October 1, 1957. On completion of the one year period of probation of the employee, four courses of action were open to the appointing authority under Section 6(3). The authority could either (a) extend the period of probation provided the total period of probation including extensions would not exceed three years, or (b) revert the employee to his former post if he was promoted from some lower post, or (c) dispense with his services if his work or conduct during the period of probation was unsatisfactory, or (d) confirm him in his appointment. It could pass one of these orders in respect of the respondents on completion of their one year period of probation. But the authority allowed them to continue in their posts thereafter without passing any order in writing under Rule 6(3). In the absence of any formal order, the question is whether by necessary implication from the proved facts of these cases, the authority should be presumed to have passed some order under Rule 6(3) in respect of the respondents, and if so, what order should be presumed to have been passed." 13. In the reported judgment, finally it has been held as under:- "9. Immediately upon completion of the extended period of probation on October 1, 1960, the appointing authority could dispense with the services of the respondents if their work or conduct during the period of probation was in the opinion of the authority unsatisfactory. Instead of dispensing with their services on completion of the extended period of probation, the authority continued them in their posts until sometime in 1963, and allowed them to draw annual increments of salary including the increment which fell due on October 1, 1962. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. The rules did not require them to pass any test or to fulfil any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employing them as temporary employees on October 1, 1960, and the High Court rightly refused to draw the inference that they were so discharged from services and re-employed. In these circumstances, the High Court rightly held that the respondents must be deemed to have been confirmed in their posts. Though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continue in their posts after October 1, 1960. After such confirmation, the authority had no power to dispense with their services under Rule 6(3) on the ground that their work or conduct during the period of probation was unsatisfactory. It follows that on the dates of the impugned orders, the respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment. The removal from service could not be made without following the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and without conforming to the constitutional requirements of Article 311 of the Constitution. As the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was not followed and as the constitutional protection of Article 311 was violated, the impugned orders were rightly set aside by the High Court." 14. Coming to the case in hand, as per Rule 6 of CFS Rules, 1937, probation period has to be six months but as per proviso, same was extendable for a further period not exceeding one year for reason to be recorded in writing. So the outer limit for probation is one year. When the Rule is clear then there is no scope to say that the period of probation could be extended that too when the deceased had worked continuously for long 10 years less by 7 days on the date of his death. Applying the law as has been laid down by the Hon'ble Apex Court in the above referred judgment, the deceased is deemed to have been confirmed as against the post held by him on regular appointment for a period of 10 years less by 7 days. 15. Applying the law as has been laid down by the Hon'ble Apex Court in the above referred judgment, the deceased is deemed to have been confirmed as against the post held by him on regular appointment for a period of 10 years less by 7 days. 15. The petitioner's husband died on 23.04.2006, right from the year 2006, she and her children have been waiting for family pension-cum-gratuity which has been denied to them without any reasonable justification. 16. The deceased initially has worked for 10 months as Casual Worker on (Daily Wages) with the respondent-Board then on selection while considering his work for 10 months, has been appointed in the regular pay scale, after completing his service of 10 years less by 7 days, he unfortunately died however, formal confirmation order was not issued, after having worked for 10 long years without any adverse report against him cannot be said to be temporary so as to deprive his widow and children from getting the family pension-cum-gratuity, to deny will be travesty of justice. 17. The contentions of the learned counsel for the petitioner that the appointment of the petitioner was linked with the post created under the conservancy agreement for the year 1996-1997 pales into insignificance because the photo copy of the conservancy agreement as produced was for the year 1996-1997. As per para 13 of the said agreement, it was to remain in force for a period of one year from 01.03.1996 to 28.02.1997 unless, determined as provided for elsewhere. The conservancy agreement had become irrelevant on its expiry w.e.f. 28.02.1997. During the subsistence of the conservancy agreement or thereafter, the appointment of the deceased was not cancelled nor his service was discontinued. The deceased has been working against the clear vacancy in the regular pay scale. 18. Regarding compassionate appointment, the petitioner has specifically pleaded that she had applied immediately after the death of her husband on 01.03.2007 but nothing was known as to what had happened to her application. In the counter affidavit filed by the respondents, fact of the petitioner having applied for compassionate appointment on 01.03.2007 is not denied. However, it is stated that the deceased was not a permanent employee therefore, the application for compassionate appointment was not considered. In the counter affidavit filed by the respondents, fact of the petitioner having applied for compassionate appointment on 01.03.2007 is not denied. However, it is stated that the deceased was not a permanent employee therefore, the application for compassionate appointment was not considered. As concluded hereinabove, that the deceased for all practical purposes in view of long 10 years of service had a character of a permanent employee, his position of being permanent employee for the default of the respondent-authorities in not issuing the order of confirmation cannot stand in the way of the petitioner in claiming the benefit of 7 compassionate appointment. Completion of probation was linked with the performance of the appointee to the satisfaction of the appointing authority. For long 10 years of service nothing adverse is noticeable against the deceased, when he had performed to the best of his ability, the requisite satisfaction for confirmation in the given facts and circumstances has to be inferable. 19. As concluded hereinabove that the deceased in effect had a status of permanent employee therefore, petition succeeds and is disposed of as follows: (i) In terms of Rule 30 of CFS Rules, 1937, the widow is entitled to pension-cum-gratuity. The respondents shall take immediate steps and to sanction the same in favour of the petitioner in accordance with law within a period of three months. (ii) The petitioner's case for compassionate appointment shall be considered in accordance with the rules and decision thereon shall be taken within a period of three months, the result be it in the affirmative or negative whatever permissible under the rules shall be conveyed to the petitioner.