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Gauhati High Court · body

2020 DIGILAW 123 (GAU)

R. Vansanga v. State Of Mizoram

2020-02-04

SONGKHUPCHUNG SERTO

body2020
JUDGMENT S Serto, J. - Rd Mrs. Dinari T. Azyu, learned counsel for the petitioners and Mr. C. Zoramchhana, learned Addl. Advocate General appearing for the State respondents. 2. The petitioner No.1 was appointed as Government High School Teacher vide Office order issued under Memo No. I. 12016/3/85-DTE (EDS), dated 30.04.1992 by the Government of Mizoram on the recommendation of a duly constituted DPC. After the appointment, he was posted at Pianghleia Government High School. Thereafter, his service was confirmed vide order issued under Memo No. A. 31015/1/95-DTE (EDN), dated 19.12.1995. After the confirmation of his service and after having served for a little more than 15 years he was recommended by the Mizoram Public Service Commission for promotion to the post of Lecturer in the District Institute of Education & Training (in short, DIET) vide Memo No. 10/A/64-MPSC, dated 14.06.2007. Consequent thereto, the State Government vide notification issued under Memo No. A. 32012/20/99- EDN(II), dated 13.07.2007 promoted him to the post of Lecturer in DIET in the scale of pay of Rs. 8000-275-13500/- p.m. 3. The petitioner No.2 was appointed as Graduate Hindi Teacher on the recommendation of a duly constituted DPC vide order issued under Memo no. D.E.13/HNP/APH/3/77/27-A, dated 07.07.1977. Thereafter, his service was confirmed vide order issued under Memo No. E.11011/5/86-RTN-CON/DTE (EDN)/34, dated 18.08.1987. After having served for a little more than 25 years he was promoted to the post of Lecturer, DIET vide notification issued under Memo No. A.32012/3/98-EDN/PT, dated 09.05.2003, in the scale of pay of Rs. 8000-275-13500/- p.m. and after having served as such for about 10 years he was once again promoted to the post of Senior Lecturer, DIET vide notification issued under Memo No. 32012/2/2010-EDN, dated 14.02.2013, in the scale of pay of Rs. 15600-39000 +G.P of Rs. 5500/- p.m. 4. While serving as such in the post of Lecturer, DIET in the case of the petitioner No.1 and as Senior Lecturer, DIET in the case of the petitioner No.2 they retired from service on superannuation on 31.05.2014 and on 28.02.2013 respectively. On 10.04.2014 a meeting on the service conditions and pensionary benefits of employees under DIET and DRC was held in the Office Chamber of Finance Commissioner, Government of Mizoram. The meeting was chaired by the Finance Commissioner and attended by the Secretary, Finance Department, Addl. On 10.04.2014 a meeting on the service conditions and pensionary benefits of employees under DIET and DRC was held in the Office Chamber of Finance Commissioner, Government of Mizoram. The meeting was chaired by the Finance Commissioner and attended by the Secretary, Finance Department, Addl. Secretary, Finance Department (APF), Chief Controller of Accounts, Accounts & Treasuries, Director (P), Accounts & Treasuries, Director (Local Fund Audit), Accounts & Treasuries, Under Secretary, Finance Department, (APF) and the Superintendent, Finance Department. The meeting passed the following resolution; "1) To send a team of officers to other neighbouring states (Assam, Meghalaya) to study the service conditions of those employees under Centrally Sponsored Schemes and to find out whether these employees are given pensionary benefits after retirement etc. 2) To collect the number of employees under Centrally Sponsored Scheme from all Departments under the Government of Mizoram. 3) To collect information regarding whether there are employees under Centrally Sponsored Schemes who are/is retired and given pensionary benefits under the Government of Mizoram." Thereafter, on 03.12.2014 another meeting was held in the Office Chamber of the Finance Commissioner, Government of Mizoram to discuss the report of the study team on the service conditions of pensionary benefits under centrally sponsored scheme (especially DIET and DRC). In that meeting, the Secretary, Finance Department, Addl. Secretary of the same department, Chief Controller of Accounts, Accounts & Treasuries, Joint Secretary, Finance Department (APF) and Under Secretary of the same department, Director (P), Accounts & Treasuries, Deputy Director (P), Accounts & Treasuries and Superintendent, Finance Department (APF) were present and the following resolution were passed; "1. The pension cases of those two regular State Government servants which are kept pending for quite some time at Accounts & Treasuries Department due to their retirement from non-pensionable posts under DIET (i.e. posts created and funded under CSS) may be considered and they may be granted pensions calculated on the basis of their presumption pay of the last pensionable posts which was held by them before their deputation/transfer under DIET. 2. Posts created and funded under Centrally Sponsored Schemes (CSS) are non-pensionable. Hence, all regular State Government servants on deputation to those posts under different departments cannot enjoy pensionary benefits on their retirement from those posts, but only against the regular substantive posts which they held before their deputation to those posts. 2. Posts created and funded under Centrally Sponsored Schemes (CSS) are non-pensionable. Hence, all regular State Government servants on deputation to those posts under different departments cannot enjoy pensionary benefits on their retirement from those posts, but only against the regular substantive posts which they held before their deputation to those posts. Therefore, such deputationists must be repatriated to their respective parent departments during the period they hold lien against their regular posts. All departments may be informed to do the needful. 3. Since it is found that there are many regular State Government employees on deputation to Centrally Sponsored Schemes (CSS) posts under various departments without specific terms and conditions of service and are not repatriated to their parent department during the period they hold lien against their regular posts even if the terms and conditions of their deputation mentioned this in their order, the Office Memorandum/Notification in this regard may be issued as early as possible with the Cabinet approval." 5. Being aggrieved by the resolution passed in the second meeting particularly, the resolution No.1 which would lead to payment of their pension on the basis of their presumptive pay of their last pensionable post which was held by them before promotion to the post of Lecturer, DIET in the case of the petitioner No.1 and to the post of Senior Lecturer in the case of the petitioner No.2. In pursuant to the resolution the pension payment order of the petitioner No.1 was issued on 15.01.2015 and that of the petitioner No.2 was issued on 30.01.2015. Being aggrieved by the fixation of their pensions the petitioners submitted a representation to the respondent No.2 on 11.02.2015 stating that since they were already promoted to the post of Lecturer, DIET and Senior Lecturer, DIET and superannuated from such post they could not have been given pension at the rate admissible to a lower grade of post and at the same time requested for re-fixation of their pension at the rate admissible to the post held by them before their retirement on superannuation. Since their request did not culminate into the desired result they are here before this Court praying for issuance of appropriate writ or order or direction so that they are paid their monthly pensions as per the entitlement of the post held by them and as per the pay scale they enjoyed at the time of their retirement on superannuation. 6. Mrs. Dinari, learned counsel for the petitioners submitted that in the year 1985 vide notification issued under Memo No. B.12019/35/88-EDN, dated 30.12.1988, by the Secretary to the Government of Mizoram, Education Department, Teachers Training Institute at Aizawl was upgraded to District Institute of Education and Training with immediate effect and in pursuant thereto creation of 30 temporary posts was sanctioned for the District Institute of Education and Training, and the same was conveyed to the Director of School of Education, Mizoram by the Joint Secretary to the Government of Mizoram, Education & Human Resources Department vide Memo No. A.11013/10/88-EDN, dated 10.07.1989 and as per the letter, among the post sanctioned 7 post of Senior Lecturer and 15 post of Lecturer at the pay scale of Rs. 3000-4500/- p.m. and Rs. 2200-4000/- p.m respectively were also included. Thereafter, the Government of Mizoram upgraded the Teachers Training Institute at Lunglei also to District Institute of Education and Training (in short, DIET) vide notification No. B.12019/35/88-EDN/Pt-III, dated 04.02.1993, issued by the Commissioner & Secretary to the Government of Mizoram, Education & Human Resources Department. Pursuant to the up-gradation, the Government of Mizoram accorded sanction for creation of 34 temporary post for the DIET at Lunglei with immediate effect which included 3 post of Senior Lecturer and 15 post of Lecturer at the pay scale of Rs. 3000-4500/- p.m and Rs. 2200-4000/- respectively and the same was conveyed to the Director of School Education by the Deputy Secretary to the Government of Mizoram, Education & Human Resources Department, vide his letter No. A.11013/10/88-EDN, dated 07.04.1994. 7. The learned counsel also submitted that after the above developments had taken place recruitment rules relating to the recruitment to the post of Principal, Vice Principal, Senior Lecturer and Lecturer in DIET which are under Education & Human Resources Department, Government of Mizoram made under Article 309 of the Constitution of India was notified in the Mizoram Gazette on 28.05.1999. The learned counsel also submitted that after the above developments had taken place recruitment rules relating to the recruitment to the post of Principal, Vice Principal, Senior Lecturer and Lecturer in DIET which are under Education & Human Resources Department, Government of Mizoram made under Article 309 of the Constitution of India was notified in the Mizoram Gazette on 28.05.1999. And as per the recruitment rules the post of Senior Lecturer, DIET is selection grade and it is to be filled up 100% by promotion from Lecturers of DIET with 5 years regular service in the grade failing which through transfer or on deputation from Officers holding analogous post possessing requisite qualifications under the Government of Mizoram failing which the central or other State Government for the period not exceeding 3 years. The learned counsel also submitted that as per the same rule the post of Lecturer in DIET has to be filled up 100% by promotion, 50% from Headmaster, Government Middle School and Teachers of Government Schools possessing the requisite qualification prescribed for direct recruits with not less than 5 years service in the grade and 50% from Officers of SCERT and DIET in the pay scale of Rs. 2200-3500/- p.m. possessing the requisite qualification prescribed for the direct recruits with 5 year service in the grade failing which by transfer or deputation from Officers holding analogous post under the Government of Mizoram or other State Government. The learned counsel further submitted that as per the recruitment rules the post of Lecturer has to be filled 100% through promotion failing which by direct recruitment and failing which by transfer or deputation. Being qualified for promotion to the post of Lecturer as per the recruitment rules the two petitioners were promoted to the post of Lecturer, DEIT on the recommendation of the Mizoram Public Service Commission and the petitioner No.2 was further promoted to the post of Senior Lecturer, DIET and they retired while serving as such. The learned counsel further submitted that as per the recruitment rules and conditions of service the post of Lecturer and Senior Lecturer are higher in status and their scale of pay are above the pay scale of Teachers of Government Schools, therefore, the petitioners cannot be given monthly pension at the rate which is below the entitlement of Lecturer and Senior Lecturer. The learned counsel also submitted that the petitioners were promoted as per the recruitment rules made under Article 309 of the Constitution of India which provisions cannot be superseded by a resolution of officers, therefore, the pay of the petitioner No.1 as Lecturer and the pay of the petitioner No. 2 as Senior Lecturer can never by reduced to that of a presumptive post in order to give them lesser entitlement of monthly pension. In support of her submission, the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Ajya Kumar Das Versus- State of Orissa & Others, (2011) 11 SCC 136 . The relevant portion is at para-14 and the contents of the same are reproduced herein below; "14. Neither the Circular dated 18-6-1982 nor the subsequent Circular dated 19-3-1983 modifying the earlier Circular dated 18-6-1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That the Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or notification duly made under Article 309 and not otherwise. Whatever by the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative instructions or circulars." 8. In reiteration of her submissions already stated above, the learned counsel for the petitioners submitted further that the orders notifying the promotion of the petitioners to Lecturer and Senior Lecturer respectively are very clear and there is no ambiguity regarding the word used in them. The word used in the two orders is "promotion", therefore, they can never be equated with the persons on deputation or on transfer. 9. Lastly, the learned counsel submitted that the employees of DIET who retired earlier were given pension and those were holding the post of Principal, Senior Lecturer and Lecturer were also given pension at the rate admissible to the respective post held by them. 9. Lastly, the learned counsel submitted that the employees of DIET who retired earlier were given pension and those were holding the post of Principal, Senior Lecturer and Lecturer were also given pension at the rate admissible to the respective post held by them. It is only when the time came for giving of pension to the petitioners that the respondents changed their mind and decided to pay the petitioners pension at the rate admissible to their presumptive teaching post in School. The learned counsel referred to Annexure-15 series which are the letters endorsed to few persons who retired as Principals and Lecturers of DIET showing their entitlement of pension at the rate admissible to the last pay drawn by them before their retirement on superannuation. The documents are not refuted or denied by the respondents, therefore, to avoid unnecessary addition to the volume of this judgment they are not reproduce herein. The learned counsel also referred to a chart filed as Annexure-A along with the additional affidavit of the petitioners wherein the names of the persons who were promoted to the post of Principal and Lecturer are given. The learned counsel also referred to a chart filed as Annexure-A along with the additional affidavit of the petitioners wherein name of persons who were promoted to the post of Principal and Lecturer and retired and the status of their pension are given. The chart shows that those who retired earlier in the post of Principal and Lecturer were given pension as per the entitlement of such post. The contents of the chart is not refuted and denied by the respondents, therefore, it is also not reproduced to safe space. After having referred to the above stated chart, the learned counsel submitted that this shows that the people who have retired earlier in the post of Principal and Lecturer in DIET were given pension as per their status and pay scale at the time of their retirement, as such, there is no reason why the petitioners should also not be given pension as per the status and pay they enjoyed at the time of their retirement. 10. The learned Addl. Advocate General appearing for the respondents submitted that institution like DIET were established and run with the fund provided by the Central Government under CCS, therefore, whatever post created for running of the institution are co-terminus with the scheme. 10. The learned Addl. Advocate General appearing for the respondents submitted that institution like DIET were established and run with the fund provided by the Central Government under CCS, therefore, whatever post created for running of the institution are co-terminus with the scheme. Therefore, they are not pensionable. The learned counsel further submitted that the fact that the posts created for DIET are co-terminus with the scheme are well indicated in the so called promotion order of the petitioners. Therefore, the petitioners cannot claim for pension at the rate permissible to such posts in other institutions. The learned counsel, thereafter, submitted that it is true that some of the Principals and Lecturers who retired from DIET were given pensions admissible to such status or grade but having realized that it was a mistake the Government has decided to stop such practice and, that is the reason why the petitioners was granted pension for their presumptive pensionable post. As such, the petitioners has no case. The learned Addl. Advocate General, then submitted that the movement of the petitioners from their initial post as Teachers to the post of Lecturers in DIET was in the nature of deputation though the word used was promotion and, the post to which they were on deputation are not pensionable, therefore, they are not entitled to pension at the rate admissible to the post of Lecturer and Senior Lecturer. Lastly, the learned Addl. Advocate General submitted that the fact that the recruitment rules was made for the post of Principal, Senior Lecturer and Lecturer in DIET does not necessarily make such post pensionable. 11. Mrs. Dinari, learned counsel for the petitioners in supplementary to her earlier submission submitted further that the post to which Teachers of Government School can be promoted are SDEO and DEO. Had the petitioners not been taken to DIET they could have been promoted to such post. Therefore, after having taken them to DIET on promotion and after having utilized their service for such a long period of time and to tell them that they are not entitled to pension as per the entitlement of the post they last occupied would not be just and fair. 12. Therefore, after having taken them to DIET on promotion and after having utilized their service for such a long period of time and to tell them that they are not entitled to pension as per the entitlement of the post they last occupied would not be just and fair. 12. From the submissions of both the learned counsels appearing for the parties and the documents furnished by them the undisputed facts which have emerged are as follows; (i) That the petitioners were first appointed as Teachers in Government Schools. (ii) That as per the rules framed under Article 309 of the Constitution of India a recruitment rules for the post of Principal, Vice Principal, Senior Lecturer and Lecturer was notified in the extra ordinary gazette of the Government of Mizoram on 28.05.1999 and, as per the rule the post of Lecturer is Group-A post and the post are to be filled up 100% by promotion out of which 50% is to be filled up from Headmasters of Government Middle School and Teachers of Government School possessing requisite qualification prescribed for direct recruits with not less than 5 years in service in the grade and 50% from Officers of SCERT and DIET who were on the pay scale of Rs. 3000-4500/- p.m possessing requisite qualification prescribed for direct recruits with 5 years in service in the grade failing which by transfer or deputation from among officers holding analogous post under Government of Mizoram or other State Government and failing which by direct recruitment. The petitioners belonging to the first category and being qualified were promoted to the post of Lecturer and from Lecturer to Senior Lecturer in the case of the petitioner No.2. No where in the rules it is mentioned or indicated that the posts sanctioned and created for DIET were non pensionable. The fact that the persons who have earlier retired in the post of Principal, Vice Principal, Senior Lecturer and Lecturer were granted pension as per the entitlement and scale of pay enjoyed by them immediately after their retirement is undisputed. In fact, the petitioner No.2 was also given pension at the rate admissible for Lecturer is also not in disputed. The fact that the persons who have earlier retired in the post of Principal, Vice Principal, Senior Lecturer and Lecturer were granted pension as per the entitlement and scale of pay enjoyed by them immediately after their retirement is undisputed. In fact, the petitioner No.2 was also given pension at the rate admissible for Lecturer is also not in disputed. (iii) That the word used in the order issued for promotion of the two petitioners no doubt is none other than "promotion" and there is no other meaning which can be attributed to this word then the word itself indicates. (iv) That after the resolutions were passed in the Minute of the Meeting chaired by Finance Commissioner, Government of Mizoram on 03.12.2014 in which the officers of Finance Department, Controller of Accounts & Treasuries were present no official notification or order has been issued by the Government of Mizoram changing its policy as per the Resolution No.2 passed in that meeting which is reproduced herein below; "2. Posts created and funded under Centrally Sponsored Schemes (CSS) are non-pensionable. Hence, all regular State Government servants on deputation to those posts under different departments cannot enjoy pensionary benefits on their retirement from those posts, but only against the regular substantive posts which they held before their deputation to those posts. Therefore, such deputationists must be repatriated to their respective parent departments during the period they hold lien against their regular posts. All departments may be informed to do the needful". 13. In view of the above stated facts which are undisputed it would not only be unfair, unjust and discriminatory but it would amount to arbitrariness to say that the petitioners are not entitled to pension of the status and the pay of the post last held by them. The rules clearly show that 50% of the posts of Lecturer and 100% of Senior Lecturer in DIET are promotional post. Since, the petitioners were from the feeder post they were promoted as per the rules, therefore, their movement from the post of Teacher in Government School to DIET was by promotion only and not by deputation or transfer. It can be stated that the petitioners were progressing in their career as provided in the service rules. Since, the petitioners were from the feeder post they were promoted as per the rules, therefore, their movement from the post of Teacher in Government School to DIET was by promotion only and not by deputation or transfer. It can be stated that the petitioners were progressing in their career as provided in the service rules. Therefore, at the end of their career they cannot be termed as persons on deputation and be denied the benefits of their hard work and progress they had earned in their career. In promotion so many things are involved such as, hard work, sacrifice, devotion to duty, integrity and excellence. Only after having displayed and maintain such qualities a person is promoted. Therefore, promotion of a Government servant to higher post cannot be taken lightly. Further, as stated above, there is nothing in the rules which would even indicate that the service under DIET are not pensionable. Therefore, rightly people who have retired earlier in the service of DIET were given pension. All these also indicates that the rule was framed and made and followed in pursuance of a policy decision of the Government. Further, there is no indication that there has been a change in the policy of the Government. The resolution of the officers of some departments cannot change a policy decision taken by a Government or alter the meaning and purport of the rules framed under Article 309 of the Constitution of India. The respondents have not produced any document to show that there has been a changed or shift in the policy of the Government or the rules have been amended to that effect. Therefore, while allowing the persons who have retired earlier to enjoy pension of the status and scale they held and enjoyed in DIET and to deny the same to the petitioners would be highly discriminatory besides being against the rules. Mere mention of the post being co-terminus with the scheme in the promotion order would not alter the Government policy reflected in the rules and followed in the case of persons who had retired earlier than the petitioners. Furthermore, the denial of the petitioners claim for pension at the rate admissible to the post they held and the pay scale they enjoyed is quite arbitrary as there is no authority to do so. Furthermore, the denial of the petitioners claim for pension at the rate admissible to the post they held and the pay scale they enjoyed is quite arbitrary as there is no authority to do so. In a Country where rule of law prevails everyone whatever may be his or her position or status has to act as per the law provided. Lastly, but not the least the fact that the petitioners were promoted to the higher post which were limited in number shows that they were doing better than their colleagues and had they not been promoted to the post of Lecturer in DIET they could have been promoted to other post in the Education Department as submitted by their learned counsel and in that event they would have enjoyed higher status, higher pay and pension at the higher rate. Therefore, denial of pension at the rate claimed by them after everything is over in their career cannot be just and fair. In view of the above stated facts and circumstances and the reasons given, I am of the view that the petitioners are entitled to the pension admissible to the status/post held by them and the pay enjoyed by them immediately before they retired on superannuation. Accordingly, the impugned Meeting Minute dated 03.12.2014 is quashed and set aside and the respondents are directed to modify the pension payment orders of the two petitioners as indicated in this judgment and order. Since, the petitioners have been waiting for their pensions for a long time, the respondents are directed to comply with the directions given in this judgment and order within a period of 2(two) months from the date of receipt of a certified copy.