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2020 DIGILAW 142 (GAU)

Gohentahar v. State of Arunachal Pradesh

2020-02-05

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. M. Pertin, learned senior counsel, assisted by Mr. L. Perme, learned counsel for the petitioner. Also heard Mr. S. Tapin, learned senior Govt. Advocate appearing for the State respondents. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has projected that on 08.09.1977, he was temporarily appointed as bus conductor in the Roing Dambuk Anchal Samiti Mini Bus Service w.e.f. 01.09.1977, by the Circle Officer-cum-Executive Officer, Roing Dambuk Anchal Samiti, Roing at a particular pay scale and other allowances as admissible to the Arunachal Pradesh Govt. employees. In addition to his salary, the petitioner was also allowed to draw holiday cum running allowance of Rs. 60/- per month. After rendering many years of service till 2015, the petitioner realized that the service which he was rendering did not entitle him to any pensionary benefits. Accordingly, at his instance, a proposal was moved to the Govt. for absorption of the petitioner in a Govt. Department for pensionary benefits as a State awardee. Thereafter, by an order dated 05.06.2013, the District Administration Department, Govt. of Arunachal Pradesh informed the Deputy Commissioner, Lower Dibang Valley District that the Govt. had no objection for the absorption of the petitioner to any post as per his qualification in view of the length of service rendered by the petitioner. The Deputy Commissioner, Lower Dibang Valley District, by order dated 23.07.2013, submitted a proposal for absorption of service of the petitioner and accordingly, the District Administration Department, Govt. of Arunachal Pradesh by order dated 02.02.2015, issued the approval to the Deputy Commissioner, Lower Dibang Valley District for the appointment of the petitioner in the equivalent post of U.D.C. against the existing vacancy in his establishment. By another communication dated 17.06.2015, the District Administration Department informed the Deputy Commissioner, Lower Dibang Valley District about the approval of the Govt. for absorption of the petitioner against the regular Multi Tasking Staff (MTS) under 2515 Panchayat Raj, lying vacant in his establishment with the pay scale of Rs. 5,200 - 20,200 + 1,800 GP and the Deputy Commissioner was directed to issue a formal order of absorption from his end indicating the period of service rendered in the Anchal Samiti which are counted for qualifying service for pension. 5,200 - 20,200 + 1,800 GP and the Deputy Commissioner was directed to issue a formal order of absorption from his end indicating the period of service rendered in the Anchal Samiti which are counted for qualifying service for pension. Thereafter, by an office order No. 106 dated 22.07.2015, the petitioner was appointed against an MTS post w.e.f. 17.06.2015, further providing that the period of service rendered by the petitioner in Anchal Samiti w.e.f. 1.9.1977 to 16.6.2016 shall be counted for qualifying service for pension of fulfillment of condition mentioned therein and he was attached in D.P.D.O. Office, Roing. The petitioner joined his duty as MTS on 01.10.2015. Thereafter, by an order dated 14.10.2015, the pay of the petitioner was fixed notionally from the date of his final appointment in the Anchal Samiti and he became entitled to his salary w.e.f. 17.06.2015. Thereafter, on behalf of the Deputy Commissioner, Lower Dibang Valley the S.D.O. (Estt.) wrote to the Secretary, Govt. of Arunachal Pradesh, District Administration for clarification as regards period of service rendered by the petitioner in Anchal Samiti for counting qualifying service for pension In the meanwhile, the petitioner attended the age of superannuation on 31.01.2017(AM) and he was released. Thereafter, by a communication dated 27.12.2017, the District Administration Department, Govt. of Arunachal Pradesh informed the Deputy Commissioner, Lower Dibang Valley that the earlier service of the petitioner was not pensionable and that the service of the petitioner was regularized under the Govt. of Arunachal Pradesh with the approval of Secretary, District Administration without obtaining any relaxation of Recruitment Rules. It was further informed that only the Cabinet was authorized to relax the Recruitment Rules. Hence, by taking a view that the regularization of the petitioner appeared to be ab initio void, the claim of the petitioner for pension was rejected and the department was advised to initiate action against the erring officials as per rules. 3. Assailing the impugned order dated 27.10.2017, the learned senior counsel for the petitioner has submitted that notwithstanding that the previous service of the petitioner was a non pensionable service, but the Govt. of Arunachal Pradesh had regularized the service of the petitioner after taking a conscious decision to the effect that the past service of the petitioner would be calculated for the purpose of pension. of Arunachal Pradesh had regularized the service of the petitioner after taking a conscious decision to the effect that the past service of the petitioner would be calculated for the purpose of pension. By referring to the order of approval dated 15.06.2013, it is submitted that the District Administration Department had issued a specific instruction to the Deputy Commissioner, Lower Dibang Valley, there by authorizing the Deputy Commissioner to issue a formal order of absorption by indicating the period of service rendered in the Anchal Samiti, which shall count for qualifying service for pension. Thereafter, by taking into consideration the salary of the petitioner as revised from time to time for his past service, the Deputy Commissioner, Lower Dibang Valley had fixed the of the petitioner. 4. It is submitted that not only the pay of the petitioner was fixed notionally from the date of his initial appointment order, but the petitioner was also permitted to join pensionable service from the non pensionable service, his entitlement to draw pension on and form 1.9.1977, the date of his initial appointment as bus conductor in the Anchal Samiti cannot be curtailed or denied. In support of his submissions, the learned senior counsel for the petitioner has placed reliance on Rules 14 and 14(6) of the Central Civil Service (Pension) Rules, 1972 to project that the period of temporary service rendered by the petitioner would be counted for granting pensionary benefits to the petitioner. The following cases has been cited to but tress his submissions: a. D.S. Nakara & Ors. Vs. Union of India, (1983) 1 SCC 305 (Constitutional Bench) (para 20, 21, 28, 29, 46 and 61) b. Union of India & Anr. Vs. S. Dharamalingam, (1994) 1 SCC 179 (para 8 and 10). c. Prem Singh Vs. State of Uttar Pradesh, (2019) 10 SCC 516 : (2019) 0 Supreme (SC) 1044 (para 2, 28, 29 and 33 to 35). d. Smt. Sheela Devi Vs. State of-Himachal Pradesh & Ors., CWPOA No. 195 of 2019 decided by the High Court of Himachal Pradesh on 26.12.2019 (para 16 to 18 and 28 to 34) 5. Per contra, the learned senior Govt. d. Smt. Sheela Devi Vs. State of-Himachal Pradesh & Ors., CWPOA No. 195 of 2019 decided by the High Court of Himachal Pradesh on 26.12.2019 (para 16 to 18 and 28 to 34) 5. Per contra, the learned senior Govt. advocate has submitted that the earlier service rendered by the petitioner as a bus conductor in the Anchal Samiti was a non pensionable service and therefore, his previous service was unconnected with his service in the post of MTS, Roing, an establishment under the Deputy Commissioner, Lower Dibang Valley. It is submitted that the notional fixation of pay from the date of his initial appointment has nothing to do with his entitlement to pension. Accordingly, it is submitted that as the petitioner was previously in a non-pensionable service, he was not directly entitled to pension and therefore, merely because the Government had absorbed him in a pensionable service, the petitioner would not be indirectly entitled to pension for the past service rendered under non-pensionable establishment Moreover, it is submitted that w.e.f. 2008, the State Govt. had opted for National Pension Scheme (NPS) for all new appointees. Thus, as the service of the petitioner as MTS was w.e.f. 07.06.2015, the petitioner was not entitled for a regular pension for the past service rendered because long before that date, the State Govt. had already switched over to the NPS module pension. It is also submitted that as no money was deducted from the salary of the petitioner towards pension, such contribution was not invested in pension fund by the Government and therefore, there was no accrual of pension in favour of the petitioner. While relying in the case of Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. Vs. Surji Devi, (2008) 2 SCC 310 (para 14), the learned senior Govt. advocate has submitted that he also places heavy reliance on para- 27 of the case of Prem Singh (supra), cited by the learned senior counsel for thee petitioner. 6. On the perusal of the materials available on record, it appears at the outset that there is no dispute at the Bar that the past service rendered by the petitioner with the Roing Dambuk Anchal Samiti Bus Service from 01.09.1997 till 16.06.2015 was a non-pensionable service. 6. On the perusal of the materials available on record, it appears at the outset that there is no dispute at the Bar that the past service rendered by the petitioner with the Roing Dambuk Anchal Samiti Bus Service from 01.09.1997 till 16.06.2015 was a non-pensionable service. It naturally follows that for the service rendered for the said period, neither any deductions were made by the employer to wards any pension contribution of the petitioner, nor was the employer required to make any contribution to the pension fund as contribution of the employer. Thus, in respect of the petitioner, no pension fund was created, as such, no interest whatsoever had accrued in respect of the pension fund of the petitioner. 7. Moreover, the learned senior Government advocate has submitted that since the year 2008, the State Government had opted for "National Pension Scheme" (NPS for short) for all its new employees, which is not disputed by the learned senior counsel for the petitioner. 8. The petitioner had joined service as MTS on 01.10.2015, w.e.f. 17.06.2015. Notwithstanding that his past service was considered for fixation of pay, but his past service was a non-pensionable service and no contribution was deducted or paid by the then employer of the petitioner towards pension fund in respect of the petitioner. There is no pleading in the writ petition from which it can be gathered that the petitioner had opted for NPS benefits after joining service as NPS. The Court is also of the considered opinion that the service of the petitioner as MTS w.e.f. 17.06.2015 was not in continuation of his past service. In other words, this is not a case where the petitioner was temporarily appointed in a pensionable service and after putting in many years of service, his service was regularized in the same post. Hence, when the past service was not in a pensionable service, merely because the petitioner was later on absorbed in pension bearing service w.e.f. 17.06.2015, would not entitle the petitioner to pension for past service rendered for a period prior to 17.06.2015. The authorities may have chosen to nationally fix his pay considering the scale of pay that the petitioner was previously drawing w.e.f. the date when he initially joined service w.e.f. 01.09.1997 to 16.06.2015, yet the petitioner would not be entitled to pension for such service rendered in non-pensionable service. 9. The authorities may have chosen to nationally fix his pay considering the scale of pay that the petitioner was previously drawing w.e.f. the date when he initially joined service w.e.f. 01.09.1997 to 16.06.2015, yet the petitioner would not be entitled to pension for such service rendered in non-pensionable service. 9. In the case of Prem Singh (supra), on which the learned senior counsel for the petitioner had relied upon, it was a case where the appellant therein was appointed as a welder in the year 1965 in a work-charged establishment and was transferred from one place to another and ultimately the selection committee had recommended for regularization of his service and his service was regularized on 13.02.2003 in the regular establishment The provision of Rule 3 (8) of the U.P. Retirement Benefit Rules, 1961 read with Regulation 370 of the Civil Services Regulations and instructions contained in para-graph 669 of the Financial Handbook had the effect of taking away the benefit of pension rendered for past service, for which the said provisions were struck down by the Supreme Court of India in the said case by holding that the work-charged service can be counted as qualifying service for pension. Thus, the facts in the present case are distinguishable from the facts in the cited case, because in the present case in hand, the petitioner was aware that his service rendered in the Anchal Samiti did not entitle him to pension and, as such, he had submitted a representation before the authorities to absorb him in a pensionable service, which was done w.e.f. 17.06.2015, without following any formal recruitment process in a transparent manner and without the petitioner facing any open competition for absorbed as MTS in a totally different establishment and that too without relaxation of the applicable recruitment rules in force, whereas in the case of Prem Singh (supra), the selection committee had recommended the regularization of service in the same establishment. In light of the said finding, it would be relevant to quote paragraph 27 of the case of Prem Singh (supra). "27. It is apparent from the aforesaid discussion that it would depend upon the service Rules or schemes whether the period of work-charged service has to be counted for ACP, in case provision has been made under a particular statute, Rule or scheme, service rendered as work-charged employees can be counted. "27. It is apparent from the aforesaid discussion that it would depend upon the service Rules or schemes whether the period of work-charged service has to be counted for ACP, in case provision has been made under a particular statute, Rule or scheme, service rendered as work-charged employees can be counted. It would depend upon the relevant provision of which benefit is claimed. Again, this Court has emphasized that by its very nature of employment work-charged employees have not to continue for long, employment comes to an end with the project." 10. Similarly, in none of the other cases cited by the learned senior counsel for the petitioner, the aggrieved employee had rendered past service in a non-pensionable service in a different and unconnected establishment, where his service was ultimately absorbed without following any recruitment process and without there being any formal relaxation of Recruitment Rules. It is also seen that the State did not give any option to the petitioner or any other similarly situated persons to shift to a pensionable service from his non-pensionable service. Therefore, the cases cited by the learned senior counsel for the petitioner is distinguishable with the facts of the present casein hand, as such, the ratio of those cases are not found to be applicable in this case in hand, for which this order is not burdened with discussions on the said cases. 11. In the present case in hand, there is no material on record from which the petitioner has been able to demonstrate or show that under any Act, Rules, Regulation, or Scheme in force in the State, it was permissible for the State to absorb an employee from non-pensionable service in one establishment to another establishing where service is pensionable. In other words, the petitioner has not been able to show that the past service rendered by the petitioner in non-pensionable establishment was "qualifying service" for being appointed to the post of MTS in the establishment of the Deputy Commissioner, Lower Dibang Valley District. 12. Thus, in view of the discussions above, this writ petition fails and the same is dismissed.