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2023 DIGILAW 1434 (GAU)

State of AP v. Joram Alla @ Salla

2023-11-30

KARDAK ETE, N.UNNI KRISHNAN NAIR

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JUDGMENT : N. Unni Krishnan Nair, J. The State by way of instituting this intra-Court appeal, has presented a challenge to the judgment & order, dated 22.08.2022, passed by the learned single Judge in WP(c)370(AP)2022. 2. The basic facts requisite for a decision on the issues arising in the present appeal, is noticed as under: The sole respondent/writ petitioner was appointed as a Driver temporarily under the Directorate of Information & Public Relations, Government of Arunachal Pradesh, vide order, dated 28.08.1982. The sole respondent/writ petitioner, in terms of the order of appointment, joined his services in the Office of the DIPRO, Daporijo. Thereafter, vide order, dated 24.01.1991, the sole respondent/writ petitioner was subjected to transfer from Daporijo to Ziro, which was complied by him and he had joined at Ziro on 11.07.1994. The authorities vide communication, dated 22.08.1995, had allowed the sole respondent/writ petitioner to cross the efficiency bar in the scale of pay drawn by him @ Rs. 950-1400/- p.m.. While serving, as such, at Ziro; the sole respondent/writ petitioner had proceeded to avail Earned Leave for 65 days w.e.f. 15.10.1996 to 18.12.1996 and on expiry of the leave granted did not resume his services. It is the projected case of the sole respondent/writ petitioner that he had fallen seriously ill and was required to be admitted in the District Hospital Ziro w.e.f. 18.08.1996 to 20.09.2001. The respondent authorities issued communications to the sole respondent/writ petitioner to rejoin his services on expiry of his earned leave and there being no response, the Director of Information & Public Relations, Government of Arunachal Pradesh, issued the termination notice dated 12.02.1998 to the sole respondent/writ petitioner, by invoking the provisions of sub-Rule (i) of Rule 5 of the CCS (Temporary Services) Rules, 1965; intimating him that that his services shall stand terminated with effect from the expiry of 1(one) from the date on which the notice is served on him. The said notice was not put to challenge by the sole respondent/writ petitioner, although the sole respondent/writ petitioner has contended that he had approached the authorities for revocation of the same, implying knowledge of the same. Poised thus after lapse of considerable period of time, the sole respondent/writ petitioner instituted writ petition being WP(C)31(AP)2018 before this Court praying for release of his salaries. Poised thus after lapse of considerable period of time, the sole respondent/writ petitioner instituted writ petition being WP(C)31(AP)2018 before this Court praying for release of his salaries. The said writ petition was given a final consideration vide judgment & order, dated 02.02.2018, requiring the Director of Information & Public Relations, Government of Arunachal Pradesh, to consider and dispose of his representations dated 20.04.2016 and 27.04.2016, by a speaking and reasoned order. The authority, thereafter, vide a speaking order, dated 06.03.2018, disposed of the aforesaid representations, dated 20.04.2016 and 27.04.2016 by holding that the sole respondent/writ petitioner was not entitled for restoration of his services. It is in pursuance of the said speaking order, dated 06.03.2018, that the connected writ petition being WP(c)370(AP)2020, came to be instituted with the following prayers: "In the premises aforesaid, it is, therefore, prayed that your Lordships may be pleased to admit this writ petition, call for the records and issue rule calling upon the Respondents to show cause as to why a Writ in the nature of mandamus and/or certiorari and/or any other appropriate writ or order or direction should not be issue as prayed for a judicial scrutiny: - a) to set aside and quash the impugned termination Notice of the petitioner vide No. NIL, dated 12-02-1998, annexed as ANNEXURE-1, issued under the seal and signature of Officials Respondent No. 3. b) to direct the Respondent Nos. 1, 2 & 3 make full payment of the all financial consequential and pensionary benefits as a regular service as Driver under the Department of Information and Public Relation (IPR) with immediate effect". 3. Heard Mr. Subu Tapin, learned Senior Government Advocate, appearing on behalf of the appellants-State of Arunachal Pradesh. Also heard Mr. Tayum Son, learned counsel, appearing on behalf of the sole respondent/writ petitioner. 4. Mr. Tapin, learned Senior Government Advocate, by narrating the facts involved, submits that the sole respondent/writ petitioner while approaching this Court in the earlier round of litigation i.e. WP(C)31(AP)2018, had not disclosed before the Court that his services already stood terminated w.e.f the date the Notice of termination dated 12.02.1998 had taken effect. The sole respondent/writ petitioner by suppressing the termination of his service already effected had only projected, as revealed from paragraph No. 4 of the judgment & order, dated 02.02.2018, passed in WP(C)31(AP)2018, that he was regularly attending his duty but his salaries were not being cleared. 5. The sole respondent/writ petitioner by suppressing the termination of his service already effected had only projected, as revealed from paragraph No. 4 of the judgment & order, dated 02.02.2018, passed in WP(C)31(AP)2018, that he was regularly attending his duty but his salaries were not being cleared. 5. Mr. Tapin, learned Senior Government Advocate, by referring to the speaking order, dated 06.03.2018, submits that a finding is recorded there to the effect that sole respondent/writ petitioner had submitted a representation on 29.09.1998 before the Home Minister, Government of Arunachal Pradesh, praying for cancellation of his termination from service in terms of the termination notice, dated 12.02.1998. Mr. Tapin, learned Senior Government Advocate, in support of the said finding places on record, a copy of the aforesaid representation, dated 29.09.1998, and submits that the contentions made therein, would reveal that the sole respondent/writ petitioner had full knowledge of the termination notice, dated 12.02.1998. As such, it is submitted that the sole respondent/writ petitioner had not approached the Court in the earlier round of litigation with clean hands and had suppressed material facts. Learned Senior Government Advocate also submits that the speaking order, dated 06.03.2018, is a well-reasoned one and the competent authority after taking into account all relevant particulars had come to a conclusion that the prayer of the sole respondent/writ petitioner for restoration of his service cannot be acceded to. 6. Mr. Tapin, learned Senior Government Advocate, by referring to the impugned judgment & order, dated 22.08.2022, states that although a wrong provision was quoted for the purpose of termination of the services of the sole respondent/writ petitioner, the delay occasioning in presenting a challenge to such termination inspite of having knowledge thereof, way back in the year 1998, has rendered the connected writ petition not maintainable and was required to be dismissed in limini. In support of his contention, learned Senior Government Advocate refers to the decision of the Hon'ble Supreme Court in the case of State of Rajasthan & ors. v. Surji Devi, reported in (2022) 1 SCC 17 and contends that the Hon'ble Supreme Court has held that the termination even if to be held to be illegal and against the principles of the natural justice, the merits thereof are not required to be considered if it is held by the Court that the writ petition was barred by delay and laches. 7. Mr. 7. Mr. Tapin, learned Senior Government Advocate, further submits by referring to paragraph No. 8 of the impugned judgment & order, dated 22.08.2022, that the finding as recorded therein by the learned Single Judge holding the termination notice dated 12.02.1998 to be bad on the ground that the same was not served upon the sole respondent/writ petitioner, is clearly not sustainable inasmuch as, mere perusal of the representation dated 29.09.1998 as submitted by the sole respondent/writ petitioner, would reveal that a clear reference is made therein to such termination of service effected in his case and nothing has been stated by the sole respondent/writ petitioner about non receipt of such Notice of termination. Accordingly, Mr. Tapin, Learned Senior Government Advocate, prays that the impugned order dated 22.08.2022 requires interference and the connected writ petition requires to be dismissed. 8. Per contra, Mr. Son, learned counsel for the sole respondent/ writ petitioner, contends that the termination notice, dated 12.02.1998, and the consequential actions taken in pursuance thereof; would be void ab initio, inasmuch as the termination of service of the sole respondent/writ petitioner, a regular employee could not have been effected by invoking the provisions of CCS (Temporary Services) Rules, 1965, and accordingly, Mr. Son, learned counsel, submits that the conclusions arrived at by the learned single Judge in the impugned judgment & order, dated 22.08.2022, for the purpose of interfering with the termination order, dated 12.02.1998, is well-reasoned and therefore, it requires no interference. 9. In support of his contentions, Mr. Son, learned counsel, refers to the following decisions rendered by the Hon'ble Supreme Court: (i) State of W.B. v. M.R. Mondal & anr., reported in (2001) 8 SCC 443 , to contend that an order passed but retained in file without being communicated to the plaintiff, can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect; and (ii) Deokinandan Prasad v. State of Bihar & ors., reported in AIR 1971 SC 1409 , to contend that the pension is not to be treated as a bounty payable on the sweet-will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant. 10. 10. We have considered the submissions advanced by the learned counsels for the parties and also perused the materials made available on record in the present proceeding. 11. At the outset, it is to be noted that the speaking order, dated 06.03.2018, passed by the Director of Information & Public Relations, Government of Arunachal Pradesh, pursuant to the directions of the Court in the earlier round of litigation in WP(c)31(AP)2018; has also not been challenged in the connected writ proceeding. As revealed from the prayer made in the writ petition, quoted hereinabove; the sole respondent/writ petitioner had only assailed the termination order, dated 12.02.1998, with further prayer for a direction to make full payment of all financial and pensionary benefit treating him to be a regular employee under the Directorate of Information & Public Relations, Government of Arunachal Pradesh. 12. The materials available on record reflects that the sole respondent/writ petitioner had proceeded on Earned Leave for 65 days w.e.f. 15.10.1996 to 18.12.1996 and thereafter admittedly he had not rejoined his service. It is on the basis of such absence and the non-response of the sole respondent/writ petitioner to communications issued to him requiring him to resume his services on expiry of leave, the termination notice dated 12.02.1998 came to be sent to him intimating him that his services would stand terminated on expiry of 1 (one) month from the date of service upon him of the said notice. 13. The sole respondent/writ petitioner in WP(C)370(AP)2020, in paragraph No. 9 of the writ petition, has sought to justify his absence by contending that after the death of his mother, he himself had fallen seriously ill and was immediately taken to the District Hospital, Ziro, and was admitted in the said Hospital w.e.f. 18.08.1996 to 20.09.2001. The sole respondent/writ petitioner, in his pleadings brought on record in the writ petition, has not referred to any document, including the representation dated 29.09.1998 towards justifying his contention that he was regularly making approaches before the concerned authorities praying for restoration of his services the authorities questioning the validity of the termination Notice dated 12.02.1998, issued under the provisions of the CCS (Temporary Services) Rules, 1965 and praying for restoration in service on the ground that the provisions of the said Rules were not applicable to his service. 14. 14. The sole respondent/writ petitioner towards justification of his absence from service, has, in the connected writ petition annexed as Annexure-8, a medical certificate, dated 20.09.2001, wherein, it was stated that the sole respondent/writ petitioner was under medical treatment at District Hospital, Ziro w.e.f. 18.08.1996 till 20.09.2001 for the aliments suffered by him. As per the statements made in the writ petition the sole respondent/writ petitioner was during the said period of his treatment admitted in the said hospital. The said facts emanating from the writ petition, stands contradicted when examined in the light of the contentions made in the representation, dated 29.09.1998, preferred before the Home Minister, Government of Arunachal Pradesh, wherein it is the categorical statement of the sole respondent/writ petitioner that after the completion of his treatment; he was given a medical fitness certificate by the attending Doctor and accordingly, he had submitted the joining report on 21.07.1998 along with the medical fitness certificate. The said contradiction goes to the root of the matter and the same would itself disentitle the sole respondent/writ petitioner from invoking the powers of this Court under its extra-ordinary jurisdiction on the ground of misrepresentation. It is further noticed that although he had submitted the representation, dated 29.09.1998, before the Home Minister, Government of Arunachal Pradesh, and therein, had admitted therein about having knowledge of termination of his service, but in the earlier round of litigation in WP(C)31(AP)2018; this was conveniently suppressed and it was placed before the Court that he was regularly attending his duties but his salaries was not paid which lead this Court to issue a direction requiring the authorities to consider and dispose of his representations, dated 20.04.2016 and 27.04.2016. 15. Having noticed the conduct of the sole respondent/writ petitioner in the proceedings instituted by him before this Court the impugned judgment & order, dated 22.08.2022 passed by the learned single Judge in WP(C)370(AP)2020, is now being examined. 16. The learned single Judge has concluded that the services of the sole respondent/writ petitioner could not have been terminated by invoking the provisions of CCS (Temporary Services) Rules, 1965, and accordingly, interfered with the termination order, dated 12.02.1998 holding that the sole respondent/writ petitioner being a regular employee, the provisions of the said Rules of 1965 are not applicable in his case. 17. 17. In our considered view, the issue with regard to the applicability of the provisions of the CCS (Temporary Services) Rules, 1965, to the service of the sole respondent/writ petitioner, has been correctly decided by the Learned Single Judge and the same does not call for any interference. We would only like to add that the sole respondent/writ petitioner in his pleadings in the connected writ petition, has contended that he was a regular employee in the Directorate of Information & Public Relations, Government of Arunachal Pradesh, and was holding a sanctioned post. The said contention of the sole respondent/writ petitioner was not countered by the present appellants in the proceedings before this court and as such, it can be safely held that the sole respondent/writ petitioner was a regular employee in the services of the Department and was working as a Driver against a sanctioned post. 18. The submission of Mr. Tapin, learned Senior Government Advocate, with regard to the finding recorded by the learned Single Judge in the Judgment & Order, dated 22.08.2022, to the effect that the Notice of termination of service having not been served upon the sole respondent/writ petitioner, the same was of no effect under the law and would not be binding, requires to be examined. The said finding as recorded by the Learned Single Judge in Para 8 of the impugned Judgment and Order, dated 22.08.2022, in our considered view, is not sustainable in-as-much as from the representation, dated 29.09.1998; it is evident that at least, as on 29.09.1998, the sole respondent/writ petitioner had knowledge of the impugned notice of termination dated 12.02.1998. As such, the said finding of the learned single Judge requires to be interfered with. However, an interference with the said finding would have no effect on the conclusions reached by us with regard to the sustainability of the termination order, dated 12.02.1998, in view of the fact that the provisions of the rules under which it was issued; was not applicable to the sole respondent/writ petitioner. 19. However, an interference with the said finding would have no effect on the conclusions reached by us with regard to the sustainability of the termination order, dated 12.02.1998, in view of the fact that the provisions of the rules under which it was issued; was not applicable to the sole respondent/writ petitioner. 19. It may also be noticed here that the learned single Judge in the impugned judgment & order, dated 22.08.2022, has recorded a finding to the effect that although the termination order, dated 12.02.1998, was interfered with; the sole respondent/writ petitioner was not entitled to any back wages with effect from 1998 and there is no appeal presented by sole respondent/writ petitioner against such finding, which has since attained finality. 20. Having considered the findings of the learned single Judge in the impugned judgment & order, dated 22.08.2022; we now would consider as to the reliefs, the sole respondent/writ petitioner would be entitled to, on the upholding of the interference made by the learned single Judge with the Notice of termination dated 12.02.1998. The learned single Judge in the impugned judgment & order, dated 22.08.2022, in paragraph No. 9 thereof, has recorded a finding that upon interference with of the Notice of termination dated 12.02.1998; the sole respondent/writ petitioner would have to be construed to be in service upto the date of his retirement on superannuation i.e. 31.03.2019 and accordingly, directed the authorities, the appellants, herein; to provide the petitioner with necessary pensionery benefits as admissible under the Rules. Accordingly, in the facts and circumstances of the matter, a determination is called for with regard to the manner in which the pension and the pensionery benefits of the sole respondent/writ petitioner is to be computed. 21. It is submitted at the Bar that the pension and other pensionary benefits of sole respondent/writ petitioner are required to be computed in accordance with the provisions of the CCS (Pension) Rules, 1972. Rule 3(1)(q) of the CCS (Pension) Rules, 1972, being relevant for the issue at hand, the same is extracted herein below: "3. Definitions. - In these rules, unless the context otherwise requires: (1) (a)........................................ (q) "qualifying service" means service rendered while on duty or otherwise shall be taken into account for the purpose of pensions and gratuities admissible under these rules." 22. Definitions. - In these rules, unless the context otherwise requires: (1) (a)........................................ (q) "qualifying service" means service rendered while on duty or otherwise shall be taken into account for the purpose of pensions and gratuities admissible under these rules." 22. The provisions of Rule 3(1)(q) of the CCS (Pension) Rules, 1972, while defining qualifying service, provides that such service would be the service rendered while on duty or otherwise which shall be taken into account for the purpose of pension and gratuities admissible under the Rules. Thus, the period of leave for which the salary is payable, would be taken into account for determining the pensionery benefits while period for which the leave salary would not be payable, is excluded. The Rule is crystal clear and does not brook any two interpretations. We have, thus, no hesitation in coming to the conclusion that to avail the benefit of the said pension rules; an employee must qualify in terms of the provisions of the rules thereof. 23. The sole respondent/writ petitioner having not drawn any salary for the period, after issuance of the Notice of termination dated 12.02.1998, till the date of his superannuation occasioning on 31.03.2019; the said period cannot be reckoned as qualifying period for the purpose of quantifying the pension and the other pensionery benefits of the sole respondent/writ petitioner. Accordingly, we clarify paragraph No. 9 of the impugned judgment & order, dated 22.08.2022, to the effect that the termination Notice dated 12.02.1998, having been interfered with for the reasons stated above; the sole respondent/writ petitioner would be entitled to pension and the pensionery benefits but that would be only for the period of service rendered by him w.e.f. 28.08.1982 till the date of issuance of the Notice of termination i.e. 12.02.1998. It is only the said period that would be construed as qualifying service for the purpose of computing the pension and pensionary benefits of the sole respondent/writ petitioner. Accordingly, it is provided that for the purpose of determination of the qualifying service of the sole respondent/writ petitioner it should be deemed that he had drawn salaries till the date of issue of the Notice of termination i.e. till 12.02.1998 even if he has not actually drawn his salaries till the said date. 24. Accordingly, it is provided that for the purpose of determination of the qualifying service of the sole respondent/writ petitioner it should be deemed that he had drawn salaries till the date of issue of the Notice of termination i.e. till 12.02.1998 even if he has not actually drawn his salaries till the said date. 24. The respondent authorities would now treat the sole respondent/writ petitioner to have superannuated from his service on 31.03.2019 but his pension and other pensionery benefits would be computed treating the period of service rendered by him w.e.f. 28.08.1982 till the date of issuance of the Notice of termination i.e. 12.02.1998. 25. Having regard to the conclusions reached by us on the issues arising in the present appeal, the judgments as relied by the parties to the proceedings are not dealt with. 26. In view of the above, we hereby dispose of this writ appeal by directing the respondent authorities to process the pension and other pensionery benefits of the sole respondent/writ petitioner on account of his superannuation on 31.03.2019, by treating his qualifying service for pension to be the period w.e.f. 28.08.1982 till the date of issuance of the Notice of termination i.e. 12.02.1998 and the benefits so computed be released to the petitioner within a period of 6(six) months from the date of receipt of a copy of this order. 27. The petitioner would be entitled to the pension and other pensionery benefits in terms of the directions as above, on his superannuation from service w.e.f. 31.03.2019, however, given the conduct of the sole respondent/writ petitioner before this Court, in the proceedings instituted by him and the clear mis-representation/ suppression of material facts noticed; we deem it appropriate to direct that the sole respondent/writ petitioner would not be entitled to any arrears of pension w.e.f. 01.04.2019 but would be entitled to the arrears only w.e.f. 01.09.2022 i.e. the 1st day of the month after passing of the impugned judgment & order, dated 22.08.2022, in WP(c)370(AP)2020. 28. With the above directions and observations, the writ appeal stands disposed of to the extent indicated above. 29. In view thereof; the connected interlocutory application being IA(C) No. 259(AP)2022, preferred by the applicants-State of Arunachal Pradesh, praying for stay of the impugned judgment & order, dated 22.08.2022, passed by the learned single Judge in WP(C)370(AP)2022, accordingly stands closed.