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2023 DIGILAW 217 (UTT)

State of Uttarakhand v. Vinita Verma

2023-03-02

ALOK KUMAR VERMA, VIPIN SANGHI

body2023
JUDGMENT : VIPIN SANGHI, J. 1. The present Special Appeal is directed against the judgment rendered by the learned Single Judge in Writ Petition (S/S) No. 444 of 2016, whereby the learned Single Judge has allowed the said Writ Petition, and directed the appellants to include the period between 04.11.2005 and 31.01.2007 in the length of service of the respondent-writ petitioner for all practical purposes/benefits. 2. The brief facts of the case are that the respondent was initially appointed as Assistant Teacher (LT Grade) in Girls Inter College, Kanda, District Bageshwar. While she was serving in that post, an advertisement was issued by the Uttaranchal Tourism Development Council for appointment on the post of District Adventure Sports Officer, on contractual basis, for a period of five years. The respondent applied for the said post, and was selected for a period of one year on contractual basis, vide appointment letter dated 07.09.2005. The respondent sought permission of the appellants, and the appellants issued a No Objection Certificate to enable the respondent to join the said position on contractual basis. She was relieved by the Joint Director, Education Department, vide order dated 27.10.2005. Thereafter, she joined her duties in the Uttaranchal Tourism Development Council. Since the respondent had not resigned from her post of Assistant Teacher (LT Grade), she was asked to resign from the said post by the Uttaranchal Tourism Development Council. Due to the said objection raised by the Uttaranchal Tourism Development Council, the appointment granted to the respondent, by the Uttaranchal Tourism Development Council, was withdrawn. 3. The respondent challenged the cancellation of her appointment before this Court by filing Writ Petition (S/B) No. 146 of 2006. The said Writ Petition was allowed by this Court on 19.06.2006. However, the Special Leave Petition preferred against the said judgment was allowed by the Supreme Court. The Supreme Court, however, directed that, for the period that the respondent had worked with the Uttaranchal Tourism Development Council, she should be paid her salary. The respondent, then rejoined her parent department, i.e. the appellants, on 06.02.2007, and continued to work as Assistant Teacher (LT Grade). She, then, preferred the Writ Petition in question to claim the relief that the appellants should include the period with effect from 04.11.2005 to 31.01.2007 in her length of service. As aforesaid, the learned Single Judge has allowed the Writ Petition. 4. She, then, preferred the Writ Petition in question to claim the relief that the appellants should include the period with effect from 04.11.2005 to 31.01.2007 in her length of service. As aforesaid, the learned Single Judge has allowed the Writ Petition. 4. The learned Single Judge has taken note of Rule 422 of the Civil Service Regulations and the Government Orders. Rule 422 reads as follows: “422. Interruptions in service either between to spells of permanent and temporary service or between a spell of temporary and permanent service or vice versa may be condoned by the Pension Sanctioning Authority subject to the following conditions, namely: (1) the interruptions should have been caused by reasons beyond the control of the government servant concerned. (2) Service preceding the interruptions should not be less than of five year’s duration, and in cases where there are two or more such interruption, the total service, pensionary benefits in respect of which will be lost if the interruption are not condoned should not be less than five years. (3) Interruptions should not be more than of one year’s duration and in cases where there are two or more such interruptions the total period of interruptions sought to be condoned, should not exceed one year.” 5. The learned Single Judge has also referred to the judgment of this Court in Writ Petition (S/S) No. 1125 of 2005, Shri Krishna vs. State of Uttaranchal and Others and Special Appeal No. 129 of 2009, State of Uttarakhand and Others vs. Chandra Mohan Pandey, wherein Section 370 of the Civil Service Rules, and Rule 422 of the Civil Service Regulations and Government Orders, had been dealt with by a Coordinate Bench of this Court. We may also notice Section 370 of the Civil Service Rules, which reads as follows: “370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify except: (i) periods of temporary or officiating service in non-pensionable establishment. (ii) periods of service in work-charged establishment. (iii) periods of service in a post paid from contingencies.” 6. The learned Single Judge allowed the Writ Petition, by observing in paragraph no. 8 of the judgment, as follows: “8. (ii) periods of service in work-charged establishment. (iii) periods of service in a post paid from contingencies.” 6. The learned Single Judge allowed the Writ Petition, by observing in paragraph no. 8 of the judgment, as follows: “8. Considering the fact and circumstances of the case, this Court is of the view that however, the petitioner was appointed on contract basis in the Uttaranchal Tourism Development Council, but the fact remains that the petitioner was in government job in another department, and on the similar set of facts, the High Court has granted benefit of the same nature in the case cited by the senior counsel for the petitioner. Therefore, I am of the view that service rendered by the petitioner in the Uttaranchal Tourism Development Council cannot be ignored and petitioner is entitled to include the period w.e.f. 04.11.2005 to 31.01.2007 which was served by her as part of her service.” 7. The appellants have now assailed the said judgment. The submission of the learned counsel for the appellants is that the respondent had voluntarily, of her own accord and with open eyes, responded to the advertisement issued by the Uttaranchal Tourism Development Council, which offered appointment only on contractual basis. The post, against which the respondent offered her candidature, i.e. the District Adventure Sports Officer, was not a deputation post. She voluntarily applied for the said post, and applied for No Objection Certificate, which the appellants granted. 8. It is argued that mere grant of No Objection Certificate cannot be treated as a representation to the respondent that she would be treated as in continuous service, even for the period she left, and did not serve the appellants between 04.11.2005 and 31.01.2007. 9. On the other hand, the submission of Mr. Rajendra Dobhal, the learned Senior Counsel for the respondent, is that the respondent, having been granted the No Objection Certificate for joining her post as District Sports Adventure Officer, on contractual basis, in the Uttaranchal Tourism Development Council, it should mean that her continuity of service with the appellants was maintained. He submits that the appellants have treated the respondent as a fresh appointee upon her rejoining in 2007, and, on that basis, selection grade has been granted to her only in the year 2017, by counting her service only from the time she rejoined in the year 2007. He submits that the appellants have treated the respondent as a fresh appointee upon her rejoining in 2007, and, on that basis, selection grade has been granted to her only in the year 2017, by counting her service only from the time she rejoined in the year 2007. Her earlier service between 1999 and 2005 has not been calculated for the purpose of grant of selection grade. 10. A perusal of the Writ Petition shows that the only reliefs sought by the respondent/writ petitioner, was in relation to the counting of her service between 04.11.2005 and 31.01.2007, towards length of service of the respondent with the appellant. Therefore, the issue, as to when the respondent became entitled to grant of selection grade, was not an issue raised in the Writ Petition. So far as the reliefs sought by the respondent in the Writ Petition are concerned, we are of the clear view that the respondent did not make out a case for grant of the reliefs, as sought by her, and granted by the learned Single Judge. 11. Rule 422 of the Civil Service Regulations, in clear terms, puts a condition when the interruption in the service of the employee is for “reasons beyond the control of the government servant concerned”. This cannot be said in the facts of the present case, as noticed hereinabove. Mere grant of a No Objection Certificate to the respondent does not mean that the respondent proceeded to join the contractual appointment with the aforesaid Council, over which she had no control. In fact, it was her own voluntarily act, with open eyes, that she proceeded to join the contractual appointment to the aforesaid Council. 12. Section 370 of the Civil Service Rules is also of no relevance, as the respondent’s case is not covered by the said Rule. 13. The judgment in Special Appeal No. 129 of 2009, State of Uttarakhand and Others vs. Chandra Mohan Pandey, which has been relied upon by the learned Single Judge in paragraph no. 6 of the impugned judgment, has been produced before us, and we have perused the same. On facts, the same is completely distinguishable. In that case, the service of the respondent, who was appointed as Assistant Teacher (LT Grade) on 28.02.1967, was dispensed with on 04.09.1968, on account of the fact that a regularly selected candidate reported for duty. 6 of the impugned judgment, has been produced before us, and we have perused the same. On facts, the same is completely distinguishable. In that case, the service of the respondent, who was appointed as Assistant Teacher (LT Grade) on 28.02.1967, was dispensed with on 04.09.1968, on account of the fact that a regularly selected candidate reported for duty. Subsequently, Chandra Mohan Pandey was appointed on regular basis as Assistant Teacher (LT Grade) on 19.03.1969. It was in this background that Rule 422 of the Civil Service Regulations and Government Orders were pressed into service. That was a clear case, where the interruption in the service of the employee was caused by the reasons beyond the control of the government servant. As aforesaid, the present is not a case covered by Rule 422 of the Civil Service Regulations. 14. Allowing the claim of the respondent, in our view, would be completely contrary to discipline in government service. A government servant, who voluntarily leaves his/her employment, even if it is with the prior permission, only to render service in another organization, leaves the substantive post vacant, which obviously would hamper efficient working of the Government. Such a person cannot leave and come back into his substantive service at his/her own sweet will, without any consequences. To treat the period, during which such a government servant has not rendered service in his substantive post, to be as spent on duty for all purposes of benefits, would be putting premium on disloyalty. It would encourage others to keep leaving their substantive post and come back at their own sweet will, without any consequences. 15. We, therefore, allow the present Special Appeal and set-aside the impugned judgment. We direct that the period spent by the respondent between 04.11.2005 and 31.01.2007 shall be treated as dies non for all purposes. 16. Consequently, pending applications, if any, also stand disposed of.