High Court
Case Details
WA 122/2013 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI (A.K. Goel, C.J.) This appeal has been preferred against order of learned Single Judge qua shing the grant of administrative approval vide order dated 20.4.2011 read with order dated 1.11.2012 excluding the period of service from 17.5.1978 to 31.7.197 9 from the tenure of service of the appellant. The effect of order of the learned Single Judge is that the maximum tenu re of employment of the appellant under the provisions of the Nagaland Retiremen t from Public Employment Act, 1991 (hereinafter called as the ’Act’) would inclu de the period of probation within the purview of the expression ’Public Employme nt’ under Section 2 of the Act. Thus, the said period will be counted towards te nure of 35 years permitted under the Act. The appellant was appointed as a probationer in the establishment of Nag aland Industrial Development Corporation (a Government of Nagaland Undertaking) with effect from 17.5.1978 vide appointment letter dated 27.6.1978. He was on pr obation for one year and, thus, claimed that his date of entry in service be cou nted from 1.8.1979 so that the period of permissible service in public employmen t i.e. 35 years is not reduced.
Decision
This prayer was accepted and approved by the State Government, against w hich the writ petitioners - Respondents No.1 to 5 approached this Court under Ar ticle 226 of the Constitution with the grievance that excluding the said period from service was in violation of Section 3 of the Act. The appellant contested the claim made in the writ petition by submittin g that period of probation could not be counted towards service. The public empl oyment will commence only when there is an appointment to substantive post and n ot any appointment on probation on a fixed pay. Learned Single Judge upheld the plea of the writ petitioners as follows :- The joining letter of private Respondent No.5 itself shows that he joine (cid:28)11. d the post of Commercial Assistant as probationer on 13.05.1978. The contention of the respondents that the appointment of private Respondent No.5 was not again st any designated/specific post is, therefore, factually incorrect, and if the l ength of service was not applicable for the purpose of retirement of private Res pondent No. 5, there could not have been any occasion for the respondent authori ties to consider the effective date of the entry of the private Respondent No. 5 in service. While condoning the probationary period of the private Respondent N o.5, the respondent authorities have averred that pension and other benefits are effective from the date of 01.08.1979 and therefore, the date of counting the l ength of service of the private Respondent No.5 shall be 01.08.1979. An employee should avail the pension benefits on contribution of full 35 years of CPS Pensi on. The appointment order of the petitioner No.2 and one Shri K. Haralu shows th at similarly situated persons were appointed on consolidated salary of Rs.500/- per month and they had also to undergo probation for a period of one year. It is specifically mentioned in their appointment orders that the pension and other benefits will be available to them on completion of probationary period of one y ear. Therefore, the benefit given to the petitioners as well as private Responde nt No. 5 at the time of their initial employment, were same. Only because in the appointment order of private Respondent No.5, the designated or substantive pos t has not been mentioned, he cannot claim the benefit of condonation of probatio n period of one year. The private Respondent No.5 applied for a substantive post . His application was accordingly accepted and he joined the said substantive po st of Commercial Assistant vide his joining letter dated 17.05.1979. Thus, it ap pears from the documents available with the case records that the appointments o f one Shri K. Haralu, petitioner No.2, as well as private Resondent No.5, were i n continuation of their earlier appointment on probation. Therefore, when the pr obation period for the petitioner and the similarly situated persons were taken into consideration in computing the length of service, thee is no reason to cond one the probation period in respect of priave Respondent No.5. 12. In view of the foregoing discussions, the administrative approval dated 20.04.2011 condoning the probation period of the private Respondent No. 5 in res pect of his service and reaffirmation dated 01.11.2012 in respect of the adminis trative approval, are hereby set aside and quashed. (cid:29) We have heard learned counsel for the parties. Learned counsel for the appellant submitted that since the appellant was not appointed to any post, he could not be treated to be in ’public employment’ under Section 2 of the Act and, therefore, the said period has been rightly exc luded from the tenure of employment of the appellant. Learned counsel for the writ petitioners supports the impugned order and submits that any nature of service in connection with the affairs of the State or its functionaries is covered by ’public employment. On due consideration, we are unable to accept the submission made on beh alf of the appellant. The scheme of the Act has been discussed by the Hon’ble Su preme Court in (2010) 7 SCC 643 (Nagaland Senior Government Employees Welfare As sociation and others -Vs.- State of Nagaland and others). The provisions of the Act were upheld in the context of the State of Nagaland. In the light of the sai d judgment, a Division Bench of this Court in Neise Mich Vs. State of Nagaland a nd others (Writ Appeal No.177 of 2012), decided on 20.7.2012 upheld the view tak en by the learned Single Judge that contract/ad-hoc service has to be treated as part of ’public employment’ as defined in the Act. The definition ’public employment’ as defined in the Act is as follows : - (cid:28)(1) Public Employment (cid:29) means appointment to any pensionable State Public Servic e or posts in connection with the affairs of the State of Nagaland and the Nagal and Legislative Assembly and includes any appointment under the Government of In dia, any other State Government, Central or State Public Sector undertaking and local authority held by the persons prior to their absorption under the Public S ervice of the State of Nagaland and the Nagaland Legislative Assembly which coun ts for the purpose of pension. (cid:29) In Neise Mich -Vs.- State of Nagaland and others, supra, it was observed : We are in agreement with the above view expressed by the learned Single (cid:28)22. Judge. The decision to include contract / adhoc service while computing the thir ty five years of superannuation service is consequential to the policy decision of the State to retire its employees on completion of thirty five years of servi ce or on attaining sixty years of age, whichever is earlier, which has been uphe ld by the Hon’ble Supreme Court. The said policy decision has been taken to achi eve the legitimate objective of providing limited public employment opportunitie s to the larger numbers of educated unemployed youth of the State so as to ensur e that they do not go astray and join militant groups. It is in the above contex t that the present decision of the State has also to be judged. Viewed from the above angle, the impugned decision of the State is a reasonable one and in the l arger public interest. As the learned Single Judge has rightly held that though an adhoc appointee may not be entitled to all the benefits of regular employment , yet he continues to be in Government employment. In view of the definition of public employment as provided in the 1991 Act, the decision to include contract / adhoc service while computing thirty five years of superannuation service cann ot be said to be arbitrary or unreasonable. Thus, the decisions relied upon on b ehalf of the appellants do not debar counting of adhoc service for pension or fo r superannuation. (cid:29) In view of the said judgment, a clarificatory order was issued by the St ate of Nagaland being order dated 1.8.2012 to the effect that service rendered i n ad-hoc/contract/work-charged capacity shall count ’public employment’ for calc ulation of length of service under the Act. In view of above, contention raised on behalf of the appellant that his appointment is not against a post, but as a probationer, could not be accepted. The definition ’public employment’ takes within its sweep every appointment in c onnection with the affairs of the State of Nagaland or any public sector underta king as against any private employment unconnected with the affair of the State or public sector undertaking. Any other interpretation will be against the objec t of the legislation. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. The appeal is dismissed.