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Judgment
These batch of writ petitions involving similar and identical facts and questions are proposed to be disposed of by this common order.
The facts as set out is that the petitioner, Smti. Aplyne Mary Sunn in WP(C) No. 364 of 2017 was appointed as Typist in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 02.11.1994 and was posted in the office of the Director of Arts & Culture, Government of Meghalaya, Shillong with effect from 01.11.1994. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Shri. Victorise Manners in WP(C) No. 365 of 2017 was appointed as Typist in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 05.03.1992 and was posted in the office of the Director of Arts & Culture, Government of Meghalaya, Shillong. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Smti. Ibaiamonlin Lamin in WP(C) No. 366 of 2017 was appointed as Library Assistant in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 22.06.1994 and was posted in the office of the State Central Library, Shillong. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Smti. Bibian W. Khyriem in WP(C) No. 367 of 2017 was appointed as Electrician-cum-Radio Technician in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 15.05.1993 and was posted in the office of the Director of Arts & Culture, Government of Meghalaya, Shillong with effect from 15.05.1993. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Smti. Diana Iangrai in WP(C) No. 368 of 2017 was appointed as Typist in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 01.02.1992 and was posted in the office of the Director of Arts & Culture, Government of Meghalaya, Shillong with effect from 01.02.1992. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Smti. Nelifa Massar in WP(C) No. 369 of 2017 was appointed as Library Assistant in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 01.06.1992 and was posted in the office of the State Central Library, Shillong. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
The petitioner, Smti. Biona Kharbudon in WP(C) No. 370 of 2017 was appointed as Technical Assistant in the Directorate of Arts & Culture, Meghalaya, on adhoc basis on 13.04.1999 and was posted in State Central Library, Shillong. The service of the petitioner was regularized on 24.05.2010 by the respondent No. 6 on the basis of the approval given by the Cabinet on 27.04.2007.
A noteworthy fact is that all the petitioners abovementioned, were made to open the GPF (General Provident Fund) accounts and allotted GPF Account numbers in the year 1996 itself, before their regularization.
The grievances as projected in the writ petitions are that, though as per letter dated 27.08.2007, regularization was made with a condition that the period of 3(f) appointment/adhoc appointment of each incumbent would be taken into consideration for the purpose of leave, pay, increment, pension, etc., as per existing provisions provided under F.R. 28(a), the respondents, issued several letters dated 12.02.2016, 12.01.2016, 01.11.2016 and 09.05.2017, whereby the petitioners were declared to be under the New Defined Contribution Pension Scheme and further that they were to stop subscribing to the GPF.
Being aggrieved with the said impugned letters dated 12.02.2016, 12.01.2016, 01.11.2016 and 09.05.2017, wherein these directions are contained, the petitioners are before this Court through their respective writ petitions.
Ms. B. Das, learned counsel on behalf of the petitioners submits that at the time of the petitioner's entry into service, the provisions of the Meghalaya Civil Services (Pension) Rules, 1983 and Meghalaya Civil Services (General Provident Fund) Rules, 1985 were in operation and the services of the petitioners was brought under the said Rules by virtue of the mandatory provisions contained therein. She submits that as such, the monthly GPF deduction of the petitioners was made compulsory at par with other existing employees of the State from the year 1996.
Learned counsel then submits that the impugned letters placing the petitioners under the New Defined Contribution Pension Scheme are illegal and arbitrary, inasmuch as, firstly it is explicitly clear that the New Defined Contribution Pension Scheme is applicable only to new entrants under the State Government, who entered into service on or after 1st April, 2010 whereas the petitioners had entered service prior to 1st April, 2010. Secondly, it is submitted that by virtue of the letter dated 27.08.2007 issued by the Personnel and Administrative Reforms (B) Department, the services rendered under adhoc appointment are to be taken into consideration for the purpose of pension, so as such, there was no justification in seeking to place the petitioners under the New Defined Contribution Pension Scheme. Learned counsel submits that the petitioners having entered into service before 1st April, 2010, they would necessarily fall under the Meghalaya Civil Services (Pension) Rules, 1983. She further submits that though representations had been made in this regard, there has been no response from the respondents. She lastly prays that the impugned letters be set aside and the petitioners be kept outside the ambit of the New Defined Contribution Pension Scheme.
Ms. S. Bhattacharjee, learned GA on behalf of the respondent No. 6 submits that Office Memorandum and guidelines thereto dated 24.03.2010 which deals with introduction of the New Defined Contribution Pension Scheme has clearly spelt out that the Scheme shall be applicable to all Government employees whose services were/will be regularized against regular posts on or after 1st April, 2010 with the benefit of prospective date of application. She submits that the petitioners having been regularized after the said date will therefore fall under the New Defined Contribution Pension Scheme. Learned GA submits that accordingly, the staffs that were regularized after 1st April, 2010 were intimated and issued instructions to fill up applications for allotment of permanent retirement Account numbers, which she submits, have however, not been complied with till date.
With regard to the submissions and averments as made in Para 4 of the writ petition, learned GA does not dispute the same and has no submissions to make in this regard. However, she submits that in line with the letters dated 12.01.2016 and 01.11.2016 the respondent No. 6 had acted accordingly, but at the same time had also forwarded the representations of the petitioners to the Government, vide letter dated 14.03.2017 with a request to consider and re-examine the same. After conclusion of her arguments, learned counsel then lastly cites the decision of the Supreme Court rendered in the case of B. Varadha Rao v. State of Karnataka & Anr: (1986) 4 SCC 624 wherein, it has been held that seniority is to be counted from the date of regularization and not from the date of temporary appointment.
I have heard learned counsels for the parties and have gone through the materials on record.
The only point to be adjudicated in these present bunch of writ petitions is whether the New Defined Contribution Pension Scheme will be applicable to the petitioners in view of the fact that they were regularized on 24.05.2010 which is after 01.04.2010, the date appointed for the implementation of the new Pension Scheme. While the Scheme has in no uncertain terms prescribed the manner and date, by which the Scheme was to be implemented, the fact that the petitioners though while serving on adhoc basis were made to contribute to the GPF, coupled with the directions as contained in the letter dated 27.08.2007 have to be taken into consideration while deciding this issue.
It is noticed that the writ petitioners were appointed on adhoc basis on several dates before 1st April, 2010. By way of a special recruitment exercise conducted by the Meghalaya Public Service Commission on the same being approved by the State Cabinet, all the petitioners were then regularized in their posts. By letter dated 27.08.2007 annexed as Annexure- 2 of the writ petition, which conveyed this decision certain conditions were also provided that governed the terms of their regular appointment. The letter dated 27.08.2007 for the special recruitment is reproduced herein below for ready reference:
"GOVERNMENT OF MEGHALAYA PERSONNEL AND ADMV. REFORMS (B) DEPARTMENT
No. PER (AR) 76/99/Pt.V/297, Dtd. Shillong, the 27th August, 2007.
From:
Smti. A. Khongsit,
Under Secretary to the Govt. of Meghalaya.
To,
The Under Secretary, Govt. of Meghalaya, Animal Husbandry &Vety. Department.
The Under Secretary, Govt. of Meghalaya, Agriculture Department.
The Under Secretary, Govt. of Meghalaya, Arts & Culture Department.
The Under Secretary, Govt. of Meghalaya, Border Areas Development Department.
The Under Secretary, Govt. of Meghalaya, Cooperation Department.
The Under Secretary, Govt. of Meghalaya, Community & Rural Development Department.
The Under Secretary, Govt. of Meghalaya, Education Department.
The Under Secretary, Govt. of Meghalaya, Election Department.
The Under Secretary, Govt. of Meghalaya, Excise, Registration, Taxation & Stamps Departments.
The Under Secretary, Govt. of Meghalaya, Finance (E) Department.
The Under Secretary, Govt. of Meghalaya, Forest & Environment Department.
The Under Secretary, Govt. of Meghalaya, General Admn. (A) Department.
The Under Secretary, Govt. of Meghalaya, Health & Family Welfare Department.
The Under Secretary, Govt. of Meghalaya, Home (P) Department.
The Under Secretary, Govt. of Meghalaya, Industries Department.
The Under Secretary, Govt. of Meghalaya, Information & Public Relations Department.
The Under Secretary, Govt. of Meghalaya, Labour Department.
The Under Secretary, Govt. of Meghalaya, Mining & Geology Department.
The Under Secretary, Govt. of Meghalaya, Planning Department.
The Under Secretary, Govt. of Meghalaya, Public Health Engineering Department.
The Under Secretary, Govt. of Meghalaya, Public Works Department.
The Under Secretary, Govt. of Meghalaya, Sericulture & Weaving Department.
The Under Secretary, Govt. of Meghalaya, Social Welfare Department.
The Under Secretary, Govt. of Meghalaya, Soil Conservation Department.
The Under Secretary, Govt. of Meghalaya, Sports & Youth Affairs Department.
The Under Secretary, Govt. of Meghalaya, Tourism Department.
The Deputy Commissioner, West Khasi Hills District, Nongstoin.
The Deputy Commissioner, South Garo Hills District, Baghmara.
The Deputy Commissioner, Ri-Bhoi District, Nongpoh.
Deputy Commissioner, East Khasi Hills District, Shillong.
Deputy Commissioner, Jaintia Hills District, Jowai.
Deputy Commissioner, West Garo Hills District, Tura.
Deputy Commissioner, East Garo Hills District, Williamnagar.
The Addl. Deputy Commissioner, i/c Resubelpara Sub-Division, East Garo Hills.
Subject : Matters relating to Adhoc appointment.
Sir,
I am directed to refer to the subject quoted above and to say that the following adhoc appointees under your Department are approved by the Cabinet for regularization.
You are therefore requested, to take necessary action to regularize the appointments through special recruitment by the Meghalaya Public Service Commission/District Selection Committee as the case may be after ensuring that all the conditions laid down in this Department's letter No. PER (AR) 76/99/424, dtd. 26.7.2005 has been observed.
However, you are also requested to ensure that regularization taken up by the Appointing Authority be made only in respect of the approved list enclosed below, a copy of which has also been forwarded to Meghalaya Public Service Commission/District Selection Committee for their information and necessary action.
The regularization when made is subject to the following conditions: -
That the candidates when regularized would not be given weightage for their past services in so far as their seniority are concerned and they may be considered junior as to their junior most incumbent in position as on the date of recommendation in other words, the normal principles governing seniority would apply.
The period of 3(f) appointment/adhoc appointment of each incumbent would be taken into consideration for the purpose of leave, pay, increment, pension, etc., as per existing provision provided under F.R. 28(a).
Yours faithfully,
Sd/-
Under Secretary to the Govt. of Meghalaya, Personnel and Admv. Reforms (B) Department."
Thereafter, the special recruitment to various posts was accordingly conducted and vide order dated 27.05.2010, the Meghalaya Public Service Commission made the recommendation which is annexed as Annexure-5 of the writ petition. The same is reproduced herein below for easy reference:
"GOVERNMENT OF MEGHALAYA DIRECTORATE OF ARTS & CULTURE :: MEGHALAYA
No.DAC/ESTT/5/2002/681 Dated Shillong, the 27th May, 2010.
ORDER
On the recommendation of Meghalaya Public Service Commission, Shillong vide letter No. MPSC/Spl.Rectt-73/1/2007-08/305, dt. 24th May, 2010 the following Adhoc appointees are hereby regularized with effect from 24-05-2010 as below:
Name of the Incumbent
Designation
Effective Date of Regularisation
Shri. Moulding Marbaniang
L.D.A
24-05-2010
Smt. Diana Iangrai
Typist
24-05-2010
Shri. Victorise Manners
Typist
24-05-2010
Smt. Aplyne Mary Sunn
Typist
24-05-2010
Smt. BionaKharbudon
Technical Assistant
24-05-2010
Smt. NelifaMassar
Library Assistant
24-05-2010
Smt. IbaiamonlinLamin
Library Assistant
24-05-2010
Smt. Bibian W. Khyriem
Electrician-cum- Radio Technician
24-05-2010
The regularization when made is subject to the following conditions as laid down by Personnel Department's Letter No.PER(AR)76/99/Pt.V/297 dt.27th August, 2007 (Copy enclosed)
That the candidates when regularized would not be given weightage for their past services in so far as their seniority are concerned and they may be considered Junior as to their Junior most incumbent in position as on the date of recommendation in other words, the normal principles governing seniority would apply.
The period of 3(f) appointment/Adhoc appointment of each incumbent would be taken into consideration for the purpose of leave, pay, increment, pension etc., as per existing provision provided under F.R. 28(a).
Sd/- D. Syiem,
Director of Arts & Culture,
Meghalaya, Shillong."
A conjoint reading of the letter dated 27.08.2007, and order dated 27.05.2010, clearly reflects that the period of adhoc appointment of the incumbent was to be taken into consideration for the purpose of leave, pay, increment, pension, etc., as per existing provisions. The appointment of the petitioners and regularization thereof, being made under the said pre-conditions, it would only follow that an exception was carved out as far as the petitioners were concerned for the purpose of leave, pay, increment, pension, etc.,
The guidelines for implementation of the New Defined Contribution Pension Scheme as given in Clause 3.1 Page 29 of the writ petition provides as follows:
"3.1. The scheme shall be applicable to all new entrants joining State Government Service on regular basis against sanctioned vacant posts on or after 1st April, 2010. It shall also be applicable to all Government employee whose services were/will be regularized against regular posts on after 01.04.2010 with the benefit of prospective date."
The said Clause in no uncertain terms has stipulated that the Scheme shall also be applicable to all Government employees whose services were/will be regularized against regular posts on or after 1st April, 2010 with the benefit of prospective date. In normal circumstances the Scheme would have applied to the petitioners, but however in view of the conditions as noted earlier which is special and specific in nature to the services conditions of the petitioners, the same will therefore entitle them to be excluded from the implementation of the New Defined Contribution Pension Scheme, 2009 as far as they are concerned.
For the foregoing reasons, in view of the facts and circumstances which have been discussed, these writ petitions are hereby allowed and the impugned letters dated 12.02.2016, 12.01.2016, 01.11.2016 and 09.05.2017 are quashed and set aside.
No order as to costs.