Rita Lily Anthony vs State of Assam and Others

S.K. Homchaudhuri, J.—Petitioner''s case is that after passing the Senior Nursing Course in the year 1950, she came to be appointed as Staff Nurse in the Assam Medical College in the year 1951 to 1953.

The Petitioner came to be appointed as Nurse in the Lokpriya Gopinath Bordoloi Memorial T.B. Hospital (in short LGB Hospital) on 16th November, 1959 and since then had been working in the said Hospital till she was to Retire from service on 31.8.91 by the impugned order dt. 8.7.91.

In this Writ petition Petitioner''s grievance are three told which are as follows:

(i) Although as per her age recorded in the HSLC Certificate Petitioner''s ditto of superannuation falls on 1.3.96, she has arbitrarily been made to retire from service with effect from 31.8.91 by the impugned order dated 8.7.91.

(ii) She has been unjustly denied promotion to the next higher post. Although the Govt. of Assam, Health and Family Welfare (sic) by the letter dated 11th February, 1992 addressed to the Respondent No. 2, the Director of Health Services intimated that Petitioner should have been promoted to the next higher post with effect from 18.2.87, no order has yet been passed either by the Respondent No. 2 or by the Respondent No. 4 giving the benefit of promotion to higher post with effect from 18.2.87.

(iii) The Petitioner is entitled to the benefit of counting of the entire period of services rendered by her in the LGB Hospital on and from the date of appointment in the year 1959 as qualifying service for the purpose of pension and pensionary benefit. The Govt. of Assam, Health and Family Welfare Deptt. order dated 1.3.93, purporting to supersede the earlier order dated 12.11.91 and to deprive the Petitioner of the benefit of services rendered prior to 30.10.72 towards pension and pensionary benefit, is arbitrary and unjust.

As regards the first grievance of the Petitioner, admittedly after passing the Senior Nursing Course training in the year 1950, the Petitioner was appointed in the Assam Medical College, Dibrugarh as Staff Nurse in the year 1951. The minimum age for entering into Govt. service being 18 years, it is to be presumed that Petitioner was at least 18 years old in 1951 when she was employed in the Assam Medical College. Petitioner passed the HSLC examination in the year 1975 long after she entered into service, Besides the Petitioner who has had opportunity to see the service record did not raise any objection about the age recorded in the service book, although as per provisions of the Rules, objection as regards the age recorded in the service book should be raised prior to 3 years of the date of superannuation. From what is stated above, I do not find any cogent reason to hold that Petitioner''s age has been wrongly recorded in the service book, As such, there is no infirmity in the order asking the Petitioner to retire from service on and from 31.8.91

The other two grievances of the Petitioner are interlinked. The Respondents in their affidavit-in-opposition contended that Govt. by subsequent order No. HLA 1414/86/110 dt. 1.3.93 superseded the earlier order No. HLA, 1414/86/84 dated 12th November, 1991. The order No. HLA. 1414/86/89 dated 14th February 1992 was rendered on the basis of the decision of the Govt. expressed in the letter dated 12.11.91. As such, Petitioner is not entitled to promotion to higher post with effect from 18.2.87 as well as counting of the period of her service rendered in the Hospital prior to taking over hereof by the Govt. on and from 30.10.92 as qualifying services for the purpose of pension and pensionary benefit.

I have heard Mr. A.S. Choudhury, learned Counsel for the Petitioner and Mr. P. Roy, learned Govt. Advocate and perused the materials on record.

By order No. HLA. 1414/86/84 dated 12th Nov.'' 91, the Govt. of Assam Intimated the Director of Health Services, Assam as follows:

I am directed to say that from records it appears that Smt. Rita Lily Anthony, Retd. Sister was initially appointed by the Secretary, L. G. B. M. T. B. H. and S Guwahati as sister vide No. TBH-II-8/58/2713 dated 26.9.59 and she joined in service on 16.11.59. Subsequently she was appointed by the DHS vide letter No. 714-NS/2/3/72 (PE) dt. 23.3.73 and posted as sister under LGB Chest Hospital, Guwahati on 23.2.73 and effect was given from 30.10.72 and since then she was working continuously upto 31.8.91 i.e. upto the date of her superannuation.

After careful consideration of all these aspects and since she was working with effect from 16.11.59 under the same Govt. her service shall have to be counted from her first joining in service.

You are therefore, requested to issue an order counting her service from the date of her first joining with effect from 16.11.59 enabling her to get the pensionary benefits.

Action taken in the matter may please be intimated to Govt. at an early date. Service Book of Smt Rita Lily Anthony is forwarded herewith.

In pursuant to the said letter Govt. again by letter dated 14th February, 1992 intimated the Director of Health Services as follows:

With reference to your letter cited above I am directed to say Govt. have already taken a decision in connection with joining date of Smt. R.L. Anthony with effect from 16.11.59 vide this Deptt. letter No. HLA, 1414/86/84 dated 12.11.91 and accordingly her seniority will be counted from the date of joining in service. Again from records it appears that she will have to be promoted from 18.2.87 (i.e. from the date of supersession) which was not done from your end from which she has been deprived of promotion.

You are, therefore, requested to check up the matter and submit a proposal regarding promotion of Smt. R.L. Anthony for Govt. approval at an early date.

Petitioner''s claim for promotion as well as entitlement of counting the entire service she rendered in the LGB Hospital for the purpose of pension and pensionary benefit are founded on these two letters. The Govt. however, subsequently by letter No. HLA. 1414/86/110 dated 1.3.93 superseded the order dated 12.11.91 on the ground that as per terms of the agreement arrived at between the Govt. of Assam and the management of LGB Hospital, the services rendered by an employee in the hospital prior to taking over the same by the Govt. on 30.10.72, was not to be counted for pension and pensionary benefit Mr. P. Roy, learned Govt. Advocate submits that since as per the agreement arrived at between the Govt. and the in management the services rendered by an employee in the said hospital prior to taking over the same by the Govt. was not to be counted for the purpose of pension and pensionary benefit, the Petitioner cannot claim that she should be given the benefit of pension and pensionary benefit, by counting the period of service rendered before 30.10.72, in support of his contention Mr. Roy has drawn my attention to Clause (3) of the agreement which runs as follows:

The Governor of Assam is free to utilise the services of the employee of LGB Chest Hospital and the Chest Clinic in any manner as the Govt. may consider necessary.

Mr. A.S. Choudhury, learned Counsel for the Petitioner submits that Clause (3) of the agreement does not disclose that the existing employee of the Hospital at the time of taking over of the Hospital would not be entitled to the benefit of past services rendered in the Hospital for the purpose of pension and pensionary benefit.

I have considered the submissions made on behalf of the Petitioner as well as on behalf of the Respondents and have perused the materials on records placed before me, On perusal of the agreement between the Government and the management of the LGB Hospital, It appears that the Hospital has been receiving substantial recurring and non-recurring grants from the Govt. of Assam for running the Hospital. As the Management had been facing difficulties to manage the Hospital properly for want of financial resources the Hospital was taken over by the Govt. with effect from 30.10.72, as per the agreement, Except Clause 3 none of the Clauses Of agreement of taking over of the Hospital by the Govt. speaks about the employees of the Hospital. A plain reading of Clause (3) of the agreement reveals that there is nothing even to infer that services rendered by the employees prior to taking over of the Hospital by the Govt. would not be counted for pension and pensionary benefit. In our welfare State Govt. has introduced various Schemes for granting old age pension and pensionary benefit to the deserving citizens. Mr. Roy has not been able to produce any Rule or order of the Govt. according to which the services rendered by the employees of the LGB Hospital prior to taking over the same by the Govt. was not to be counted for the purpose of pension and pensionary benefit.

In the absence of any order or agreement, the question has to be decided in consonance with justice, equity and good conscience.

The usual age of retirement of an employee in a Govt. aided institution or Society or undertaking is 60 years and above and such employees are also entitled to the benefit of Contributory Provident Fund. Had the LGB Hospital not been taken over by the Govt. the employees of the Hospital would have normally retired from service on attaining the age of 60 years and would have also been entitled to the benefit of Contributory Provident Fund. Because of taking over of the LGB Hospital, by the Govt. the Petitioner has to retire from service on attaining the age of 58 years and has also been deprived of the benefit of the Contributory Provident Fund. If the period of service rendered by the Petitioner in the Hospital before taking over thereof by the Govt. is not counted as qualifying service for the purpose of pension and pensionary benefit, she will have to be contended with nominal pension and pensionary benefit, Thus in one hand, while she has been deprived of earning by rendering service for atleast 2 more years as well as the benefit of Contributory Provident Fund, on the other hand, she is being deprived of the full pension and pensionary benefit. In my opinion, it is inequitable and unjust to deny the benefit of the period of continuous services rendered by the Petitioner in the hospital prior to taking over of the same by the Govt. for the purpose of pension and pensionary benefit. As such, by the order dated 12.11.91 Govt. rightly took the decision that the Petitioner having continuously worked in the hospital with effect from 16.11.59, her services should be counted for the purpose of pension and pensionary benefit 18 well as for seniority for the purpose of promotion to higher post. I find that order dated 1.3.93 has been passed in total misreading of the terms of agreement of taking over of the LGB Hospital between the Govt. and the management of the Hospital, Inasmuch as, there is nothing in the terms of agreement which remotely suggests that services rendered by the employees prior to 30.10.72 would not be counted for seniority in service as well as for pension and pensionary benefit.

The learned Govt. Advocate submits that as per the opinion of Accountant General expressed in his letter dated 8.6.93 services rendered by the employees of LGB Hospital prior to 30.10.72 could not be counted for pension and pensionary benefit. The Accountant General might be technically correct but justice cannot be sacrificed at the altar of technicality. Pedantic approach in such matter, depriving the employee of the benefit of services rendered in the hospital prior to taking over of the same by the Govt. would be unfair and unjust.

For the reasons stated above, Govt. order dated 1st March, 1993 purporting to supersede the earlier order dated 12th November, 1991 apparently on mis-reading of the terms of the agreement cannot be sustained and is therefore set aside. The order dated 12.11.91 is restored. The Petitioner will be entitled to pension and pensionary benefit by taking into account her entire period of services rendered in the Hospital on and from 26.11.59 as qualifying service for that purpose. The Petitioner shall also be entitled to benefit of promotion to next higher post with effect from 18.2.87 as ordered by the Govt. by the letter dated 14.2.92. Respondents are directed to pass appropriate order giving the benefit of promotion to the Petitioner to the next higher post with retrospective effect from 18.2.87 as ordered by the Govt. in the letter dried 14.2.92 and to complete the service record of the Petitioner by making necessary entries therein and transmit the service book and other pension papers to the Accountant General, Assam within a period of two months from the date of receipt of the order, so as to enable the latter to pass pay order. The Accountant General, Assam shall ensure that necessary order for payment of D.C.R.G. pension and other pensionary benefit to the Petitioner is passed within one month of receipt of the service book, and other pension papers of the Petitioner from the Respondent No. 3 and 4.

The petition is allowed to the extent indicated above. I make no order to costs.