State Of Meghalaya And Ors. vs Brigita Wahlang And Anr.

Mohammad Rafiq, CJ

This appeal has been preferred by the State of Meghalaya and its Commissioner & Secretary, Personnel Department, Director of Agriculture and Chief Engineer (WR) Water Resource, Govt. of Meghalaya, Shillong, assailing the judgment of the learned Single Judge dated 26-09-2019.

The learned Single Judge by the aforesaid judgment has allowed the writ petition filed by the respondent, Smti. Brigita Wahlang. The writ petitioner contended that her husband (L) Homber Hynniewta was initially appointed as Driver in the office of the Directorate of Agriculture, Shillong vide order dated 14th March, 1988 in the regular pay scale of Rs. 350-10-400-EB-11-510-EB-13-575/- p.m. plus usual allowances as admissible under the rules. He joined in that appointment on 24th March, 1988. After some time, he was required by communication dated 22nd April, 2002 to produce a Medical Certificate of his health to be issued by a Civil Surgeon as required under Rule 10 read with S.R(s) 8 of F.R (s) and S.R(s) as he was proposed to be confirmed in his services. He produced the required Medical Certificate. Thereafter, the Directorate of Agriculture, Shillong vide order dated 22nd May, 2002 confirmed her late husband as Driver in the pay scale of Rs. 975-20-1075-EB-25-1250-30-1550/- p.m with effect from 04-08-1995. He continued to serve with the respondent in the Agriculture Department and thereafter his services were temporarily transferred to Superintending Engineer, Irrigation Department vide order dated 06-08-2002 and then his services were placed at the disposal of the Executive Engineer, Irrigation Department vide order dated 19-08-2005. Her late husband retired from service on attaining the age of superannuation on 30-11-2016. His pension papers were moved by the Department but before his pension case was finalized, he unfortunately died on 08-12-2016. The petitioner (his widow) approached the Department by making several representations for finalization of his pension case and also for grant of family pension. The respondent however, released only the amount for Leave Encashment and General Provident Fund which was subscribed by her late husband. Being aggrieved by the denial of family pensionary benefits, she approached this Court by filing a writ petition.

The learned Single Judge has allowed the writ petition directing the appellant State to consider the case of the deceased employee (L) Homber Hynniewta for retrospective regularization with effect from the date he was confirmed in service i.e. 04-08-1995 and further to take consequential action thereto, in furtherance to the decision to be arrived upon. The entire exercise shall be completed within four months from the date of receipt of certified copy of the order. Learned Single Judge has also directed, as observed, that the judgment shall not serve as a precedent for other employees who are similarly situated as the order has been rendered in the peculiar facts and circumstances of the case.

We have heard Mr. S.Sengupta, learned counsel for the appellant State and Mr. P.T.Sangma, learned counsel for the respondent. Learned counsel for the appellant State submits that learned Single Judge has erred in law as well as in fact in allowing the writ petition. The learned Single Judge has failed to appreciate that the deceased husband of the petitioner was not appointed through regular prescribed procedure. His services, therefore, could not have been regularized, more particularly, retrospectively. It could be done only prospectively. Even if the pension case of the deceased employee is considered, the benefits would now be granted under the New Defined Pension Scheme which is a contributory provident fund. Since he has already retired and died, he can not now possibly contribute towards the pension scheme.

The learned counsel for the respondent (writ petitioner) supported the judgment.

We have given anxious consideration to the impugned judgment. The learned Single Judge in the impugned judgment has in para 6 and 7 observed that:

"6. Admittedly, the deceased employee had joined service on 14th March, 1988 and was put on regular scale of pay, wherein he continued to work uninterruptedly against a regular sanctioned post, and pursuant to the order dated 22nd May, 2002 was confirmed in the service with effect from 04.08.1995. It is also noticed that the deceased employee along with others was placed in the seniority lists, which indicated for all practical purposes that the deceased employee was in regular employ, more so, in view of the confirmation. The deceased employee it appears was treated as regular appointee to the post, but however, due to the inaction of the respondent Nos. 3 and 4, formal regularization which would have made the services of the deceased employee complete in all respects was still yet to be done. In this regard, this Court notes with surprise at the service history of the deceased employee, inasmuch as, confirmation is usually granted only when an employee has been in regular service for a certain period of time. The inaction of the respondent No. 3 and 4, in this regard has resulted in the denial of due service and retirement benefits which the deceased employee should have enjoyed.

The letters annexed to the affidavit-in-opposition filed by the respondent No. 1-4 especially at Annexure-3 and 4 which are the letters dated 10th July, 2017 and 4th May, 2018, reflect that the parent Department i.e. respondent No. 3 and 4, of the deceased employee had moved and requested for regularization of the service of the deceased employee and also for review of the case so as to facilitate the grant of pensionary benefits to the petitioner. However, by the letter dated 11.07.2018, the proposal as put up by the parent department was not agreed to. It is undisputed that the petitioner has rendered twenty-eight long years of service in the employ of the respondent No. 3 and 4 and also had been confirmed, notwithstanding the fact, that there was no formal order for regularization. It is also not disputed that the deceased employee was placed in the regular scale of pay and also on his retirement was paid the Leave Encashment and GPF dues. As noted earlier, the only component that is lacking is a formal order of regularization which has deprived the deceased employee and his family of due benefits.

In consideration of the circumstances of the case and the fact that no laches can be attributed to the deceased employee, it is directed that the respondent shall forthwith consider the case of the deceased employee (L) Homber Hynniewta for retrospective regularization with effect from the date he was confirmed in service i.e. 04.08.1995, and further to take consequential action thereto, in furtherance to the decision to be arrived upon. The entire exercise shall be completed within 4(four) months from the date of receipt of a certified copy of this order.

It is made clear that this case shall not serve as a precedent for other employees who are similarly situated as this order has been rendered in the peculiar facts and circumstances of this case itself."

Undeniably, the late husband of the respondent (petitioner) was appointed as Driver in the regular pay scale and continued to serve the appellant State for as long as 28 years till he retired on superannuation on 30-11-2016. It is also admitted that the deceased employee was confirmed as Driver in the pay scale of Rs. 975-20-1075-EB-25-1250-30-1550/- p.m with effect from 04-08-1995. In our considered view, the learned Single Judge was perfectly justified in holding that his confirmation would be as good as regularization. Not only the deceased employee was confirmed but he was placed in the Seniority list which indicates that the deceased employee for all practical purposes was a regular employee. The inaction on the part of respondent 3 & 4 in the writ petition that formal regularization was not issued and the deceased employee had on his part completed all the requisite formalities. The learned Single Judge has also observed that the documents annexed with the affidavit-in-opposition filed by the State respondents that subsequently vide Annexure 3 & 4 dated dated 10th July, 2017 and 4th May, 2018 the parent department i.e. Director of Agriculture, State of Meghalaya, Shillong and Chief Engineer, Water Resources, State of Meghalaya moved the case of the deceased employee and requested for regularization of his services and also grant of family pension benefits to his widow.

In view of the above discussion, we do not find any error in the impugned judgment passed by the learned Single Judge either on fact or law. In our considered view and in the facts and circumstances of the case, we do not find any merits in this appeal which is accordingly dismissed.

Delay condoned for the stated reasons.