Allowed

Neelkanth Verma v. State of Chhattisgarh

Chhattisgarh HC6 Nov 2020WPS/5090/2018

Case brief

AI extract

What is this about?

Petitioner, a former Excise Department salesman absorbed in 1993, challenged the Collector's rejection of his claim for retirement benefits. The Court found the gaps in service were covered by circulars and the appointment was valid despite lack of a typing exam, allowing the petition and remanding the matter for fresh orders.

What did the court decide?

Petition allowed; Collector's order dated 08/01/2018 set aside; matter remanded to pass fresh orders granting time-bound pay scale and considering retirement benefits from initial service.

Neelkanth Verma Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2020)

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HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 5090 of 2018

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Order reserved on : 15/10/2020 Order delivered on : 06/11/2020

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Neelkanth Verma S/o Shri Ramadhar Verma Aged About 63 Years R/o Vaishnav Colony Baloda Bazar, District- Baloda-Bazar, Bhatapara, Chhattisgarh.

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---- Petitioner

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Versus

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State Of Chhattisgarh, Through The Secretary, Revenue And Disaster Management Department, Mantralaya, Mahanadi Bhawan, New Raipur, District- Raipur, Chhattisgarh.

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The Commissioner Excise Raipur, District- Raipur, Chhattisgarh.

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The Collector Raipur, District- Raipur, Chhattisgarh.

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The Collector Baloda-Bazar- Bhatapara, District- Baloda-BazarBhatapara, Chhattisgarh.

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Tahsildar, Baloda Bazar-Bhatapara, District- Baloda BazarBhatapara, Chhattisgarh.

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---Respondents

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For petitioner- Shri C.R. Sahu, Advocate. For State- Smt. Sunita Jain, G.A.

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Hon'ble Shri Justice Goutam Bhaduri CAV Order

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Heard.

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The case of the petitioner is that the petitioner was working in the Excise Department in erstwhile State of M.P. which decided to run the liquor shop through the department. He was appointed as a Salesman in the office of Excise Officer on 24/12/1981. He served for 9 years and on 12/06/1990 his services were discontinued by the Excise Collector due to certain change of policy. It is further stated that the petitioner as well as other discontinued Salesman made several representation to the then State of M.P., thereafter as per policy of State the petitioner was absorbed in the respondent No.1 department by order dated 21/05/1993 to the post

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of Assistant Grade-III at Tahsil Office, Abhanpur at the pay scale of Rs.950-25-1000-30-1210-40-1530. Thereafter since the petitioner was not granted any promotion he was entitled to the benefit of time bound pay scale, first on completion of 10 years of service and second on completion of 20 years of service, though the petitioner completed qualifying years of service he was not granted kramonnati and the other retiral benetits.

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It is further stated that after formation of the State of Chhattisgarh the services of the petitioner was allocated to the State of C.G. It is contended that while the petitioner was working in the State of M.P. other employees were given the benefit of kramonnati on counting the past services in the light of the circular issued by the General Administration Department dated 7/07/1993 (Annexure P-4). It is stated that the petitioner though has completed qualifying years of service he was not granted first and second kramonnati, he is entitled to get the benefit according to the policy of the State and further the retiremental benefit be accorded by including his past services rendered.

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The counsel for petitioner would submit that the petitioner had filed W.P.S. No.1911/2017 before the court for granting the benefits of counting the past services in the light of the circular of the General Administration Department and the court has directed to decide representation of the petitioner in W.P.S. No.1911/2017 (Annexure P-5). The representation has been decided by order dated 8/01/2018 (Annexure P-1). It is further contended that the Collector while deciding the representation has wrongly applied the facts & circulars and misdirected itself to hold that the petitioner's absorption in the year 1993 was not legal, thought it was not an issue, and held that since absorption of petitioner was not legal as such past service rendered from 1981 to 1993 and subsequent absorption of petitioner in State could not be considered for any retiremental benefit.

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Per contra, learned State counsel would submit that the petitioner's

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services were absorbed pursuant to order dated 21^st June, 1993 (Annexure R-2) and condition of the absorption engrafts that the petitioner should have passed typing examination, therefore petitioner's appointment though was conditional it cannot be considered that appointment is legal as order of the Collector which is passed on representation is justified.

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Perused the order dated 08/01/2018 passed by the Collector on representation dated 11/05/2017. The order of the Collector was passed pursuant to direction passed by this court in W.P.S. No.1911/2017 on 24/04/2017. The issue was entitlement of time bound scale for purpose of seniority wherein following orders were passed:-

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“1. The Petitioner was appointed as salesman in the excise department in the year 1981. He was subsequently absorbed as AGIII vide order dated 21.01.1993, therefore, his services from 1981 to 1993 is not counted for seniority.

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Grievance of the Petitioner is that, similarly placed persons have already been granted the benefit of Time Bound Pay Scale by the Respondents, but for some reasons the case of the Petitioner has not been considered. It is also the contention of the learned Counsel for the Petitioner that the petitioner in this instant case is duly eligible for being considered and also fulfill all the necessary requirements under the guidelines framed by the State Government for grant of said benefit of Time Bound Pay Scale. Counsel for the Petitioners submits that a direction may be issued to the respondents to look into the case of the Petitioner for grant of benefit of Time Bound Pay Scale as per the Circular of the State Government, which has also been extended to other similarly placed persons.

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Without entering into the merits of the case, subject to Petitioner's fulfilling all the eligibility criteria for grant of Time Bound Pay Scale, let Respondents take a decision on the claim of the Petitioner for grant of benefit of Time Bound Pay Scale. The Petitioner would be at liberty to file another detailed representation to Respondent in addition to the representation already filed earlier, along with all supporting documents like the relevant Circular of the State Government and also the order of similar relief being granted to

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similarly placed persons.

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Let this exercise be done within a period of 90 days from the date of filing of representation and certified copy of this order along with all other relevant documents be produced before the authority by the Petitioner.

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Accordingly, the present writ petition stands finally disposed of, with the

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aforesaid observations.”

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It is not in dispute by the averments of the petitioner and on perusal of the reply that the petitioner was initially appointed as a Salesman for running the liquor shop which was being run by the government vide order dated 24/12/1981. Thereafter on change of policy decision by the State, services of the petitioner was discontinued from 12/06/1990 (Annexure P- 3). Subsequently, the Collector Khargon on 07/07/1993 according to the policy of the State and the circular, the surplus employee along with other persons were absorbed with the State Government.

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The policy decision of erstwhile State to absorb the surplus employee of excise department reads as under:-

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e/;izns'k 'kklu

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lkekU; iz'kklu foHkkx

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dzekad ,Q- lh&9&30@91@3@1

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Hkksiky] fnukad 5 fnlEcj 1991

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izfr]

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'kklu ds leLr foHkkx] v/;{k] jktLo eaMy] e/;izns'k] Xokfy;j] leLr laHkkxk;qDr] leLr foHkkxk/;{k] leLr ftyk/;{k] e/;izns'kA

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fo"k;%& okf.kfT;d dj ¼vkcdkjh½ foHkkx ds vfr'ks"k 743 deZpkfj;ksa dh fu;qfDr ckcr~A

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lanHkZ%& okf.kfT;d dj ¼vkcdkjh½ foHkkx dk ifji= dzekad ch&7 ¼,½ 21@ok-dj@5@91] fnukad 20&7&91

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vkfnoklh mi;kstuk {ks= esa okf.kfT;d dj foHkkx }kjk lapkfyr 268 ns'kh efnjk dh nqdkuksa dks Bsdk i)fr ds rgr yk;s tkus ds dkj.k mu nqdkuksa esa dk;Zjr 390 fodz;drkZ] 111 nSfud osru Hkksxh fodz;drkZ ,oa 241 pkSdhnkj csjkstxkj gks x;s gSA

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2- mDr 743 deZpkfj;ksa dks 'kklu ds fofHkUu foHkkxksa esa lafofy;u fd;s tkus ds 'kklu ds fu.kZ; ds QyLo:i] okf.kfT;d dj ¼vkcdkjh½ foHkkx }kjk mijksDr lanfHkZr ifji=] lkekU;

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iz'kklu foHkkx dh lgefr ls izlkfjr fd;k x;k gSA vr% bl lanHkZ esa fuosnu gS fd okf.kfT;d dj foHkkx }kjk muds ifji= ds layXu izlkfjr vfr'ks"k deZpkfj;ksa dh lwph esa mYys[kkuqlkj deZpkfj;ksa dh ;ksX;rk ,oa vuqHko dks n`f"Vxr j[krs gq, mi;qDr inksa ij fu;qfDr nsdj lafofy;u djus dh dk;Zokgh lqfuf'pr dh tk; ,oa lkekU; iz'kklu foHkkx ds lkFk&lkFk okf.kfT;d dj foHkkx dks Hkh voxr djk;k tk;A

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3- mDr deZpkfj;ksa dh lsok 'krsZ] lkekU; iz'kklu foHkkx ds layXu Kkiu dzekad Mh&486@1040@1 ¼3½ 72] fnukad 19 tqykbZ 1973 ds vuqlkj fu/kkZfjr dh tk;s ftldh izfrfyfi lqyHk lanHkZ ds fy, layXu gSA

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4- ;fn okf.kfT;d dj foHkkx ds Kkiu dzekad ch&7 ¼,½ 21@ok- dj@5@91] fnukad 20 twu 91 dh vko';drk gks rks d`i;k okf.kfT;d dj foHkkx ls izkIr djsaA

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layXu %& mijksDrkuqlkjA

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e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj] gLrk@& ¼,e- ,l- flUgk½ mi lfpo] e/;izns'k 'kklu] lkekU; iz'kklu foHkkx

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Subsequently, the Collector Khargaun by it's letter dated 07/07/1993 (Annexure P-4) observed that the services of the surplus employee while absorbing in the new set up were deemed to continue by giving them the benefit of available leave. The order of the Collector was pursuant to the circular of the State which is dated 19^th July, 1973 which is filed as Annexure R-1 wherein for the continuity of the service the following circular was issued which is reproduced hereunder:-

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^^fo"k;& vfr'ks"k deZpkfj;ksa dks vU; foHkkxksa esa lafofy;u gksus ij lqfo/kk,¡ fn;s

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tkus ds lEcU/k esaA

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foHkkxh; iquxZBu lfefr dks flQkfj'kksa ds vk/kkj ij fofHkUu foHkkxksa ds iquxZBu ds QyLo:i vfr'ks"k ?kksf"kr deZpkfj;ksa dks vU; foHkkxksa esa lafofy;u gksus ij jkT; 'kklu }kjk fuEufyf[kr lqfo/kk,W fn;s tkus dk fu.kZ; fy;k x;k gS& ¼,d½ osru dk fu/kkZj.k&

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¼d½ ;g fu.kZ; fy;k x;k gS fd deZpkfj;ksa }kjk fofHkUu foHkkxksa esa v/khu ,sls inksa ij] ftuds osrueku mu inksa ds] ftuesa mUgsa lafoyhu fd;k x;k gS] cjkcj ;k vf/kd gks] dh xbZ vLFkk;h lsok ds iwoZ o"kksZ dks] muds izkjfEHkd osru dk fu/kkZj.k djus ds iz;kstu ds fy;s] x.kuk dh tkuh pkfg,A ,slh fujUrj lsok dks gh] ftlesa fofHkUu foHkkxksa ds v/khu inksa ij drZO; dh vof/k;k¡ ,oa HkRrksa lfgr ,slh Nqêh ftldh x.kuk ml in ij osru o`f) ds fy;s dh tkuk vuqer gks] 'kkfey gksxk] vLFkk;h lsok ds iw.kZ o"kksZ dh x.kuk djus ds fy;s fglkc esa fy;k tkuk pkfg,A

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¼[k½ bu deZpkfj;ksa dks osru fu/kkZj.k ds ifj.kkeLo:i gksus okyh foRrh; gkfu ;fn dksbZ gks ls cpkus dh nf"V ls ;g Hkh fu.kZ; fy;k x;k gS fd foHkkx ds v/khu mu inksa ij izkIr fd;k x;k vfUre osru vkSj u;s inksa ij fu/kkZfjr fd;s tkus okys osru ds chp ds vUrj dh jde O;fDrxr osru ds :i esa nh tkus pkfg,] ftls vkxkeh osru of);ksa esa 'kkfey fd;k tk;sxkA

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¼nks½ ofj"Brk dk fu/kkZj.k&

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ofj"Brk dk fu/kkZj.k] izkjfEHkd osru ds fu/kkZj.k ds fy;s x.kuk esa fy;s x;s lsok ds iwoZ o"kksZ vkSj mlesa vuqir osru o`f);ksa dh la[;k,¡ ds lUnHkZ ls fd;k tk;sxkA ¼rhu½ lsok Hkax& iqjkus in ls lsokeqDr gksus dh rkjh[k vkSj u;s in ij fu;qfDr dh rkjh[k ds chp dh lsok ds O;o/kku dks] ;fn dksbZ gks] lEcfU/kr deZpkjh dks mldh lsok eqfDr ds le; Lohd;Z Nqêh nsdj iwjk dj fn;k tkuk pkfg,A ;fn ;g vi;kZIr gks] rks mUgsa vf/kd ls vf/kd rhu eghus dh vlk/kkj.k Nqêh Hkh nh tk ldsxhA ,sls ekeys ftuesa O;o/kku dks bl izdkj Hkh fu;fer u fd;k tk ldrk gks] fo'ks"k vkns'kksa ds fy;s 'kklu dks fufnZ"V fu;fer u fd;k tk ldrk gks] fo'ks"k vkns'kksa ds fy;s 'kklu dks fufnZ"V fd;s tk;saA^^

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In the aforesaid circular it was laid down that the persons when are absorbed in the new post then they may be given three months leave to continue to fill up the gap and if the gap is more than three months then orders would be passed by the State and in the case of the petitioner notification dated 7/07/1993 was issued by the Collector wherein service rendered by the petitioner with Excise Department was continued by treating them on leave.

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The Collector in its order dated 08/01/2018 has observed that there has been a gap of 12 years from 1981 to 1993 as a break in service and the petitioner has not filed any representation to continue his earlier services to be counted. This appears to be factually wrong as closure of the liquor shop were made on 12/06/1990 and petitioner was reappointed on 21^st June, 1993 by Annexure R-2, wherein at serial number 2 name of the petitioner appears. The Annexure R-2 records that for the Tehsil Abhanpur new set of posts were alloted and the persons who were surplus in the Excise department have been appointed on certain pay scale. Therefore, finding of the Collector that there has been gap of 12 years in between first appointment of 1981 and 1993 is apparently wrong specially when the bridge was made by order of Collector dated 07/07/1993.

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Further the Collector has observed that appointment of the petitioner to the post of class-III post was with the condition that he should pass out the typing examination and since the petitioner did not pass out the typing examination, therefore appointment cannot be said to be legal to the post of class-III. There is no dispute of the fact that the petitioner after the appointment in 1993 continued in service of the State up till his date of superannuation. Along with the petition copy of the service book (Annexure P-7) is attached wherein it reflects that since the petitioner has attained the age of 40 years on 25/06/1995, therefore as per the circular of the State he was exempted to pass out the typing examination and he was also granted the increment. Therefore order of the Collector again that appointment itself was not according to the service rules is factually wrong. The State in its reply too was not able to answer this issue categorically.

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Service record would show that the petitioner was granted the increment on attaining 40 years of age. Apart from that the circular of the State dated 29/01/1983 give specific power to exempt an employee on attaining the age of 45 years the persons who are to be appointed in clerical grade were exempted to pass out the typing examination. The

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particular of the said circular are reproduced hereunder:-

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^^fo"k;& fu;r osru ij cxSj Vk;fiax ijh{kk ikl fu;qDr fuEu Js.kh fyfidksa dks eqnzys[ku ijh{kk ls NwVA

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fgUnh eqnzys[ku ijh{kk ikl u djus ds QyLo:i fu;r osru ij dk;Zjr fuEu Js.kh fyfidksa dh dfBukbZ;ksa ij lgkuqHkwfriwoZd fopkj dj jkT; 'kklu }kjk fu.kZ; fy;k x;k gS fd&

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¼1½ ,sls fuEu Js.kh fyfid tks 'kkldh; lsok esa lafoyf;r fd;s x;s gSa ;k lh/kh HkrhZ ls fu;qDr fd;s x;s gS vkSj ftudh vk;q 45 o"kZ ;k mlls vf/kd gks x;h gS ;k Hkfo"; esa gks tk;] mUgsa fgUnh eqnzys[ku ijh{kk mRrh.kZ djus ls NwV iznku dh tk; vkSj mudh fu;qfDr fu;fer dh tk;A

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¼2½ lafoyf;r rFkk vU; rnFkZ fuEu Js.kh fyfidksa dh fu;fer laoxZ esa ofj"Brk NwV ds fnukad ls fxuh tkosxhA tks deZpkjh ,d gh fnukad dks NwV izkIr djrs gS mudh ikjLifjd ofj"Brk mudh fu;qfDr ds fnukad ls fxuh tkosxhA^^

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[lkekU; iz'kklu foHkkx dzekad lh&3@83@3@1] fnukad 29&1&1983]

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Therefore when the petitioner was allowed to continue in service up

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till his age of superannuation, at the fag end after his retirement it cannot be appreciated that because of the fact petitioner did not pass out the typing examination his appointment would be bad. The very fact that exemption from passing out typing exam having been given to receive the increment, the same would be universally applicable for other purpose of the service too.

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In view of the aforesaid discussion, the finding of the Collector that appointment of the petitioner was not as per the rules cannot be sustained. Further more in view of the fact that the petitioner has completed his tenure in the government service and thereafter after the retirement when claim has been made for retiremental benefit, shelving all the circular it cannot be said that appointment of the petitioner was not legal. Accordingly, order of the Collector dated 08/01/2018 is set aside.

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The documents attached with the petition prima facie would show that the petitioner after initially was appointed in 1981 his services were dispensed on 12/06/1990, thereafter he being surplus was absorbed in the State on 21/01/1993. Therefore in between 12/06/1990 and 21/01/1993 gap of around 2 ½ years comes out. According to the circular dated 19^th July, 1973 (Annexure R-1) it mandate that specific orders to be passed by the State for continuity in service and accordingly order dated 07/07/1993 (Annexure P-4) by the Collector was passed wherein services of the petitioner would be deemed to be continued by taking into fact service rendered by him with Excise Department for nearly 9 years. Consequently, the petition is allowed. Matter is referred back to the Collector to pass fresh orders by taking note of the fact the endorsement made in the service book whereby increment was granted to him. The Collector shall be obliged to take into account the payable time bound scale which was paid to similarly placed government employee and retiremental benefit be considered by taking into service rendered by him with earlier Excise

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Department. After verification of facts, a fresh orders to the entitlement of retiremental benefit be passed in favour of petitioner.

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Sd/-

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(Goutam Bhaduri) JUDGE

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gouri

Neelkanth Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Neelkanth Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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