SURAJIT PANIGRAHI Vs. STATE OF SIKKIM AND ANOTHER

JUDGEMENT

(1.) Can the service rendered by the petitioner during the period from 12.9.1985 to 25.3.1989 on contract basis under the Government of Sikkim be held as the qualifying service? This is the moot question that arises for consideration in this writ petition filed by him.

(2.) Facts : The petitioner is at present working as the Assistant Audit Officer in the office of the Accountant-General (Audit) Sikkim. Prior to his joining in the Accountant-General's office, he came to be appointed in the department of Education of the Government of Sikkim as graduate teacher (Mathematics) in the pay scale of Rs. 550-20-750-EB-25-950-30-1100 vide office order No. 752/Est/ EDN dated 10.9.1985 at Annexure-3. He joined the said post on 12.9.1985. As he was not a local resident of Sikkim, his appointment along with 15 other such persons was on contract basis, whereas some others who were local candidates got appointments on regular basis. While working as such, the petitioner was promoted to the post of post-graduate teacher (Mathematics) in the pay scale of Rs. 1320-30-1560- EB-40-2050-EB- 2300 w.e.f. 1.8.1986 by office order No. 1367/G/EST dated 5.8.1986 at Annexure-4. This appointment on promotion was also made on contract basis as he was a non-local. In the meantime, he had applied for the post of Auditor in the office of the Accountant-General, Sikkim in response to an advertisement made for the purpose. Following his selection and appointment as Auditor, he tendered his resignation from the post of post-graduate teacher by giving one month's notice. On acceptance of the resignation, he joined as an Auditor on 27.3.1989 in the office of the Accountant-General, Sikkim.

(3.) The petitioner's claim is that the service rendered by him from 12.9.1985 to 25.3.1989 under the State Government though technically contractual, for all intents and purposes it was in fact on regular basis inasmuch as during this period he earned annual increments in the pay scale, enjoyed leave and also got promotion. Therefore it should be treated as qualifying service for the purpose of computing his retiral benefits. His appointment was made on contract basis because he was taken as a non-local by mechanically applying rule 4(4) of the Sikkim Government Establishment Rules, 1974 (hereinafter referred to as the Establishment Rules). The Establishment Rules are supplementary to the Sikkim Government Services Rules, 1974 (in brief Service Rules). Neither of the rules received royal assent from the erstwhile Ruler of Sikkim by obtaining his signature or getting his seal affixed. The so-called rules-were never published in the Sikkim Darbar Gazette. Consequently they were not laws in force' at the time of merger of Sikkim with the Union of India on 16th May, 1975. He thus cannot be discriminated against and denied the benefits basing on still-born and non est rules. His further case is, he is entitled to the benefit of counting the continuous period of service rendered by him under the State Government as qualifying service for the purpose of pension and other retiral benefits under Rule 26(2), Rule 13 (first para) and Rule 14 (3) read with GOI decision (6) below Rule 14 of Swamy's CCS (Pension) Rules (1993 Edition) and agreement between the State of Sikkim and the Central Government (applicable from 7.2.86) incorporated in Sec. VII in Appendix 12 of the said compilation. He accordingly submitted representation to the Accountant-General, Sikkim for counting the said period of service under the State Government as qualifying service. The Accountant-General on examination of the matter was prima facie satisfied that the claim is legitimate. He sought clarification from the Comptroller and Auditor General of India who however intimated that there is no provision for counting contract service rendered under the State Government as qualifying service. In obedience to the judgment dated 13.12.1995 passed by this Court in Writ Petition No. 27 of 1994, 30 of 1994, 4 of 1995 and 17 of 1995, the Government of Sikkim constituted a Committee to consider the cases of non-local teachers for regularisation of their services. The petitioner made an application for consideration of his case by the Committee. On consideration of the representation, the Government in office memorandum dated 19.4.1997 at Annexure 6 treated the past contract service rendered by the petitioner for the period from 12.9.1995 to 25.3.1989 as regular service for all purposes. The said office memorandum was subsequently illegally rescinded by the State Government vide order dated 30.9.1997 which was challenged by him in this Court in Writ Petition No. 52 of 1997. By order dated 30.9.1997 this Court quashed the aforesaid order on the ground that it was passed in violation of the principles of natural justice. Thereafter the State Government issued notice to the petitioner to show cause as to why the order dated 19.4.1997 at annexure-6 should not be revoked. The State Government illegally without further giving opportunity of hearing by order dated 26.9.1998 cancelled the office memorandum dated 19.4 1997. The petitioner again impugned the validity of the said order dated 26.9.1998 in this Court by filing Writ Petition No. 522 of 1998. By judgment and order dated 5.9.2000 the writ petition was dismissed by this Court. The petitioner thereafter filed special leave to appeal No. 21389 of 2000 in the Supreme Court which was rejected by order dated 8.1.2000. The petitioner did not challenge the validity of the Establishment Rules and the Service Rules earlier because he was given necessary relief by the State Government in its memorandum dated 19.4.1997 at Annexure-6 which was illegally cancelled subsequently. In the meantime, the State Government regularised 28 number of non-local teachers in Mathematics who were initially appointed on contract basis. After the above fact of regularisation came to his knowledge, he filed a fresh representation at Annexure-8 to the Chief Secretary of the Government of Sikkim to consider his case. But till now no decision has bean communicated on it.