Manipur High Court
Th. Tilotama Devi vs Regional Institute Of Medical Sciences ... on 21 March, 2025
KHOIROM Digitally
KHOIROM
signed by
BIPINCHAN BIPINCHANDRA SINGH
IN THE HIGH COURT OF MANIPUR
Date: 2025.03.21
DRA SINGH 14:27:23 +05'30'
AT IMPHAL
W.P.(C) No. 125 of 2015
1. Th. Tilotama Devi, aged about 44 years old, W/o L.
Surkumar Singh of Keishamthong Irom Pukhri Mapal,
Imphal, Manipur.
2. K. Hemabati Devi, aged about 39 years old, D/o (L) K.
Priyokumar Singh of Uripok Naoremthong Laishram Leikai,
Imphal West, Manipur.
3. Kh. Inao Chanu, aged about 43 years old, W/o M. Rajen
Singh of Lairikyengbam Leikai, Khurai, Imphal West
District, Manipur.
4. Th. Chandrama Devi, aged about 38 years old, W/o S.
Dorendro Singh of Utlou Kangjeibung Mapal, Bishnupur
District, Manipur.
5. M. Indira Devi, aged about 40 years old, W/o Kh. Surjit
Singh of Sagolband Nepra Menjor Leikai, Imphal West
District, Manipur.
6. P. Sushila Devi, D/o P. Saratchandra of Kwakeithel Akham
Leikai, Imphal West, Manipur.
7. Kh. Chandrarekha, aged about 39 years, D/o (L) Kh.
Chandra of Awang Sekmai Bazar, Imphal West, Manipur.
8. K. Kritibala Devi, aged about 38 years old, D/o K.
Ibotomba Singh of Ningomthongjao, Imphal West District,
Manipur.
9. L. Romashini Devi, aged about 35 years old, D/o (L) L.
Chaoba Singh of Khurai Sajor Leikai, Imphal East District,
Manipur.
10. W. Jhansirani aged about 39 years old, W/o Pabankumar
of Top Khongnang Makhong, District Imphal East, Manipur.
11. S. Kamal Devi, aged about 41 years old, W/o Y.
Chandeswar Singh of Kongba Uchekon, Imphal West
District, Manipr.
12. B. Jayanti Devi, aged about 42 years old, D/o B. Ibotomba
Sharma of Sagolband Meino Leirak, Imphal West District,
Manipur.
13. M. Medhabati Devi, aged about 42 years old, D/o
Ningthoujam Amuthoi Singh of Uripok Achom Leikai,
Imphal West District, Manipur.
14. H. Priya Devi, aged about 43 years old, W/o Rajkumar
Nigen Singh of Moirang Bazar, Bishnupur District, Manipur.
15. Konkham Rojita Devi, aged about 37 years old, D/o K.
Ananda Singh of Sagolband Thingom Leikai, Imphal East
District, Manipur.
P a g e 1 | 33
16. L. Debarani Chanu, aged about 43 years old, D/o L. Hemal
Meitei of Wangkhei Thambalkhong, Imphal East District,
Manipur.
17. H. Maipakpi Devi, aged about 36 years old, D/o. H.
Guneshwor Singh of Thiyam Leishangkhong, District
Imphal West, Manipur.
18. Takhellambam Bhanupati, aged about 43 years, D/o
Ibotomba Singh of Ningomthongjao, District, Manipur.
19. N. Tombi Devi, aged about 35 years old, D/o N. Sanayaima
Singh of Keinou Thongthak, Imphal West, Manipur.
20. H. Binodini Devi, aged about 45 years old, W/o O.
Binoychandra of Khongjom, Thoubal District, Manipur.
21. Ch. Omita Devi, aged about 43 years old, W/o Sachibhusan
Kongkham of Keishamthong Hodam Leirak, Imphal West
District, Manipur.
22. Oinam Babita Devi aged about 41 years old, W/o S.
Sanjeet Singh of Singjamei Oinam Thingel, Imphal West,
Manipur.
23. M. Rajina Devi, aged about 37 years old, D/o M.
Krishnamohon Sigh of Pallel Mayai Leikai, Chandel District,
Manipur.
24. O. Bala Devi, aged about 43 years old, D/o O. Munal Singh
of Kwakeithel Soibam Leikai, District Imphal West,
Manipur.
25. Ngangkham Dhanibala, aged about 40 years old, D/o Ng.
Ibohanbi Meitei of Khurai Konsam Leikai, Imphal East
District, Manipur.
26. Yuni Mary, aged about 38 years old, D/o R.K. yumi of
Senapati, Senapati District, Manipur.
27. R.K. Bijayalakshmi Devi, aged about 38 years old, D/o R.K.
Bjayalakshmi Devi of Haobam Mark Chingtham Leikai,
Imphal West, Manipur.
.... Petitioners
- Versus -
1. Regional Institute of Medical Sciences though its Director,
RIMS, Imphal, Manipur.
2. The Director, RIMS, Imphal, Manipur.
3. The Union of India through the Secretary to the Ministry of
Health & Family Welfare, Government of India, Nirman
Bhavan, Maulana Azad Road, New Delhi - 110 011.
P a g e 2 | 33
.... Respondents
W.P.(C) No. 112 of 2015
1. Th. Subhashini Devi, aged about 46 years old, W/o L.
Dhiren Singh of Athokpam Mayai Leikai, Thoubal
District, Manipur.
2. H. Shoroshoti Devi, aged about 41 years old, W/o. K.
Dhanabir Sharma of Thongju Part - II, Imphal East
District, Manipur.
3. Khaidem Ragini Devi, aged about 46 years old, W/o S.
Rameshwor Singh of Thongju Part - II Pechu Lampak,
Imphal East District, Manipur.
4. T. Monorama Devi, aged about 43 years old, D/o T.
Tombi Singh of Lalambung Makhong, Takhellambam
Leikai, Imphal West, Imphal.
5. K. Rita Devi, aged about 41 years old, W/o N. Sukajit
of Yumnam Leikai, Nambul Mapal, Imphal West
District, Manipur.
6. L. Shanta Sharmila Devi, aged about 38 years old, D/o
L. Manip Singh of Lairikyengbam Leikai, Imphal East
District, Manipur.
7. Th. Kiranbala Devi, aged about 39 years old, D/o Th.
Khumanningthou Singh of Top Awang Leikai, Imphal
East District, Manipur.
8. Th. Rita Devi, aged about 37 years old, W/o Karam
Bono Singh of Khagempalli Panthak, Imphal West
Manipur.
9. W. Hemabati Devi, aged about 38 years old, D/o W.
Amuyaima Singh of Uripok Khumanthem Leikai,
Imphal West, Manipur.
10. K. Rakhotimbi Devi aged about 43 years old, W/o Th.
Edidilumar Singh of Keishamthong Thokchom Leikai,
Imphal West District, Manipur.
11. K. Joymala Devi aged about 45 years old, D/o K.
Yarito of Phadang Village, Ukhrul District, Manipur.
12. Kh. Dhani Devi, aged about 37 years old, W/o Ng.
Premkumar of Lamphel, Imphal West District,
Manipur.
13. L. Razia Devi, aged about 37 years old, W/o Dr.
Sureshkumar Singh of Nambol Phoijing Makha Leikai,
Imphal West District, Manipur.
14. Y. Viveka Devi, aged about 36 years old, D/o (L) Ng.
Bhudhachandra Singh of Yurembam Makha Leikai,
Imphal West District, Manipur.
P a g e 3 | 33
15. Th. Bilashini Devi, aged about 41 years old, D/o Th.
Ibochou Singh of Makha Leikai, Imphal West,
Manipur.
16. T. Romapati Devi, aged about 42 years old, W/o Kh.
Anajaoba Singh of Langeithet, Thoubal District,
Manipur.
17. M. Medhabati Devi, aged about 43 years old, D/o M.
Mani Singh of Phoijing Chingjing Bishnupur District,
Manipur.
18. Ch. Sundari Chanu aged about 39 years old, D/o Ch.
Tombi Singh of Uripok Polem Leikai, Imphal West
District, Manipur.
19. W. Urmila Devi, aged about 33 years old, 40 years
old, W/o Naorem Ibohal of Iroisemba Maning Leikai,
Imphal West, Manipur.
20. T. Sanathoi Chanu, aged about 36 years old, D/o T.
Joykumar Singh of Khurai Ahongei Leikai, Imphal East
District, Manipur.
21. L. Shantibala Devi aged about 41 years old, W/o Th.
Tomba Singh of Nambol Makha Leikai, Bishnupur
District, Manipur.
22. K. Kiranbala Devi aged about 41 yeas old, D/o K.
Manisana Sharma of Khurai Kongpal Sajor Leikai,
Imphal East District, Manipur.
23. W. Sanahanbi Devi, aged about 42 years old, W/o N.
Dhiren Singh of Uripok Bachaspati Leikai, Imphal West
Manipur.
24. A. Chaoba Devi, aged about 36 years old, D/o A.
Jalakeli Singh of Kwakeithel Konjeng Leikai, Imphal
West, Manipur.
25. Kh. Indira Devi, aged about 43 years old, D/o Kh.
Leikhon Singh of Kakching Khunou Sanakhongnang
Leikai, Thoubal District, Manipur.
26. Laishram Aruna Devi aged about 39 years old, W/o RK
Karti Singh of Ningthoukhong Bazar, Imphal East
District, Manipur.
27. R.L. Martha aged about 37 years old, W/o R.L. Lani of
Purul Atongba Senapati District, Manipur.
28. Mutum Bhanu Devi, aged about 38 years old, D/o (L)
M. Panchanan Singh of Kongpal, Ningthoubung Leikai,
Imphal East District, Manipur.
29. L. Homeshwori Devi aged about 40 years old, W/o
Munindro Soram of Khagempalli Panthak, Imphal
West, Manipur.
30. K. Ranibala Devi, aged about 35 years old, W/o Y.
Joykumar Singh of Uripok Bachaspati Leikai, Imphal
West District, Manipur.
P a g e 4 | 33
31. N. Radhapyari Devi, aged about 40 years old, D/o (L)
N. Anajaoba Singh of Langmeithet, Thoubal, Manipur.
32. A. Dhaneshori Devi, aged about 38 years old, W/o A.
Arun Meitei of Top Awang Leikai, Imphal East District,
Manipur.
33. T. Seibalini Devi, aged about 34 years old, D/o T.
Chandradhwaja Singh of Uripok Sorbon Thingel,
Imphal West, Manipur.
34. Ch. Sharmila Devi, aged about 38 years old, D/o Ch.
Tomcha Singh of Thangmeiband Polem Leikai, Imphal
West District, Manipur.
35. Chingtham Dhanapati Devi aged about 35 years old,
D/o Ch. Kunjabihari Singh of Haobam Marak Irom
Leikai, Imphal West, Manipur.
36. Kh. Luwangleima aged about 35 years, D/o Kh.
Shamungou Singh of Sagolband Tera Loukrakpam
Leikai, Imphal West District, Manipur.
37. Kh. Romapati Devi, aged about 38 years old, D/o. Kh.
Ningthem Singh of Sanakhongnang Leikai, Kakching
Khunou District, Thoubal District, Manipur.
38. A. Rita Chanu aged about 33 years old, D/o A.
Chandramani Singh of Kakwa Makha Leikai, Imphal
West District, Manipur.
39. Ak. Bimola Devi, aged about 39 years old, D/o AK.
Tombi Singh of Sagolband Thangjam Leirak, District
Imphal West, Manipur.
40. Zakhumi Thangsing, aged about 36 years old, David
Thangsing, Lamphelpat, C.P. Quarter, Imphal West
District, Manipur.
.... Petitioners
- Versus -
1. Regional Institute of Medical Sciences though its
Director, RIMS, Imphal, Manipur.
2. The Director, RIMS, Imphal, Manipur.
3. The Union of India through the Secretary to the
Ministry of Health & Family Welfare, Government of
India, Nirman Bhavan, Maulana Azad Road, New
Delhi - 110 011.
.... Respondents
P a g e 5 | 33
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioners : Mr. HS. Paonam, Senior Advocate
For the respondents : Mr. Kh. Samarjit, DSGI
Date of hearing : 19.12.2024
Date of Judgment &
Order : 21.03.2025
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. HS. Paonam, learned senior counsel appearing
for the petitioners and Mr. Kh. Samarjit, learned DSGI appearing for the
respondents.
[2] The present petitions have been instituted with the
following prayer:
(a) Issue a writ of certiorari or any other appropriate
writ or direction quashing and setting aside the
impugned order dated 06.01.2015 as illegal.
(b) Direct the respondents to reconsider the case of
the petitioners for affording service link up from the
date of their initial contract appointment till the
date of their regularization on 10.11.2011.
(c) Pass any such further order(s) or direction(s) which
this Hon'ble Court deem fit and proper to secure
the ends of justice.
P a g e 6 | 33
[3] Vide order dated 09.12.20215 of this Court, since the
issues involved in W.P.(C) No. 125 of 2014 and W.P.(C) No. 112 of 2015
are similar in nature, the cases have been clubbed together and
therefore, the said cases are taken up together for disposal.
[4] The learned senior counsel appearing for the petitioners
submits that pursuant to various advertisements dated 30.11.2001,
11.02.2002 and 24.01.2003, the petitioners who fulfilled requisite
qualification as prescribed in the said advertisements, along with other
aspirant candidates, have applied for the post of staff nurses. On the
recommendation of the selection committee, the petitioners were
appointed on contract basis for a period of 1 (one) year extendable from
time to time and likely to be regularized against regular posts.
After joining their services as staff nurses and rendering
considerable period of services on contract basis, their services were
regularized against substantive vacancies vide order dated 10.01.2011 in
compliance of the orders passed in W.P.(C) No. 165 of 2008 and W.P.(C)
No. 202 of 2008 dated 16.12.2008. Operative portions of the said order
are extracted herein below:
"[26.3] In the present writ petitions also, the principles of
promissory estoppel will be applicable in favour of the petitioners
and as such, they are entitled their cases to be considered for
regularization of their services as staff nurses as and then posts
against which they were appointed on contractual basis are
made regular posts by the competent authority or the posts
created on regular basis subsequent to their appointments are
available.
[27] The petitioners shall not however be entitled to
consideration for regularization of their services as against other
posts than the posts of the above said natures mentioned above.
In respect of regular vacant posts of staff nurse created before
P a g e 7 | 33
the said purported two creation orders, dated 22.11.2001, the
petitioners shall not have any right to claim for regularisation or
for consideration of regularisation of their services on the ground
of having served for some years on contractual basis. The same
is the case in respect of the regular post of staff nurses which
become vacant after the said appointments of the petitioners on
contractual basis. The regular vacant posts of staff nurses which
become vacant after the said appointments of the petitioners are
to be filled up only in accordance with the relevant recruitment
rules for filling up regular vacant posts. There is no any provision
in the relevant recruitment rules for filling up the above type of
regular vacant posts by way of either giving preference or
automatic regularisation of those who have been serving on
contractual basis. Since the advertisements issued on
30.11.2001, 11.02.2002 and 24.01.2003 were in respect of the
posts purportedly to have been created under order dated
22.11.2001, as indicated above by the relevant appointment
orders of the petitioners, the likelihood of the appointees being
regularised against regular posts mentioned in the said
advertisements must be taken as regularisation as against the
posts to which they were appointment and only after the said
posts become regular posts.
[28] In the facts and circumstances, the pot of staff
nurses created on regular basis after appointments of the
petitioners may also be taken as the posts in respect of which
the cases of the petitioners may be considered for regularisation
of their services in as much as one may reasonably say that the
said new regular posts have been created by taking into
consideration of the existence of a large number of staff nurses
serving on contract basis by holding posts purported to have
been created on 22.11.2001. The consideration of the cases of
the petitioners for regularisation against those newly created
posts of staff nurses will not violate the constitutional scheme in
respect of public employment in the light of discussions already
made. However, the said likelihood of regularisation of the
services of the petitioners as against regular posts mentioned in
the said advertisements dated 30.11.2001, 11.02.2002and
24.01.2003 must not be taken as likelihood of regularisation as
against regular posts in existence before the appointments of the
petitioners in as much as the said interpretation will be violating
the relevant recruitment rules. There is primacy of the relevant
recruitment rules in respect of filling up of vacant regular posts
and it must not be read overridingly into the contents of the said
advertisement. The said advertisements cannot be allowed to
override provisions of the relevant recruitment rules so far as
then existing regular posts are concerned. In my considered
opinion, the above said decision will maintain a fair, just and
reasonable balance in between the interest of the petitioners,
who got appointments as staff nurses on contractual basis after
joining the selection process believing and relying on the
assurance/promise of the concerned authority, and the interest
P a g e 8 | 33
of other who want to get appointment to the regular posts of
staff nurses on regular basis.
[29] In the light of the above considerations, the
prayer of the petitioners in the two writ petitions being W.P.(C)
No. 165/2008 and W.P.(C) No. 202 of 2002 for quashing the
notification/advertisement dated 24.12.2007 and the subsequent
notification dated 27.02.2008 in connection with filling up of 45
posts of staff nurses in the RIMS, Imphal are hereby rejected.
The concerned authorities of the RIMS, Imphal are directed to
consider the cases of the petitioners for regularisation of their
services as staff nurses by following legally permissible
procedure as and when new regular posts of staff nurse are
created. This decision does not bar the petitioners from
participating in regular recruitment process in respect of regular
posts of staff nurses, which were in existence before the
appointments of the petitioners, as per the relevant recruitment
rules. These two writ petitions stand disposed. No order as to
costs."
The aforementioned regularisation order dated 10.01.2011
is reproduced as under:
"REGIONAL INSTITUTE OF MEDICAL SCIENCES - 795 004
(An autonomous body under the Ministry of Health &Family
Welfare, Govt. of India)
IMPHAL : MANIPUR
O R D E R
Imphal, the 10th January, 2011 No. 62/A/73-MC(IV): On the recommendation of Special DPC held on 10th January, 2011, the following persons/writ petitioners in W.P.(C) No. 165 of 2008 and W.P.(C) No. 202 of 2008 are hereby appointed as staff nurses, RIMS Hospital, Imphal in order of merit in temporary capacity in the scale of pay of Rs. 9300 - 34800/- + grade pay of Rs. 4600/-per month with other allowances as admissible under rules with immediate effect i.e. 10.1.2011 and onwards against the post created vide order No. 62/A/73-MC(IV-Pt) dated 4.12.2010 subject to the police verification and medical examination until further orders and in public interest.
They will be on probation for a period of 1 (one) year. This issues in compliance of the order of Hon'ble Gauhati High Court, Imphal Bench passed on 12.12.2008.
Sl. No. Name
1. W. Hemabati Devi
2. K. Rita Devi
3. Ak. Bimola Devi P a g e 9 | 33
79. K. Joymala Devi
80. L. Romashini Devi Sd/-
(M. Chandramani Singh) Deputy Director (Admn.) Regional Institute of Medical Sciences Imphal, Manipur."
[5] The learned senior counsel appearing for the petitioners further submitted that the petitioners have made separate representations to the concerned authority so that the benefits under Rule 17 of the CCS (Pension Rules) are availed by protecting past services of the petitioner while on contract basis prior to regularisation without any break. The said rule is reproduced as under:
"17. Counting of service on contract: (1) A person who is initially engaged by the Government on contract basis for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment of duty, may opt either :
(a) To retain the Government contribution in the Contributory Provident Fund with interest thereon including any compensation for that service; or
(b) To agree to refund to the Government the monetary benefits referred to in Clause (a) or to forego the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
(c) The option under sub-rule (1) shall be communicated to the Head of office under intimation of the Accounts officer within period of three months from the date of issue of the order of permanent transfer to pensionable service or if the Government servant is on leave, whichever is later.
P a g e 10 | 33
(d) If no communication is received by the Head of Office within the period referred in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefit payable or paid to him on account of service rendered on contract."
However, since the respondent authorities failed to take up any positive response with respect to the said representations, the petitioners filed a writ petition being W.P.(C) No. 847 of 2011 with a prayer for direction to the respondents to consider their case for service link up of past contractual service period rendered with the substantive post in terms of Rule 17(1)(b) of the CCS (Pension) Rules, 1972. Since the respondents did not file any affidavit-in-opposition, vide order dated 02.12.2013 the writ petition has been disposed of directing the respondents to consider the representations submitted by the petitioners within a period of 3 (three) months. Despite being communicated the order to the respondents vide legal notice dated 09.12.2013, since they failed to comply with the order even after lapse of 3 (three) months, another legal notice dated 04.04.2014 was also served to the respondents. However, since the respondents again failed to comply with the same even after 11 (eleven) months, having no alternative the petitioners filed a contempt petition being CONT. CAS(C) No. 253 of 2014 for not being complied with the Court's order. After filing the contempt petition, the respondents issued an order dated 06.01.2015 stating that they have not accepted the claim of the petitioners. The said impugned order is reproduced herein below :
P a g e 11 | 33 "REGIONAL INSTITUTE OF MEDICAL SCIENCES, IMPHAL -
795004 (An autonomous Institute under the Ministry of Health & Family Welfare, Government of India) O R D E R Imphal the 06th January, 2015 No. 63/A/2014-RIMS/286: Whereas 67(sixty seven) person viz. W. Hemabati Devi, K. Rita Devi, Ak. Bimola Devi, ......................................................................................................... ......................................................................................................... ..............................................................................W. Urmila Devi were initially appointed as Staff Nurse in RIMS, Hospital, Imphal, on contract basis at the consolidated pay of Rs. 7,250/- per month - vide order dated 16.04.2002, 02.05.2002, 03.12.2003 and 30.11.2004.
An whereas as per the term of their contract appointments being on payment of a consolidated amount, neither any contributory provident funds (CPF) were created nor any contributions were made in their CPF during their contract appointment;
And whereas on the recommendation of a Special DPC held on 10.01.2011, the aforesaid 67 persons, among others, were appointed as Staff Nurse in RIMS Hospital, Imphal, in temporary capacity w.e.f. 10.01.2011 against the post created only on 04.12.2010 vide order bearing No. 62/A/73-MC(IV) dated 10.01.2011 issued by the Director, RIMS;
And whereas just after their appointment as Staff Nurses in RIMS Hospital on regular basis some of the 67 Staff Nurses submitted their representations to the Director, RIMS, with a request to consider their case for affording the service benefit from the date of their initial appointment on contract basis;
And whereas the aforesaid 67 Staff Nurses filed two writ petitions being WP(C) No. 840/2011 and WP(C) 847/2011 in the Hon'ble High Court of Manipur with the prayer for linking the period of contractual service rendered by them with the period of service rendered by them in substantive posts for the purposes of availing pensionary benefit;
And whereas the aforesaid two writ petitions were disposed of by the Hon'ble High Court by a common order dated 02.12.2013 by directing the Director, RIMS, to consider the representation of the petitioners for addition of their contractual service rendered by them with the period of service rendered in substantive posts and further to consider their case in terms of Rule 17(1)(b) of the CCS(Pension) Rules, 1972;
And whereas, in compliance of the order of the Hon'ble High Court of Manipur dated 02.12.2013 passed in WP(C) No. 840/2011 and 847/2011 the representation of the petitioners is hereby considered as follows:
P a g e 12 | 33
(i) Since the aforesaid 67 were initially appointed as staff nurse in RIMS Hospital on contract basis on consolidated pay of Rs. 7,250/- per month as there were no vacant post of staff nurse in RIMS Hospital and since they were appointed only on 10.01.2011 as staff nurse in RIMS Hospital on regular basis against the post of staff nurse created on 04.12.2010 the provision of CCS(Pension) Rules, 1972 are not applicable as they are appointed on regular basis after 31.12.2003.
(ii) The provision of Rule 17(1)(b) of the CCS(Pension) Rules, 1972 is not applicable in case of the writ petitioners inasmuch as by virtue of the term of contract appointment, no contributory provident fund were created on behalf of the said petitioners and also no funds have been contributed as CPF on behalf of the said writ petitioners during the period of their contract appointment.
(iii) The period of service rendered by the aforesaid petitioners on contract basis cannot be counted as qualifying service for the purpose of availing pensionary benefits under the provision of Rule 13 if CCS(Pension) Rules, 1972 as the qualifying service commences from the date of 1st appointment either substantively or in an officiating or temporary capacity."
Now therefore, the claim of the petitioners for linking the period of contractual service rendered by them with the period of service rendered in the substantive post for the purpose of availing pensionary and other service benefits cannot be acceded to for the reasons stated above.
Sd/-
(Prof. Ch. Arun Kumar Singh) Director Regional Institute of Medical Sciences Imphal"
[6] The learned senior counsel appearing for the petitioners submits that the claim of the petitioners for service link up is entitled under the provision of Rule 17 of the CCS(Pension) Rules, 1972 and not under Rule 13 of the CCS(Pension) Rules. Therefore, the ground No. (iii) for rejection of the petitioners' claim by making reference with Rule 13 of P a g e 13 | 33 the CCS(Pension) Rules, 1972 is arbitrary exercise of power in malafide to deprive the rightful claims of the petitioners.
[7] The learned senior counsel also submits that since the petitioners were appointed on regular basis after 31.12.2003, the CCS(Pension) Rules, 1972 is not applicable to the case of the petitioners.
All the petitioners have entered service prior to 31.12.2003 on contract basis following all the norms of giving regular appointment by making wide advertisement and therefore, the applicability of CCS(Pension) Rules is to be considered with effect from their initial date of engagement and not from the year when their services were regularised.
[8] Further, the learned senior counsel appearing for the petitioners submits that the ground for rejection of the claim of petitioners that no contributory provident fund were created and no fund as CPF has been contributed during their contractual service period and as such, the Rule 17(1)(b) of the CCS (Pension) Rules, 1972 is inapplicable, is quite misconceived. Because under the said Rule 17(1)(b), it has been clearly provided that an employee may either agree to refund to the Government monetary benefits referred to in Clause (a) or to forego the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
Since the respondents have not filed any affidavit-in- opposition in W.P.(C) No. 847 of 2011 wherein the petitioners prayed for directing the respondents to consider their claim for affording linking up P a g e 14 | 33 of the contractual service, they cannot reject the claim of the petitioners in view of the settled position of law as laid down by the Hon'ble Apex Court in series of cases that the facts are not controverted.
Misinterpreting the provision of Rule 17(1)(b) has illegally denied the rightful claim of the petitioners and therefore, the instant writ petition has been filed.
[9] Mr. Kh. Samarjit, learned DSGI appearing for the respondents submits that they have filed affidavit-in-opposition denying the fact that the petitioner enjoyed all the facilities which were extended to regularly appointed persons/employees except pay and allowance, they are not entitled to GPF contribution, LTC, medical expenses reimbursement etc. The only facility that they were enjoying at par with the regular employees was that of Earned Leave which used to be granted as per the CCS(Leave) Rules, 1972.
Since the petitioners were initially appointed as staff nurses on contract basis vide orders dated 16.04.2004, 02.05.2002 and
03.12.2003 on payment of consolidated amount of Rs. 7,250/-, neither any contributory provident funds (CPF) were created nor any contributions were made in their CPF during their contractual service period. Subsequently, vide order dated 10.01.2011, on the recommendation of Special DPC, the petitioners were appointed as Staff Nurses in RIMS, Imphal against the regular posts created.
P a g e 15 | 33 [10] The learned DSGI appearing for the respondents also submits that the provision of Rule No. 17(1)(b) of the CCS(Pension) Rules, 1972 is applicable in the case of contract employees inasmuch as the provision of Rule 17(1) is attracted in respect of contract employees for whom CPF has been created and accordingly, the employees on contract basis also contributed for the same. In the matter those contract employees, when appointed to a pensionable establishment without interruption may exercise the option to retain the Government contribution in the CPF with interest thereon including any other compensation the monetary benefits or to forego the same, if they had not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable. However, in the present case, there is neither creations of CPF nor any contribution being made to the CPF and so the provision is not attracted. Therefore, the claim of the petitioners for service link up of contractual service period rendered by the petitioners in the substance posts in terms of Rule 17 CCS (Pension) Rules, 1972 is not maintainable.
After due discussions/meetings with learned Advocate General to examine the representations made by the petitioners and also after examining the relevant rules and records, the institute issued the impugned order dated 16.01.2015 in compliance of the order dated 02.12.2013 passed in W.P.(C) No. 847 of 2011 and W.P.(C) No. 480 of 2011. While considering the representations of the petitioners, the institute examined all relevant records and rules. As can be seen from P a g e 16 | 33 the Rule 13 of the CCS(Pension) Rules, 1972, the commencement of qualifying service for entitlement of pension of a Government servant shall commence from the date he takes charges of the post to which he is first appointed either substantively or in an officiating of the CCS (Pension) Rules. Therefore, the institute is of the considered view that their contractual service period rendered by the petitioners may not be counted for pensionary benefits in accordance with Rule 13 of CCS(Pension) Rules, 1972 in one aspect.
[11] The learned DSGI appearing for the respondents further denied that the petitioners were initially appointed as staff nurses on contract basis in the years 2002, 2003 & 2004 with no corresponding regular sanctioned posts of Staff Nurses in RIMS. As made out from the appointment order dated 10.01.2011, the recruitment of the staff nurses on regular basis is against the regular sanctioned posts created only on 04.12.2010. The post created are much after 31.12.2003. Therefore, it is made clear that the provision of CCS (Pension) Rules, 1972 is not applicable in the case of petitioners.
[12] The learned senior counsel appearing for the petitioners filed additional affidavit wherein it has been stated that the present petitioners were appointed on contract basis against vide order No. M/1/2000-RIMS(18) dated 22.11.2001 and No. M/1/2001-RIMS(21) dated 22.11.2001. However, it was subsequently held that the posts were not created by competent authority and proposal was submitted for according approval of competent authority to the post creation.
P a g e 17 | 33 It has also been submitted that a committee has been duly constituted comprising of 7 (seven) members with an amicable situation arrived at between the nursing staff and administration of RIMS authority including its Teaching Unit on 30.08.2006 vide order dated 30.08.2006 for looking into ways and means to facilitate regularisation of 153 staff nurses of RIMS engaged on contract basis. Eventually the committee constituted, after having dealt with principle of law, recommended regularisation of 153 staff nurses which also includes the present petitioners against the available 135 staff nurses newly created posts and 18 resultant vacancies. The regularisation of the present petitioners along with similarly situated persons were in compliance with the common judgment and order dated 16.12.2008 passed in W.P.(C) No. 165 of 2008 and W.P.(C) No. 202 of 2008.
[13] Furthermore, the learned senior counsel appearing for the petitioners in their supplementary affidavit states that rejection of the representations made by the petitioners was made vide order dated 06.01.2015 based on the legal opinion provided by the learned Advocate General. However, on the other hand, in the Department of Education (S), Government of Manipur, the authority concerned was pleased to order for linking up the contractual service of 206 (two hundred and six) lecturers in the Government Higher Secondary Schools vide order dated 08.01.2022 out of the 707 (seven hundred and seven) contract lecturers regularised vide order dated 12.05.2016 contrary to the legal opinion of the learned Advocate General given in the case of present petitioners.
P a g e 18 | 33 Further, by an Office Memorandum dated 08.04.2022 issued by the Joint Secretary, Education (S), Government of Manipur, it was clarified that linking up of the past services rendered by 206 (two hundred and six) contract/part time lecturers under Education (S) Department vide order dated 18.01.2022 is only for pensionary and retiral benefits and there shall be no claim for any financial benefits/arrear of salary of the part time or contract period. The order dated 12.05.2016 is extracted herein below:
GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION (S) DEPARTMENT ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 12th May, 2016 No. 12(HC)/332/2001-SE(S): In supersession of this Government Orders of even number dated 11th May, 2016 the Governor of Manipur is pleased to order the regularisation of the services of 707 (seven hundred and seven) Contract Lecturers in Government Higher Secondary School as detailed in the Annexure with immediate effect in the scale of pay of Rs. 9300 - 34800/- plus ACP Rs. 4800/- on the condition that consequent additional financial benefits will be paid with effect from 1st April, 2017 and no arrear shall be claimed/paid.
2. The above regularisation shall be subject to verification of character, antecedents, medical fitness, testimonials as well as continuance of their services as Contract Lecturers in the Department.
3. Further, consequent upon the regularisation of their services, they shall continue to serve in their respective places of posting until further order.
4. They shall be on probation for a period of 2 (two) years.
5. This issues with the concurrence of the Finance Department vide their U.O. No. 39/2016/2017/ED(PIC) dated 10th may, 2016.
By orders & in the name of the Governor Sd/-
(H. Deleep Singh) Commissioner (Education - S) Government of Manipur"
P a g e 19 | 33 It has also been submitted that in the Forest Department of the Government of Manipur, benefits of past service for the purpose of pensionary and retiral benefits has been extended to 256 (two hundred and fifty six) regular casual / MR employees vide order dated 30.08.2022. The said order is reproduced as under:
Government of Manipur Office of the Principal Chief Conservation of Forests & HOFF Sanjenthong : Imphal O R D E R Imphal, the 30th August, 2022 No. 2/44/2016/Forest(CR)/1105: Whereas, upon approval of the State Cabinet in its sitting held on 21.04.2022, the Finance Department (PIC), Government of Manipur and the Department of Personnel, Government of Manipur have concurred and allotted U.O. Nos. being U.O. No. 91/2022-2023/FD(PIC) dated 08.06.2022 and U.O. No. 60/2022-2023/DP dated 25.08.2022 respectively to the proposal for extension of the benefits of past service for the purpose of retiral and pensionary benefits to 256 (two hundred and fifty six) umbers of regularised Casual/MR employees belonging to 10 (ten) different categories of posts.
Whereas Secretariat : Forest & Environment Department vide letter No. 8/175/2019-For &Envt (Part - I) dated 29th August, 2022 has conveyed the proposal of the Government for extending the benefits of past services for the purpose of retiral and pensionary benefits to 256 (two hundred and fifty six) nos. of regularised Casual / MR employees belonging to 10 (ten) different categories of post for full compliance of the judgment and order dated 29.9.1997 of the erstwhile Imphal Bench of the Hon'ble Gauhati High Court passed in C.R. No. 523 of 1995 and the subsequent Orders dated 02.04.2019 and dated 06.11.2019 of the Hon'ble High Court of Manipur passed in W.P.(C) No. 179 of 2018 and W.P.(C) No. 489 of 2019 respectively.
In view of the above, it is hereby notified that the benefits of past services for the purpose of retiral and pensionary benefits shall be extended to the 256 (two hundred and fifty six) regularised Casual/MR employees of the Forest Department, Government of Manipur (As per the List enclosed Annexure).
Sd/-
(Dr. Aditya K Joshi) Principal Chief Conservator of Forest & HOFF Government of Manipur"
P a g e 20 | 33 The learned senior counsel relied on the following decisions:
S. Sumnyan & Ors. v. Limi Niri & Ors. [(2010) 6 SCC 791]
-
"...... The initial appointment of the appellants to the post of Assistant Engineer cannot be held to be dehors the Rules. The appointment letters issued to the appellants specifically mentioned that the appellants will be governed by the Service Rules and also that they would be regularised according to the Rules on the recommendation of a Selection Board constituted by the Government. Thus there was not only a case of the appellants having a legitimate expectation that their cases would be considered for regularisation by the competent authority but also a case where the Service Rules were also made applicable to the appellants. When A.P. PSC considered the cases of the appellants for regularisation on completion of their probationary period of two years, all the said factors weighed with A.P. PSC and consequently it was decided to regularise them from the date of their initial appointment. Regularisation of the services of a person, whose initial appointment although not in accordance with the prescribed procedure but later on approved by an authority having power and jurisdiction to do so would always relate back to the dates of their initial appointment....."
Rudra Kumar Sain & Ors. Vs. Union of India & Ors.
[(2000) 8 SCC 25] -
"......The meaning to be assigned to the terms "ad hoc", "fortuitous" and "stopgap", while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc"
or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in P a g e 21 | 33 completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". Therefore, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the present case was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service of seniority is erroneous......" Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Ors. [(1990) 2 SCC 715] -
".......Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Seniority cannot be determined on the sole test of confirmation, for, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop- gap arrangement, the officiation in such post cannot be taken into account for considering the seniority..."
State of Himachal Pradesh & Anr. Vs. Sheela Devi [2023 SCC OnLine 1272] -
"9. The Learned Advocate General is correct in his interpretation, inasmuch as a facial reading of Rule 2(g) would indicate that contractual employees are excluded from the pale of Pension Rules. However, what is significant is that the rule itself in its opening terms saves the application of other provisions of the pension rules: "Save as otherwise provided in these rules". If the opening phrase of Rule 2 were to be understood in this context, any interpretation of Rule 17 as is urged by the State would render such substantive provision P a g e 22 | 33 redundant. Rule 17 was engrafted essentially to cater to the eventuality, where the employees working on contract basis were regularized at a later stage. It is only for the purposes of pension that the past service as a contractual employee is to be taken into account."
Lourembam Iboyaima Singh & Ors. Vs. State of Manipur & Ors. of the High Court of Manipur -
"[10] Having decided the ancillary issues in favour of the petitioners, this court proposes to deal with the main issue. As is seen from the aforesaid, the petitioners have been subjected to recruitment process as per the existing rules which can never be said to be illegal because the University on its own had stated that the UGC Regulations, 2010 were adopted only in the year, 2018. The Selection Committee, after examining their qualifications including the certificates and their performance in the interview, have recommended the names of the petitioners, on the basis of which the appointment orders were issued by the University. It is not the case of the University that the petitioners are not eligible at all as per the recruitment rules and all that it has submitted, is that the recruitment process has not been done in accordance with the UGC Regulations, 2010 which, according to it, was adopted in the year 2018. Obviously, the University was required to conduct the recruitment process as per the existing rules applicable at the time of advertisement and the interview is also one of the methods of adjudging the suitability of candidates which have been recognised by the Hon'ble Supreme Court in a catena of decisions. Moreover, so far as the University is concerned and it being an Institution, it doesn't make any difference to it whether the petitioners or any other persons are appointed as the Assistant professors of the University. The only thing to be noted is that whoever is appointed by it, should be well qualified and eligible as per the relevant recruitment rules and he or she shall be appointed on the basis of the recommendation of a Selection Committee or a Recruitment Board. As regards the relief to be granted by this court, the issue is as to whether the petitioners can be denied appointment on regular basis. The learned counsels appearing for the petitioners have submitted that in terms of the decision rendered by the Hon'ble Supreme Court in Arjun Singh &ors. Vs. State of Himachal Pradesh, (2015) 15 SCC 713, a direction ought to be issued to provide the petitioners with orders of regular appointment from the date of their initial appointment. The facts of that case are not exactly the same as that of the interview, have recommended the names of the petitioners, on the basis of which the appointment orders were issued by the University. It is not the case of the University that the petitioners are not eligible P a g e 23 | 33 at all as per the recruitment rules and all that it has submitted, is that the recruitment process has not been done in accordance with the UGC Regulations, 2010 which, according to it, was adopted in the year 2018. Obviously, the University was required to conduct the recruitment process as per the existing rules applicable at the time of advertisement and the interview is also one of the methods of adjudging the suitability of candidates which have been recognised by the Hon'ble Supreme Court in a catena of decisions. Moreover, so far as the University is concerned and it being an Institution, it doesn't make any difference to it whether the petitioners or any other persons are appointed as the Assistant professors of the University. The only thing to be noted is that whoever is appointed by it, should be well qualified and eligible as per the relevant recruitment rules and he or she shall be appointed on the basis of the recommendation of a Selection Committee or a Recruitment Board. As regards the relief to be granted by this court, the issue is as to whether the petitioners can be denied appointment on regular basis. The learned counsels appearing for the petitioners have submitted that in terms of the decision rendered by the Hon'ble Supreme Court in Arjun Singh &ors. Vs. State of Himachal Pradesh, (2015) 15 SCC 713, a direction ought to be issued to provide the petitioners with orders of regular appointment from the date of their initial appointment. The facts of that case are not exactly the same as that of the initiated the recruitment process for appointment on regular basis. But it failed to do so for the reasons best known to it. The recruitment processes remain almost the same except the determination of scores on academic records. Moreover, since the UGC Regulations, 2010 were in operation, the University could have done the recruitment process in accordance with the said Regulations, if it really wished to do it. Failure to do so by the University in accordance with the UGC Regulations, 2010 was due to its fault and cannot be attributed to the petitioners. Since the petitioners have already been subjected to recruitment process without the same being questioned by anyone, there is no need for them to undergo another such recruitment process. In the peculiar facts and circumstances of the present case, this court is of the view that the petitioners cannot be denied appointment on regular basis for no fault of theirs and that too, after they being subjected to a long process of recruitment. [11] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the Notification dated 23-05-2018 issued by the Registrar of the University, in respect of the petitioners, is quashed and set aside with the direction that the University shall provide regular appointments to them from the date of their initial appointment. There shall be no order as to costs."
P a g e 24 | 33 [14] Mr. Kh. Samarjit, learned DSGI appearing for the respondents in their reply affidavit to the supplementary affidavit filed by the petitioners states that the orders, office memoranda etc. issued by the Government of Manipur are not binding on RIMS, Imphal and are not relevant to the present case. Regarding RIMS, Imphal, the legality of linking the period contractual service rendered by the contract employees with the period of service rendered in the substantive posts and the extension of pensionary and retiral benefits to the regular employees of the institute who joined on or before 31.12.2003, shall be regulated by the Central Civil Services (Pension) Rules, 1972 which are being followed in RIMS, Imphal and not by any orders/office memoranda issued by the Government of Manipur as claimed by the petitioners.
As per the Bye-Laws, the institute adopts and adheres to directives and guidelines issued by the Central Government for the efficient administration of the institute. Accordingly, the institute adopts the Central Civil Services (Pension) Rules, 1972 as amended till date, for its employees in terms of the decision taken in the 3rd meeting of the executive council held on 08.11.1995.
[15] The learned DSGI appearing for the respondents relied on the following decisions:
"13. The respondent is governed by the Central Civil Services (Pension) Rules, 1972. Rules 13 & 14 of the 1972 Rules, which are relevant for deciding the controversy in the present case, read as under:
13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service of post:
P a g e 25 | 33 Provided further that -
(a) in the case of a Government servant in a Group 'D'.......
(b) in the case of a Government servant not covered by clause (a)
14. Conditions subject to which service qualifies:
(1) The service of a Government servant shall not qualify, unless his duties and pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government.
(3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify:
Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply."
14. Rule 13 of the 1972 Rules provides for commencement of qualifying service. As per Rule 13, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It further provides that such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Therefore, the services rendered on a substantive post or services rendered as officiating or temporary service shall be treated as qualifying service. Service rendered as casual/contractual cannot be said to be officiating or temporary service. Even the services rendered as temporary service can be considered as qualifying service provided that the P a g e 26 | 33 officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
Service rendered as casual/contractual cannot be said to be service rendered on a substantive appointment.
15. Under the circumstances and on a fair reading and interpretation of Rule 13 of the 1972 Rules, the High Court has committed a very serious error in observing that the services in temporary capacity will include the classes of temporary service such as casual or even contractual. The High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity. The question is not whether the services rendered by a contractual employee would be qualified as service in a temporary capacity. The question is, whether, in fact, such contractual employee rendered the services as temporary or not.
16. Now so far as the submission on behalf of the respondent that in other departments under the scheme the employees of such departments are entitled to their services rendered as casual/contractual counted for qualifying service for pensionary/service benefits is concerned, merely because some other departments might have such schemes, the respondent shall not be entitled to the same benefit in absence of any scheme in the appellants' department/department in which the respondent rendered her services. The appellant Doordarshan Prasar Bharti Corporation of India is an autonomous independent department/body. As observed hereinabove, neither the rule nor the regularisation scheme provide that services rendered as casual/contractual shall be treated as temporary service and/or the same shall be counted for the purposes pensionary/service benefits.
17. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The judgment and order passed by the Tribunal dismissing the Original Application is hereby restored. Present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs."
[16] The admitted position of facts of the case are:
(i) The petitioners were appointed as staff nurses on contract basis by the RIMS at consolidated pay of Rs.
7,250/- per month on three different notifications 30.11.2001, 11.02.2002 and 24.01.2003.
P a g e 27 | 33
(ii) The petitioners filed W.P.(C) No. 165 of 2008 and W.P.(C) No. 202 of 2008 for regularisation of the post of their services as staff nurses which was on contract basis. The Hon'ble High Court directed the authority to consider the case of the petitioners for regularisation of their services as staff nurses. Accordingly, the authority issued regularisation dated 10.01.2011 against the substantive vacancies in compliance of the Hon'ble High Court's order.
(iii) The petitioners filed representation dated 07.02.2008 and 08.02.2008 to the Director, RIMS for protecting the past service of the petitioners on contract basis prior to their regularisation of services under Rule 17 of CCS (Pension) Rules, 1972. The petitioners filed writ petition being W.P.(C) No. 847 of 2011 for direction to the respondents to consider their prayer.
(iv) The authority after getting advice from Ld. Advocate General of Manipur and that is also after the gap of 2 (two) years issued an order rejecting the representations of the petitioners on the following grounds:
(a) Petitioners were only appointed as staff nurse on regular basis on 10.01.2011 and hence, the provision of CCS (Pension) Rules, 1972 are not applicable as they are appointed on regular basis after 31.12.2003.
P a g e 28 | 33
(b) The provisions of Rule 17(1)(b) of CCS (Pension) Rules, 1972 not applicable as no contributory provident fund were created on behalf of the petitioners and also no funds have been contributed as CPF on behalf of the petitioners.
(c) The period of service rendered by the petitioners
on contract basis cannot be counted as
qualifying service for the purpose of availing pensionary benefits under Rule 13 of the CCS (Pension) Rules, 1972.
Hence, the present writ petitions challenging the said rejection order under following grounds:
(i) The applications of the petitioners have been rejected on wrong interpretation of the relevant rules.
(ii) Petitioners have claimed for the service link up as entitled under the provision of Rule 17 of CCS (Pension) Rules, 1972 and not under Rule 13 of the Rules.
(iii) The petitioners have entered service prior to 31.12.2003 on contract basis after following all the norms of regular appointment and the applicability of the CCS (Pension) Rules in the case of petitioners has to be considered from the initial date of their initial engagement and not from the year when their service was regularised.
(iv) Rule 17(1)(b) of CCS (Pension) Rules, 1972 clearly provides that an employee may either agree to refund to the Government the monetary benefits referred to in P a g e 29 | 33 Clause (a) or to forego the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable. Thus, if no contributory fund has been created or no CPF has been contributed on behalf of the petitioners than the petitioners can opt to forego the same and count in lieu thereof the service for which the aforesaid contributory provident fund may have been payable.
[17] On the other hand, the respondents RIMS authority resisted the contention and grounds made above by the writ petitioners on the following grounds:
(i) The RIMS authority issued the order dated 06.01.2015 on the advice of Ld. Advocate General, Manipur thereby indicating that the RIMS authority has undertaken a sincere effort and exercise in considering the case of the petitioners.
(ii) The provision of Rule No. 17 (1)(b) of CCS (Pension) Rules, 1972 is applicable in the case of contract employees inasmuch as the provision of Rule 17 (1) is attracted in respect of contract employees for whom CPF has been created and accordingly, the employees on contract basis also contributed for the same, those contract employees when appointed to a pensionable establishment without interruption may exercise the option to retain the Government contribution in the CPF with interest thereon P a g e 30 | 33 including any other compensation the monetary benefits or to forego the same, if they have not been paid to him and count in lieu thereof the service for which the monetary benefit may have been payable. However, in the present case, there is neither creation of CPF nor any contribution to the CPF as such, the provision is not attracted.
(iii) Further, the petitioners were appointed on regular basis against the regular sanctioned posts created only on 04.12.2010 as such, the provision of CCS (Pension) Rules, 1972 is not applicable to the petitioners.
[18] On perusal of the entire facts and circumstances of the case as narrated above, this Court is of the view that in spite of regularising the petitioners in the year 2011 to the posts created in the year 2010, the posts held by the petitioners prior to their regularisation and creation of the posts were against the sanctioned posts. It is seen from the nature of the appointment of the petitioner's and utilisation of their services, in spite of creating the posts much after their contractual appointment, the services of the petitioners were utilised because their services were required for smooth functioning of the institution. The intention of the authority is against natural justice i.e. in spite of the requirement of the petitioners' service for smooth functioning of the institution, the respondents did not take step to create the posts and regularise the service of the petitioners but, only on the intervention of the Hon'ble High Court's order that the authority take steps and created the posts. These steps ought to be done long time back.
P a g e 31 | 33 [19] The petitioners were appointed on contract basis against the posts created by order dated 22.11.2001. In the advertisements dated 30.11.2001, 11.02.2002 and 04.01.2003, on the pursuant whereof petitioners have been appointed, it has been clearly mentioned that the term of contract is initially for 1 (one) year but extendable from time to time and the appointment is likely to be regularised against regular post. [20] The submission of the learned DSGI for the respondents that the petitioners were not appointed against regular sanctioned posts in RIMS and neither contributory funds were created nor any contributions are made during their contract appointment as such, Rule 17(1)(b) of CCS (Pension) Rules, 1972 is not applicable in the case of the petitioners inasmuch as the provision of Rule 17(1)(b) of CCS (Pension) Rules, 1972 is applicable in respect of contract employees on contract basis which CPF has been created and employees have also contributed for the same. The submission made herein above is not acceptable as it is the RIMS authority who has to take step to create CPF for the contract employees as such, it is not the case that the RIMS takes steps to create CPF contribution and no contribution was made from the side of contract staff nurse. On top of that, the petitioners are ready to forego the monetary benefits which may be payable and requested for counting service in lieu thereof within the time prescribed by the RIMS only for pensionary benefits. In terms of the provision of Rule 17(1) of CCS (Pension) Rules, 1972, a contract employee who is subsequently appointed to the same or another in a substantive capacity in a pensionable establishment without any interruption of duty is entitled to count the service in lieu of monetary benefits which may have been payable.
P a g e 32 | 33 Linking of service which is a case of retrospective regularisation without any financial benefit is well accepted norms in service jurisprudence inasmuch as the admitted factual position about non-payment of any kind of fund and permissibility of claiming of service benefits in lieu of fund if opted to forego the same as contemplated by Rule 17(1)(b) of CCS (Pension) Rules, 1972 seems wholly ignored by the RIMS authority. Therefore, this Court is of the opinion that this Court needs to be interfered with the order dated 06.01.2015 issued by the RIMS authority in the interest of justice. [21] After hearing the learned senior counsel for the parties and also after perusal of the facts of the case in hand and also after going through the relevant rules as highlighted above, this Court is of the considered view that the submissions made by the learned senior counsel for the petitioners are reasonable and reliable and on top of that, the observations made by the Hon'ble Supreme Court and this High Court, as reproduced herein above are squarely covered and applicable in favour of the present petitioners. [22] Accordingly, the order dated 06.01.2015 is hereby quashed and set aside. However, it is made clear that the petitioners shall not claim for any other service benefits and monetary benefits except pensionary benefits. [23] With the above, the present writ petitions are allowed and disposed of. No costs.
JUDGE FR/NFR Bipin P a g e 33 | 33