Gauhati High Court
Review.Pet./49/2021 on 13 June, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/17
GAHC010056732021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Review Petition no. 49/2021
Smti. Imtirenla Jamir
Additional Secretary and Mission Director,
Nagaland Bamboo Development Agency,
Nagaland, Dimapur
...............Petitioner
-Versus-
1. The State of Nagaland
Represented through the Chief Secretary to the
Government of Nagaland, Nagaland, Kohima
2. The Commissioner and Secretary to the Government of Nagaland
Department of Personnel and Administrative Reforms,
Nagaland, Kohima
...................Respondents
Review Petition no. 50/2021
Smti. Imtirenla Jamir Additional Secretary and Mission Director, Nagaland Bamboo Development Agency, Nagaland, Dimapur ...............Petitioner
-Versus-
1. The State of Nagaland Represented through the Chief Secretary to the Government of Nagaland, Nagaland, Kohima Page No.# 2/17
2. The Commissioner and Secretary to the Government of Nagaland Department of Personnel and Administrative Reforms, Nagaland, Kohima ...................Respondents Advocates :
For the Petitioner : Mr. C.T. Jamir, Senior Advocate
[both review petitions] Mr. S.P. Sharma, Advocate
Mr. I. Imchen, Advocate
For the Respondents : Ms. A. Aier, Additional Senior Government Advocate, Nagaland
[both review petitions]
Date of Hearing : 15.03.2022
Date of Judgment : 13.06.2022
BEFORE
HON'BLE THE CHIEF JUSTICE [ACTING] MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [Manish Choudhury, J.] Both these two review petitions have arisen out of a common judgment and order dated 24.02.2021 passed in two writ appeals, Writ Appeal no. 94/2020 and Writ Appeal no. 95/2020. While the Review Petition no. 49/2021 is preferred against the writ appeal, Writ Appeal no. 94/2020, the Review Petition no. 50/2021 is preferred against the other writ appeal, Writ Appeal no. 95/2020. By the common judgment and order dated 24.02.2021, both the writ appeals preferred by the review petitioner as the writ appellant, were dismissed. It may be mentioned that the writ appeal, Writ Appeal no. 94/2020 was preferred in connection with a writ petition, W.P.[C] no. 92/2020 whereas the other writ appeal, Writ Appeal no. 95/2020 was preferred against a writ petition, W.P.[C] no. 78/2020. Both the writ petitions -W.P.[C] no. 78/2020 and W.P.[C] no. 92/2020 - were preferred by the present review petitioner as the writ petitioner. The learned Single Bench by a common judgment and Page No.# 3/17 order dated 25.08.2020 finding no merits in the two writ petitions, dismissed the same.
2. For the purpose of recapitulation of the previous events, it may be stated that the writ petition, W.P.[C] no. 78/2020 was preferred challenging an order dated 26.06.2020 passed by the respondent no. 2 therein i.e. the Commissioner & Secretary to the Government of Nagaland, Department of Personnel and Administrative Reforms and the State Civil List of 2017 in respect of the review petitioner's/writ appellant's/writ petitioner's date of entry into service and also for a direction to the State respondents to rectify her date of entry into Government service as 28.04.1994 instead of 22.08.1985. The second writ petition, W.P.[C] no. 92/2020 was preferred seeking setting aside of an order dated 30.06.2020 passed by the Chief Secretary to the Government of Nagaland whereby the review petitioner/writ appellant/writ petitioner was released from Government service w.e.f. 31.08.2020 on the ground that review petitioner/writ appellant/writ petitioner would superannuate on that date [31.08.2020] on completion of 35 years of service and also for a direction to rectify her date of entry into Government service as 28.04.1994 instead of 22.08.1985.
3. The factual background which, according to the review petitioner/writ appellant/writ petitioner [hereinafter referred to as 'the review petitioner', for easy reference], led the review petitioner to institute the two writ petitions can be recapped from the narration of the common judgment and order dated 24.02.2021 and the same can be exposited, in brief, as follows :-
3.1. The review petitioner was appointed as an Upper Division Assistant [UDA] in the Directorate of Social Security and Welfare, Government of Nagaland on 22.08.1985 on regular basis. When she was serving as an UDA under the Directorate of Social Security and Welfare, Government of Nagaland, she responded to an advertisement published by the Nagaland Public Service Commission [NPSC] for selection in the Nagaland Civil Service [NCS]. By a calling letter dated 18.05.1993, the review petitioner was informed that she was provisionally allowed to appear in the written test to be held from 15.06.1993 to 18.06.1993 and on being so called, the review petitioner appeared in the written test. The review petitioner qualified in the written test and she was called to appear in an oral interview on 16.02.1994. Accordingly, Page No.# 4/17 the review petitioner appeared in the oral interview. Thereafter, the results were declared by the NPSC and the review petitioner got selected for the post of Extra Assistant Commissioner [EAC] in the NCS. On 15.03.1994, the review petitioner submitted a letter to the Secretary to the Government of Nagaland, Personnel and Administrative Reforms Department [P&AR Department] conveying her acceptance to join in the post of EAC, NCS.
3.2. Subsequent to such submission of acceptance letter, the review petitioner submitted a resignation letter to the Director of Social Security and Welfare, Nagaland on 21.03.1994 stating that she had submitted the resignation letter in order to enable her to pursue higher studies/higher post and requested for issuance of a release order. On receipt of the said letter of resignation and for release, the Director of Social Security and Welfare, Nagaland had issued a Release Order under Memo no. SW/ESTT/PF-285/83 dated 20.04.1994 whereby the review petitioner who was till then serving in the said Directorate as an UDA, was released to enable her to join the post of EAC, NCS to which post she had been appointed. Another order under Memo no. SW/ESTT/PF-285/85 dated 20.04.1994 was also issued by the Director of Social Security and Welfare, Nagaland wherein it was stated that with reference to letter of resignation dated 21.03.1994 of the review petitioner, the review petitioner stood terminated from the post of UDA with immediate effect. The copies of the aforesaid two orders dated 20.04.1994 were also forwarded to the Commissioner and Secretary to the Government of Nagaland, Department of Social Security and Welfare by the Director of Social Security and Welfare, Nagaland.
3.3. A notification bearing no. PAR-3/19/86[Pt.] dated 27.04.1994 came to be issued by the Chief Secretary to the Government of Nagaland for the P&AR Department whereby ten nos.
of persons including the review petitioner, on being selected in the competitive examination conducted by the NPSC, were appointed to the post of EAC in the Nagaland Civil Service [NCS], Class-I, Junior Grade with effect from the dates of their assuming charges. On being so offered the appointment, the review petitioner joined in the post of EAC, NCS on 28.04.1994.
3.4. In the Civil Lists of the Nagaland Civil Service [NCS] published in the years 2002, 2010 and 2015 respectively, the review petitioner's date of entry into Government service was Page No.# 5/17 shown as 28.04.1994 which was the date the review petitioner joined in the post of EAC, NCS. But, in the Civil List published in the year 2017, the review petitioner's date of entry into Government service was recorded as 22.08.1985, that is, the day on which the review petitioner joined the regular post of UDA in the Directorate of Social Security and Welfare, Nagaland. On being aggrieved by such change of date of entry into Government Service from 28.04.1994 to 22.08.1985 in the Civil List of 2017, the review petitioner submitted a representation before the Commissioner & Secretary to the Government of Nagaland, P&AR Department on 17.03.2020 with the request to change her date of entry into Government service from 22.08.1985 to 28.04.1994.
3.5. When no response was received from the State respondent authorities in relation to the said representation, the review petitioner approached the Court by way of a writ petition, W.P.[C] no. 63/2020. The writ petition, W.P.[C] no. 63/2020 came up for consideration on 28.05.2020 and after hearing the learned counsel for the parties, the writ petition was disposed of by an order of even date with a direction to the writ petitioner therein i.e. the review petitioner herein to submit a copy of the representation dated 17.03.2020 afresh to the Commissioner & Secretary to the Government of Nagaland, P&AR Department within one week from 28.05.2020 and on such representation being submitted, it was directed that the Commissioner & Secretary to the Government of Nagaland, P&AR Department shall consider and dispose of such representation on its own merits within a period of 4 [four] weeks from the date of receipt of such representation.
3.6. Accordingly, the review petitioner submitted a copy of the representation afresh on 30.05.2020 before the Commissioner & Secretary to the Government of Nagaland, P&AR Department with the prayer to rectify her date of entry into Government service from 22.08.1985 to 28.04.1994. The said representation was disposed of by the Commissioner & Secretary to the Government of Nagaland, P&AR Department by an order dated 26.06.2020 with the approval of the Chief Secretary to the Government of Nagaland, whereby, the prayer made by the review petitioner for rectification of her date of entry into Government service was rejected. It was further held that as the review petitioner's date of entry into Government service was to be counted from 22.08.1985 and as the review petitioner would be completing Page No.# 6/17 35 years of service on 31.08.2020, the review petitioner shall be released from Government service w.e.f. 31.08.2020. Assailing the said order dated 26.06.2020, the review petitioner as the writ petitioner, had preferred the writ petition, W.P.[C] no. 78/2020 on 30.06.2020.
3.7. On 30.06.2020, another order under Memo no. PAR-4/18/2012 came to be passed under the hand of the Chief Secretary to the Government of Nagaland, whereby, it was ordered that the review petitioner who was then serving as Additional Secretary to the Government of Nagaland, W & H Department, would stand released from Government service w.e.f. 31.08.2020 in view of completion of 35 years of her service in the Government in terms of Section 3[1] and Section 3[2] of the Nagaland Retirement from Public Employment Act, 1991, as amended by the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009. The review petitioner as the writ petitioner, preferred the second writ petition i.e. W.P.[C] no. 92/2020 challenging the afore-mentioned order dated 30.06.2020.
3.8. The learned Single Judge held that though a gap of 7 [seven] days appeared to have been created between the services rendered by the review petitioner in two different posts, because of the termination order and the release order, both dated 20.04.1994 in the post of UDA on one hand and the appointment order issued for the post of EAC, NCS dated 27.04.199 and her subsequent joining in the post of EAC, NCS on 28.04.1994 on the other, but such break or gap was only a technical or artificial break which did not actually create a break between the two employments. It was held that the break or gap would not make the past services rendered by the review petitioner w.e.f. 22.08.1985 under the Directorate of Social Security & Welfare, Government of Nagaland non-pensionable and the total period of service of the review petitioner for the purpose of reckoning length of service under the provisions of the Nagaland Retirement from Public Employment Act, 1991, as amended, had to be counted from 22.08.1985. The pleas urged with regard to the said break or gap period of 7 [seven] days and inapplicability of the concept of technical resignation in reference to Rule 26 of the Central Civil Services [Pension] Rules, 1972 were negated. When the two writ appeals were preferred against the common judgment and order dated 25.08.2020 of the learned Single Judge, the Division Bench considered all the contentions raised by the review petitioner as the writ appellant and found no merits in the two writ appeals and the two writ Page No.# 7/17 appeals were dismissed by the common judgment and order dated 24.02.2021.
4. We have heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. I. Imchen, learned counsel for the review petitioner and Ms. Ajungla Aier, learned Additional Senior Government Advocate, Nagaland for the respondents.
5. Mr. Jamir, learned senior counsel for the review petitioner has, at first, referred to a judgment and order dated 22.02.2021 passed by a Full Bench of this Court in Writ Appeal no. 198/2019 [Smti. Asangla T Aier vs. Smti. Thungdeno Mozhui and 10 others ] to mention that in Smti. Asangla T Aier [supra] case also, the provisions contained in Section 3[1] of the Nagaland Retirement from Public Employment Act, 1991, as amended, and the decision of the Hon'ble Supreme Court of India in Nagaland Senior Government Employees Welfare Association and others vs. State of Nagaland and others, [2010] 7 SCC 643, came up for consideration, as like the impugned common judgment and order dated 24.02.2021, sought to be reviewed herein.
5.1. By making a comparative analysis of the two cases, that is, Smti. Asangla T Aier [supra] and the review petitioner, Mr. Jamir has submitted that upon such comparative analysis, it would clearly emerge that in the case of the review petitioner, there was interruption between the two services i.e. the review petitioner's service in the post of UDA in the Directorate of Social Security and Welfare, Government of Nagaland w.e.f 22.08.1985 to 20.04.1994; and her services in the post of EAC, NCS w.e.f. 28.04.1994 onwards; with a break/gap of 7 [seven] days in between. When there was such interruption resulting into a break between the two employment, there is error in the impugned common judgment and order dated 24.02.2021 in holding that there was no break between the two services.
5.2. It has been submitted that in order to bring the case of the review petitioner within the fold of Section 3[1] read with Section 2[1] of the Nagaland Retirement from Public Employment Act, 1991, as amended, there has to be a continuity in service which is apparently absent in the case of the review petitioner. He has submitted that reference to the concept of technical resignation envisaged in Rule 26 of the Central Civil Services [Pension] Page No.# 8/17 Rules, 1972 ['the CCS [Pension] Rules', for short] is uncalled for as the concept of technical resignation has been clarified by a Office Memorandum dated 27.08.2018 of the Ministry of Personnel, Public Grievances & Pensions, Government of India. Relying upon the Office Memorandum dated 27.08.2018, it is submitted that a resignation will be treated as technical resignation only upon satisfaction of twin conditions and the two conditions are, firstly, a Government Servant has to apply through proper channel for a post in the same or some other department and secondly, if the Government Servant on selection, is required to resign from the previous post for administrative reasons. When these twin conditions are fulfilled, then only the benefit of past service can be given, if otherwise admissible.
5.3. It is his contention that the Office Memorandum dated 29.03.2017 was followed by a subsequent Office Memorandum dated 04.05.2017 of the Government of Nagaland, on the subject of counting of contract/ad-hoc/work-charged/substitute period for retirement purpose. Paragraph 6 of the Office Memorandum dated 04.05.2017 reads as follows :- "6. Now, therefore, it has been decided that the period of service rendered on ad hoc/contract/work-charged/substitute basis which is followed by regularization or regular appointment without break or any gap in service except resignation, shall be treated as public employment and included in computation of length of service for the purpose of pension under the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009". The Full Bench of this Court in Smti. Asangla T Aier [supra] has referred to the said Office Memorandum dated 04.05.2017 to hold that even contractual/ad-hoc employment, which is followed by a regular appointment is to be counted for the purposes of pension, provided such employment is followed by regularization. Since the case of the review petitioner is not similar, he has contended that the break in service could not have been interpreted in the manner, as has been interpreted in the impugned common judgment and order dated 24.02.2021.
5.4. In support of his submissions, Mr. Jamir has referred to the decisions of the Hon'ble Supreme Court of India in Nagaland Senior Government Employees Welfare Association and others vs. State of Nagaland and others, reported in [2010] 7 SCC 643; and Shri Anil Kumar Chowdhury vs. State of Assam and others, reported in [1975] 4 SCC 7. Apart from referring Page No.# 9/17 to the Full Bench decision in Smti. Asangla T Aier [supra], he has referred to two other decisions rendered by learned Single Judges of this Court in R.T. Asang Jamir @ R. Tsudensangba Jamir and others vs. State of Nagaland and others, reported in 2012 [4] GLT 690; and Benjongtoshi and others vs. State of Nagaland, reported in 2019 [2] GLT 1115 and a judgment of a Division Bench in Writ Appeal no. 177/2012 [ Neise Mich vs. State of Nagaland and others] and 7 [seven] other writ appeals, decided on 20.07.2012. Mr. Jamir has contended that the decision in Nagaland Senior Government Employees Welfare Association [supra] pertains to the issue of legality of fixing 35 years of service for retirement under the Nagaland Retirement from Public Employment Act, 1991 read with the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009 and it has not dealt with the issue as to how 35 years of service is to be counted for retirement. On the other hand, the two decisions in Smti. Asangla T Aier [supra], decided on 22.02.2021, and the impugned common judgment and order relating to the review petitioner, rendered on 24.02.2021, are with regard to the manner of counting 35 years of service to retire a Government Servant and since the decision in Smti. Asangla T Aier [supra], passed by a Full Bench, is anterior in point of time, a decision rendered at a subsequent point of time like the impugned common judgment and order, is required to abide by the decision of the Full Bench. In such view of the matter, a review of the impugned common judgment and order is called for.
6. In response, Ms. Ajungla Aier, learned Additional Senior Government Advocate, Nagaland by referring to the events leading to the issuance of the impugned orders, which are narrated in the impugned judgment and order, has submitted that there are no errors, much less grave and palpable errors, in the impugned judgment and order which require a correction. By filing these review petitions, the review petitioner has been reagitating the issues already raised in the writ petitions and the writ appeals which have already been decided in both the stages with well recorded reasons. The review petitioner by reagitating the same, has equated this review proceedings with the original hearing of the lis, which is not permissible.
7. We have given due consideration to the submissions of the learned counsel for the parties and have perused the materials brought on record by the parties through their Page No.# 10/17 pleadings, including the records of the writ appeals. The decisions cited at the Bar have also been gone through.
8. In the forefront of this lis is the provision of Section 3[1] of the Nagaland Retirement from Public Employment Act, 1991, as substituted by the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009. As per substituted Section 3[1], notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for a term of 35 years from the date of joining public employment or until he attains the age of 60 years, whichever is earlier. The term, 'Public Employment' has been defined in Section 2[1] of the Act and 'Public Employment' means appointment to any pensionable State Public Service or posts in connection with the affairs of the State of Nagaland and the Nagaland Legislative Assembly and includes any appointment under the Government of India, any other State Government, Central or State Public Sector undertaking and local authority held by persons prior to their absorption under the Public Service of the State of Nagaland and the Nagaland Legislative Assembly which counts for the purpose of pension.
9. In the case of Smti. Asangla T Aier [supra], the matter referred to the Full Bench was whether the definition of 'Public Employment' would necessarily mean that a person had worked on a post which was pensionable or would include contractual/ad-hoc service as well which was non-pensionable. The writ appellant therein was originally appointed as an Assistant Project Officer in the State Rural Development Agency in ad-hoc capacity and by an order dated 13.02.1986, she came to be appointed as an Assistant Project Officer on regular basis. The writ appellant therein joined in the regular post on 01.03.1986. The Full Bench had found that the more important question to be decided therein was whether 35 years in public employment would constitute only pensionable service, or it would include non-pensionable service, such as contractual, ad-hoc, etc. The straight answer given by the Full Court to the question is that public employment would include contractual or ad-hoc period of service provided such an employee has been regularized in service. In such an event, the entire period of service is to be calculated for pensionary benefits because the essential element of 'Public Employment' under the Act is that it should yield pensionary benefits. It has been held Page No.# 11/17 that the manner of employment, be it casual, ad-hoc or regular, is not important, but it is important that 'Public Employment' must have 'pensionary benefits'. It has, thus, been held that the entire period of service would be counted for pensionary benefits irrespective of the fact whether it is regular, contractual, ad-hoc or otherwise, provided such employment is followed by regularization. The decision in Neise Mich [supra] has held that 'Public Employment' would include contractual/ad-hoc employment, provided it is continuous, and the entire period [not beyond the period of 35 years] shall be counted for pensionary benefits.
10. It is true that the decision in Nagaland Senior Government Employees Welfare Association [supra] has dealt with the issue of legality of fixing 35 years of service for retirement under the Nagaland Retirement from Public Employment Act, 1991, as amended by the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009 and not with the issue directly as to how 35 years of service is to be counted for retirement. The Full Bench in Smti. Asangla T Aier [supra] has dealt with the issue as to how 35 years of service in case of the writ appellant therein is to be counted in the event the first employment in ad- hoc/contractual, etc. capacity which was followed by regularization. The Full Bench in Smti. Asangla T Aier [supra] has also considered the afore-stated decision of the Hon'ble Supreme Court of India as well as the decisions in Neise Mich [supra] and Benjongtoshi [supra].
11. After taking notice of the events in the two writ appeals, Writ Appeal no. 94/2020 and Writ Appeal no. 95/2020, it was found that the core issues that arose for consideration therein were whether there was any break in service between the two public employments of the review petitioner in the facts and circumstances obtaining in the case and whether it was a case under Rule 26[1] or under Rule 26[2] of the CCS [Pension] Rules, as the CCS [Pension] Rules were stated to be applicable for the Government employees of Nagaland. After having gone through the contents of the Office Memorandum dated 29.03.2017 of the Government of Nagaland, more particularly, the clarification made therein, it was recorded in the judgment and order dated 24.02.2021 that the same was not specifically applicable in the case of the review petitioner in view of the fact that the case of the review petitioner involved an issue regarding counting of past service or otherwise rendered by the review petitioner in Page No.# 12/17 a regular post which was a pensionable service when the review petitioner joined the post of EAC in the State Civil Service under the same Government pursuant to selection by the NPSC, which was also in a regular post and was pensionable. It had, however, noted that the Office Memorandum dated 29.03.2017, in essence, embodied the same principle as incorporated in Rule 26 of the CCS [Pension] Rules. Thus, the subsequent Office Memorandum dated 04.05.2017 of the Government of Nagaland is only to be considered in similar vein.
12. Rule 26[1] of the CCS [Pension] Rules inter alia prescribes that resignation from a service or a post entails forfeiture of past service. But, Rule 26[2] of the CCS [Pension] Rules states that if the resignation has been submitted with proper permission to take up another appointment, whether temporary or permanent, under the Government where service qualifies then such resignation shall not entail forfeiture of past service. In the earlier two stages of litigation instituted by the review petitioner, the contents of the entire correspondences that exchanged between the review petitioner and the employers were scrutinized. The documents so scrutinized inter alia included [i] the Acceptance Letter submitted by the review petitioner to the Secretary, Personnel and Administrative Reforms Department, Nagaland on 15.03.1994 conveying her acceptance to join the post of EAC, NCS; [ii] the Resignation Letter submitted by the review petitioner to the Director of Social Security and Welfare, Nagaland on 21.03.1994 stating that she had submitted the resignation letter to enable her to pursue higher studies/higher post and requested for issuance of a release order; [iii] the Release Order under Memo no. SW/ESTT/PF-285/83 dated 20.04.1994 issued by the Director of Social Security and Welfare, Nagaland; [iv] the Termination Order under Memo no. SW/ESTT/PF-285/85 dated 20.04.1994 issued by the Director of Social Security and Welfare, Nagaland; [v] the Notification bearing no. PAR-3/19/86[Pt.] dated 27.04.1994 issued by the Chief Secretary to the Government of Nagaland appointing 10 [ten] nos. of persons including the review petitioner, to the post of EAC, NCS; [vi] the Civil Lists of the NCS published in the years, 2002, 2010, 2015 & 2017; [vii] the Order dated 26.06.2020 passed by the Commissioner & Secretary to the Government of Nagaland, P&AR Department with the approval of the Chief Secretary to the Government of Nagaland; [viii] the Order under Memo no. PAR-4/18/2012 dated 30.06.2020 passed by the Chief Secretary to the Government of Nagaland; and [ix] the Service Book including the Leave Account Sheet, of the review Page No.# 13/17 petitioner maintained for the entire service period of the review petitioner starting from the date of her joining in the post of UDA in the Directorate of Social Security and Welfare, Government of Nagaland on 22.08.1985 on regular basis.
13. After having gone through the above records, the Court had found that the employer considered the fact of selection of the review petitioner to the post of EAC, NCS while serving in the post of UDA in the Directorate of Social Security and Welfare, Government of Nagaland and the review petitioner was only thereafter released from the post of UDA to enable her to join in the post of EAC, NCS. It was recorded that the review petitioner submitted the letter dated 15.03.1994 conveying her acceptance to join the post of EAC, NCS after her selection pursuant to a letter no. PAR [Pt] dated 15.03.1994 from the P&AR Department, Government of Nagaland. It was found that a single service book had been maintained in respect of the entire service career of the review petitioner wherein the service details of the review petitioner rendered in the Directorate of Social Security and Welfare, Government of Nagaland as a regular UDA and in the Nagaland Civil Service after joining as an EAC had been maintained. The Leave Account Sheet of the review petitioner, notwithstanding the alleged tempering with regard to the dates at least at two places therein, was also looked at. It was found thereafter that the Government in the State of Nagaland had been treating the past service of the review petitioner rendered at the Directorate of Social Security and Welfare, Government of Nagaland as qualifying service all along for the purpose of pension. It was also found that the review petitioner had received full pay as UDA in the Directorate of Social Security and Welfare, Government of Nagaland for the entire month of April, 1994. The Court had noted the conduct of the review petitioner of not raising any objection with regard to the maintenance of one service book for her entire service period from 22.08.1995 until 17.03.2020 when she raised objection regarding the Civil List published in the year 2017 and of enjoying the benefits extended by the State respondents treating her service in the post of UDA to be qualifying service for the purpose of pension until 17.03.2020.
14. Dealing with the concept of resignation, it has been observed that the nature and manner in which a Government servant is seeking determination of his/her employment by way of relinquishment is also dependent upon the preceding, attending and succeeding Page No.# 14/17 events and circumstances surrounding such an act of relinquishment and the manner in which the same was sought to be and has been construed and treated by the parties. It has been held that the intention of the employee to sever the ties with the employer must be complete without any condition attached to it and the acceptance of the same by the employer must also be without any condition to treat a case of resignation as a case of resignation simpliciter with complete forfeiture of the past service rendered by such employee with the employer. Having gone through the conspectus of the background events in entirety and having noticed the intention of the parties from the text and tenor of correspondences exchanged between them, as emerging from the records maintained, the Court had reached the finding that the review petitioner's joining the post of EAC, NCS was, in essence, a case of technical resignation in the context of the provisions of the Nagaland Retirement from Public Employment [Second Amendment] Act, 2009 and the CCS [Pension] Rules. It was held that it was not open for the review petitioner to take shelter under the provisions of Rule 26[1] of the CCS [Pension] Rules even if it is accepted that the review petitioner did not work for the period between 20.04.1994 and 28.04.1994 when the State Government had treated the said period in respect of the review petitioner as a period in service all along by counting such service of the review petitioner for the purpose of pension, which position the review petitioner continued to accept without any demur till submission of the representation on 17.03.2020. It was held that when the review petitioner continued to enjoy the benefits under the Nagaland Retirement from Public Employment Act, 1991, as amended, flowing out of the provisions of Rule 26[2] of the CCS [Pension] Rules for such a long period of time it was not open for the review petitioner to alter the position in order to seek benefit under Rule 26[1] of the CCS [Pension] Rules at a far distant point of time. The judgment and order dated 24.02.2021 had held that the impugned order dated 26.06.2020 and the impugned order dated 30.06.2020 were found to have been passed by taking into consideration all the relevant aspects and on the basis of the records and any period of service for the review petitioner beyond 31.08.2020 would run counter to the provisions of the Nagaland Retirement from Public Employment Act, 1991, as amended, and the CCS [Pension] Rules. In the judgment and order sought to be reviewed, discussion in detail, not adverted to herein for the sake of brevity, is found to have been made on the twin conditions, as referred to in the Office Memorandum dated 27.08.2018, required to be fulfilled to treat a case of resignation Page No.# 15/17 as technical resignation. In that view of the matter, any further discussion in that aspect is not necessary.
15. On the analysis of the factual matrices obtaining in the cases of Smti. Asangla T Aier [supra], Neise Mich [supra], Benjongtoshi [supra] and R.T. Asang Jamir [supra], it is noticed that the common question involved therein was about counting the period of 35 years of public employment of a Government Employee under the Nagaland Retirement from Public Employment Act, 1991, as amended, whose previous period of service was of ad- hoc/contractual nature. In contradistinction, the previous period of service of the review petitioner was in a regular post. While in the above four decisions, the matter involved services in two posts with the service in the first post in ad-hoc/contractual capacity under the Government followed by the service in a regular post under the Government whereas in the case of the review petitioner, it is service rendered in a regular post under the Government followed by service rendered also in a regular post under the Government. No similarity is found in the factual matrices obtaining in the afore-stated four decisions referred by the review petitioner here with the fact situation obtaining in the case of the review petitioner resulting in the alleged artificial or technical gap or break in between the two services in two regular posts without any impact in the continuance in the service career of the review petitioner; in the leave account of the review petitioner; in the salary and allowances of the review petitioner; etc., and thus, no support can be seen to have been drawn by the review petitioner by citing the afore-stated four decisions. It is well settled that a decision is an authority for what it decides and not what can be logically deduced therefrom. It is also well settled that even a slight distinction in fact or an additional fact or different fact may make a lot of difference in the decision making process.
16. In so far as the power of review is concerned, it is settled position of law, as has been observed by the Hon'ble Supreme Court of India in Shivdeo Singh vs. State of Punjab, AIR 1963 SC 1909, that there is nothing in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It has been observed by the Hon'ble Supreme Court of India in Aribam Page No.# 16/17 Tuleshwar Sharma vs. Aribam Pishak Sharma and others, [1979] 4 SCC 389 that there are definitive limits to the exercise of the power of review. The power of review may be exercised to the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits as that would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court. From the above decisions, it is, thus, evident that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It is well settled that an error which has to be established by a long- drawn process of reason on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments and such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ [Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137]. Thus, a review proceeding is not to be equated with the original hearing of the case and the finality of the judgment rendered by the Court is not to be reconsidered except where a glaring commission or patent mistake or like grave error has crept in earlier by judicial fallibility [Northern India Caterers [India] Ltd. vs. Lt. Governor of Delhi, [1980] 2 SCC 167]. It can, therefore, be said that if the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it cannot be said that there is an error apparent on the face of the record. The power of review is not to be exercised to substitute the earlier view and the mere possibility of two views on the subject disentitles the petitioner to seek review of the earlier view. In a review petition, it is not open for the Court to reappreciate and reach a different conclusion from the earlier one, even if that is possible. If a review petitioner is permitted to reagitate the same issues once again then the same would amount to a rehearing. As long as an issue has already been dealt with and answered in the judgment sought to be reviewed, a party is not entitled to assail the same judgment under review jurisdiction in the guise that an Page No.# 17/17 alternative view is also possible.
17. As has already been discussed above, upon perusal of the decisions in Smti. Asangla T Aier [supra], Neise Mich [supra], Benjongtoshi [supra] and R.T. Asang Jamir [supra], cited on behalf of the review petitioner, the factual matrices obtaining in those decisions and the issues decided therein are not found similar to the fact situation and the issues involved in the case of the review petitioner. In the case of the review petitioner, it can be iterated, at the cost of repetition, that the core issues that were found to have arisen were whether there was any break in service between the two public employments of the review petitioner and whether it was a case under Rule 26[1] or under Rule 26[2] of the CCS [Pension] Rules. After having considered the factual matrix obtaining in the case of the review petitioner coupled with the relevant provisions of the Nagaland Retirement from Public Employment Act, 1991, as amended, read with the concept of resignation/technical resignation, as engrafted in Rule 26 of the CCS [Pension] Rules, the Court by the judgment and order, sought to be reviewed herein, had reached a finding that the review petitioner's case had, in essence, turned out to be a case of a technical resignation. As such, none of the aforesaid decisions is found to be any assistance for the review petitioner. The decisions in Shri Anil Kumar Chowdhury [supra] had already been referred to during the hearing of the two writ appeals and as such, does not require any reconsideration.
18. The result of the above discussion is that the review petitioner has not been able to show any cause, much less good and sufficient cause, for any reconsideration of the common judgment and order dated 24.02.2021 passed in the two writ appeals, Writ Appeal no. 94/2020 and Writ Appeal no. 95/2020, by way of review. Consequently, both the review petitions being devoid of merits, are liable to be dismissed and they are, therefore, dismissed without any order as to cost.
JUDGE CHIEF JUSTICE [ACTING] Comparing Assistant