Bombay High Court
Narcinva Camotim Alias Narsinha ... vs State Of Goa Through The Secretary ... on 24 November, 1994
Equivalent citations: 1996(3)BOMCR5
Author: A.P. Shah
Bench: A.P. Shah
JUDGMENT E.S. Da Silva, J.
1. The petition is taken for hearing only after we were assured by the learned Advocate General that the Government has no objection that the matter be heard by this Bench inspite of the fact that one of us (Silva, J.), is seen to have issued to the petitioner a Certificate at page 19 of the paper book being Exhibit P. 3 in the petition.
2. The petitioner is a retired Government employee. He challenges in this petition under Article 226 of the Constitution of India the letter dated 25th May, 1987, from the under Secretary to the Government of Goa, Daman and Diu, Revenue Department. By the aforesaid communication the petitioner was informed that the representation addressed by him to the Government requesting for counting of his service rendered through the Communidade as "Escrivao" for the purpose of fixing his pensionary benefits has been rejected on the ground that the petitioner was not an absorbed employee. The petitioner therefore seeks for a writ of certiorari or any order for the purpose of quashing the communication dated 25th May, 1987. A further relief is also made in the nature of mandamus commanding the respondents to consider the petitioner's service rendered by him with respondent No. 2 between the period from 27th December, 1958 to 2nd July, 1965 being six years six months and six days for the purposes of computation of his pension and pensionary benefits with a direction that the petitioner be paid by respondent No. 1 or its Accounts Department the pension at the rate of Rs. 670/- per month together with all other present and future benefits.
3. The case of the petitioner is that by order dated 14th November, 1958 issued by the Governor General of Goa, Daman and Diu, under the Portuguese regime, he was appointed as "Escrivao dos Communidades de Netorlim-Colomba-Jaqui-Nundem" (Group of Sanguem Taluka). Thereupon by order dated 5th December, 1960 the petitioner was transferred to another Communidade of Curtorim wherein he worked till 2nd July, 1965. The petitioner was relieved from the said post from 3rd July, 1965 consequent upon his appointment as Assistant Escrivao of Comarca Court of Daman by order of the then Judicial Commissioner of Goa, Daman and Diu dated 5th June, 1965. Accordingly, the petitioner took charge of the said post of Assistant Escrivao on 3rd July, 1965. Subsequently the petitioner was transferred to various courts in Goa having been posted as Assistant to "Escrivao de Direito" of Quepem Court by order dated 29th October, 1965, thereafter transferred to the Court of Civil Judge, Senior Division, Margao as U. D. C. in the year 1976, from where he was shifted to Panaji also as U. D. C. in the year 1980 in the Court of Civil Judge, Senior Division, Panaji. The petitioner continued in that post upto 1981 in which year he was transferred as U.D.C. to the Court of Civil Judge, Senior Division, at Vasco-da-Gama and from there in the same year 1981 transferred on 12th August, 1981 as Assistant Sheristedar in the Court of the District and Sessions Judge, South Goa, Margao, from which post he retired on 31st March, 1985 on superannuation.
At the time of his retirement the District and Sessions Judge, South Goa, Margao, sent the petitioner's papers to the Directorate of Accounts taking into consideration the petitioner's services rendered as employee of the Comunidade, respondent No. 2, for the purposes of approval of his pension. However the Accounts Department declined to take into consideration the period of service rendered by the petitioner with respondent No. 2 on the ground that the petitioner was not an absorbed employee within the meaning of the Goa, Daman and Diu Absorbed Employees Act, 1965 (hereinafter called "the Act"). The Accounts Department agreed to consider only the period of service rendered by the petitioner in the Judicial Department. Therefore fresh pension papers were submitted by the office of the District and Sessions Judge, South Goa, Margao, excluding the service rendered by the petitioner to respondent No. 2 as a result of which the respondent No. 1 is presently paying to the petitioner a pension without considering the service rendered by the petitioner with respondent No. 2. It was further stated that since the Accounts Department declined to consider the petitioner's service with respondent No. 2 the petitioner sent to the said Department his pension papers for consideration of the length of his service rendered in the Judicial Department for the sole purpose of payment of pension without prejudice to his right to get the pension and pensionary benefits refixed after an appropriate order could be obtained to that effect. For this purpose the petitioner approached first the then Lt. Governor of Goa, Daman and Diu requesting him to direct the reconsideration of the petitioner's case for payment of pension bearing in mind the service which he has rendered with respondent No. 2 once there was no break in service. The Lt. Governor acknowledged the receipt of the petitioner's representation and forwarded the same to the Revenue Department for further action. However he learnt that the representation came to be rejected. Therefore the petitioner approached respondent No. 2 where he had served for more than six years and which had even deducted pension contributions from the salary paid to him during that time. The petitioner also applied to the office of the District and Sessions Judge, South Goa, Margao, which was the last Head of Department wherein he worked to remit his pension papers also to respondent No. 2 for the purpose of fixation of pension in respect of the service rendered to the said respondent No. 2. Respondent No. 2, after verifying the papers, forwarded the same to respondent No. 3 for approval. By letter dated 12th February, 1987, the respondent No. 3 conveyed the Government's approval with regard to the pension payable to the petitioner and returned the papers to respondent No. 2 for the purposes of effecting payment of pension and pensionary benefits. However when the petitioner approached respondent No. 2 on the strength of the said letter addressed by the Additional Deputy Collector, dated 12th February, 1987, to the Administrator of Comunidade of Salcete, Margao, the respondent No. 2 declined to effect any payment to the petitioner towards pensionary benefits on the grounds that they had no sufficient funds to make the payment. The respondent No. 2 directed that those papers should be returned to respondent No. 3 and by letter dated 3rd March, 1987, the papers were sent back to the Collector with a request that the same be forwarded to the Director of Accounts, Panaji, in view of the decision of the Finance Department, dated 4th April, 1986 and subsequent Order dated 29th December, 1983, wherein it was decided that the employees who initially had rendered service to the Comunidade and subsequently to the Government should be paid by the Directorate of Accounts. In the said letter the respondent No. 2 informed the Collector that respondent No. 2 was not in a position to make the payment to the petitioner for lack of funds and therefore a request should be made to the Director of Accounts to do the needful in the matter and pay to the petitioner his proportionate dues. However in reply to this move of respondent No. 2 the petitioner received the impugned communication from the Under Secretary of the Department, dated 25th May, 1987, informing the petitioner that his case after careful examination had to be rejected because it was found that the services rendered by him to the Comunidade could not be counted for the purposes of pension as the petitioner was not an absorbed employee.
4. Mr. Dessai, learned Counsel for the petitioner, has taken strong objection against such communication and has vehemently made a grievance that by Order dated 12th February, 1987 the Government had already taken the responsibility for the payment of pension to Comunidade employees. It was submitted by learned Counsel that Government is come to 26 years, three months and four days which would make him entitled to a total pension of Rs. 670/- per month. By considering only the services rendered to the Judicial Department the petitioner was being paid a pension of Rs. 502/- only and as such a loss of Rs. 168/- had to be suffered by him towards the pension payable to the petitioner for the services rendered to respondent No. 2. It was contended that since the petitioner has retired on 31st March, 1985 the petitioner was bound to be paid full pension of Rs. 670/- from 1st April, 1985. It was therefore urged that the communication or Order dated 25th May, 1987 was illegal and arbitrary being against the Order dated 29th December, 1983 and in clear violation of Articles 14 and 16 of the Constitution. It was contended on behalf of the petitioner that the fact whether the petitioner was or not an absorbed employee was immaterial for the purposes of fixing his pension in view of the clear decision taken in the Order dated 29th December, 1983, granting pensionary benefits to all the Government employees who were coming within the purview of the said order irrespective of the fact whether they were Government employees or not. As such, the learned Counsel submitted, by keeping out of that purview the petitioner's service to respondent No. 2 the impugned Order was bound to be held as discriminatory and unconstitutional.
5. Although the respondents have not filed any return, indeed the learned Advocate General has been fair enough not to dispute the implications of the communication dated 4th April, 1983 and the Order dated 29th December, 1983 which was fully relied on by the petitioner to base the claims made in this petition. The learned Advocate General has however invited our attention to the provisions of Rules 13 and 14 of the Central Civil Services (Pension) Rules, 1972 (hereinafter called "the Rules") applicable in this case.
Rule 13 of the Rules provides that the 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. The proviso to the section lays down that officiating or temporary service should be followed without interruption by substantive appointment in the same or another service or post. Rule 14(1) prescribes that 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. Sub-rule (2) says that for the purpose of sub-rule (1), the expression "service" means service under the Government and paid by that Government ...........but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. Sub-rule (3) lays down that in case of a Government servant belonging to the State Government, who is permanently transferred to a service or post to which the 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.
6. The learned Advocate General has submitted that it cannot be said in the present case that there has been straight continuity in service rendered by the petitioner right from his initial employment in the Comunidade because technically there is a break or a gap of one day for the period between the day the petitioner resigned from the post of Assistant to Escrivao on 2nd July, 1965 and the date of joining the Government service on 3rd July, 1965. Further, it was also not possible for the petitioner to claim the benefits of an absorbed employee since admittedly the petitioner never held any absorbed post in the post within the meaning of the Absorbed Employees Act.
7. Upon hearing learned Counsel, we are of the view that the letter dated 4th April, 1983 and the Order dated 29th December, 1983 entirely cover the case of the petitioner. By the said letter and order the Government has made clear its intention that in order to mitigate the hardships of the retired employees who had rendered service to the respondent No. 2 Comunidade as well as to the Government the pension or pensionary benefits should start immediately. Therefore the Directorate of Accounts was directed to take suitable action for fixing their pension accordingly further stating that the Government had decided to assume pensionary liabilities in case of the Government servants who had rendered services to the Comunidade as well as to the Government. The Order has further stipulated that in the event of the Government of India failing to agree to the proposal, to which a reference was required to be made for its approval, the share of the Comunidade for the pensionary benefits should be recovered from the concerned Administration of Comunidade. Thus it is obvious that the petitioner was entitled to get the service rendered by him with respondent No. 2, between the period from 27th December, 1958 to 2nd July, 1965, to be considered for the purposes of computation of his pension and pensionary benefits.
8. It was contended by the learned Counsel that the petitioner has put in totally a length of service of more than 19 years in the courts besides the service of more than six years as "Escrivao dos Communidades" and his total service comes to 26 years 3 months and 4 days. Thus, considering the total length of service, he is entitled to a pension of Rs. 670/- per month as the last salary drawn by the petitioner was in the scale of Rs. 435- 700. Since presently the petitioner is being paid only Rs. 502/- a further payment of Rs. 168/- is due to him for the total service rendered by him as "Escrivao dos Comunidades".
9. This submission seems to be correct and deserves acceptance. In the facts and circumstances already mentioned above and bearing in mind that the petitioner, between the period from 27th December, 1958 to 2nd July, 1965, has rendered service to the Comunidade for a period of 6 years 6 months and 6 days the said period is to be taken into consideration for the purposes of computation of his pensionary benefits in addition to the period of service rendered by him in the Judicial Department. Thus, the Order dated 29th December, 1983 is to be implemented by the respondents in letter and spirit since the same is in consonance with the decision taken by the Government and which was conveyed to respondent No. 2 by letter dt 12th February, 1987.
10. In the result the petition is bound to succeed and is therefore allowed in terms of prayers (a) and (b) of the petition. The petitioner will be entitled to the pensionary benefits calculated at the rate of Rs. 670/- from 1st April, 1985. The respondent No. 1 is directed to refix the pension of the petitioner in terms of this Order within a period of 12 weeks from today. Rule accordingly made absolute in the above terms with however no order as to costs.