Manipur High Court
Page |2 vs State Of Manipur Represented By The on 20 September, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATPAM Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA Date: 2022.10.21 11:44:29 +05'30'
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 369 of 2022
1. Khumukcham Robindro Singh, aged 59
years, S/o late Kh. Indrajit Singh
Address: Khurai Soibam Leikai Meri Leirak
A/P Khurai Ahongei Leikai
P.S.: Porompat
P.O.: Lamlong, Pin- 795010
District : Imphal East
Designation : Fish Farm Assistant,
Fisheries Department, Government of
Manipur,
Lamphelpat- Pin 795004.
2. L. Chinkhan Khup, aged about 56 yrs.
S/o late L. Ginvum
Address : Tangnuam, Churachandpur
P.S.: Churachandpur
P.O.: New Lamka, Pin-795128
District: Churachandpur
Designation : Fish Farm Assistant,
Fisheries Department, Government of
Manipur,
Lamphelpat- Pin 795004.
3. N. Khaitinlam, aged 57 yrs.
WP(C) No 369 of 2022
Page |2
S/o late Paokhothang
Address : Najareth
P.S.: Churachandpur
P.O.: Saikot, Pin- 795128
District: Churachandpur.
Designation : Fish Farm Assistant
Fisheries Department, Government of
Manipur.
...Petitioners
- versus -
1. State of Manipur represented by the
Additional Chief Secretary (Fisheries),
Government of Manipur, New Secretariat
Complex, P.O. & P.S. Imphal, District
Imphal West, 795001.
2. Commissioner/Secretary, Government of
Manipur, Department of Personnel &
Administrative Reforms (Personnel
Division), Old Secretariat Complex, P.O. &
P.S. Imphal, District Imphal West, 795001.
3. Director of Fisheries, Government of
Manipur, Lamphelpat, Pin- 795004.
...Respondents
WP(C) No 369 of 2022
Page |3
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. A. Romenkumar, Advocate
For the Respondents :: Mr. Th. Sukumar, Addl. GA
Date of Hearing and
Judgment & Order :: 20.09.2022
JUDGMENT AND ORDER
(ORAL)
This writ petition has been filed seeking a writ of mandamus directing the respondents to count the service of the petitioners commencing from the initial officiating appointment with effect from 1986 till the regularization for the purpose of pensionary benefits in terms of Rule 13 of Manipur Civil Service (Pension) Rules, 1977 [for short, "the Rules of 1977"] read with Office Memorandum dated 5.7.2003 and in terms of the judgment dated 11.4.2022 delivered in W.P.(C) No.41 of 2020.
2. Heard Mr. A. Romenkumar, learned counsel for the petitioners and Mr. Th. Sukumar Singh, learned Additional Government Advocate for the respondents.
3. The case of the petitioners is that on the recommendation of the duly constituted Departmental Promotion Committee (DPC), the petitioners were appointed as Fish Farm Assistants on officiating basis against the temporary posts lying WP(C) No 369 of 2022 Page |4 vacant in the Fishery Department on 28.2.1986, 11.5.1986 and 6.5.1986 respectively. The petitioners after their appointments have been discharging their duties properly and effectively to the satisfaction of their superiors continuously without any break. By the order dated 19.12.2011, the Director of Fisheries converted the officiating appointments to contract appointment by protecting their pay. In the said order, the names of the petitioners found place at Serial Nos.17, 21 and 99. The State Government issued an order dated 13.12.2019, whereby Grade III and IV contract employees/former officiating appointees have been regularized with effect from 13.12.2019 itself against 74 supernumerary posts created by the State Government and the names of the petitioners found at Serial Nos.56, 57 and 60.
4. Further case of the petitioners is that the State Government has issued the Office Memorandum dated 5.7.2003 for linking up the service rendered as adhoc/officiating etc. for counting the qualifying service for pension. On 10.5.2022, the third petitioner submitted a representation to the respondent authorities to count their service as valid qualifying service for the purpose of pensionary benefits, but no action has been taken by the respondent authorities.
WP(C) No 369 of 2022 Page |5
5. According to the petitioners, their case is squarely covered by Rule 13 of the Rules of 1977 read with the provisions of the Office Memorandum dated 5.7.2003 and also in terms of the judgment of this Court dated 11.4.2022 passed in W.P.(C) N.41 of 2020. Thus, the petitioners are entitled to count the entire period of service commencing from the initial officiating appointment with effect from on 28.2.1986, 11.5.1986 and 6.5.1986 respectively for the purpose of pensionary benefits.
6. The respondents filed affidavit-in-opposition stating that the petitioners were initially appointed on officiating basis and the officiating appointments of the petitioners were converted into contract appointment and the petitioners accepted such appointment without any objection and accordingly, they continued with their service till their services were absorbed against the supernumerary posts created later on. It is stated that the order dated 13.12.2019 issued by the Government was not meant for regularization of the officiating employees from their initial appointment, but to absorb their services on regular basis with effect from 13.12.2019 against the supernumerary posts created on 21.8.2019.
WP(C) No 369 of 2022 Page |6
7. It is further stated that the petitioners were not regularized from their initial officiating appointment, but they were absorbed from their contract appointment. The provision relating to linking up of past officiating service as contained in the Office Memorandum dated 5.7.2003 has no application in the case of the petitioners, as their officiating appointments were interrupted by the contract appointments before absorption. The petitioners were not absorbed either from ad-hoc or officiating basis, but from contract appointment. As such, Rule 13 of the Rules of 1977 has no application in the present case. The representation of the petitioners was received on 11.5.2022 and the present writ petition was filed on 23.5.2022. Therefore, the allegation of the petitioners that no action has been taken by the authority in such a short period is illogical and not reasonable.
8. The learned counsel for the petitioners submitted that the petitioners were initially appointed as Fish Farm Assistants on officiating basis against the temporary posts lying vacant in the Fishery Department. He would submit that by the order dated 19.12.2011, the Director of Fisheries converted the officiating appointment to contract appointment by protecting the pay of the petitioners and the contract services have been regularized with effect from 13.12.2019 itself. He would submit that the services of WP(C) No 369 of 2022 Page |7 the petitioners have been regularized without any break from the date of their initial officiating appointment with effect from 1986 and as such, the regularized service is valid qualifying service for the purpose of pensionary benefit.
9. The learned counsel further submitted that the State Government had issued an order dated 13.12.2019 in two parts. The first part deals with creation of 74 supernumerary posts, though the petitioners were appointed on officiating basis against the temporary post lying vacant and the second part deals with the regularization. In fact, the State Government has issued an Office Memorandum dated 5.7.2003 for linking up the service rendered on adhoc/officiating etc. for counting the qualifying service for pension. However, in the case on hand, the respondents are adopting pick and choose method by allowing similarly situated person to continue on officiating basis giving pension under the MCS (Pension) Rules of 1977.
10. The learned counsel then submitted that on 12.8.2009, the Director of Fisheries has notified tentative seniority list of officiating Fish Farm Assistant/Craft Assistant/Revenue Assistant/Gear Assistant/Lab Assistant in the Fisheries Department. Out of 127 officiating employees of the above WP(C) No 369 of 2022 Page |8 categories of posts, the name of one Babuyaima Singh appeared at Serial No.102 ignoring even the senior-most employee who is the first petitioner in W.P.(C) No.41 of 2020. According to learned counsel, the pick and choose method adopted by the respondents clearly demonstrates the dilatory tactics of the respondent authorities with cool calculations to indulge in favouritism to put the fate of the petitioners in doldrums taking shelter behind the smoke screen of non-applicability of the Rules of 1977. The fact remains that similarly situated employees are granted pension on the basis of cut-off date.
11. Taking through the order dated 11.4.2022 passed in W.P.(C) No.41 of 2020, the learned counsel for the petitioners submitted that 29 petitioners in the said writ petition have sought for counting their officiating appointment for pensionary benefit, although they are similarly situated with the present petitioners they could not participate and join in the said writ petition because of unavoidable circumstances. By the order dated 11.4.2022, the said writ petition was allowed, thereby directing the respondents to count the officiating services for pensionary benefit. Since the petitioners are similarly placed persons, the order passed in W.P.(C) No.41 of 2020 is squarely covers the present petition. WP(C) No 369 of 2022 Page |9
12. The learned counsel next submitted that the petitioners were all appointed against the vacant posts on the recommendation by the DPC and thereafter, the respondents turned around and took the plea that there is no vacant post. Such flagrant mistake committed by the respondents cannot be an excuse to deny the right of the petitioners. In fact, the adhoc appointment of one Vivekananda was made after undergoing the process of open and competitive selection fulfilling the constitutional mandate under Article 16 of the Constitution of India, whereas the officiating appointment of the petitioners were made after following all procedures for regular appointment. He would submit that pensionary benefit is not a bounty, but means of livelihood of the citizen which is also a property guaranteed under Articles 14, 16, 21 and 300A of the Constitution of India. Therefore, the petitioners having no other alternative remedy available to them, approached this Court to grant relief directing the respondents to count the services of the petitioners for the purpose of pensionary benefits. Thus, a prayer is made to allow the writ petition.
13. Per contra, the learned Additional Government Advocate submitted that the petitioners' initial appointment on officiating basis was interrupted by the contract engagement and therefore, the claim of the petitioners that their services have been WP(C) No 369 of 2022 P a g e | 10 regularized without any break from the date of their initial officiating appointment is without any legal basis. He would submit that the Office Memorandum dated 5.7.2003 specifically provides that the initial officiating or temporary service shall be followed without interruption by the substantive appointment. However, in the case on hand, vide order dated 19.12.2011, the officiating services of the petitioners were converted into contract appointment and,in other words, the initial officiating service of the petitioners was interrupted by converting it into contract appointment before their subsequent regularization with effect from 13.12.2019. Therefore, the provision for service linkup for the purpose of pensionary benefits stated in the Office Memorandum dated 5.7.2003 is not applicable to the petitioners.
14. The learned Additional Government Pleader further submitted that the present case does not fall within the purview of the Rules of 1977 and that the order dated 13.12.2019 by the Government was not meant for regularization of the officiating employees from their initial appointment, but to absorb their services on regular basis with effect from 13.12.2019 against the supernumerary posts created on 21.8.2019. That apart, the provision relating to linking up of past officiating service as contained in the Office Memorandum dated 5.7.2003 has no WP(C) No 369 of 2022 P a g e | 11 application in the case of the petitioners, as their officiating appointments were interrupted by the contract appointments before absorption. The petitioners are not similarly situated persons and they cannot claim similar benefit since their initial services were different. Thus, a prayer is made to dismiss the writ petition.
15. This Court considered the rival submissions made by the learned counsel for the parties and also perused the materials available on record.
16. The grievance of the petitioners is that they were appointed as Fish Farm Assistants in Fishery Department on officiating capacity against the temporary vacant posts on the recommendation of the duly constituted DPC. However, the State Government, in the year 2011, has converted the officiating appointment of the petitioners as contract appointment and on 13.12.2019, the State Government regularized the services of the petitioners after creating supernumerary posts. Thus, the petitioners prayed for counting their initial officiating appointment till their regularization for the purpose of pensionary benefits in terms of Rule 13 of the Rules of 1977.
17. On the other hand, it is the say of the respondents that the petitioners were initially appointed on officiating basis followed WP(C) No 369 of 2022 P a g e | 12 by contract engagement and, thus, their initial appointment was interrupted. As such, the claim of the petitioners that their services ought to be regularized without any break from the date of their initial officiating appointment is without any legal basis.
18. As could be seen from the materials produced by the parties, it is clear that on the recommendation of the duly constituted DPC, the petitioners were appointed in the year 1986 and while they were discharging their duties, by the order dated 19.12.2011, the Director of Fisheries passed an order converting the officiating appointment of 128 employees in the Fisheries Department to contract appointment by protecting their pay as Rs.4000-100-6000; Rs.3050-75-3950-80-4590 and Rs.2550-55-2660-60-3200 respectively. While so, the State Government had issued an order dated 13.12.2019 in two parts and the first part deals with the creation of 74 supernumerary posts, though the petitioners were appointed on officiating basis against the temporary post lying vacant. In the second part, by way of addendum, regularization order has been issued to the effect that "consequently, services of the above employees (both Grade III and IV contract appointees/former officiating appointees) have been regularized w.e.f. 13.12.2019 itself against the aforesaid 74 posts of supernumerary posts created by the State Government." WP(C) No 369 of 2022 P a g e | 13
19. According to the petitioners, though the Director of Fisheries passed an order converting the officiating appointment of 128 employees in the Fisheries Department to contract appointment by protecting their pay, the contract appointment of one M.Babuyaima Singh has been regularized with retrospective effect from 4.6.1992 and he was allowed to withdraw pensionary benefit under the Rules of 1977 vide order dated 31.12.2016, but the petitioners were given regularization only on 13.12.2019 with immediate effect.
20. On a perusal of Annexure-A to the order dated 19.12.2011 of the Director of Fisheries, it is seen that the name of Babuyaima Singh appeared at Serial No.20 among 128 persons. However, by cherry-picking Babyyaima Singh, the Director of Fisheries has issued an order dated 31.12.2016 in his favour, regularizing his service with retrospective effect from 4.6.1992 against the post of Fish Farm Assistant vacated by one Maringchung Kabul (expired) or any other suitable vacant post and he was also allowed to draw pensionary benefits.
21. According to the petitioners, the said approach adopted by the respondents of picking and choosing a particular person, by leaving the petitioners, who are similarly situated, is WP(C) No 369 of 2022 P a g e | 14 untenable. To support the said stand, learned counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in the case of Santosh Kumar v. G.R.Chawla, reported in (2003) 10 SCC 513, wherein, it has been held as under:
"12. A perusal of the judgment .... adopting the policy of pick and choose from the merit list prepared by PSC. The High Court, after taking into consideration the principles laid down by this Court in a number of judgments, recorded a finding as follows:
"It is evident ...... But the State Government adopted a policy of pick and choose, out of the list and wrongly allowed them to steal a march over the direct recruits in the matter of seniority which cannot be permitted. ....""
Thus, as per the dictum laid down by the Hon'ble Supreme Court, the policy of pick and choose adopted by the respondent authorities is unacceptable.
22. It is also seen from the seniority list of officiating Fish Farm Assistant, Craft Assistant, Revenue Assistant, Gear Assistant and Lab Assistant in the Fisheries Department that out of the 127 officiating employees of the above categories of posts, the name of Babuyaima Singh is appearing at Serial No.102 and the first WP(C) No 369 of 2022 P a g e | 15 petitioneris senior to him. Such course adopted by the respondent authorities is clear classification of similarly situated employees in granting pension on the basis of cut-off date. That apart, the act of the respondent authorities is in violation of Articles 14 and 16 of the Constitution of India as the similarly situated Babuyaima Singh was granted retrospective regularization with effect from 4.6.1992, whereas the petitioners who are similarly placed persons were granted regularization only on 13.12.2019 with immediate effect.
23. Time and again, the Hon'ble Supreme Court held that classification of similarly situated employees in granting pension on the basis of cut-off date is not justified and violative of Articles 14 and 16 of the Constitution of India.
24. It is pertinent to point out that the State Government had issued an Office Memorandum dated 5.7.2003 for linking up the service rendered either ad-hoc or officiating or any other form for counting the qualifying service for pension. In the said Office Memorandum, in Paragraph 1(i), it has been stated as under:
"As per Rule 13 of the Manipur Civil Service (Pension) Rules, 1977, as amended, qualifying service of a Govt. servant for pension purpose commences from the date he takes charge of a post to which he is first appointed either WP(C) No 369 of 2022 P a g e | 16 substantively or in officiating or in temporary capacity provided that officiating or temporary service is followed without interrupting by substantive appointment in the same or another service or another post. Therefore, in cases where the above conditions are satisfied and Courts have directed for counting of qualifying services for pension benefits the Court orders may be complied with immediately without referring to Department of Personnel. As regards other benefits of seniority etc. action as per rules may be taken up."
25. Sub-clause (i) of paragraph 2 of the said Office Memorandum provides as under:
"(i)In case of employee's request for counting of interrupted service rendered in ad-hoc/officiating capacity just preceding their regular appointment as qualifying service only for pension purpose, the same may be agreed to in case of officiating service."
26. The employees who have rendered services on ad- hoc basis can have the benefit of past service for the purpose of pension provided the conditions mentioned in clauses (a) to (d) are fulfilled. Here, the petitioners have fulfilled the conditions stipulated in the Office Memorandum dated 5.7.2003, as they have been WP(C) No 369 of 2022 P a g e | 17 appointed based on the recommendation of the duly constituted DPC.
27. On 10.5.2022, the third petitioner submitted a representation requesting to count his officiating service with effect from the date of initial appointment which is followed subsequently by regularization in terms of the Manipur Civil Service (Pension) Rules, 1977 read with the Office Memorandum dated 5.7.2003. Admittedly, the said representation has not been considered by the respondent authorities till date. One way or the other, the respondent authorities are duty bound to consider and dispose of the representation and communicate the decision thereon to him. The respondents contended that without giving breathing time, the petitioner has approached this Court.
28. According to the petitioners, on 4.3.2009, the Department of Forest and Environment has allowed linking up of service of one Ph. Vivekananda Sharma based on the Office Memorandum dated 5.7.2003. In the order dated 4.3.2009, the Principal Secretary, Forest Department linked up the service with effect from 23.6.1999 to 1.3.2007 only for the purpose of pensionary benefits and not for any other purposes including seniority. WP(C) No 369 of 2022 P a g e | 18 Highlighting the same, the petitioners prayed for similar benefit to them.
29. The learned Government Pleader further submitted that the service linkup in the case of Ph. Vivekananda Sharma was allowed as per the provision of the Office Memorandum dated 5.7.2003 and the petitioners cannot take the instance of Ph. Vivekananda Sharma as the petitioners' initial service conditions were totally different.
30. Admittedly, nothing has been produced by the respondents to show that the service conditions of Ph. Vivekananda Sharma and the petitioners are different. In the absence of any service conditions produced by the respondents in the case of Ph. Vivekananda Sharma, it cannot be contended that the service conditions of the petitioners and Ph. Vivekananda Sharma are different though working in two different departments. When the respondents, by relying upon the Office Memorandum dated 5.7.2003 extended the benefit to Ph. Vivekananda Sharma, the same benefit ought to have been given to the petitioners and the like. That apart, this Court is of the view that the case of the petitioners is on a better footing in terms of the settled law than the case of Ph. Vivekananda Sharma.
WP(C) No 369 of 2022 P a g e | 19
31. The initial appointment orders of the petitioners clearly show that they were appointed against the vacant posts on the recommendation made by the duly constituted DPC. Further, the supernumerary posts created by the State could have been from the date of initial officiating appointment since there is no extra financial involvement because the petitioners are already given protection of pay from the date of their initial appointment.
32. In the instant case, the petitioners, who were appointed on officiating basis on the recommendation made by DPC in the year 1986, have been converted on contract basis in the year 2011 by creating supernumerary posts. The contract service is treated as temporary/ permanent and is counted for pension subject to the conditions laid down in pension rules.
33. The conditions of qualifying service contained in the Civil Service Regulations provides thus:
"The question in regard to the extent to which service on contract should count for pension has since been reviewed, and it has been decided by the President, in partial modification of the orders referred to above, that the contract service should be treated like any other service temporary & permanent, rendered in a pensionable establishment, and allowed to count WP(C) No 369 of 2022 P a g e | 20 for pension subject to the usual conditions laid down in the pension rules, irrespective of whether the officer concerned subscribed to the Contributory Provident Fund or not throughout the period of contract, provided that for the period during which he did not subscribe to the Contributory Provident Fund, he did not draw inflated rates of pay by reason of the absence of any retirement benefits."
34. It appears that the appointment of the petitioners has been converted from the officiating appointments to contract service by the respondents authorities. The posts held by them are in pensionable establishments and at the same time, the petitioners did not draw the inflated rates of pay by reason of the absence of any retirement benefits.
35. As stated supra, since the entire period of service has been converted into contract with the protection of pay from the initial appointment, the petitioners' contract service has been treated as qualifying service for the benefit of pension in terms of Civil Service Regulations. The period of work-charged service can be reckoned for purpose of computation of qualifying service for grant of pension.
WP(C) No 369 of 2022 P a g e | 21
36. In Habib Khan v. State of Uttarkhand, reported in (2019) 10 SCC 542, the Hon'ble Supreme Court, while setting the order of the High Court, observed that "the appellants are entitled to reckon the period of work-charged service for purposes of computation of "qualifying service" for grant of pension. We order accordingly". Thus, the contention of the respondents that the service of the petitioners is interrupted cannot be countenanced. If really, the service of the petitioners was interrupted, their pay should not have been protected. As rightly argued by learned counsel for the petitioners, since there was no interruption, their pay has been protected".
37. In Madhukar v. State of Maharastra, reported in AIR 2014 SC 2206, the Hon'ble Supreme Court held as under:
"13. In the case of the appellant, there is notional break in service. He resigned from the Government service on 18.07.1960 and joined the post of Lecturer in Hislop College, Nagpur on the same day i.e. 18.07.1960. Further, higher authorities have recommended to add the earlier period of service for determination of pensionary benefit. Being so, in absence of a specific direction to the contrary in the service record, the interruption between two spells of service rendered by the appellant under the Government WP(C) No 369 of 2022 P a g e | 22 shall be treated as automatically condoned; the earlier service rendered by appellant is to be counted towards qualifying service."
38. In the light of the decisions aforesaid and in view of the discussions held supra, in the present case, there is no interruption of service, the petitioners having been in the same department with pay protection. Therefore, the initial service on officiating basis shall be counted towards the qualifying service for pension. Furthermore, in the light of the decision in Karan Singh (supra), the petitioners are entitled to claim pension on the supernumerary posts.
39. It is trite that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service.
40. In Deokinandan Prasad v. State of Bihar, reported in (1971) 2 SCC 330, the Apex Court ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount WP(C) No 369 of 2022 P a g e | 23 having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect, but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. Thus, the hard earned benefit, which accrues to an employee, is in the nature of property. This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India. In the instant case, the petitioners have earned the consequential benefit of pension by dint of long, continuous, faithful and unblemished service. Such right is in the nature of right to property under Article 300A of the Constitution of India.
41. It is apposite to mention that earlier similarly situated petitioners numbering 29 have filed W.P.(C) No.41 of 2020 for counting their officiating appointment for pensionary benefit and by the order dated 11.4.2022, the said writ petition was allowed. In paragraphs 47 to 51, this Court held as under:
"47. From the material produced by the petitioners it is clear that the services of the petitioners have been regularized without any break from the date of their initial officiating appointment with effect from 3.2.1986 and as such, the regularized service is the valid qualifying service for the purpose of pensionary WP(C) No 369 of 2022 P a g e | 24 benefit. That apart, the petitioners have also fulfilled the conditions stipulated in the Office Memorandum dated 5.7.2003 for counting of the qualifying service for pension benefits. It is also clear from the records that the case of the petitioners is squarely covered by Rule 13 of the Rules of 1977 read with the provisions of the Office Memorandum dated 5.7.2003.
48. The contentions of the respondents that the case of the petitioners does not fall within the purview of Rule 13 of the Rules of 1977 as there was break in the officiating services rendered by them before their subsequent regularization cannot be countenanced. Since the similarly placed persons have been given the benefit of regularization retrospectively, the same benefit should be extended to the petitioners also. The Office Memorandum dated 5.7.2003 has to be applied equally to all. However, in the instant case, the respondent authorities have not applied the said Office Memorandum which speaks about the retrospective regularization in case of officiating service also.
49. It is reiterated that though the Office Memorandum dated 5.7.2003 stipulates the initial officiating or temporary service shall be followed without interrupting by substantive appointment and though by the order dated WP(C) No 369 of 2022 P a g e | 25 19.12.2011 the officiating services of the petitioners were converted into contract appointment and the officiating service of the petitioners was interrupted by the contract appointment before their subsequent regularization with effect from 13.12.2019 since their pay has been protected, the argument of the learned Government Advocate that the benefits contained in the Officer Memorandum dated 5.7.2003 are not applicable to the petitioners is discountenanced.
50. For the foregoing discussions, this Court is of the view that since the appointments of the petitioners have been made on the recommendation of a competent DPC, they can have the benefit of past services rendered by them. Accordingly, they are entitled to the relief sought for in the writ petition.
51. In the result, the writ petition is allowed The respondents are directed to count the service of the petitioners commencing from the initial officiating appointment with effect from 3.2.1986 till the regularization for the purpose of pensionary benefits in terms of Rule 13 of the Rules of 1977 read with the Office Memorandum dated 5.7.2003."
WP(C) No 369 of 2022 P a g e | 26
42. As against the order dated 11.4.2022 passed in W.P.(C) No.41 of 2020, no appeal has been filed and the said order attained finality. The respondents have also not stated anything about the filing of the appeal against the order dated 11.4.2022 passed in W.P.(C) No.41 of 2020. The petitioners pleaded that they are identical to that of the petitioners in W.P.(C) No.41 of 2020. Since the petitioners are similarly situated with that of the petitioners in W.P.(C) No.41 of 2020, the present writ petition is squarely covered by the order dated 11.4.2022 and thus, the petitioners herein also entitled to claim relief as granted in W.P.(C) No.41 of 2020.
43. In the result, the writ petition is allowed The respondents are directed to count the service of the petitioners commencing from the initial officiating appointment with effect from 28.2.1986, 11.5.1986 and 6.5.1986 respectively till the regularization for the purpose of pensionary benefits in terms of Rule 13 of the Rules of 1977 read with the Office Memorandum dated 5.7.2003. No costs.
JUDGE FR/NFR Sushil WP(C) No 369 of 2022