...~ ® •L, ii-:_-_-- THE HIGH COURT OF SIKKIM = GANGTOK WRIT PETITION (C) NO. 33 0F 2003 In the matter of an application under Article 226 of the Constitution of India and in the matter of Arun Kumar Singh, S/o Shri Chulahan Prasad Singh, Graduate Teacher (Biology), Government Junior mgh School, Namok, North Sikkim versus State Of Sikkim through the Secretary, Department of Education, Government of Sikkim, Tashiling Secretariat, Gangtok, East Sikkim ...... Petitioner ...... Respondent AND WI.IT PETITION (C) NO. 39 0F ZOOS Bhubneshwar Prasad Chaudhary, S/o Late Mana Chaudhary, R/O Jetui, P.S. & Dist. Hazipur, Bihar versus State of Sikkim through the Secretary, Department of Education, Government of Sikkim, Tashiling Secretariat, Gangtok, East Sikkim ...... Petitioner .,,.. Flesp®ndent Forthepetitioners : Mr. A. K. Upadhyaya, Senior Advocate assisted by Ms, S. Pradhan, Advocate. For the respondents : Mr. S. P. Wangdi, Advocate General assisted by Mr. J. 8. Pradhan, Government Advocate and Mr. Ka rm a Th i nley, Assista nt Government Advocate. tr-.- ® PRESENT: THE I]oN'BLE MFL ]uSTlcE N. S. SINGI+, CHIEF I.isncE {AC1"G). THE tloN'BLE MR. ]usmcE A. p. suBBi\, ]uDGE. Last date of hearing = i±r May, 2005. DAVE OF ]uDGHENT = 12" ]uLY, 2005. I ± E2 9 E E J± I A. P. Su_b_bail Since facts of both the writ petitions and the questions of law that arise are identical they are taken up together and are being disposed of by this common judgment. 2. The case of the writ petitioner, Shri Arun Kumar Singh, in Writ Petition no. 33 of 2003, is that he is a graduate teacher presently serving the Education Department, Government of Sikkim and posted at Government Junior High School, Namok, North Sikkjm, He joined service as graduate teacher on 4th September, 1980 on ad hoc basis. The ad hoc appointment of the writ petitioner was brought into contract service along with others with effect from 4th May, 1982 for a period of 3 years at the first instance. Thereafter, the contracct service Of the petitioner was extended from time to time. Ultimately his services were terminated on 18th December, 1990. On such termiiiation, the writ petitioher and other similarly placed teachers filed a writ petition being no.27 Of 1994 in this High Court and pursuant to the order passed by a Division Bench of this Court in the said Writ Petition the petitioner was appointed as graduate teacher (Biology) on 20th June, 1996 vide Office Order no.51/Est/Edn. A---~ The petitioner has prayed for three main reliefs, namely - (i) two pre-mature increments with effect from 3rd September, 1990 in terms of notification no.178/Gen/Est dated 24th October,1980; nil advancement grade with effect from 2nd August, 1994 in terms of notification no.14/Gen/Dop dated 15th June, 1996; and (iii) notional fixation of initial pay of the petitioner after granting him the two pre-mature increments and the advancement grade as prayed for above and duly counting the break between 18th December, 1990 to 20th June, 1996 as qualifying service without arrears of salary. In addition to the above, the petitioner has also prayed for a direction to the respondent to prepare and publish seniority list duly protecting his seniority from the date of his initial appointment i.e. 4th September, 1980. 3. The brief facts of the Writ Petition no. 39 of 2003 are that the petitioner, Shri Bhubneshwar Prasad Chaudhary joined service as graduate teacller under the Education Department, Government of Sikkim as graduate teacher on 2nd June, 1981 on contract basis. His contract service was extended from time to time till the same was terminated on 18th December, 1990. The petitioner along with other petitioners filed Writ Petition no.27 of 1994 in this Court seeking regularisation of their services and pursuant to the uL..-- ¥ order passed in the said Writ Petition he was appointed as graduate teacher on regular basis with effect from 14th June, 1996. The main relief prayed for by him are similar to the relief prayed for by the writ petitioner in the above Writ Petition no.33 of 2003, namely, two pre-mature increments with effect from 2nd June, 1991, advancement grade with effect from 2nd August, 1994 and notional fixation of his initial pay after the grant of the two pre-mature increments and the advancement grade prayed for by him and duly counting the break between 18th December, 1990 to 15th June, 1996 as qualifying service without arrears of pay. In addition to the above main reliefs he also prayed for retirement benefits by duly counting the period from 2nd June, 1981 to 31St March, 2003 as qualifying service. 4. The State-respondent filed separate counter- affidavits and contended that the petitioners in both the cases were not eligible for grant of two pre-mature increments as they had not completed the requisite years of service required under the related notification. With regard to the relief of advancement grade, it was contended that the petitioners were entitled to advancement grade subject to fulfillment of the criteria laid down in notification no.38/Gen/DOP dated 23rd September, 1999. As regards the notional fixation of initial pay of the petitioners on their appointment on regular basis, it was contended that the period between the date of termination of the contract service in the year 1990 and the appointment of the petitioner on regular basis in 1996 had to be treated as RE= .. RI= leave without pay under the terms of the appointment on regular basis and as such, while fixing the pay notionally on their appointment the break in service cannot be counted towards qualifying service. Accordingly, neither the question of protection of seniority of the petitioner in Writ Petition No.33 of 2003 nor the question of retirement benefits to the petitioner in Writ Petition no.39 Of 2003 would arise. 5. Mr. A. K. Upadhyaya, the learned Senior counsel assisted by Ms. S. Pradhan, learned counsel for the petitioners and Mr. S. P. Wangdi, learned Advocate General assisted by Mr. J. a. Pradhan, Government Advocate and Mr. Karma Thinley, Assistant Government Advocate for the State-respondents were heard. The main points that arise for consideration in both the cases are (a) whether the petitioners are entitled to two pre-mature increments (b) whether advancement grades are admissible to the petitioners under the provision of the relevant rules and (c) whether fixation of initial pay can be done duly counting the break period as qualifying service without arrears Of salary. In order to appreciate the rival contentions raised by the pall:ies, it is useful to notice the relevant provisions of the different rules and notifications relied on by the parties, at the first instance. 8. The first notification relied on by the petitioners is notification no.178/Gen/Est. dated 24th October, 1980. This ....- .ay dr nnotification introduced the scheme of granting pre-mature increment to the teachers of all grades including Head Masters of Primary/Jr. High Schools/lligh Schools and the Principals of Higher Secondary Schools (both on reaular and contract basis) on completion of specific period of service tenure. Clause 2 of the notification which is relevant may be reproduced as under:- "2. Further, teachers of all Grades including Head Masters of Primary/Jr. High Schools/High Schools and the Principals of Higher Secondary Schools (both on reaular and contract basis) shall be entitled to premature increments on completion of tenure of services mentioned below: - (a) Total completed 10- 2 advanceincrements 14 years of service at the lowest rate of the relevant scale. (b) Total completed 15- 3 advanceincrements 19 years of service at the lowest rate of the relevant scale. (c) Total completed 20- 4 advanceincrements 24 years of service at the lowest rate of the relevant scale. (d) Total completed service Of 25 years and above. 5 advance increments at the lowest rate of the relevant scale. Total comDleted vears Of service" means the completed years of service rendered in a substantive, officiating or temporary capacity in a partioufar post of Teacher under the Education Department and inclLldes: (a) the period of leave other than extra- ordinarv leave or leave without Day." The above scheme of pre-mature increment was abolished with effect from 2nd August, 1994 vide notification no.14/GEN/DOP dated 15th June, 1996 which was made effective retrospectively from 2nd August, 1994. The relevant portion of this notification is as follows:- ®`* "This Scheme shall be deemed to have come into force on 2nd day of August, 1994. Sl. Category Existing Corresponding pay scale No. scale of Advancement Grade. 1. Graduate Teacher/ Rs.152040-1600 Rs.1820-60-2600-EBr- Head Master of EB-50-2300-EB- 75-3200 Junior " h School 60-2660 2. Post Graduate Rs.1820-60-2600 Rs.2525-75-3200-EB- Teacher/Head EB-75-3200 1004000 Master of Stondary Sthcol 3. Principal ofsr. Rs.2525-75-3200-Rs.3450-1254700 Secondary school EB-loo+OOO 2. Attainment of the Advancement Grade shall be decided by Departmental Proniotion Committee constituted for the purpose vide Notification No.33/GEN/DOP dated 27.9.94. 3. The Scheme of Pre-mature Increment Drovided on the basis Of lenath of service under Para 2 Of the Notification No.178/GEN/Est. dt. 24.10.1980. shall be deemed to have been abolished with effect from 2nd dav of Auaust. rm." On 24th January, 1998, the Sikkim Government Services (Revised Pay) Rules, 1998 were promulgated by the Governor Of Sikkim jn exeiicise Of the powers provided under proviso to Article 309 Of the Constitution. These rules were enforeed retrospectively with eifect from lst January, 1996. The Sikkim Government Services (Revised Pay) (Amendment) Rules, 1998 which amended the above rules in 1998 added rule 11 to the above Sikkim Government Service (Revised Pay) Rules, 1998 as under:- "(a) Government servants up to the level of Deputy Secretary and equivalent shall be granted pay scales Of the advancerTient grade on completion of 10 years Of continuous service in a post/grade if they do not get any promotion during that period are given in Appendix-II subject to, (i) Clearance by Departmental Promotion Conmjttee, ®,¥ (ii) Non-appearance of any adverse entry in their Confidential Reports for preceding three years prior to consideration for advancement grade. Provided that grant of advancement grade under this rule shall not be deemed to be promotion to the higher grade nor the employee shall have right to claim for promotion unless vacancy in such higher grade exists and is otherwise eligible to be considered for promotion to such higher grade. (b) Grant of advancement scale of pay would not involve any change in the designation of the employee concerned. (c) Grant of advancement grade of pay shall be once in a particular post/grade." Therefore, under the above new mule 11 provision was made for advancement grade to government employees of different grade upto Deputy Secretary and equivalent grade. However, the above rule 11 was deleted by the Sikkim Government Services (Revised Pay) Amendment Rules, 1999 on and from lst January, 1996 i.e. the date on which the rules were brought into force. Rule 2 of the said Amendment Rules provided as follows:- "2. In the Sikkim Government Service (Revised Pay) Rules, 1998 (hereinafter referred to as the said rules), rule 11 shall be deleted." upon deletion of rule 11 from the Sikkim Government Service (Revised Pay) Rules, 1998 the Government simultaneously made separate provision for grant of advancement grade to different categories of government servants and promulgated the Sikkim Government Services (Advancement Grade) Rules, 1999 duly making it effective retrospectively from lst January, 1996. These rules were published vide notification no.38/GEN/DOP dated 23rd September, 1999. These rules E= ®- +=` L- similarly made comprehensive provision for grant of advancement grade to government servants up to the level of Deputy Secretary on completion of 10 years of continuous service. However, the persons on work charged establishment or on contract/ad hoc and persons engaged on muster roll basis were specifically excluded. Under rule 2 which is the exdusjonary clause "persons on work charged establishment or on contract/ad-hoc and persons engaged on muster roll basis" were enumerated at sub-rule (f). It is to be noted that the above words "contract/ad hoc and" occurring in rule 2(f) of the Sikkim Government Services (Advancement Grade) Rules, 1999 have now been deleted by the Sikkim Government Services (Advancement Grade) Amendment Rules, 2004 with the result that the persons working on contract/ad hoc basis also fall within the categories of government servants to whom the rules apply and who can be granted advancement grades. Having thus noticed the relevant provision of the related rules, notifications and other administrative instructions in the matter, we may now take up the question of admissibility of the reliefs claimed by the petitioners. 9. So far as the relief of two pre-mature increments claimed by the petitioner in Writ Petition (C) no.33 of 2003 is concerned, the submission of the leaned counsel for the petitioner is that the petitioner joined as graduate teacher on ad hoc basis on 4th September, 1980 and accordingly he 10 `+ completed 10 years of continuous service on 3rd September, 1990 and as such he became entitled to pre-mature increment on 3rd September, 1990. As against this, the contention of the learned Advocate General, on the other hand, is that for an entitlement of two advanced increments under the relevant notification a government servant has to complete 10 years of continuous service and as the petitioner does not fulfil the requisite length of service he js not qualified for grant of pre- mature increments with effect from 3rd September, 1990 as claimed by him. As per the statement of service record of the petitioner (annexure R-4) filed t)y the State-respondent, the petitioner joined service as teacher on contract basis on 4th September, 1980 and his contract service was terminated on 8th December, 1990. Then there was a gap of about 5L/2 years after which the petitioner was appointed on regular basis with effect from 21St June, 1996 in pursuance of the judgment passed by the Division Bench of this Court in Writ Petition no.27 of 1994 filed by several teachers including the present petitioner. The above statement of the service record of the petitioner filed along with the counter-affidavit and marked as annexure R4 is not in dispute. The statement shows that during the service tenure of the petitioner spanning over 10 years there were several gaps in the service. Tlie period between 25th May, 1987 to 16th June, 1987 (17 days) and period 8tn May, 1989 to 25th May, 1989 (18 days) i.e. 35 days `3 .--~ 11 -¥ ® L.- in total have been treated as leave without pay. The period between 17th December, 1984 to 23rd December, 1984 (7 days) hhave been treated as GAP. Further, the period from 9th DDecember, 1990 to 20th June, 1996 has been treated as extra- ordinary leave. Thus on deduction Of the total gap period from the whole period on dLlty the length of contract service rendered by the petitioner comes to 9 years 11 months 28 days. The notification no.178/Gen/Est. dated 24th October, 1980 under which the petitioner has claimed t`^/o pre-mature increments provides that two advanced increments shall be admissible to the teachers Of all grades including Head-Masterr Of Primary#unior Hish Schools and the Principal of Higher Secondary Schools (both regular and contract basis) on completion Of tenure of 10 to 14 years of service. The case of the petitioner falls under this claLlse and the question is whetller the petitioner can be taken to have put jn continuous service Of the minimum period Of 10 years. In this regard, thee ddefinition Of 'Ltotal completed years of service" as given in the notification is relevant. As per the explanation the total cocompleted years Of service means the total service rendered in a substantive, officiating or temporary capacity in a particular post Of a teacher under the Educational Department and includes the period Of leave other than eutra-ordinarv leave or leave without Dav. It is obvious from this definition that the extrarordinary leave or leave withoLJt pay is not to be counted 12 -a ® for computing the total completed year of service. The contention of the learned counsel for the petitioners is that the period from 25th May, 1987 to 16th June, 1987 and 8th May, 1989 to 25th May, 1989 ought not to have been treated as leave without pay since the petitioner had leave to his credit and the petitioner had requested for leave on the death of his grand-father. Whether the petitioner had leave in his credit and whether the leave applied for ought to have been sanctioned as leave without pay or any other kind of leave is a matter, which, in our view, ought to be decided by the competent authority on the basis of the materials before him in the light of the relevant rules. Hence at this stage, we are left with no option but to accept the position that the period of leave which have been treated as leave without pay is in conformity with the relevant rules and the computation of the continuous period of service done by tlie State-respondent does not suffer from any infirmity. It thus follows that trie petitioner does not qualify for grant of pre-mature increments. So far as the service record of the petitioner in Writ Petition no.39 of 2003 is concerned, it appears from the statement filed and marked as Annexure - R4 that he joined service on contract basis on 2nd June, 1981. His contract services after several extension was ultimately terminated on 17th December, 1990. During the period between 2nd June, 1981 to 17th December, 1990, there was a gap of 11 days. The dr---~ 13 actual Period of service rendered by the petitioner from 2nd June, 1981 to 17th December, 1990 excluding the gap in service comes to 9 years 6 months and 13 days. It is the claim of the petitioner that he completed 10 years and became eligible for two pre-mature increments on 2nd June, 1991 but admittedly he was not in service from 18th December, 1990 onwards to 14th June, 1996 and therefore the question of counting period from the date of termination of contract service on 17th December, 1990 onwards to 2nd June, 1991 cannot arise. It is contended that out of 11 days gap 8 days have been illegally shown as leave without pay since the petitioner had applied for leave and he had leave in his credit. We have already indicated above that this is a matter to I)e decided at the discretion of the competent authority. It is however obvious that even if the 8 days jn question were to be counted towards qualifying service the total length of service would still fall short of 10 years. It therefore follows that the petitioners in both the cases are not entitled to grant of two pre-mature increments as they do not fulfil the requisite condition laid down in the relevant notification. 10. So far as the next relief of advancement grade is concerned, the contention of both the writ petitioners js that as per Sikkim Government Service (Revised Pay) Rules, 1998 which came into force with effect from lst January, 1996, they would be entitled to advancement grade on completion of the u+-- 'S 14 10 years of continuous service in the post/grade, on the same consideration as was followed in the Writ Petition bearing no.20 of 1999 filed by one C. K. Jacob, a post-graduate teacher. It appear that in the said Writ Petition the Division Bench of this Court which had heard the matter had directed the State- respondent to consider grant of advancement grade to the petitioner on completion of 10 years of service taking the view that the contract service of a post-graduate teacher must count for the purpose of computation of 10 years of continuous service. The leaned counsel relied on the above case mainly for the purpose of highlighting the observation that contract service must count for the computation of the qLialifying year of continuous service. We, however, find it hardly necessary for the petitioners to rely on the above judgment to support the above proposition keeping in view the changes that took place in the provision of the rele`rant rules and notifications after the above judgment. As already noted herein-before, after the above judgment was passed the State Government promulgated the Sikkim Government Services (Advancement Grade) Rules, 1999 bringing the same into force with effect from lst January, 1996. Rule 2(2)(f) provided that "persons on work-charge establishment or contract, ad hoc and persons engaged in muster roll basis shall not be eligible for advancement grade". It is stated by the leamed Advocate General that even after the issue of such notification the department erroneously granted 'f E= 15 tl advancement grade to certain sections of teachers. Therefore in order to bring equity and justice the Government deleted the words "contract/ad hoc and" from 2(f) of notification no.38/Gen/DOP dated 5th July, 1999 by the Sikkim Government Services (Advancement Grade) Amendment Rules, 2004 published vide notification no.24/GEN/DOP dated 5th July, 2004 thereby making the contract or ad hoc service admissible for the purpose of grant of advancement grade. The State- respondents accordingly clarified that in view of this amendment the petitioners would be entitled for advancement grade subject to fulfillment of criteria laid down in notification no.38/Gen/DOP dated 23rd September, 1999. In view of the above clarification given by the State- respondents it follows that it is open for the petitioners to seek grant of advancement grade subject to the fulfillment of the requisite conditions prescribed in the provisions of the relevant rules/notifications. 11. Now, coming to the question of notional fixation of initial pay of the petitioners on regular appointment the contention of the learned counsel for the petitioners is that the period of absence from duty on expiry of the contract service and the date of joining on regular appointment has to be counted towards qualifying service in terns of the direction of the Hon'ble High Court contained in the common judgment delivered in Original Writ Petition nos. 27 and 30 of 1994 and Writ Petition nos. 4 and 17 of 16 1995. It was submitted by the learned counsel for the petitioners that in the above Writ Petitions filed by the petitioners claiming regularisation the Division Bench of this Court which had heard the matter had held that "total period of service on ad hoc or contractual basis ignoring the period of break, jf any, is to be reckoned as qualifying service towards the notional fixation of initial pay in the grade and also for the purpose of pension". Since State-respondent did not count the period in question as qualifying service towards notional fixation of initial pay while fixing the initial pay of the petitioners after their regular appointment the same was in contravention of the observation made by the Division Bench in the case, 12. The leaned Advocate General in reply to the above contention of the learned counsel for the writ petitioners submitted that the interpretation placed by the Writ Petitioners on the judgment of the Division Bench of this Court in the above Writ Petitions and the Review Petition was mis- conceived. In support of this contention, the learned Advocate General referred to the ot)servatjon made by the Division Bench of this Court in paragraph 17 of the judgment delivered in the Review Petition no.5 of 1995. It appears that the writ petitioners in the Review Petition had made a prayer for treating the past services of the ad hoc teachers as on duty for the years bet`^reen date of retrenchment and their regularisation of service. It further appears that in the Review -I EL-.- 17 Petition the Court had a clear opportunity of considering the argument that past service of ad hoc teachers whose services were going to be regularised should be taken into account for fixation of their seniority and they should be treated as on duty for the years in between the dates of the retrenchment and the regularisation of the service. Paragraph 17 of the judgment makes the above point clear. "17. it has been argued on behalf of the respondents in this review petitioner that past Service of