Coram: Honble K.M. Joseph, C.J. Honble Alok Singh, J. Dated: 23rd August, 2017 K.M. JOSEPH, C.J. (Oral) Appellants are the respondents in the writ petition. The writ petition was filed seeking the following prayers:
I. Issue a Writ order or direction in nature certiorari quash the condition mentioned in para 2(1) of the impugned order dated 28.02.2012 passed by respondent No. 4 as contained in Annexure No. 6 to the writ petition.
II. Issue a writ order or direction in nature of mandamus directing the respondents to provide the benefit of the GO dated 20.09.2011 to the petitioner as other teachers have been provided by the respondents in academic session 2011-12 and pay the salary to them accordingly.
2. The facts, which are not in dispute, are as follows: The writ petitioner was working as a Teacher in the Government School. His age of superannuation was 31.10.2011. Admittedly, prior to that date, he sought permission to continue till the end of the session, namely, till 31.03.2012. The permission was granted to him. He continued to teach till 31.03.2012. He was not given the pension for the extended period of service, i.e. from 01.11.2011 to 31.03.2012. This occasioned the writ petition from which the appeal arises.
3. The reasoning of the learned Single Judge is as follows:
4. However, the State Government is denying this benefit, as according to the State the petitioner was not working on extension of service but was given re-employment which is in terms of the Government Order dated 30.11.2007 and since the period from 01.11.2011 till 31.03.2012 is a period of re- employment and it cannot be counted for calculating his pension. The petitioner, however, relies upon subsequent Government Order dated 20.09.2011, which is in fact a modification of the earlier Government Order dated 30.11.2007 wherein it clearly stipulates that it is a supersession including Government Order dated 30.11.2007 and the persons who relies subsequent to this Order will be given extension of service till the end of the Session and not re- employment as was stipulated in the Government Order dated 30.11.2007.
5. The State Government on the other hand claims that when the formal orders regarding the petitioner were passed, at the requisition made by the petitioner himself, this permission was granted to him on 03.08.2011 and this was done in terms of Government Order dated 30.11.2007 which speaks of only re- employment and hence petitioner cannot be given extension of service. This reply of the State Government cannot be accepted inasmuch as Government Order dated 20.09.2011 which came into effect before the petitioner reached the age of superannuation clearly stipulates this order is supersession of the Government Order dated 30.11.2007. Therefore, the service shall be governed by the Government Order dated 20.09.2011 and not by 31.11.2007. He shall be entitled for extension of service as being given to other employees subsequent to Government Order dated 20.09.2011.
4. On this basis, the writ petition was allowed and a mandamus was issued to re-fix the pension for the entire period of service, including extension of service till 31.03.2012.
5. We have heard Mr. Pradeep Joshi, learned Standing Counsel for the State / appellants and Mr. B.S. Bhandari, learned counsel for the respondent / writ petitioner.
6. Learned Standing Counsel appearing on behalf of the appellants would point out that it is Government Order dated 30.11.2007 which provided for re-appointment, which will govern the fate of this case. This is for the reason that the writ petitioner had sought for extension at a time when the said Government Order was in force. The permission sought for was granted by order dated 03.08.2011. It be noted that, on 03.08.2011 also, the Government Order dated 30.11.2007 was in force. The Government Order, which was issued subsequently, which provided for extension of service, was issued on 20.09.2011. The writ petitioner accepted re-appointment in terms of the Government Order, which was holding the field, i.e. Government Order dated 30.11.2007. It may be true that, on the date when he continued in service after his date of superannuation, namely, 01.11.2011, Government Order dated 20.09.2011 had come into force. It is this aspect, which is pressed by Mr. B.S. Bhandari, learned counsel for the writ petitioner. In other words, it is the contention of the learned counsel for the writ petitioner that, when the writ petitioner began his fresh innings on the basis of the order passed by the Government granting extension, he must be treated as governed by the order then in force, namely, Government Order dated 20.09.2011.
7. Government Order dated 20.09.2011, undoubtedly, provides for extension of service in place of re-appointment. The qualitative difference between the two appointments is as follows: If it is a case of re-appointment, the writ petitioner will not get the benefit of that service for the purpose of pension. If, on the other hand, the continuance of the writ petitioner from 01.11.2011 to 31.03.2012 is treated as extension of service under Government Order dated 20.09.2011, it would be counted for the purpose of pension.
8. It is this which is the basis of the reasoning of the learned Single Judge. In fact, a perusal of the relief sought by the writ petitioner would show that the writ petitioner had, actually, challenged a third Government Order dated 28.02.2012. Learned Standing Counsel, in fact, would harp upon the said order to point out that the said Government Order was issued to make things clear that, in the case of persons, who were given re-appointment prior to Government Order dated 20.09.2011, they would be governed by Government Order dated 30.11.2007. Though the writ petitioner purports to have challenged it, from a perusal of the judgment, we find that there is no reference to the same and there is also no reference to any argument against the said Government Order. The said Government Order remains undisturbed by the judgment. Learned Single Judge has not proceeded to grant relief in terms of the same. Without setting aside the said Government Order, the learned Single Judge has proceeded to apply Government Order dated 20.09.2011 on the supposition that, when the writ petitioner commenced fresh innings after superannuation, it was the said Government Order which was in force. We find that the approach of the learned Single Judge cannot be sustained. The writ petitioner, with impending superannuation on 31.10.2011, made an application for getting his service extended. The Government Order prevailing at that point of time was the Government Order dated 30.11.2007, which provides for re-appointment. In the case of re-appointment, as is the case of the learned Standing Counsel, the concerned employee would get pay minus pension. By order dated 03.08.2011, as already noted, the writ petitioner was given the permission. The writ petitioner was given re-appointment in terms of Government Order dated 30.11.2007. The writ petitioner continued in service on the basis of the said order passed under Government Order dated 30.11.2007. The fact that, when he continued in service, another Government Order came, though in supersession of the earlier Government Order, will not take away, particularly having regard to the issuance of Government Order dated 28.02.2012 which was challenged by the writ petitioner as we have noticed, the effect of Government Order dated 30.11.2007, the permission granted for re-appointment, the re-appointment order and continuance in service as a re-appointee.
9. In such circumstances, we allow the appeal and set aside the judgment passed by the learned Single Judge. The writ petition will stand dismissed without any order as to costs. (Alok Singh, J.) (K.M. Joseph, C. J.) 23.08.2017 23.08.2017