Manipur High Court
T. Bina Devi vs The State Of Manipur Represented ... on 18 October, 2022
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (C) No. 852 of 2019
T. Bina Devi, aged about 61 years, W/o S. Mohendra Singh of
Sagolband Tera Loukrakpam Leikai, P.O. Imphal & P.S.
Lamphel, Imphal West District, Manipur.
...... Petitioner/s
- Versus -
1. The State of Manipur represented by the Principal
Secretary/Commissioner/Secretary Education(S/Valley),
Government of Manipur, Office at Secretariat South Block,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur -
795001.
2. The Director of Education (S), Government of Manipur, office
at Lamphelpat, P.O. & P.S. Lamphel, Imphal West District,
Manipur - 795004.
.....Official Respondents
3. The Principal, Nambol Higher Secondary School, Nambol,
P.O. & P.S. Nambol, Bishnupur District, Manipur - 795134.
........Proforma Respondent/s
4. Principal Accountant General (A & E), Manipur.
.....Respondent
WP(C) No. 852 of 2019 Page 1
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioners : Mr. M. Hemchandra, Sr.
Adv.
For the respondents : Mr. A. Vashum, G.A. and
S. Suresh, Adv.
Date of Hearing : 19.09.2022
Date of Judgment & Order : 18.10.2022
Judgment & Order (CAV)
[1] Heard Mr. M. Hemchandra, learned senior counsel appearing
for the petitioner, Mr. A Vashum, learned G.A. appearing for respondent Nos.
1 & 2 and Mr. S. Suresh, learned counsel appearing for respondent No. 4.
[2] The present writ petition had been filed with a prayer for
directing the respondents to release/pay the pensionary and other entitled
retiral benefits of the petitioner without causing any undue delay.
[3] The facts of the present case in brief is that the petitioner was
initially appointed as Assistant Teacher with effect from 01.01.1980 by an
order dated 29.03.1982 issued by the Secretary (Edn.), Government of
Manipur. Subsequently, while the petitioner was serving as an Assistant
Graduate Teacher in the Takyel Khongbal Junior High School, the Director
of Education (S), Government of Manipur, issued an order dated 26.06.1992
thereby upgrading the service of the petitioner to the post of Graduate
Teacher with retrospective effect from 01.01.1988. The said order had been
issued pursuant to the Government's approval to the upgradation/promotion
of Under-Graduate Teachers in Government's School to Graduate
Teachers, vide Government's Letter dated 09.01.1990. In the said order, it
is also clearly mentioned that the pay of the petitioner in the upgraded post
will be notionally with effect from 01.01.1988 and the actual payment of the
upgraded post shall be made only with effect from 23.06.1992 meaning
WP(C) No. 852 of 2019 Page 2
thereby that no financial benefit for the period of retrospective
upgradation/promotion was given to the petitioner.
[4] On the recommendation of a Screening Committee in its
meeting held on 20.06.2000 and after verification of the service book, ACRs
and integrity and on completion of 12/15 years of regular service in the
grade, the petitioner was granted senior scale of pay with effect from
01.01.2000, vide order dated 30.06.2000 issued by the ZEO, I.D. Zone - I,
Government of Manipur. By another order dated 04.07.2000 issued by the
Director of Education (S), Government of Manipur, the petitioner was
granted Trained Graduate Teachers' Scale of Pay with effect from
07.09.1999, consequent upon her successfully passing B.Ed. Training
Examination. It will be pertinent to mention here that the said Senior Scale
of Pay and Trained Graduate Scale of Pay was granted to the petitioner in
terms of and after fulfilling the conditions provided under the relevant rules.
[5] Subsequently, on the recommendation of a Departmental
Promotion Committee meeting held on 07.11.2016 in association with the
Manipur Public Service Commission, the petitioner was appointed on
promotion to the post of Lecturer of Higher Secondary Education under the
Education (S) Department, Government of Manipur with effect from
24.05.2018 by an order dated 24.05.2018 issued by the Deputy Secretary,
Education (S), Government of Manipur. While the petitioner was serving as
a Lecturer (English) in the Nambol Higher Secondary School, she retired
from service on attaining the age of superannuation with effect from
31.01.2018 and her service was terminated by an order dated 02.02.2019
issued by the Commissioner (Education-S), Government of Manipur. After
her retirement from service, all the necessary pension papers of the
petitioner was submitted to the Accountant General (A & E), Manipur by the
Under Secretary (Pension Cell), Government of Manipur, under cover of a
letter dated 10.04.2019 with a request for taking early necessary action for
payment of the petitioner's pensionary and other retiral benefits. After
submission of her pension papers, the concerned authority of the
Government released the amounts due payable to the petitioner under her
WP(C) No. 852 of 2019 Page 3
GPF, Group Insurance Scheme and Unutilised Earned Leave. However, the
pension of the petitioner had not been released by the respondents even
after about 4 (four) years from the date of her retirement. Having been
aggrieved, the petitioner filed the present writ petition for redressing her
grievances.
[6] The reason as given by the respondents about the non-
finalization for payment of the petitioner's pension is due to the objections
raised by the Office of the Accountant General (A & E), Manipur in its letter
dated 11.06.2019. In the said letter, it is inter-alia, pointed out by the
Account's Officer (Pension) that the upgradation/promotion of the petitioner
to the post of Graduate Teacher in the scale of pay of Rs. 1400 - 2300/-
P.M. with retrospective effect from 01.01.1998 was without the concurrence
of the Finance Department/holding of constituted DPC and that such
upgradation/promotion had been declared as irregular and ab-initio null and
void under the office memorandum dated 10.10.2005 issued by the
Secretariat Finance Deparment. In view of the above, a request was made
to the Under Secretary (Pension Cell), Government of Manipur, to
furnish/clarify the treatment of service and validity of the orders mentioned
above in consultation with the Finance Department, Government of Manipur,
at the earliest for settlement of the pension case of the petitioner. According
to the learned counsel appearing for respondent No. 4, as no clarification
had been given from the State Government with regard to the objections
raised by the Office of the Accountant General (A & E), Manipur, the
respondent No. 4 could not finalise the settlement of pension of the
petitioner.
[7] The learned G.A. appearing for respondent Nos. 1 & 2
submitted that on receiving the objection raised by the Office of the
Accountant General (A & E), Manipur, the views/comments of the Finance
Department (PIC), Government of Manipur, was obtained. It was pointed out
by the Finance Department that the upgradation/promotion of the service of
the petitioner to Graduate Teachers with retrospective effect from
01.01.1988 without prior concurrence of the Finance Department is against
WP(C) No. 852 of 2019 Page 4
the provisions of the General Financial Rule, 1963 and Rule 9(1)(a) of the
Rules of Business of the Government of Manipur, 1972 and accordingly,
such upgradation/promotion shall be deemed to be treated as irregular and
ab-initio null and void as provided under the office memorandum dated
10.10.2005 issued by the Finance Department. Accordingly, the Finance
Department was of the view that necessary action must be taken up by the
Administrative Department for re-fixing the service of the petitioner from her
initial appointment after due verification of the relevant service book of the
petitioner. It has also been submitted by the learned G.A. that in terms of the
views expressed by the Finance Department, the Government issued a letter
dated 26.04.2022 conveying its approval to review the order dated
26.06.1992 under which the service of the petitioner was
upgraded/promoted to the post of Graduate Teacher retrospectively with
effect from 01.01.1988 and also the subsequent orders allowing the
petitioner to enjoy Senior Scale and Trained Senior Scale. The learned G.A.
further submitted that the process for finalization for payment of the
petitioner's pension cannot be completed expeditiously as the irregularities
has to be verified and that the petitioner's pensionary and retiral benefits will
be finalized as soon as the verification process is done by the competent
authority.
[8] Mr. M. Hemchandra, learned senior counsel appearing for the
petitioner, submitted that the office memorandum dated 10.10.2005 issued
by the Finance Department, on the basis of which the upgradation/promotion
of the petitioner's service to the post of Graduate Teacher had been declared
as irregular and ab-initio null and void, has not been given any retrospective
effect and the said office memorandum will operate only with prospective
effect from the date of issue of the said office memorandum. The learned
senior counsel submitted that as the upgradation/promotion of the petitioner
was given on 26.06.1992, much earlier to the issuance of the said office
memorandum, the said office memorandum is not at all applicable in the
case of the petitioner and that the objection raised by the respondents are
misconceived and without any basis. The learned senior counsel,
WP(C) No. 852 of 2019 Page 5
accordingly, submitted that the respondents may be directed to finalise the
process for payment of the petitioner's pension and to release the same as
early as possible so as to mitigate the hardship face by the petitioner. In
support of his contentions, the learned senior counsel relied on the following
judgment of the Hon'ble Apex Court:-
"(A) "Harsh Dhingra Vs. State of Haryana & Ors."
Reported in (2001) 9 SCC 850:-
"7. Prospective declaration of law is a device innovated
by this Court to avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is also a device
adopted to avoid uncertainty and avoidable litigation. By
the very object of prospective declaration of law it is
deemed that all actions taken contrary to the declaration
of law, prior to the date of the declaration are validated.
This is done in larger public interest. Therefore, the
subordinate forums which are bound to apply law
declared by this Court are also duty-bound to apply such
dictum to cases which would arise in future. Since it is
indisputable that a court can overrule a decision there is
no valid reason why it should not be restricted to the
future and not to the past. Prospective overruling is not
only a part of constitutional policy but also an extended
facet of stare decisis and not judicial legislation. The
principles are enunciated by this Court in Baburam v.
C.C. Jacob and Ashok Kumar Gupta v. State of U.P."
(B) "Noorunissa Begum vs. Brij Kishore Sanghi"
reported in (2015) 17 SCC 128:-
"26. In Garikapati Veeraya v. N. Subbaiah Choudhary,
while dealing with the golden rule of construction this
Court held that in the absence of anything in the
enactment to show that the amendment is to have
retrospective operation it cannot be so construed so as
to have the effect of altering the law applicable to a claim
in litigation at the time when the Act was passed. The
Constitution Bench held: (AIR pp. 553-54, para 25)
"(25). In construing the articles of the Constitution
we must bear in mind certain cardinal rules of
construction. It has been said in Hough v. Windus,
QBD at p. 237 that 'statutes should be interpreted,
if possible, so as to respect vested right.' The
WP(C) No. 852 of 2019 Page 6
golden rule of construction is that, in the absence
of anything in the enactment to show that it is to
have retrospective operation it cannot be so
construed as to have the effect of altering the law
applicable to a claim in litigation at the time when
the Act was passed. Leeds and County Bank Ltd.
v. Walker, QBD at p.91; Moon v. Durden, RR at p.
495. The following observation of Rankin, C.J. in
Sk. Sadai Ali v. Sk. Dalimuddin ILR Cal p. 520:
AIR p. 643 is also apposite and helpful: 'Unless
the contrary can be shown the provision which
takes away the jurisdiction is itself subject to the
implied saving of the litigant's right.' In Janardan
Reddy v. State, SCR pp. 946-47: AIR pp.126-27)
Kania, C.J. in delivering the judgment of the Court
observed that our Constitution is generally
speaking prospective in its operation and is not to
have retroactive operation in the absence of any
express provision to that effect. The same
principle was reiterated in Keshavan Madhava
Menon v. State of Bombay and finally in Daji
Saheb v. Shankar Rao Vithalrao, SCR pp. 876-77:
AIR p. 31 to which reference will be made in
greater detail hereafter."
"27. In Moti Ram v. Suraj Bhan, this Court decided a
case of ejectment of tenant by the landlord under Section
13(1) of the East Punjab Urban Rent Restriction Act,
1949. Under Section 13 of the said Act, a tenant in
possession of a building cannot be evicted therefrom
except in accordance with the said Section. This Court
held that where an amendment affects vested rights, the
amendment would operate prospectively unless it
is expressly made retrospective or its retrospective
operation follows as a matter of necessary implication. It
was held: (Moti Ram Case, AIR p. 658, para 8)
"8. ...It is well settled that where an amendment
affects vested rights, the amendment would
operate prospectively unless it is expressly made
retrospective or its retrospective operation follows
as a matter of necessary implication. The
amending Act obviously does not make the
relevant provision retrospective in terms and we
see no reason to accept the suggestion that the
retrospective operation of the relevant provision
can be spelt out as a matter of necessary
implication."
WP(C) No. 852 of 2019 Page 7
This Court further held: (Moti Ram Case, AIR p. 658, para 9)
"9. ...Where the legislature intends to make
substantive provisions of law retrospective in
operation it generally makes its intention clear by
express provision in that behalf."
[9] Under the office memorandum dated 10.10.2005, the Finance
Department (PIC) had taken a decision that all cases for grant of promotion,
pay revision and creation of post with retrospective effect issued by the
Administrative Departments and their Sub-ordinate Offices without obtaining
prior concurrence of the Finance Department as required under the existing
rules, etc., are irregular and ab-initio null and void.
The reasons and purposes for taking the said decision are
clearly reflected in para. 2 of the said office memorandum which are
reproduced hereinbelow for easy reference:-
"2. It is reiterated that the General Financial Rules, 1963,
provide that all departmental regulations in so far as they
embody orders or instructions of a financial character, or have
important financial bearing shall be made by or with the
approval of the Finance Department and that retrospective
effect shall not be given by competent authorities to sanctions
relating to revision of pay or grant of concessions to
Government servants without the previous consent of the
Finance Department. Further, Rule 9(1)(a) of the Rules of
Business of the Government of Manipur, 1972 lays down that
no department shall, without previous consultation with the
Finance Department, issue any orders (other than orders
pursuant to any general delegations made by the Finance
Department) which either immediately or by their
repercussions, will effect the finance of the State or which in
particular relate to the 'number' or 'grading' or 'cadre of posts'
or 'the emoluments' or 'other conditions of service of posts'.
These irregular orders puts substantial burden on Government
exchequer without prior assessment and acceptance of such
liability by the Finance Department."
[10] On careful examination of the provisions of Rule 42-A of the
General Financial Rules, 1963 and Rule 9(1)(a) of the Rules of Business of
the Government of Manipur, 1972, it can be clearly seen that nothing is
mentioned under the said rules about obtaining prior permission of the
WP(C) No. 852 of 2019 Page 8
Finance Department in connection with promotion of a Government servant
either prospectively or retrospectively. In my considered view, the mandate
of the aforesaid rules is that any orders, instructions or actions of the
Government which entails a financial characteristic or have important
financial bearing or which will effect the financial condition of the state or
which will put substantial burden on the Government exchequer should not
be issued or carry out without the prior consent of the Finance Department.
The important question that needs to be answered is if retrospective
promotion is given to a Government employee notionally and without
granting any financial benefit for the period of retrospective promotion,
whether such retrospective promotion can be said to be issued in violation
of the provisions of Rule 42-A of the General Financial Rules, 1963 and Rule
9(1)(a) of the Rules of Business of the Government of Manipur, 1972 and
whether such retrospective promotion can be declared as ab-initio null and
void only on the ground that prior concurrence of the Finance Department
was not obtained before giving such promotion. The answer is in the
negative, inasmuch as, the respondents have not been able to show before
this Court any provisions of law which specifically mandates that if any
retrospective promotion is to be given without entailing any financial benefit,
such promotion should be given only after obtaining prior concurrence of the
Finance Department.
[11] In the present case, the Director of Education (S), Government
of Manipur issued the order dated 26.06.1992 thereby upgrading the service
of the petitioner to the post of Graduate Teacher retrospectively with effect
from 01.01.1988. In the said order, it is also clearly mentioned that the pay
of the petitioner in the higher post shall be fixed notionally with effect from
01.01.1988 and actual payment shall be made only with effect from
23.06.1992 meaning thereby that no financial benefit was given to the
petitioner for the period of her retrospective promotion to the grade of
Graduate Teacher. In view of such undisputed factual position, this Court
cannot agree with the contentions of the respondents that such retrospective
WP(C) No. 852 of 2019 Page 9
promotion is in contravention of any existing rules and that such promotional
order is ab-initio null and void.
It is also not the case of the respondents that the petitioner is
not eligible or entitled to avail such retrospective promotion or that such
promotion is in contravention of the relevant recruitment rules. In fact, the
promotion of the petitioner was affected on the basis of the Government's
policy and approval and accordingly, this Court cannot endorse the view of
the respondents that the said order dated 26.06.1992 granting retrospective
regularisation to the petitioner is ab-initio null and void only on the ground of
not obtaining prior approval of the Finance Department before issuing such
order.
[12] Under the office memorandum dated 10.10.2005, the Finance
Department had taken a decision to treat all cases of promotion with
retrospective effect without obtaining prior concurrence of the Finance
Department as irregular and ab-initio null and void, even though there is no
such specific provisions under the General Financial Rules, 1963 and Rules
of Business of the Government of Manipur, 1972. Moreover, the said office
memorandum dated 10.10.2005 came into force only with prospective effect
as no retrospective effect had been given under the said office
memorandum. In view of such factual position and in view of the settled law
laid down by the Hon'ble Apex Court in the cases of "Harsh Dhingra vs.
State of Haryana & Ors." (supra) and "Noorunissa Begum vs. Brij
Kishore Sanghi" (supra), this Court is of the considered view that the said
office memorandum came into force only with effect from 10.10.2005 and
that the said O.M. will not be applicable in the case of the petitioner as the
order of retrospective promotion of the petitioner was issued way back on
26.06.1992, much before the enforcement of the said office memorandum.
In view of the above, this Court is constrained to hold that non-finalization for
payment of the petitioner's pension even after about 4 (four) years from the
date of her retirement only on the ground raised by the respondents is very
much unreasonable and arbitrary and deserves interference from this Court.
WP(C) No. 852 of 2019 Page 10
[13] Even assuming for argument sake that there was some lapses
or irregularity at the time of giving retrospective promotion to the petitioner,
such lapses or irregularity was on the part of the concerned officials of the
State Government and the petitioner cannot be blamed or made to suffer for
the fault or lapses on the part of the Government officials. The respondents
should remember that for the last about 4 (four) years after her retirement
from service, the petitioner has been suffering silently for no fault on her part
and only due to the unreasonable and unwarranted objections raised by the
respondents in connection with the finalization for payment of her pension.
In view of the facts and circumstances of the present case and
for the reasons given hereinabove, the present writ petition is allowed by
directing the respondent Nos. 1, 2 & 4 to expedite the finalization for payment
of the petitioner's pension as early as possible, but not later than 2 (two)
months from the date of receipt of a certified copy of this order. It is made
clear that if in the event of non-payment of the pensionary benefits to the
petitioner within the period of 2 (two) months as directed above, an interest
of 5% of the whole amount of pension due payable to the petitioner, with
effect from the date of her retirement till the actual payment of her pension,
shall be paid to the petitioner from the account of those officials/officers
responsible for the delay and not from the State exchequer.
With the above directions, the present writ petition is disposed
of. Parties are to bear their own cost.
JUDGE
FR/NFR
joshua
Digitally signed by KH.
KH. JOSHUA JOSHUA MARING
MARING Date: 2022.10.18
15:26:19 +05'30'
WP(C) No. 852 of 2019 Page 11
