Manish Choudhury, J
1. The two writ appeals are preferred against the common judgment and order dated 25.08.2020 passed by the learned Single Judge in two writ
petitions, W.P.(C) no. 78/2020 and W.P.(C) no. 92/2020, whereby the learned Single Judge finding no merit in the two writ petitions, has dismissed the
same. The writ appeal, W.A. no. 94/2020 has been preferred in connection with the writ petition, W.P.(C) no. 92/2020 whereas the writ appeal, W.A.
no. 95/2020 has been preferred against the writ petition, W.P.(C) no. 78/2020.
2. The writ petition, W.P.(C) no. 78/2020 was preferred challenging an order dated 26.06.2020 passed by the respondent no. 2 and the State Civil List
of 2017 in respect of the writ appellant’s/writ petitioner’s date of entry into service and also for a direction to the State respondents to rectify
her date of entry into Government service as 28.04.1994 instead of 22.08.1985. The second writ petition, W.P.(C) no. 92/2020 was preferred seeking
setting aside of an order dated 30.06.2020 passed by the Chief Secretary to the Government of Nagaland whereby the writ appellant/writ petitioner
was released from Government service w.e.f. 31.08.2020 on the ground that the writ appellant/writ petitioner would superannuate on that date on
completion of 35 years of service and also for a direction to rectify her date of entry into Government service as 28.04.1994 instead of 22.08.1985.
3. As both the writ appeals have arisen out of a common judgment and order and the parties involved in both the writ appeals are the same, they are
taken up together for adjudication.
4. The common and relevant facts, as appearing in the two writ petitions, may be stated as follows:
4.1. The writ appellant/writ petitioner was appointed as an Upper Division Assistant (UDA) in the Directorate of Social Security and Welfare,
Government of Nagaland on 22.08.1985 on regular basis. When she was serving as an UDA under the Directorate of Social Security and Welfare,
Government of Nagaland, she responded to an advertisement published by the Nagaland Public Service Commission (NPSC) for selection in the
Nagaland Civil Service (NCS). By a calling letter dated 18.05.1993, the appellant was informed that she was provisionally allowed to appear in the
written test to be held from 15.06.1993 to 18.06.1993 and on being so called, the appellant appeared in the written test. The appellant qualified in the
written test and she was called to appear in an oral interview on 16.02.1994. Accordingly, the appellant appeared in the oral interview. Thereafter, the
results were declared by the NPSC and the appellant got selected for the post of Extra Assistant Commissioner. On 15.03.1994, the appellant
submitted a letter to the Secretary to the Government of Nagaland, Personnel and Administrative Reforms Department (P&AR Department)
conveying her acceptance to join in the post of Extra Assistant Commissioner (EAC).
4.2. Subsequent to such submission of acceptance letter, the appellant submitted a resignation letter to the Director of Social Security and Welfare,
Nagaland on 21.03.1994 stating that she had submitted the resignation letter in order to enable her to pursue higher studies/higher post and requested
for issuance of a release order. On receipt of the said letter of resignation and for release, the Director of Social Security and Welfare, Nagaland had
issued a Release Order under Memo no. SW/ESTT/PF-285/83 dated 20.04.1994 whereby the appellant who was till then serving in the said
Directorate as an UDA, was released to enable her to join the post of Extra Assistant Commissioner to which post she had been appointed. Another
order under Memo no. SW/ESTT/PF-285/85 dated 20.04.1994 was also issued by the Director of Social Security and Welfare, Nagaland wherein it
was stated that with reference to letter of resignation dated 21.03.1994 of the appellant, the appellant stood terminated from the post of UDA with
immediate effect. The copies of the aforesaid two orders dated 20.04.1994 were also forwarded to the Commissioner and Secretary to the
Government of Nagaland, Department of Social Security and Welfare by the Director of Social Security and Welfare, Nagaland.
4.3. A notification bearing no. PAR-3/19/86(Pt.) dated 27.04.1994 came to be issued by the Chief Secretary to the Government of Nagaland for the
P&AR Department whereby ten nos. of persons including the appellant, on being selected in the competitive examination conducted by the NPSC,
were appointed to the post of Extra Assistant Commissioner (EAC) in the Nagaland Civil Service (NCS), Class-I, Junior Grade with effect from the
dates of their assuming charges. On being so offered the appointment, the appellant joined in the post of EAC, NCS on 28.04.1994.
4.4. In the Civil Lists of the Nagaland Civil Service (NCS) published in the years 2002, 2010 and 2015 respectively, the appellant’s date of entry
into Government service was shown as 28.04.1994 which was the date the appellant joined in the post of EAC, NCS. But, in the Civil List published in
the year 2017, the appellant’s date of entry into Government service was recorded as 22.08.1985, that is, the day on which the appellant joined the
regular post of UDA in the Directorate of Social Security and Welfare, Nagaland. On being aggrieved by such change of date of entry into
Government Service from 28.04.1994 to 22.08.1985 in the Civil List of 2017, the appellant submitted a representation before the Commissioner &
Secretary to the Government of Nagaland, P&AR Department on 17.03.2020 with the request to restore her date of entry into Government service
from 22.08.1985 to 28.04.1994.
4.5. When no response was received from the State respondent authorities in relation to the said representation, the appellant approached the Court by
way of a writ petition, W.P.(C) no. 63/2020. The said writ petition, W.P.(C) no. 63/2020, came up for consideration on 28.05.2020 and after hearing
the learned counsel for the parties, the said writ petition was disposed of with a direction to the writ petitioner therein i.e. the writ appellant herein to
submit a copy of the representation dated 17.03.2020 afresh to the Commissioner & Secretary to the Government of Nagaland, P&AR Department
within one week from 28.05.2020 and on such representation being submitted, it was directed that the Commissioner & Secretary to the Government
of Nagaland, P&AR Department shall consider and dispose of such representation on its own merit within a period of 4 (four) weeks from the date of
receipt of the such representation.
4.6. Accordingly, the appellant submitted a copy of the representation afresh on 30.05.2020 before the Commissioner & Secretary to the Government
of Nagaland, P&AR Department with the prayer to rectify her date of entry into Government service from 22.08.1985 to 28.04.1994. The said
representation was disposed of by the Commissioner & Secretary to the Government of Nagaland, P&AR Department by an order dated 26.06.2020
with the approval of the Chief Secretary to the Government of Nagaland, whereby, the prayer made by the appellant for rectification of her date of
entry into Government service was rejected. It was further held that as the appellant’s date of entry into Government service was to be counted
from 22.08.1985 and as the appellant would be completing 35 years of service on 31.08.2020, the appellant shall be released from Government service
w.e.f. 31.08.2020. Assailing the said order dated 26.06.2020, the appellant as the writ petitioner, had preferred the writ petition, W.P.(C) no. 78/2020
on 30.06.2020.
4.7. On 30.06.2020, another order under Memo no. PAR-4/18/2012 came to be passed under the hand of the Chief Secretary to the Government of
Nagaland, whereby, it was ordered that the appellant who was then serving as Additional Secretary to the Government of Nagaland, W & H
Department, would stood released from Government service w.e.f. 31.08.2020 in view of completion of 35 years of her service in the Government in
terms of Section 3(1) and Section 3(2) of the Nagaland Retirement from Public Employment Act, 1991, as amended by the Nagaland Retirement from
Public Employment (Second Amendment) Act, 2009. The appellant as the writ petitioner, preferred the second writ petition i.e. W.P.(C) no. 92/2020
challenging the afore-mentioned order dated 30.06.2020.
5. The learned Single Judge considered the rival submissions advanced on behalf of the parties. After considering the sequence of events/facts, it was
observed that though a gap of seven days appeared to have been created between the services rendered by the appellant in two different posts-
because of the termination order and the release order, both dated 20.04.1994-in the post of UDA of the appellant on one hand and the appointment
order of the appellant for the post of EAC, NCS dated 27.04.1994 and her subsequent joining in the post of EAC, NCS on 28.04.1994 such break or
gap was only a technical or artificial break which did not actually create a break or gap between the two employments. It has been held that the said
break or gap would not make the past services rendered by the appellant w.e.f. 22.08.1995 under the Directorate of Social Security and Welfare,
Government of Nagaland non-pensionable and the said period of service of the appellant for the purpose of reckoning length of service under the
provisions of the Nagaland Retirement from Public Employment Act, 1991, as amended, had to be counted from 22.08.1995. The pleas urged on
behalf of the appellant with regard to the aforesaid break or gap period of seven days and inapplicability of the concept of technical resignation in
reference to Rule 26 of the Central Civil Services (Pension) Rules, 1972 were negated.
6. We have heard Mr. C.T. Jamir, learned Senior Counsel assisted by Mr. I. Imchen, learned counsel for the appellant and Ms. A. Aier, learned
Additional Senior Government Advocate, Nagaland assisted by Ms. M. Kechi, learned Government Advocate, Nagaland for the State respondents.
7. Mr. Jamir, learned Senior Counsel has, by referring to the provisions of the Nagaland Retirement from Public Employment Act, 1991, as amended,
(hereinafter referred to as ‘the Nagaland Act’, for easy reference) and the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to
as ‘the CCS (Pension) Rules’, for easy reference), submitted that the learned Single Judge had misconstrued the provisions contained in the
Nagaland Act and the CCS (Pension) Rules and had, thus, arrived at a finding contrary to the provisions contained therein. It has been submitted that
the learned Single Judge had also failed to consider the concept of ‘technical resignation’ in the correct perspective which resulted into a wrong
finding to the effect that the break or gap of seven days between the two employments of the appellant was an artificial or technical one. Such wrong
interpretation had resulted in premature retirement of the appellant from service.
7.1. He has urged that there was no ambiguity in the termination order and the release order, both dated 20.04.1994. The services of the appellant in
her previous employment came to an end on 20.04.1994. It was after being released from her previous employment on 20.04.1994 the appellant was
offered appointment for the post of EAC, NCS on 27.04.1994 in which post the appellant joined on 28.04.1994. As there was a clear gap period it
could not have been held by the learned Single Judge that such gap was an artificial or technical one.
7.2. As the appointing authority had accepted the resignation offered by the appellant w.e.f. 20.04.1994 the same entailed forfeiture of the
appellant’s past service in her previous employment under the Directorate of Social Security and Welfare, Government of Nagaland and the same
could not be taken into consideration for the purpose of counting past service under the Nagaland Act so as to take the same in order to count 35
(thirty five) years of service under the Nagaland Act. Rule 26 (2) of the CCS (Pension) Rules has clearly provided for the situation when a resignation
can be considered to be a technical resignation. In the absence of any tangible material it was arbitrary on the part of the respondent authorities to
arrive at a finding that there was continuity in between the appellant’s previous employment as UDA and her subsequent employment as EAC,
NCS.
7.3. It is his further submission that an allegation was made that there was tampering in the service book of the appellant and by the impugned order
dated 26.06.2020, an inquiry was sought to be caused through the P&AR Department with regard to such alleged tampering. An inquiry was
thereafter caused but nothing had been found out against the appellant with regard to such alleged tampering in the service book.
7.4. Mr. Jamir has referred to the decision of the Hon’ble Supreme Court of India rendered in Shri Anil Kumar Chowdhury vs. State of Assam
and others, reported in (1975) 4 SCC 7, to urge the point that even an interregnum of the week, like the case in hand, is a miss as good as a mile, as it
was held that a short hiatus breaks the continuity.
8. Supporting the judgment and order of learned Single Judge, learned State Counsel has submitted that there was no infirmity in the impugned order
dated 26.06.2020 as the findings recorded therein were only based on records. The respondent authority concerned after having gone through the
relevant records as regards services of the appellant had correctly, she submits, arrived at the conclusion about continuity of the services rendered by
the appellant in the two posts/services concerned.
8.1. To substantiate her aforesaid submission, learned State Counsel has pointed out that only one service book was maintained in respect of the
appellant wherein the service details of the appellant rendered in the post of UDA under the Directorate of Social Security and Welfare, Nagaland as
well as in the Nagaland Civil Service (NCS) were incorporated which makes it evident that there was no discontinuity. As the entries in the service
book and the leave account sheet were not challenged by the appellant the same are deemed to be admitted.
8.2. Bringing reference to the advertisement in response to which the appellant had applied for her selection and appointment in the Nagaland Civil
Service, learned State Counsel has submitted that it was a condition in the said advertisement that the candidates who were already in service, had to
submit their applications through proper channels or to furnish no objection certificates as per the format prescribed by the Government. After having
applied directly without compliance of the said condition and getting her selection thereafter, it is not open for the appellant who was in public
employment at the time of responding to the said advertisement, to take a stance that she intended for a resignation simpliciter in order to forgo her
past service in the regular post. It is clearly an indication that the appellant had not approached with clean hands.
8.3. It has been urged that the appellant had, on 15.03.1994, conveyed her acceptance in the writing to the concerned authority that she would join the
Nagaland Civil Service (NCS). A candidate could convey such acceptance only after being selected in a selection process finding his/her name in the
list of selected candidates. It was only after conveying her such acceptance the appellant had offered to resign and sought release in writing from her
earlier regular post of LDA under the Directorate of Social Security and Welfare, Nagaland which was a pensionable service, on 21.03.1994. In the
resignation letter, the appellant had clearly indicated that she was tendering her resignation to enable her to pursue higher studies/higher post. The
appellant was released by the appointing authority by accepting her resignation wherein it was clearly indicated that she was released in order to
enable her to join the post of EAC, NCS.
9. We have considered the submissions of the learned counsel for the parties and also carefully perused the materials on record including the judgment
and order of the learned Single Judge. We have also considered the provisions of the Nagaland Act and the CCS (Pension) Rules apart from the
service book of the appellant in original, produced by the learned State Counsel.
10. The appellant was appointed as an Upper Division Assistant (UDA) in the Directorate of Social Security and Welfare, Government of Nagaland
vide an order bearing no. SW/ESTT-4/83(PT-I) dated 22.08.1985. From the service book of the appellant, it is found that the appellant joined the post
of UDA on 22.08.1985, fore-noon. When she was serving as an UDA under the Directorate of Social Security and Welfare, Government of
Nagaland, the appellant applied for her selection in the Nagaland Civil Service (NCS) by submitting her application when an advertisement in that
regard was published by the Nagaland Public Service Commission (NPSC) on 06.11.1992 whereby applications were invited from candidates for
filling up various posts including 10 (ten) nos. of posts of Extra Assistant Commissioner (EAC), Class-I in the NCS. In the said advertisement, it was
mentioned as a condition that “candidates already in service must submit their applications through their employer or they should furnish No
Objection Certificate in the prescribed form attached to the Government Office Memorandum no. AR-8/38/76 dated 30.05.1978â€.
11. However, the appellant while responding to the said advertisement, did not apply through her employer in the Directorate of Social Security and
Welfare, Government of Nagaland nor obtained a No Objection Certificate and it is the case of the appellant that she submitted her application in
response to the said advertisement dated 06.11.1992 directly, despite the fact that she was, at that point of time, serving in the regular post of UDA
under the Directorate of Social Security and Welfare, Government of Nagaland. It is, thus, discernible that the manner of submission of the application
of the appellant was not in deference to the requisite procedure laid down in the advertisement. It is, therefore, not a case where the Government
Servant submitted the application through proper channel or applied for no objection certificate from the employer to apply for another post and the
said request was turned down.
12. It is noticed that by a calling letter dated 18.05.1993 of the NPSC, addressed to ‘Smti. Imtirenla Jamir, C/o Directorate of Social Security and
Welfare, Kohima, Nagaland’, the appellant was informed that she was ‘provisionally’ allowed to appear in the written test to be held from
15.06.1993 to 18.06.1993 in the recruitment process undertaken to fill up the posts of EAC/DSP/OC(HG). On being so called, the appellant appeared
in the written test. The appellant qualified in the written test and thereafter, she was called to appear in an oral interview on 16.02.1994. Accordingly,
the appellant appeared in the oral interview. Thereafter, results were declared by the NPSC and the appellant got selected for the post of EAC, NCS.
13. On 15.03.1994, the appellant addressed a letter to the Secretary to the Government of Nagaland, P&AR Department conveying her acceptance to
join the post of EAC. For ready reference, the contents of the said letter are extracted hereunder:-
“To,
The Secretary,
Personal & Administrative Reforms
Nagaland, Kohima.
Sub:-ACCEPTANCE LETTER TO THE POST OF EAC.
Sir,
With reference to your letter No. PAR (Pt) dated 15th March, 94. I am pleased to inform you that I shall accept the post offered and render my
service to the Government of Nagaland.
Dated 15th March 94
Kohima
Thanking you.
Yours faithfully,
Sd/- (IMTIRENLA JAMIR)
Roll No. 199â€
14. It was subsequent to such submission of the acceptance letter on 15.03.1994 to the Secretary to the Government of Nagaland, P&AR Department
conveying her acceptance to join the post of EAC in the NCS, the appellant submitted a letter styling it as a letter of resignation on 21.03.1994 to the
Director of Social Security and Welfare, Government of Nagaland stating that she was tendering her resignation in order to enable her to pursue
‘higher studies/higher post’ and, thereby, she requested for issuance of a release order. For ready reference, the contents of the said letter
dated 21.03.1994 are quoted hereunder :-
“The Director,
Social Security & Welfare
Nagaland, Kohima.
Sub : Submission of RESIGNATION LETTER.
Sir,
I beg to state that on the subject cited above that in order to enable me to pursue higher studies/higher post, I am submitting my resignation letter with
a request to kindly accept and issue release order.
Thanking you,
Dated: 21st March, 94
Yours faithfully,
Sd/-(IMTIRENLA JAMIR)
UDAâ€
15. It was on 20.04.1994, the Director of Social Security and Welfare, Government of Nagaland issued a release order addressed to the
Commissioner, Nagaland, with copies to the appellant and others mentioned therein, in respect of the appellant’s release vide a letter no.
SW/ESTT/PF-285/85 in the following words :-
“GOVERNMENT OF NAGALAND
DIRECTORATE OF SOCIAL SECURITY & WELFARE
NAGALAND ::: KOHIMA
NO. SW/ESTT/PF-285/85 /Dtd.Kohima, the 20th April’94
To
The Commissioner
Kohima, Nagaland
Sub : RELEASE ORDER
Sir,
With reference to the subject cited above Smti. Imtirenla Jamir working in this Directorate as UDA is hereby released to enable her to join her the
post of E.A.C. to which she has been appointed.
Yours faithfully,
Sd/- (A.Y. UDYUD)
Director of Social Security & Welfare,
Nagaland, Kohima.
No. SW/ESTT/PF-285/85 /Dtd. Kohima, the 20th April’94
Copy to :-
1. The Accountant General, Nagaland, Kohima.
2. The Commissioner & Secretary to the Govt. of Nagaland, Dept. of Social Security & Welfare, Kohima.
3. Personal Concerned.
4. Officer copy.
Sd/- (A.Y. UDYUD)
Director of Social Security & Welfare,
Nagaland, Kohimaâ€
16. On 20.04.1994, the Director of Social Security and Welfare, Government of Nagaland addressed another letter with same reference number like
the previous letter dated 20.04.1994, quoted above, to the appellant regarding her termination from the post of UDA in the following words :-
“GOVERNMENT OF NAGALAND
DIRECTORATE OF SOCIAL SECURITY & WELFARE
NAGALAND ::: KOHIMA
NO. SW/ESTT/PF-285/85 /Dtd. Kohima, the 20th April ’94
To
Imtirenla Jamir
Kohima, Nagaland
Sub : TERMINATION ORDER
Madam,
With reference to your resignation letter No. Nil dated 21st March, 94, you are hereby terminated from the post of U.D.A. with immediate effect.
Yours faithfully,
Sd/- (A.Y. UDYUD)
Director of Social Security & Welfare,
Nagaland, Kohima
No. SW/ESTT/PF-285/85 /Dtd. Kohima, the 20th April’ 94
Copy to :-
1. The Accountant General, Nagaland, Kohima.
2. The Commissioner & Secretary to the Govt. of Nagaland, Dept. of Social Security & Welfare Kohima.
3. Personal Concerned.
4. Officer copy.
Sd/- (A.Y. UDYUD)
Director of Social Security & Welfare,
Nagaland, Kohimaâ€
17. Thereafter on 27.04.1994, a notification bearing no. PAR-3/19/86(pt) came to be issued under the hand of the Chief Secretary to the Government
of Nagaland whereby 10 (ten) nos. of persons including the appellant, on being selected in the competitive examination conducted by the NPSC, were
appointed to the post of EAC in the NCS, Class-I, Junior Grade. The contents of the said notification are also quoted hereunder for better appreciation
of the issue raised herein :-
“GOVERNMENT OF NAGALAND
DEPARTMENT OF PERSONNEL ADMINISTRATIVE REFORMS
NOTIFICATION
Dated Kohima, the 27th April, 1994
NO.PAR-3/19/86(pt) :: On having been declared successful in the Competition Examination conducted by the Nagaland Public Service Commission,
the Governor of Nagaland is pleased to appoint the following persons to the post of Extra Asstt. Commissioner in service under Nagaland Civil
Service, Class I Junior grade in the scale of pay of Rs. 2100-60-2760-70-3600-80-4000/- p.m. plus Social compensatory (Remote locality) allowances
at the rate of 15% of the basic pay subject to a minimum of Rs. 125/- and maximum of Rs. 1200/- p.m. and other allowances as are admissible under
rules in Nagaland from time to time, with effect from the dates of their assuming charges.
1. Smti. Asangla, Imti.
2. Shri. Tarep, Imchen.
3. Smti. Akumla, Chuba.
4. Shri. Zarenthung, Ezung.
5. Smti. Imtirenla Jamir.
6. Shri. P. Tiatemsu, Pongener.
7. Shri. Nungsanglemba, Ao.
8. Shri. Zhothisa, Dewhuo.
9. Shri. B. Bauai, Phom.
10. Shri. John, S, Chawang.
2. The above appointees will be on probation for a period of 2 (two) years with effect from the dates of their joining and at the end of which they shall
be considered for confirmation subject to fulfilment of conditions prescribed in the service rules in force.
3. Other conditions of appointments not stipulated in this Notification will be governed by the relevant rules/orders being issued from time to time.
4. This appointment is subject to he/she being medically fit.
5. In the interest of public service, the above officers are attached to the office of the Commissioner, Nagaland, Kohima, till they are passed out to the
District.
6. Candidates should join in the office of the Commissioner, Nagaland, Kohima within 30 days from the date of issue of this Notification failing which
and unless otherwise extended the appointment shall be treated be as cancelled.
SD/- T.C.K. LOTHA
Chief Secretary to the Govt. of Nagaland.
NO.PAR-3/19/86 (pt) Dated Kohima, the 27th April, 1994.
Copy to:-
1. The Accountant General, Nagaland, Kohima.
2. The Commissioner, Nagaland, Kohima with 10 (ten) spare copies.
3. The Home Commissioner, Nagaland, Kohima.
4. The Special Secretary to the Government Raj Bhavan, Kohima.
5. The Special Secretary to Chief Minister, Nagaland, Kohima.
6. The Senior P.S. to the Chief Secretary, Nagaland, Kohima.
7. All Private Secretary to Minister/Minister of State/Speaker, Nagaland, Kohima.
8. All Commissioner & Secretary/Secretary/Addl. Secy.
9. All D.C.s/ADCs/SDO(C).
10. The publisher, Nagaland Gazettee, Kohima for publication in the next issue.
11. All officers concerned.
12. Personal files.
13. Guard file.
Under Secretary to the Govt. of Nagaland.â€
18. Pursuant to the notification dated 27.04.1994 where the name of the appellant figured at serial no. 5, the appellant joined in the post of EAC, NCS
on 28.04.1994 and she continued rendering services in that post. The State Government published a Civil List of Officers serving in the NCS in the
year 2002 where the name of the appellant figured at serial no. 149. Similarly in the year 2010, the State Government published a Civil List where the
name of the appellant figured at serial no. 79. In the Civil List published in the year 2015, the name of the appellant figured at serial no. 54. In all those
Civil Lists published in the years 2002, 2010 and 2015, the date of appointment of the appellant in the NCS was recorded as 28.04.1994. In the Civil
List of Officers in the NCS published in the year 2017, the name of the appellant figured at serial no. 48 and her date of entry into Government
Service was, however, recorded as 22.08.1985, which according to the appellant, was wrongly recorded.
19. It is the stand of the State respondents that the Government decided to re-check/verify the records of all officers when it launched the Personal
Information System (PIS) and to that effect two office memoranda â€" Office Memorandum dated 15.05.2014 and Office Memorandum Dated
25.06.2014 â€" were issued. During the said re-verification process, the appellant’s date of entry into Government Service was revised from
28.04.1994 to her actual initial date of entry i.e. 22.08.1985 based on the entries in the appellant’s service book forwarded by the Social Security
and Welfare Department, Government of Nagaland and after completion of the exercise, the State Civil List, indicating the positions of the incumbents
as on 01.01.2017, of all the services under the State Government came to be issued on 24.07.2017 under the hand of the Chief Secretary to the
Government of Nagaland. In the Preface thereof it was clearly mentioned that the State Civil List was compiled and prepared on the basis of the
information provided by the cadre controlling departments. It was further mentioned that the contents of the Civil List did not confer any official
sanction in respect of the particulars given therein such as the date of birth and inter-se-seniority of the officers. Hence, according to the State
respondents, no legally enforceable right of the appellant was violated for making the necessary correction. It was further intimated that in case of any
doubt or dispute, the correct information would need to be ascertained from the original records available in the department concerned.
20. Aggrieved by her revised date of entry into Government service as 22.08.1985, the appellant submitted a representation before the Commissioner
and Secretary to the Government of Nagaland, P&AR Department on 17.03.2020 which was after more than two years from publication of the State
Civil List of 2017, with the request to restore her date of entry into the Government service as 28.04.1994 contending that there was a gap of 7
(seven) days between her previous service in the post of UDA under the Directorate of Social Security and Welfare, Government of Nagaland and
the subsequent service as EAC in the NCS which resulted into a break in service and, therefore, her previous service in the post of UDA could not be
considered as a pensionable service for all purposes in view of her resignation from the said earlier post resulting into forfeiture of her past services.
When the said representation was found pending without consideration, the appellant preferred the writ petition, W.P.(C) no. 63/2020, which was
disposed of on 28.05.2020 with the direction, as mentioned hereinabove.
21. It was in the aforesaid backdrop, the order dated 26.06.2020 came to be passed by the Commissioner and Secretary to the Government of
Nagaland, P&AR Department which was assailed in the writ petition, W.P.(C) no. 78/2020 wherefrom the writ appeal, W.A. no. 95/2020 has arisen.
The relevant parts of the said order dated 26.06.2020 are extracted hereinbelow:-
“2. The Government had examined the representation of the officer and the following observations are made.
(a) Resignation letter dated 21.03.1994 was submitted to the Director (Social Welfare), obviously from the post of UDA (Directorate), to
‘pursue’ a ‘higher post’.
(b) It is quite apparent that the ‘higher post’ referred therein the resignation letter is that of Extra Assistant Commissioner.
(c) This is confirmed from the letter dated 15.03.1994 submitted by Smti. Imtirenla Jamir to the Secretary (P&AR), accepting the post of Extra
Assistant Commissioner offered to her.
(d) Further, letter dated 20.04.1994 issued by the Director (Social Welfare) to the Commissioner, Nagaland, had explicitly stated that Smti. Imtirenla
Jamir was being released to enable her to join the post of Extra Assistant Commissioner under Nagaland Civil Service.
(e) This, therefore, satisfies the provision envisaged vide Rule 26 (2) of the Central Civil Service (Pension) Rules, 1972, which states, “A
resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether
temporary or permanent, under the Government where service qualifies†and as such, no forfeiture of the erstwhile service as UDA (Directorate) in
the Social Security and Welfare Department had arisen subsequent to appointment as Extra Assistant Commissioner in the NCS Cadre.
3. The fact that continuity of service had transpired between the previous employment in the Social Security & Welfare Department and the present
one in the Nagaland Civil Service is further reinforced by the aspects given below :
(a) Acceptance-letter dated 15.03.1994 submitted by Smti. Imtirenla Jamir for the post of Extra Assistant Commissioner had preceded the resignation
letter dated 21.03.1994.
(b) Smti. Imtirenla Jamir had not resigned from the post of UDA (Directorate) prior to appearing in the examination conducted by the Nagaland Public
Service Commission for the post of Extra Assistant Commissioner.
(c) Smti. Imtirenla Jamir was still on the rolls of the Social Welfare Department while accepting the offer of the post of Extra Assistant Commissioner
in the NCS Cadre.
(d) Thus, no break in service between the 2 (two) spells of appointment in question had occurred.
4. Whereas, the Leave Account Sheet of Smti. Imtirenla Jamir indicates that she was on duty for a total of 949 days during the period from
22.09.1991 (date of joining after availing E/L) to 20.04.1994 (date of released order). This total of 949 days could have been accrued only if Smti.
Imtirenla Jamir was in service up to 27.04.1994 in the Special Security & Welfare Department. However, total number of days from 22.09.91 to
20.04.94 works out to 942 days which does not tally with the number of days indicated during the said period in the leave account sheet. It is evident
from the close observation of the leave account and the service book that the original date of 27.04.1994 had been tempered with and changed on
20.04.1994.
5. Whereas Memorandum appointing Smti. Imtirenla Jamir as Extra Assistant Commissioner was issued on 27.04.1994 and Smti. Imtirenla Jamir had
taken charge as Extra Assistant Commissioner the very next day, i.e., 28.04.1994. As per entry recorded on page eleven of the Service Book, the
date up to which service in the Social Security & Welfare Department was verified, i.e., 27.04.1994, had been also tampered with and revised to
20.04.1994. This only goes to further prove that no break in service had emerged between the initial appointment in the Social Security & Welfare
Department and the ensuing one in the Nagaland Civil Service.
6. From the above observations it is concluded that :
(a) There is continuity in between the previous employment as UDA w.e.f. 22.08.85 in the Social Security & Welfare Department and the present
one as EAC in the Nagaland Civil Service, w.e.f. 28.04.94.
(b) There is a clear evidence of tampering of dates in the service book and leave account sheet for change of date from 27.04.1994 to 20.04.1994
which is clearly an attempt to show the break in service of 7 (seven) days.
(c) There has been no break of service in her two employments which is also established from the facts that her acceptance letter dated 15.03.94
preceded the resignation letter dated 21.03.94 and Directorate of Social Security & Welfare letter dated 20.04.1994 had explicitly stated that Smti.
Imtirenla Jamir was released to enable her to join the post of EAC. The officer was still on the rolls of the Social Security & Welfare Department
while accepting the offer of the post of EAC in the NCS cadre.
Therefore, it is absolutely clear that there was no break in between her two employments.
Hence, I hereby dispose of the petition of Smti. Imtirenla Jamir dated 30.05.2020 with a decision that there is no break in service in between the
employment from the post of UDA, Social Security & Welfare to EAC in NCS cadre and her date of entry into Government service will be counted
from 22.08.1985 i.e. date of entry into UDA in Social Security & Welfare Department. In view of this Smti. Imtirenla Jamir shall be released from
Government service w.e.f. 31.08.2020 on completion of 35 years of service.
Since, the entries recorded in the service recorded in the service book as well as the leave account sheet had been found to be tampered. P&AR will
initiate necessary actions for instituting an inquiry.
This has the approval of the Chief Secretary, Government of Nagaland.â€
22. It will be appropriate at this juncture to refer to the provisions of the Nagaland Act. The Nagaland Retirement from Public Employment Act, 1991
(‘the Nagaland Act’, for short) was enacted to regulate the conditions of service in public employment, more particularly, to lay down law
regarding tenure of public employment in the State of Nagaland. It was published in the Gazette on 26.09.1991 after having received the assent of the
Governor of Nagaland on 23.09.1991. It was deemed to have come into force w.e.f. 18.06.1991. As sub-section (1) of Section 2, sub-sections (1) &
(2) of Section 3 and sub-section (1) of Section 5 of the Nagaland Act of 1991 are found to be of relevance, the same are quoted hereunder :-
“Definition :
2. In this Act, unless there is anything repugnant in the subject or context :-
(1) “Public Employment†mean appointment to any pensionable State Public Service or posts connection with the affairs of the State of Nagaland
and the Nagaland Legislative Assembly and includes any appointment under the Government of India, any other State Government, Central or State
Public Sector undertaking and local authority held by persons prior to their absorption under the Public Service of the State of Nagaland and the
Nagaland Legislative Assembly which counts for the purpose of pension.
Retirement from public employment :
Section 3 (1) : Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for
a term of thirty-three years from the date of his joining public employment or until he attains the age of fifty-seven years whichever is earlier:
Provided that in special circumstances, a person under public employment may be granted extension by the State Government upto a maximum of one
year;
Provided further that the Government may have the cases of all persons under public employment screened from time to time to determine their
suitability for continuation in public employment after the attainment of the age of fifty years.
Section 3(2) : All persons under public employment shall retire on the afternoon of the last day of the month in which he attains the age of fifty-seven
years or on completion of thirty-three years of public employment whichever is earlier.
Power to remove difficulties :
Section 5 (1) If any difficulty or doubt arises in giving effect to the provisions of this Act, the State Government may, by order publish in the Nagaland
Gazette, make such provisions, not inconsistent with the purpose of this Act as appears to it to be necessary or expedient for the removal of the
difficulty or doubt and the order of State Government in such cases shall be final.â€
22.1. A few provisions of the Nagaland Act of 1991 came to be amended by the Nagaland Retirement from Public Employment (Amendment) Act,
2007, notified on 22.09.2008 and published in the Gazette on 15.04.2009. The provisions that were substituted were sub-sections (1) & (2) of Section 3
and the substituted provisions read as under :-
“Retirement from public employment:
Section 3 (1) : Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office
from the date of his joining public employment until he attains the age of sixty years.
Section 3 (2) :All person under public employment shall retire on the afternoon of the last day of the month in which he attains the age of sixty
years.â€
22.2. The afore-mentioned provisions contained in sub-sections (1) & (2) of Section 3 of the Nagaland Act came to be further amended by way of
substitution vide the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 which was notified on 12.08.2009 and published
in the Gazette on 13.08.2009 i.e. the date from which it came into force. The substituted provisions read as under :-
“Retirement from public employment:
Section 3 (1) : Notwithstanding anything contained in any rule or orders for the time being in force, a person in public employment shall hold office for
a term of 35 years from the date of joining public employment or until he attains the age of 60 years, whichever is earlier.
Section 3(2) : A person under public employment shall retire on the afternoon of the last day of the month in which he attains the age of 60 years, or in
which he completes 35 years of public employment, whichever is earlier.â€
22.3. As the appellant had referred to Clause 6 of an Office Memorandum no. AR-3/GEN-231/2011 dated 29.03.2017 issued by the P&RD
Department, Government of Nagaland through the Chief Secretary to the Government of Nagaland, Clause 6 of the said Office Memorandum is also
quoted hereunder :-
“6. Now, therefore, it has been decided that the period of service rendered on ad hoc/contract/work-charged/substitute basis which is followed by
regularization or regular appointment without break or any gap in service except resignation but notwithstanding the cases of resignations taken up
with proper permission for another appointment, shall be treated as public employment and included in computation of length of service for the purpose
of pension under the Nagaland Retirement from Public Employment (2nd Amendment) Act, 2009.â€
23. Sub-section (1) of Section 3 of the Nagaland Act, as it exists on date, contains a non-obstante clause. The statutory prescription contained therein
signifies that a person in public employment can either hold office for term of 35 years from the date of joining public employment or till he/she attains
the age of 60 years, whichever is earlier. As has been provided in Section 2, ‘public employment’ means appointment to any pensionable State
Public Service or post in connection with the affairs of the State of Nagaland and the Nagaland Legislative Assembly and public employment also
includes any employment under the Government of India or under any State Government or in Central Public Sector Undertaking or in State Public
Sector Undertaking or any Local Authority held by such a person prior to his absorption in the Public Service of the State of Nagaland and the
Nagaland Legislative Assembly which counts for the purpose of pension.
24. The service book of the appellant records the fact that the appellant’s employment as an UDA under the Directorate of Social Security &
Welfare, Government of Nagaland was a pensionable one and no dispute has been raised to that effect. Similarly, the appellant’s service in the
NCS is undoubtedly public service for the State of Nagaland.
25. The provision of Section 3 of the Nagaland Retirement from Public Employment Act, 1991, as substituted by the Nagaland Retirement from Public
Employment (Second Amendment) Act, 2009, came to be challenged by Nagaland Senior Government Employees Welfare Association by filing a writ
petition before this Court. The Association challenged the constitutional validity of the Nagaland Retirement from Public Employment (Second
Amendment) Act, 2009, inter alia, on the grounds that the provisions were arbitrary, irrational, ultra vires and violative of Articles 14 and 16 of the
Constitution of India. The introduction of 35 years’ service as one of the conditions for retirement of Government employees was specifically
challenged. Ultimately, the matter reached the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India in Nagaland Senior
Government Employees Welfare Association and others vs. State of Nagaland and others, reported in (2010) 7 SCC 643, has negated the challenge
by holding that the said provision which prescribes retirement of persons from public employment in the State of Nagaland on completion of 35
years’ of service from the date of joining or until attaining the age of 60 years, whichever is earlier, does not suffer from the vice of arbitrariness
or irrationality and is not violative of Articles 14 and 16 of the Constitution. While so upholding, the Hon’ble Supreme Court has held that the
provision has been designed to lay down a general framework of retirement policy seeking to put a cap on the number of years and employees may be
allowed to be in the service of the State Government in order to make available job opportunities in a more equitable manner. It has been observed
that merely because some employees had to retire from public employment on completion of 35 years of service although they had not completed age
of retirement on superannuation does not lead to a conclusion that the enactment is arbitrary, irrational, unfair and unconstitutional. There is nothing
wrong if the legislation provides for retirement of the Government employees based on maximum length of service or on attaining a particular age,
whichever is earlier, if the prescribed length of service or age is not irrational. The Association’s contention that alternative method of retirement
by way of length of service would result in different age of superannuation of employees holding the same post depending upon their age of entry into
service and would be manifestly violative of Articles 14 and 16 of the Constitution was noted and rejected by observing that since the alternative mode
of retirement provided in the provision is applicable to all State Government employees there is no discrimination and the classification has been
founded to be on valid reason.
26. As Rule 26(1) and Rule 26(2) of the CCS (Pension) Rules have also been referred to on behalf of the appellant to bring home the urged point
regarding existence of break which resulted in forfeiture of entire past service the same are also quoted hereunder for ready reference :-
“26. Forfeiture of service or resignation. - (1) Resignation from a service or a post, unless it is allowed to the withdrawn in the public interest by the
appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether
temporary or permanent, under the Government where service qualifies.â€
27. None of the parties has brought to the notice of the Court any service rules governing the matter of resignation in respect of government employee
in the State of Nagaland. It has been submitted at the bar that the provisions of the CCS (Pension) Rules, 1972 are applicable for the government
employees of Nagaland.
28. Thus, the core issue that has arisen for consideration is whether there was any break in service between the two public employments of the
appellant in the facts and circumstances obtaining in the case and if yes, whether it is a case under Rule 26(1) or under Rule 26(2) of the CCS
(Pension) Rules. Rule 26(1) of the CCS Pension Rules inter alia prescribes that resignation from a service or a post entails forfeiture of past service.
But, Rule 26(2) says that if the resignation has been submitted with proper permission to take up another appointment, whether temporary or
permanent, under the Government where service qualifies then such resignation shall not entail forfeiture of past service.
29. The Office Memorandum dated 29.03.2017 was issued by the Government purportedly in exercise of the powers under Section 5 of the Nagaland
Act on the subject - ‘Counting of Contract/Ad-hoc/Work-Charged/Substitute Period for Retirement Purpose’, when clarifications were sought
by different departments from time to time as to whether the services rendered in contract/ad-hoc/work-charged/substitute capacity prior to regular
appointment made through the NPSC or Departmental Selection Board or any other prescribed procedure shall count as public employment for the
purpose of calculation of length of service under the Nagaland Act. Clause 6 thereof has provided that the period of service rendered on contract/ad-
hoc/work-charged/substitute basis which is followed by regularization or regular appointment without any break or gap in service shall be treated as
public employment and shall be included in computation of length of service for the purpose of pension under the Nagaland Retirement from Public
Employment (Second Amendment) Act, 2009. It has further clarified that in case of resignation simpliciter, the period of service rendered on
contract/ad-hoc/work-charged/substitute basis shall not be counted. It has also clarified that if resignation was tendered to take up with proper
permission another appointment, the period of service rendered on contract/ad-hoc/work-charged/substitute capacity shall be treated as public
employment and shall be counted for the purpose of pension under the Nagaland Retirement from Public Employment (Second Amendment) Act,
2009. Though the clarifications made in the Office Memorandum dated 29.03.2017 is not specifically applicable to the case in hand in view of the fact
that it involves an issue regarding counting of past service or otherwise rendered in a regular post which is a pensionable service if the employee joins
another post in the State Civil Service under the same Government pursuant to selection by the NPSC but the Office Memorendum, in essence,
embodies the same principle as incorporated in Rule 26 of the CCS (Pension) Rules.
30. The letter no. PAR (Pt) dated 15.03.1994 of the P&AR Department, Government of Nagaland Department, referred to in the appellant’s
letter dated 15.03.1994, has not been brought to the notice of the Court by the appellant at any point of time. But from the said letter of the appellant
dated 15.03.1994 (supra), it is clearly discernible (a) that there was a letter no. PAR (Pt) dated 15.03.1994 from the P&AR Department, Government
of Nagaland; (b) that by the said letter, the appellant was requested to convey her acceptance to join in the post of EAC, meaning thereby, the
appellant was selected for the post of EAC; and (c) that the appellant by her own letter dated 15.03.1994 communicated her acceptance to the
Secretary to the Government of Nagaland, P&AR Department to join the post of EAC and to render her services to the Government of Nagaland.
31. From the release order dated 20.04.1994, it is further discernible (a) that the Director of Social Security & Welfare, Nagaland was aware of the
fact that the appellant was selected for the post of EAC, NCS; (b) that the said fact of selection of the appellant was considered; and (c) that the
appellant was released from the post of UDA under the Directorate of Social Security & Welfare, Government of Nagaland in order to enable her to
join the said post of EAC, NCS. By the other order dated 20.04.1994, the Director of Social Security & Welfare, Nagaland terminated the service of
the appellant from the post of UDA with immediate effect in reference to her letter of resignation dated 21.03.1994 whereby she sought release from
the post of UDA. The purport and effect of both the orders are to be considered conjointly with the preceding events leading to the passing of said
two orders and the said two orders cannot be read in isolation to each other.
32. With regard to the issue of tampering in the service book of the appellant an enquiry was caused in consequence of the order dated 26.06.2020
through the Commissioner and Secretary to the Government of Nagaland, Soil and Water Conservation Department as one-man enquiry committee. It
was observed by the one-man enquiry committee that the service book and the leave account sheet were apparently tampered which should have
been avoided. The one-man enquiry committee did not identify the person(s) responsible for such tampering in the service book. In such view of the
matter, this Court is not in a position to make any further comment in this regard.
33. But a look at the service book of the appellant, produced by the learned State Counsel in original before the Court, goes, however, to demonstrate
that evidently, there is tampering with regard to the date at least in two places. There is overwriting and we refrain from making any comment as to
whether there is overwriting of ’20.04.1994’ over ’27.04.1994’ or vice versa but one fact which is clear from the service book is that
in the column in respect of the amount of earned leave which is beside the column where overwriting of 20.04.1994/27.04.1994 is found, the number
of days found recorded is 949 days, without any tempering.
34. It is an admitted position that a single service book had been maintained in respect of the entire service career of the appellant wherein the service
details of the appellant rendered in the Directorate of Social Security and Welfare, Government of Nagaland as a regular UDA and in the Nagaland
Civil Service after joining as an EAC had been maintained. The maintenance of one service book goes to demonstrate that the Government in the
State of Nagaland had been treating the past service of the appellant rendered in the Directorate of Social Security and Welfare, Government of
Nagaland as qualifying service for the purpose of pension. The aforesaid position is substantiated by the fact that 949 days of leave, as recorded in the
Leave Account Sheet, could have been accrued to the appellant only if the service period of the appellant is calculated up to 27.04.1994 in the
Directorate of Social Security and Welfare, Government of Nagaland, notwithstanding the alleged tempering of dates at other places in the service
book and the resultant ‘break’ in service for a period of 7 days. The same is further substantiated from the admission of the appellant that the
appellant had received her full pay as UDA in the Directorate of Social Security and Welfare, Government of Nagaland for the entire month of April,
1994. The service book also shows that the appellant was admitted to the General Provident Fund w.e.f. 10.08.1987 under the signature of the
Director, Social Security and Welfare, Nagaland and was allotted GPF Account No. NL/MISC/3309 by the office of the Accountant General,
Nagaland on 15.09.1987.
35. It is not the case of the appellant that it was not within her knowledge that only one service book was being maintained by her employer for her
entire service period from 22.08.1985 to 2017. It is also not the case of the appellant that she had raised any objection before 17.03.2020 with regard
to maintenance of one service book since 22.08.1985 claiming that there was a break in service between the two public employments which had
resulted in forfeiture of her past service in the Directorate of Social Security and Welfare, Government of Nagaland. During the period since
20.04.1994 till 17.03.2020, the appellant did not raise any objection when the State respondents were continuing to treat her service in the post of
UDA to be qualifying service for the purpose of pension. Nothing has been stated by the appellant to the effect that after such termination of service
on 20.04.1994, the entitlement towards service rendered for the period from 22.08.1985 to 20.04.1994 had been released to her or any claim for
release of such service entitlement like GPF, etc. was made by her.
36. It is settled that resignation involves a voluntary act on the part of the employee to leave service and it can be tendered at any time. A resignation
may be prospective to be operative from a future date and in that event it will take effect from the date indicated therein and not from the date of
submitting the letter of resignation. In Motiram vs. Param Dev, (1993) 2 SCC 725, the concept of resignation has been interpreted as an act of giving
up or relinquishing an office and in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the
office and the concomitant act of its relinquishment. Such act of relinquishment may take different forms or assume a unilateral or bilateral character,
depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when
such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is
communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is
intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from
the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the
communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be
taken on such communication of the intention to relinquish by accepting such request and in such a case the relinquishment does not become effective
or operative till such action is taken. It has been held that as to whether the act of relinquishment of an office is unilateral or bilateral in character
depends upon the nature of the office and the conditions governing it. It has been further observed that in so far as government employees are
concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective.
37. The nature and manner in which a government employee is seeking determination of his/her employment by way of relinquishment is also
dependent upon the preceding, attending and succeeding events and circumstances surrounding such an act of relinquishment and the manner in which
the same was sought to be and has been construed and treated by the parties. To be a resignation simpliciter, it must be unconditional. The intention of
the employee to sever the ties with the employer must be complete without any condition attached to it and the acceptance of the same by the
employer must also be without any condition for a resignation to be treated as resignation simpliciter with complete forfeiture of the past service
rendered by such employee with the employer.
38. From the text and tenor of the letter dated 21.03.1994 of the appellant, it is seen that the appellant though styled the same as a letter of resignation,
requested the competent authority to accord his approval to release her from the post of UDA in order to join a higher post, for which she had
conveyed her acceptance already. The use of the words ‘higher studies’ in the letter is found to be superfluous if one considers the
circumstances proceeding, attending and succeeding the event of submission of such letter. In the above conspectus of background events, it is not
possible, in our considered view, to construe that the letter of resignation dated 15.03.1994 (supra) submitted by the appellant to join the higher post
was intended for resignation simpliciter to result in forfeiture of her entire past service. From the release order dated 21.04.1994, it is evident that it
was well known to the competent authority that the appellant had already been selected for the post of EAC, NCS. Though the selection of the
applicant in the NCS was preceded by an act of disobedience on the part of the appellant with her application not having been submitted through the
proper channel yet the employer of the appellant showing benevolence and by an action amounting to condonation of such act, had permitted the
release of the appellant by accepting the resignation tendered by the appellant with the consequent benefit of allowing her past service in public
employment as a regular UDA to be countable in future as she would be joining a higher level post of EAC, NCS from the post of UDA. The
acceptance of the letter of resignation was laced with the condition that the appellant was released in order to enable her to join the post of EAC, to
which she was already selected. The concept of technical resignation is to be seen in such background facts and circumstances of the case. From text
and tenor of the release order dated 20.04.1994 (supra) whereby the competent authority had released the appellant from the post of UDA in the
Directorate of Social Security and Welfare, Government of Nagaland in order to enable her to join the post of EAC in the NCS where she had been
appointed, it is not open for the appellant to say now that it was not perceptible to her since that point of time till the publication of the Civil List in the
year 2017 that such acceptance of resignation did not entail forfeiture of her past service till 20.04.1994.
39. The sequence of events leading to the appellant’s joining the post of EAC, NCS, in our considered view, when considered in the context of the
provisions of the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009, and the CCS (Pension) Rules, turns out, in essence,
to be a case of technical resignation. Since by the letter of resignation the appellant sought for her release to enable her to pursue higher post, it was
not for a resignation simpliciter. Even if it is accepted for the sake of argument notwithstanding the tampering found in the service book, that there
was a purported break or gap of seven days it is not open for the appellant to take shelter under the provisions of Rule 26(1) of the CCS (Pension)
Rules to contend for a strict literal interpretation now when the appellant enjoyed the benefit of pay for the entire month of April, 1994 and benefit of
leave till 27.04.1994. Even it is assumed that the appellant did not work for the period between 20.04.1994 and 28.04.1994 but the State Government
had treated the said period in respect of the appellant as a period in service all along by counting such past service of the appellant for the purpose of
pension, which position the appellant continued to accept without any demur till submission of the representation on 17.03.2020. When the appellant
continued to enjoy the benefit under the provisions of the Nagaland Act flowing out of the provisions of Rule 26(2) of the CCS (Pension) Rules for
such a long period of time it is not open for the appellant to change the position to take the benefit under Rule 26(1) of the CCS (Pension) Rules at a
distant point of time.
40. By the impugned order dated 30.06.2020, the appellant was made to retire from public employment w.e.f. 31.08.2020, that is, after rendering 35
years of service in public employment since 22.08.1985 with all the service benefits. The impugned order dated 26.06.2020 is found to have been
passed by taking into consideration all the relevant aspects and on the basis of the records. From the above discussion and in the light of the decision in
Nagaland Senior Government Employees Welfare Association (supra), we are of the considered view that any period of service for the appellant
beyond 31.08.2020 will run counter to the provisions of Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 and the CCS
(Pension) Rules. In such view of the matter, we find no good and sufficient ground to arrive at a finding other than the one which the learned Single
Judge had recorded in the impugned common judgment and order dated 25.08.2020.
41. In view of the above discussions, we find no merit in the two writ appeals and accordingly, both the writ appeals are dismissed. There shall,
however, be no order as to costs.
