Gauhati High Court
Smti. Manati Basumatary vs The State Of Assam And 5 Ors on 30 January, 2020
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/9
GAHC010070002018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2216/2018
1:SMTI. MANATI BASUMATARY
W/O- LT MANIRAM BASUMATARY, R/O- VILL- HATIPOTA, P.O.
DANGAIGAON, P.S. DHALIGAON, DIST- CHIRANG, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 5 ORS.
REP. BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
DEPTT. OF EDUCATION, DISPUR, GHY-6
2:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
DISPUR
GHY-6
3:FINANCE AND ACCOUNT OFFICER
DIRECTOR OF PENSION
ASSAM
GHY-6
4:THE DIRECTOR
EDUCATION
BTC
KOKRAJHAR
5:DISTRICT ELEMENTARY EDUCATION OFFICER
CHIRANG
PIN-783385
Page No.# 2/9
6:FINANCE DEPARTMENT
GOVT. OF ASSAM
DISPUR
GUWAHATI-781006
Advocate for the Petitioner : MR. S BISWAS
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
Date of hearing and judgement : 30-01-2020
JUDGEMENT AND ORDER (ORAL)
1. Heard Mr. S. Biswas, learned counsel for the petitioner. I have also heard Ms. N. Phukan, learned Standing Counsel, Education Department, Assam, appearing for the respondent no.1 ; Mr. B. Deuri, learned Government Advocate, Assam, representing the respondent nos. 2 and 3 ; Mr. M. Khataniar, learned Standing Counsel, BTC, appearing for respondent nos. 4 and 5 and Mr. R. Barpujari, learned Standing Counsel, Finance Department, Assam, appearing for the respondent no. 6.
2. The petitioner before this Court is the widow of Late Maniram Basumatary, who was serving as an Assistant Teacher in an L.P.School under the respondents. Since the petitioner's husband was a State Government employee, hence, after his death, the writ petitioner had approached the department seeking family pension. However, by the impugned order dated 20/06/2017 issued by the Finance and Accounts Officer, Directorate of Pension, the petitioner's prayer was rejected on the ground that her deceased husband was not entitled to receive pension. Hence, this writ petition seeking a writ of mandamus. By the interim order dated 19/11/2018 passed in this proceeding, this court had directed the respondents to pay provisional pension to the writ petitioner from the month of December 2018. Accordingly, the petitioner is receiving provisional pension.
3. The facts of the case, in a nutshell, are that the petitioner's deceased husband Maniram Basumatary was appointed as Assistant Teacher in 404 No. Hatipota LP School on Page No.# 3/9 fixed stipend of Rs. 1800/- per month against the vacancy arising out of death/retirement of one Bireswar Ray. Maniram Basumatary died in-harness on 07/02/2016 leaving behind his widow, i.e. the writ petitioner and a minor child. In the appointment order dated 12/03/2001, it was mentioned that the appointee would be deputed to undergo Junior Basic Training and shall be allowed to draw the regular time scale of pay as per ROP Rules 1998 only upon completion of the basic training. Pursuant to the appointment order dated 12/03/2001, the petitioner's husband had joined the post of Assistant Teacher. Subsequently, on being deputed for the basic training, he had undergone the same and had successfully completed the same on 20/09/2007. Thereafter, by the order dated 24/10/2007 issued by the respondent no. 4, it was notified that the petitioner's husband would be entitled to draw regular time scale of pay of Rs. 3130/- to Rs. 6600/- per month plus other allowances, as admissible under the Rules, with effect from 20/09/2007.In the meantime, the Government of Assam, in the Finance Department had issued Office Memorandum (OM) dated 06/10/2009 introducing the "The New Defined Contribution Pension Scheme " (here-in-after referred to as the "NPS"). THe NPS was made applicable to all new entrants joining State Government Service on regular basis against sanctioned vacant post(s) after 01/02/2005. Subsequently, the Commissioner & Secretary to the Government of Assam, Pension & Public Grievances Department had issued OM dated 14/01/2016 notifying that in view of introduction of the NPS, the Assam Service(Pension) Rules, 1969 and the Assam Services Extraordinary Family Pension Rules 1963 was amended so as not to extend coverage of benefits of invalid pension/ extraordinary family pension/ special family pension etc. to the Government servants appointed on or after 01/02/2005. Relying upon the OM dated 14/01/2016, the prayer for family pension made by the writ petitioner was rejected by the authorities on the ground that the regular appointment of the petitioner's husband was on 20/09/2007 i.e after 01/02/2005. Therefore, the core controversy arising in this case is pertaining to the question as to whether, the date of appointment of the petitioner's husband was 12/03/2001 or was it 20/09/2007 for the purpose of determining his entitlements under the OM dated 06/10/2009.
4. The respondent no. 2 has filed affidavit, inter- alia, contending that the petitioner's husband was allowed to draw regular scale of pay only with effect from 20/09/2007. Hence, his services ought to be treated as being regularized only with effect from 20/09/2007. Therefore, the petitioner would come within the purview of the "New Defined Contribution Page No.# 4/9 Pension Scheme" and hence, shall not be entitled to receive pension.
5. By filing a separate counter- affidavit, the respondent nos. 4 and 5 have also taken a similar stand, thereby contending that the petitioner's husband having passed the Junior Basic Training on 20/09/2007, his services were regularized accordingly. Since the petitioner's husband was appointed on 12/03/2001 at a fixed stipend of Rs. 1800/- per month, the OM dated 14/01/2016 would not permit family pension to the petitioner.
6. Mr. S. Biswas, learned counsel for the petitioner submits that the deceased husband of his client was appointed against a regular vacancy, by following the due process of law and therefore, the appointment was on regular basis. Mr. Biswas further submits that merely because Maniram was allowed to draw regular pay scale with effect from 20/09/2007, it cannot be said that his appointment was also made on that date. According to Mr. Biswas, the petitioners case would not come within the purview of NPS which was a scheme introduced after the petitioner's husband had joined service.
7. Mr. R. Borpujari, learned Standing Counsel, Finance Department has strenuously argued that the petitioner's husband did not have the requisite qualification of Junior Basic Training and, therefore, he was not allowed to draw the regular pay scale in the post of Assistant Teacher. As such, his appointment cannot be considered to be on regular basis prior to 20/09/2009. In such view of the matter, the subsequent notification dated 14/01/2016 issued by the Government of Assam, according to Mr. Borpujari, would come in the way of the petitioner's claim for receiving family pension. The submission made by the learned Standing Counsel, Finance Department has also been adopted by the other departmental counsels.
8. In this case, the basic facts are more or less admitted. There is no dispute about the fact that the husband of the petitioner was appointed as an Assistant Teacher in the L.P. School vide order dated 12/03/2001 against a regular vacancy. There is also no dispute regarding the fact that late Maniram Basumatary was allowed to draw stipend of Rs. 1800/- per month since he had not passed the Jr. Basic Training as required by the Rules. It is the admitted position of fact that late Maniram Basumatary was allowed to draw regular pay scale only with effect from 20/09/2007, after having completed the Junior Basic Training .
9. As per the Assam Service (Pension) Rules, 1969, a Government servants would be entitled to receive pension upon his retirement from service. However, on 06/10/2009, the Page No.# 5/9 Government of Assam, in the Department of Finance, had issued an Office Memorandum (OM) introducing the NPS which was made applicable to the entrants in Government service after 01/02/2005.The salient features of the NPS scheme, as appearing from the OM dated 06/10/2009, are as follows :-
"The salient features of the New Defined Contribution Pension Scheme are as under :-
• The aforesaid New Pension will work on Defined Contribution basis and will be of two Tier i.e. Tier-I & II. Contribution to Tier-I is mandatory for all Government servants joining Government services on or after 01-02-2005 while Tier -II will be optional and at the discretion of Government servants. • In Tier-I, Government servants will have to make a contribution @ 10% of his/her basic pay plus Dearness Allowances which will be deducted from his/her salary bill every month by the Drawing & Disbursing Officer (DDO) concerned. The Government will make an equal matching contribution . • Contribution under Tier-I (and the investment returns) will be kept in a non-withdrawable Pension Account. For Tier-II - separate instruction and guidelines will be issued in due course.
• The existing provisions under Defined Benefit Pension and GPF would not be applicable to new Government servants joining Government service on or after 01/02/2005.
• There shall be a Central Record-Keeping Agency (CRA) and several Pension Fund Managers.
• The amount of such contribution recovered from the government Servants and the equal matching Government's contribution shall finally be transferred to the Pension Fund Managers for investment through Pension Fund Regulatory Development Authority.
• A Government servant can exit after attaining the age of superannuation from the Tier-I of the Scheme. At the time of exit, it would be mandatory for him to invest 40% of Pension Wealth for purchase of an Annuity (from an Insurance Regulatory Development Agency (IRDA) regulating Life Insurance coverage) which will provide for pension for the lifetime of the Page No.# 6/9 employee and his/her dependents (parents/Spouse). In the case of Government Servant who is required to leave the Scheme before attaining the age of superannuation, the mandatory annunitisation should be 80% of the Pension Wealth.
• The deduction of employee's contribution for the New Defined Contribution Pension Scheme in respect of Government servant joining State Government services on or after 01/02/2005 will be effected from the salary of the month of January, 2010.
• As an interim measure, the amount of contribution so deducted from employees salary will be kept in the Public Account of the State Government of Assam till the accumulated funds are transferred to the Pension Fund Regulatory Development Authority (PFRDA), Government will pay interest @ 8% per annum and until further orders.
• Necessary Permanent Pension Account (PPA) No. will be issued in favour of each employee for crediting their contribution along with State Government's matching contribution. This may be confirmed by every DDOs prior to the deduction of contribution.
• The payment of arrear contribution towards the New defined Contribution Pension Scheme from the month following the month of their date of joining will however be optional Government servants joining State Government services on or after 01/02/2005 may pay their entire arrear contribution from the month following the month of their date of joining at a time or in a monthly installment basis. Government will pay matching contribution accordingly. In cases of Government servants who are not willing to pay arrear contribution, no matching contribution will be paid by the Government. Their cases will be treated as per guidelines of the Scheme. • Detailed Guidelines for the New Defined Contribution Pension Scheme is appended herewith."
10. It is evident on the face of the record that by relying on the OM dated 06/10/2009, the Government of Assam in the Department of Pension and Public Grievance, had issued the Page No.# 7/9 Office Memorandum dated 14/01/2016 laying down the guidelines for payment of invalid / extra ordinary/special family pension to the Government servants appointed on or after 01/02/2005.
11. The learned departmental counsel have argued that the eligibility of the petitioner's husband to receive regular pay scale was only with effect from 20/09/2007 and therefore, his appointment prior to 20/09/2007 cannot be treated to be regular. However, it is to be noted here-in that by the order dated 12/03/2001, the petitioner's husband was appointed against a regular vacancy. He was not allowed to draw the regular pay scale merely because he had not completed the Junior Basic Training.
12. Rule 4 of the Assam Elementary Education (Provincialised) Services and Conduct Rules, 1981 lays down the provisions for confirmation of an employee and as per Rule 4(b) Successful completion of the departmental training is one of the criteria for confirmation of services of the employee. From a perusal of the said rules, it is clear that the employees coming within the purview of the Rules of 1981 would be entitled to confirmation only upon completion of the Jr. Basic Training. Accordingly, the petitioner has been allowed to draw the regular pay scale upon completion of the basic training. However, the Rules of 1981 does not debar appointment of Assistant Teachers who have not completed the Jr. Basic Training. Rather, it appears that Jr. Basic Training is a part of in-service training and fulfilment of that criteria merely has a bearing on the confirmation of the employee and his right to receive regular pay scale. Therefore, it cannot be said that under the Rules, non-completion of Jr. Basic Training would make the appointment of the candidate itself as irregular. If a candidate is appointed in the post of Assistant Teacher by following the prescription of the relevant Rules and against a regular vacancy, his appointment cannot be termed as irregular merely on the ground that the candidate had not acquired the qualification of having passed the basic training since the rules do not say so.
13. Regular appointment in services is one thing and permitting an employee to draw a regular pay scale upon achieving certain qualification is altogether a different thing. It may be the case that the petitioner was not allowed to draw the regular pay scale due to want of his qualification of having successfully completed the Junior Basis training. Completion of Junior Basic Training, in the considered opinion of this Court, was one of the condition prescribed by the Rules for confirmation in service and also to permit drawal of regular pay scale and Page No.# 8/9 therefore, non-completion of Junior Basic Training may create a bar for the employee to avail certain in service benefit including regular pay scale but the same by itself cannot be a valid ground to treat the appointment itself as irregular. Moreover, unless the initial appointment of the candidate is against a regular vacancy and in accordance with the Rules, his services cannot be regularized merely on completion of the Jr. Basic Training. It is not the case of the department that the initial appointment of the petitioner's husband was de hors the Rules.
14. There is yet another aspect of the matter which deservs to be mentioned here-in. The notification dated 06/10/2009 clearly lays down the mechanism to be followed by the department in respect of those Government employees coming with the purview of NPS. Such mechanism not only contemplates mandatory deduction from the salary of employees on regular basis but also the need for the Government (employer) to make matching contributions in a Permanent Pension Fund account of the employee created for the above purpose. In the present case, there is nothing on record to show that any such NPS account of the petitioner's husband was ever created by the department nor is there anything to suggest that mandatory deduction or matching contribution was ever made by the employer in such account. If that be so, the department cannot be allowed to take a plea at this distant point of time that the husband of the petitioner was covered under the NPS Scheme.
15. Mr. S. Biswas, learned counsel for the petitioner has relied upon the decision of this Court rendered in the case of Anjali Devi Vs. Assam State Electricity Board and others reported in 2018 (4) GLT 1110 to contend that the question of regularization in such matters would arise only if the appointment is not against a regular vacancy. From a careful scrutiny of the decision rendered in the case of Anjali Devi (Supra), I find that the learned Single Judge, while examining a similar OM dated 21/11/2007 introducing NPS in the Assam State Electricity Board, has held that the deceased husband of the petitioner therein having been appointed as a Muster Roll worker on 01/02/1984 and his services having been regularized with effect from 01/06/2005, he cannot be treated to be a new entrant to service with effect from his date of regularization. Having regard to the facts of the case, I feel persuaded to adopt a similar view in the present case as well.
16. In another decision of this Court rendered in the case of Binoy Kumar Nath and others Vs. The State of Assam and others [WP(C) 5559 and 3999/2014 decided on 12.042018] relied upon by Mr. R. Borpujari, the learned Single Judge has observed that the Page No.# 9/9 NPS scheme introduced by the OM dated 06/10/2009 would also be applicable to those employees whose services are regularized against regular post after 01/02/2005. However, as has been held above, this is not a case when the service of the petitioner's husband had been regularized after 01/02/2005. He had merely been allowed to draw regular time scale of pay after 01/02/2005. Therefore, the ratio laid down in the aforesaid decision, in the opinion of this court, would not be applicable in this case.
17. For the reasons stated herein above, I am of the view that the petitioner has succeeded in making out a good case for issuing a Writ of Mandamus in her favour. It is, therefore, declared that the petitioner's husband was not covered under the OM dated 06/10/2009 during the period of his service. Consequently, it is held that the pensionary entitlement of the petitioner's husband was covered under the Assam Services (pension) Rules, 1969 and not under the OM dated 06/10/2009.
18. In the light of the above discussions, the respondents are directed to take necessary steps for releasing the family pension due and payable to the writ petitioner under the relevant Rules.
This order be complied with within 3 (three) months from the date of receipt of the certified copy of this order. Until such time, the regular family pension is paid to the petitioner, provisional pension as per the direction contained in the order dated 19/11/2018 passed by this Court, shall be continued.
Writ petition stands disposed of.
There will be no order as to costs.
JUDGE Comparing Assistant