Gauhati High Court
Binapani Das vs The State Of Assam And 12 Ors on 26 February, 2021
Author: Sudhanshu Dhulia
Bench: Chief Justice, Manash Ranjan Pathak
Page No.# 1/14
GAHC010192862020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/18/2021
BINAPANI DAS
W/O- LATE DWIJEN CHANDRA DAS, R/O- VILL.- BELTOLA (PITBARI), P.O.
BALADMARI, P.S. GOALPARA, DIST.- GOALPARA, ASSAM, PIN- 783101.
VERSUS
THE STATE OF ASSAM AND 12 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
PUBLIC WORKS DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT.
OF ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (ROADS) ASSAM
CHANDMARI
GUWAHATI- 781003.
5:THE CHIEF ENGINEER
IRRIGATION DEPTT.
ASSAM
GUWAHATI-03.
Page No.# 2/14
6:THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
GUWAHATI-29.
7:THE BODOLAND TERRITORIAL COUNCIL
REP. BY THE SECRETARY
IRRIGATION DEPARTMENT
BODOFANAGAR
KOKRAJHAR
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
8:THE EXECUTIVE ENGINEER
P.W.D. GOALPARA (RURAL ROADS) DIVISION
GOALPARA
DIST.- GOALPARA
ASSAM
PIN- 783101.
9:THE EXECUTIVE ENGINEER
KOKRAJHAR DIVISION
IRRIGATION DEPARTMENT
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
10:THE ASSTT EXECUTIVE ENGINEER
IRRIGATION DEPARTMENT
KOKRAJHAR DIVISION
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783360.
11:THE TREASURY OFFICER
GOALPARA TREASURY
GOALPARA
DIST.- GOALPARA
ASSAM
PIN- 783101.
12:THE TREASURY OFFICER
KOKRAJHAR TREASURY
Page No.# 3/14
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
13:BAL BAHADUR PRADHAN
S/O- LATE RATAN BAHADUR PRADHAN
R/O- VILL.- CHANDMARI
P.O. MAGURMARI
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370
Advocate for the Petitioner : MR. K R PATGIRI
Advocate for the Respondent : GA, ASSAM
Linked Case : WA/182/2020
SUREN BORDOLOI
S/O- LATE NARIA BORDOLOI @ NAREN BORDOLOI
R/O-VILL.- TUPGAON
P.O. GUKHAJUWA
MORIGAON
DIST.- NAGAON
ASSAM
VERSUS
STATE OF ASSAM AND 3 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6
2:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
ASSAM
CHANDMARI
GUWAHATI-3.
3:THE ACCOUNTANT GENERAL (A AND E)
Page No.# 4/14
ASSAM
MAIDAN GAON
BELTOLA
GUWAHATI-29.
4:THE EXECUTIVE ENGINEER
KALIABOR AND INTEGRATED KOLONG DIVISION (IRRIGATION) NAGAON
ASSAM.
------------
Advocate for : MR H DAS
Advocate for : SC
IRRIGATION appearing for STATE OF ASSAM AND 3 ORS.
Linked Case : WA/184/2020
AMINA BEGUM
W/O- LATE RAHMAT ALI
R/O- VILL.- DOMONI
P.S. BARPETA ROAD
DIST.- BARPETA
ASSAM
PIN- 781315.
VERSUS
THE STATE OF ASSAM AND 14 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-06.
4:THE DIRECTOR
ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT
GUWAHATI-3.
5:THE CHIEF ENGINEER
Page No.# 5/14
IRRIGATION DEPARTMENT
ASSAM
GUWAHATI-03.
6:THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
GUWAHATI-29.
7:THE BODOLAND TERRITORIAL COUNCIL
REP. BY THE SECRETARY
IRRIGATION DEPARTMENT
BODOFANAGAR
KOKRAJHAR
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
8:THE DEPUTY DIRECTOR
ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT
BARPETA
ASSAM
PIN- 781301.
9:THE DISTRICT ANIMAL HUSBANDRY AND VETERINARY OFFICER
BARPETA
ASSAM
PIN- 781301.
10:THE MANAGER
GOVT. LIVESTOCK FARM
BARPETA
P.O. AND DIST.- BARPETA
ASSAM
PIN- 781315.
11:THE EXECUTIVE ENGINEER
KOKRAJHAR DIVISION
IRRIGATION DEPARTMENT
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
12:THE ASSTT. EXECUTIVE ENGINEER
IRRIGATION DEPARTMENT
KOKRAJHAR SUBDIVISION
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM
Page No.# 6/14
PIN- 783360.
13:THE TREASURY OFFICER
BARPETA TREASURY
BARPETA
DIST.- BARPETA
ASSAM
PIN- 781301.
14:THE TREASURY OFFICER
KOKRAJHAR TREASURY
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
15:BAL BAHADUR PRADHAN
S/O- LATE RATAN BAHADUR PRADHAN
R/O- VILL.- CHANDMARI
P.O. MAGURMARI
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
------------
Advocate for : MR. K R PATGIRI
Advocate for : SC
IRRIGATION appearing for THE STATE OF ASSAM AND 14 ORS.
Linked Case : WA/175/2020
JATIN BORO
S/O- LATE KASHI BORO
R/O- VILL.- JALAH BAROPARA
P.O. JALAHGHAT
P.S. SIMLA
DIST.- BAKSA
ASSAM
PIN- 781327.
VERSUS
THE STATE OF ASSAM AND 12 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SOIL CONSERVATION DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
Page No.# 7/14
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE DIRECTOR OF SOIL CONSERVATION
ASSAM
RG BARUAH ROAD
GUWAHATI- 781005.
5:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
ASSAM
GUWAHATI-03.
6:THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
GUWAHATI-29.
7:THE BODOLAND TERRITORIAL COUNCIL
REP. BY THE SECRETARY
IRRIGATION DEPARTMENT
BODOFANAGAR
KOKRAJHAR
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
8:THE DIVISIONAL OFFICER
BAKSA SOIL CONSERVATION DIVISION
MUSHALPUR
DIST.- BAKSA
ASSAM
PIN- 781372.
9:THE EXECUTIVE ENGINNER
KOKRAJHAR DIVISION
IRRIGATION DEPARTMENT
P.O. AND DIST.- KOKRAJHAR
BATD
ASSAM
PIN- 783370.
10:THE ASSTT. EXECUTIVE ENGINEER
IRRIGATION DEPARTMENT
KOKRAJHAR SUBDIVISION
P.O. AND DIST.- KOKRAJHAR
Page No.# 8/14
ASSAM
PIN- 783360.
11:THE TREASURY OFFICER
BARPETA TREASURY
BARPETA
DIST.- BARPETA
ASSAM
PIN- 781301.
12:THE TREASURY OFFICER
KOKRAJHAR TREASURY
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
13:BAL BAHADUR PRADHAN
S/O- LATE RATAN BAHADUR PRADHAN
R/O- VILL.- CHANDMARI
P.O. MAGURMARI
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
------------
Advocate for : MR. K R PATGIRI
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 12 ORS.
Linked Case : WA/207/2020
NARENDRA NATH BORGOHAIN
S/O- LATE GETHUBOR BORGOHAIN
VILL.- BAZALTOLI
P.O. BORGURI
P.S. AND DIST.- TINSUKIA
ASSAM
PIN- 786126.
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PUBLIC HEALTH ENGINEERING DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE SECRETARY TO THE GOVT. OF ASSAM
PUBLIC HEALTH ENGINEERING DEPARTMENT
Page No.# 9/14
DISPUR
GUWAHATI-6.
3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-6.
5:THE CHIEF ENGINEER (PHE) (P)
ASSAM
HENGRABARI
GUWAHATI-26.
6:THE EXECUTIVE ENGINEER (PHE)
TINSUKIA DIVISION
TINSUKIA.
7:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON BELTOLA
GUWAHATI-29.
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : SC
P H E appearing for THE STATE OF ASSAM AND 6 ORS.
Linked Case : WA/187/2020
BRAJA PATHAK @ BRAJA KUMAR PATHAK
S/O- LATE MAHARATH PATHAK
R/O- VILL.- GAJIA
P.O. GAJIA
DIST.- BARPETA
ASSAM
PIN- 781301.
VERSUS
THE STATE OF ASSAM AND 12 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SOIL CONSERVATION DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
Page No.# 10/14
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE DIRECTOR OF SOIL CONSERVATION
ASSAM
R.G. BARUAH ROAD
GUWAHATI- 781005.
5:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
ASSAM
GUWAHATI-03.
6:THE ACCOUNTANT GENERAL (A AND E)
MAIDAMGAON
BELTOLA
GUWAHATI-29.
7:THE BODOLAND TERRITORIAL COUNCIL
REP. BY THE SECRETARY
IRRIGATION DEPARTMENT
BODOFANAGAR
KOKRAJHAR
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
8:THE DIVISIONAL OFFICER
BARPETA SOIL CONSERVATION DIVISION
BARPETA
PIN- 781301.
9:THE EXECUTIVE ENGINEER
KOKRAJHAR DIVISION
IRRIGATION DEPARTMENT
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
10:THE ASSTT. EXECUTIVE ENGINEER
IRRIGATION DEPARTMENT
KOKRAJHAR SUBDIVISION
P.O. AND DIST.- KOKRAJHAR
Page No.# 11/14
BTAD
ASSAM
PIN- 783360.
11:THE TREASURY OFFICER
BARPETA TREASURY
BARPETA, DIST.- BARPETA
ASSAM
PIN- 781301.
12:THE TREASURY OFFICER
KOKRAJHAR TREASURY
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
13:BAL BAHADUR PRADHAN
S/O- LATE RATAN BAHADUR PRADHAN
R/O- VILL.- CHANDMARI
P.O. MAGURMARI
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370.
------------
Advocate for : MR. K R PATGIRI
Advocate for : SC
IRRIGATION appearing for THE STATE OF ASSAM AND 12 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
Date : 26-02-2021 (Sudhanshu Dhulia, CJ) Heard Mr. K. R. Patgiri, learned counsel for the appellants in WA 18/2021, WA 175/2020, WA 184/2020 and WA 187/2020; Mr. H. Das, learned counsel for the appellant in WA 182/2020; Mr. F. U. Barbhuiya, learned counsel for the writ appellant in WA 207/2020 as well as Mr. D. Doley, learned Government Advocate, Assam; Mr. B. Gogoi, learned Standing counsel, Finance Department and Soil Conservation Department; Mr. D. Gogoi, learned Standing counsel, PHE Department; Mr. N. Upadhyaya, learned Standing counsel, Irrigation Department; Mr. S. Bora, learned Standing counsel, Bodoland Territorial Council and Mr. G. Page No.# 12/14 Baishya, learned Standing counsel, Accountant General, Assam, appearing for the respondents.
2. The writ appellants before this court are the former muster roll workers who were working in the said capacity in various Government departments and, subsequently most of them were regularised in service. The muster roll workers were earlier not given pensionary benefits even though they had worked for long and continuous years in the department. Subsequently, by some executive orders, certain pensionary benefits were granted in their favour. The first order to be referred here is the Office Memorandum dated 06.09.2003, whereby the Government had introduced requirement of twenty years of continuous service for being entitlement for pension. We have been told that all the petitioners, who were former muster roll employees, have retired from service and are also getting their pensions.
3. The difficulties came when another memorandum was given by the Government on 20.05.2009 by which the Government decided to deduct six years of service period from the total length of service rendered by muster roll workers, prior to their regularisation in service, while calculating the period they were to be entitled for pension. This Office Memorandum dated 20.05.2009 was challenged before this court in a number of writ petitions, the lead case being WP(C) 1089/2015 (Sanjita Roy vs. State of Assam and Others), which were disposed of by the learned Single Judge by the order dated 04.12.2018. The learned Single Judge was of the opinion that once the Government had decided to grant pension on completion of twenty years in terms of the Office Memorandum dated 06.09.2003, the subsequent deduction of six years of service period for the purpose of calculation of pensionable service was not reasonable. Accordingly, it was held that if a muster roll employee has completed twenty years of continuous service, the entire period of service would be counted for pensionary benefits and there shall not be any deduction of his service period in terms of the Office Memorandum dated 20.05.2009.
4. The above order of the learned Single Judge was never challenged and hence it has attained a finality. In all fairness when the State did not challenge the above order, it could have granted the same relief to all similarly situated former muster roll employees. It did not. A couple of years later other former muster roll employees came before this Court, who were also aggrieved by deduction of six years from their period of service.
Page No.# 13/14
5. The lead case being WP(C) 4027/2019 (Bahadur Pradhan vs. State of Assam and Others). The writ petitions were disposed of by the learned Single Judge by order dated 21.06.2019 following the decision taken by the learned Single Judge in WP(C) 1089/2015 and other connected writ petitions and granting the same relief to the writ petitioners as well. However, in the end of its decision, the learned Single Judge observed that since the earlier order of the court was passed on 04.12.2018 [WP(C) 1089/2015], the pensionary benefits will be granted to the petitioners only from 04.12.2018.
6. Later some other petitioners had filed writ petitions before this Court for the same relief. The lead case of the said writ petitions being WP(C) 8713/2019. The writ petitions were disposed of by another learned Single Judge on 13.10.2020 granting the same relief as was given to the petitioners in WP(C) 4027/2019 by observing that there was already an order of this court 21.06.2019, which had attained finality in the meantime. They were also to get the new pension from 04.12.2018. Aggrieved by the order dated 13.10.2019, the appellants are before this court.
7. Learned counsel for the writ appellants would argue that due to the condition laid down in the order of the learned Single Judge, they will be deprived of pension for six/seven years, or even more in some cases, as many of them had retired in the year 2011-2012, or at least prior to 04.12.2018.
8. In our considered view, putting a condition that the benefit of the order passed by the learned Single Judge in WP(C) 1089/2015 (Sanjita Roy vs. State of Assam and Others) would be effective only from 04.12.2018 is not correct, particularly when there was no such embargo in the order dated 04.12.2018 passed by the learned Single Judge in WP(C) 1089/2015 Sanjita Roy vs. State of Assam and Others), which held that the deduction of six years of service was wrong.
9. An order of the court is always retrospective in nature, unless it is specifically made prospective in the order itself. This is because the courts do not legislate, they only interpret an existing law. This is unlike the laws made by the State Legislature and the Parliament, which are always prospective in nature, unless again, the law itself makes it retrospective. The original judgement (dated 04.12.2018), passed in WP(C) 1089/2015 (Sanjita Roy vs. Page No.# 14/14 State of Assam and Others), does not give benefit to the petitioners from a prospective date. Therefore, in our considered opinion, the order dated 04.12.2018 was retrospective in nature and it would include all similarly situated muster roll workers irrespective of their dates of retirement, provided they are covered by the benefits given to them earlier, and were already availing pension.
10. In view of the above, we allow the writ appeals. The condition imposed by the order dated 21.06.2019 in WP(C) 4027/2019 and other connected writ petitions, and the order passed by the learned Single Judge dated 13.10.2020, in WP(C) 8713/2019 (Braza Kumar Baruah vs. State of Assam and Others) and other connected writ petitions, to the extent discussed above, i.e. only as to its applicability from 04.12.2018 is set aside.
JUDGE CHIEF JUSTICE Comparing Assistant