Gauhati High Court
Saribun Nessa Mazumdar vs The State Of Assam And 6 Ors on 27 April, 2022
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/6
GAHC010010232022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/361/2022
SARIBUN NESSA MAZUMDAR
W/O- LATE ASADDAR ALI MAZUMDAR, R/O- VILLAGE TUPKHANA PART-
II,
P.O- TUPKHANA VIA TARAPUR RAMNAGAR,
P.S-SILCHAR, DIST- CACHAR,
ASSAM, PIN-788003
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR,
GUWAHATI-06
2:COMMISSIONER AND SECRETARY
TO THE GOVERNMENT OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
GUWAHATI-06
3:COMMISSIONER AND SECRETARY
TO THE GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-06
4:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
JURIPAR
SIXMILE
GUWAHATI-37
Page No.# 2/6
5:THE DIRECTOR
OF PENSION
ASSAM
HOUSEFED COMPLEX
GUWAHATI-06
6:THE CHIEF EXECUTIVE OFFICER
CACHAR ZILLA PARISHAD AT SILCHAR
P.O- SILCHAR
DIST- CACHAR
ASSAM
PIN-788001
7:THE TREASURY OFFICER
CACHAR TREASURY
AT SILCHAR
P.O- SILCHAR
DIST- CACHAR
ASSAM
PIN-78800
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 27-04-2022 Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. N.K. Debnath, learned counsel for the respondents No. 1, 4 and 6 being the authorities under the P & RD department of the Government of Assam, Ms. M.D. Bora, learned counsel for the respondents No. 2 and 5 being the authorities under the Pension and Public Grievance Department of the Government of Assam and Mr. A. Chaliha, learned counsel for the respondents No. 3 and 7 being the authorities under the Finance Page No.# 3/6 Department of the Government of Assam.
2. The husband of the petitioner late Asaddar Ali Mazumar was appointed as a Tax Collector in the Office of the Tarapur Gaon Panchayat under the Cachar Zilla Parishad on 18.09.1957 at a fixed pay of Rs.50. The husband of the petitioner retired from service on 31.07.1992. According to the respondents, the petitioner was granted the scale of pay in the year 1975, therefore, his length of service would have to be considered from the year 1975 up to the date of his retirement. Be that as it may, in any view of the matter as per the statement showing the list of retired/dead provincialised Panchayat employees who had completed more than 10 years and less than 20 years of service which is annexed as Annexure-2 to the affidavit -in-opposition of the Panchayat & Rural Development department, the husband of the petitioner is admitted to have a qualifying service of 17 years 1 month and 30 days.
3. The question on the entitlement for pensionary benefits to the retired employees of the Panchayat had been finally settled by this Court in its judgment dated 24.03.2010 in WA No.145/2009. After the said judgment a question had arisen as to what would be the required qualifying service for the entitlement of the pension. The said aspect was clarified and provided in the notification No. PPG(P)122/2014/28 dated 22.12.2014, wherein, it was provided that the provincialised Panchayati Raj Institutions employees who have retired from service on or after 01.10.1991 and have rendered more than 10 years but less than 20 years of service from the date of their initial appointment, in relexation of Rule 31 of the Assam Services (Pension) Rules, 1969 ( in short, Rule of 1969) would be entitled to pension as a special case and not be treated as a precedent. In other words, as per the decision of the Pension and Public Grievance Department contained in the notification dated 22.12.2014, a retired Page No.# 4/6 employee of the Panchayati Raj Institution who had rendered service between 10 and 20 years would be entitled to the pensionary benefits.
4. In the instant case, it is an admitted position of the respondent that the husband of the petitioner rendered 17 years 1 month 30 days of service and hence would be entitled to pension under the notification dated 22.12.2014.
5. This petition is instituted by the wife of the deceased employee claiming for the benefit of pension. Under Rule 143 of the Rule of 1969, the family pension will be admissible to the wife of a deceased government employee who was in pensionable service. As the deceased husband of the petitioner was in pensionable service and was entitled to pension, therefore, under Rule 143 of the Rule of 1969, even the petitioner who is the wife of the deceased employee would be entitled to family pension.
6. The factual matrix available on record in this writ petition is that the husband of the petitioner who retired from a pensionable service in Panchayati Raj Institution in the year 1992, died in the year 2013 and during his lifetime the pension was not paid to him, although under the law he was entitled to be paid a pension. After the death in the year 2013, the wife of the deceased employee is claiming family pension which again had not been paid resulting in instituting the present writ petition.
7. As we have already arrived at a conclusion that the deceased husband of the petitioner was entitled to the pension, after his death the petitioner wife is also entitled to the family pension as per Rule 143 of the Rule of 1969.
8. As regards the payment of monthly family pension, we direct the authorities in the P & RD department to process the pension papers of the petitioner within seven days from the date of receipt of the certified copy of this Page No.# 5/6 order and transmit the same to the Pension & Public Grievance department who in turn shall do the needful within another seven days thereof and place it before the authorities in the Finance department who shall do the needful within a period of 7 (seven) days as regards the monthly family pension to the petitioner so as to ensure that from 01.06.2022 the petitioner receives the monthly family pension.
9. As regards the arrear family pension from the year 2013 up to the payment of the monthly family pension and further the arrear pension payable to the deceased husband of the petitioner from the date of his retirement up to the date of death in the year 2013, the same be processed by the P & RD department within a period of one month from the date of receipt of the certified copy of the order, thereafter, the papers be transmitted to the Pension and Public Grievance department to do the needful within another one month and the Finance department shall do the needful within a period of further two months thereof.
10. We further provide that the pensionary benefit of the petitioner should not be denied for any reason that during the lifetime of the deceased employee there were some excess drawal of salary. If it is so, the pensionary benefit be paid at the correct scale of pay what the employee would otherwise would have been entitled. In any view of the matter, the excess drawal of salary if any, now cannot be recovered, firstly, in view of the pronouncement laid down by the Supreme Court in Shyam Babu Verma and others -vs- Union of India and others, reported in (1994) 2 SCC 521 and State of Punjab and Others -vs- Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 and secondly as the recovery could not be made during the lifetime of the deceased employee, therefore, as of now as the deceased employee is no more, the same Page No.# 6/6 cannot be recovered.
11. In the processing the matter, the Panchayat and Rural Development shall also pass a reasoned order on the claim of the petitioner that the total length of service of the husband of the petitioner was 35 years inasmuch as he was appointed in the year 1957 and he had retired from service in the year, 1992, although according to the respondents the total length of service is 17 year approximately inasmuch as the sale of pay was granted to the husband of the petitioner in the year 1975.
12. In this respect, the Department to take note of the Notification dated 17.03.2011 which refers to the total length of service and it does not provide that the length of service would be counted from the date on which the employee was paid the scale of pay.
13. The Department to also pass a reasoned order on the aforesaid aspect on the claim of the petitioner.
14. The petitioner refers to the judgment of the Supreme Court rendered in State of Kerala and Others -vs- M. Padmanabhan Nair reported in (1985) 1 SCC 429 wherein in paragraph- 3 and 4 it has been provided that in case of delayed in payment of pension, the pensioner is entitled to an interest which may also be up to 12% per-annum. While granting the arrear pension to the petitioner, the question of payment of interest will also be considered and the reasoned order be passed thereof on the entitlement of the petitioner for the interest on the delayed payment of pensionary benefit.
15. Writ petition stands disposed of as indicated above.
JUDGE Comparing Assistant