Gauhati High Court
Mahodar Chandra Thakuria vs The Union Of India & 8 Ors on 19 May, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP (C) No. 3350/2013
Shri Mahodar Chandra Thakuria,
Son of Dhirmal Thakuria,
Resident of Srimantapur, Guwahati-32.
District - Kamrup (Metro), Assam.
...........Petitioner
-Versus-
1. The Union of India, represented by its
Commissioner, Ministry of Labour, New Delhi.
2. The State of Assam, represented by its Chief
Secretary to the Government of Assam, Dispur,
Guwahati-6.
3. The Commissioner, Pension and Public Grievance,
Dispur, Guwahati-6.
4. The Commissioner and Secretary to the
Government of Assam, Finance department,
Dispur, Guwahati-6.
5. The Secretary, Irrigation Department to the
Government of Assam, Dispur, Guwahati-6.
6. The Principal Accountant General (A&E) Assam,
Maidamgaon, Beltola, Guwahati-29.
7. The Chief Engineer, Irrigation Department,
Chandmari, Guwahati-3.
WP(C) 33350-6836/13 oral dated 19/05/15 Page 1 of 12
8. The Superintending Engineer, Guwahati Project
Circle (Irrigation) Guwahati-8, Assam.
9. The Managing Director, Assam State Minor
Irrigation Development Corporation Ltd., Dr. B.K.
Kakati Road, Guwahati-7.
..........Respondents
WP (C) No. 6836/2013
Sri Arun Chandra Chetia,
Son of Late Padmadhar Chetia,
Resident of East Milon Nagar, Ratanpur,
P.O. Ratanpur, Dibrugarh,
District- Dibrugarh, Assam.
...........Petitioner
-Versus-
1. The State of Assam, represented by its Chief
Secretary to the Government of Assam, Dispur,
Guwahati-6.
2. The Commissioner, Pension and Public
Grievance, Dispur, Guwahati-6.
3. The Commissioner and Secretary to the
Government of Assam, Finance department,
Dispur, Guwahati-6.
4. The Secretary, Irrigation Department to the
Government of Assam, Dispur, Guwahati-6.
5. The Principal Accountant General (A&E) Assam,
Maidamgaon, Beltola, Guwahati-29.
6. The Chief Engineer, Irrigation Department,
Chandmari, Guwahati-3.
WP(C) 33350-6836/13 oral dated 19/05/15 Page 2 of 12
7. The Executive Engineer, Dibrugarh
Mechanical (I) Division, Dibrugarh, Assam.
8. The Managing Director, Assam State Minor
Irrigation Development Corporation Ltd., Dr.
B.K. Kakati Road, Guwahati-7.
..........Respondents
For the petitioners : Mr. B. Banerjee, Sr. Adv.
Mr. A. Dey, Adv.
For the Respondents : Dr. B. Ahmed, SC. Irrigation Deptt.
Mr. R.K. Talukdar, SC, AG,
Mr. B. Gogoi, SC, Finance Deptt.
Mr. A. Chetry, SC, PPG Deptt.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 19/05/2015
JUDGEMENT AND ORDER (ORAL)
1. Both the writ petitions pertaining to claim for monthly pension have been heard analogously and are being disposed of by this common judgement and order. In both the writ petitions, the petitioners are aggrieved by the decision of the office of the Accountant General to the effect that the petitioners having not rendered qualifying service, they are not entitled to monthly pension.
WP(C) 33350-6836/13 oral dated 19/05/15 Page 3 of 122. The petitioners while were serving in the then Assam State Minor Irrigation Development Corporation (ASMIDC) were absorbed along with others in the Irrigation Department vide notification dated 13/03/2005 laying down the following conditions.
"1. Inter-se-seniority to the proposed absorption against the analogous vacant pots may be fixed below the existing respective cadres of Irrigation Deptt.
2. On permanent absorption the pay of the employees concerned shall be fixed under F.R. 22(I)(b) of the FR & SRs.
3. They are entitled to pensionery benefits as admissible under the Assam Service (Pension) Rules, 1969, on their absorption/Aptt. in Irrigation Department.
4. The will have to sign undertaking individually regarding non claim of seniority in Irrigation Deptt. for their post services rendered under Corpn before joining in Irrigation Deptt.
5. No equalization of pay will be entertained with the emmployees of Irrigation Deptt.
6. For regularization of services of non-regularized J/F/A/E and A.E.E the matter will be taken up with the concerned Deptt. after their absorption.
7. The service will be accepted only when the non LIABILITY CERTIFICATES FROM THE M.D. ASMIDC LTD. and UPDATED SERVICE WILL BE SUBMITTED TO Irrigation Deptt.
8. List of 262 employees for absorption in enclosed.
Places of posting of the above employees are being issued separately. This has the approval of SLEC vide their U.O. NO. 1253/04 dt. 16.3.2005 and Fin (Ec-I) Deptt. Concurrence vide their U/O No. FE.538/04 dt. 2.8.2004."WP(C) 33350-6836/13 oral dated 19/05/15 Page 4 of 12
3. It is submitted that pursuant to the said notification, the petitioners were absorbed in the Irrigation Department with effect from 01/07/2005. It will be pertinent to mention here that the respondent Corporation was under the State Government and Administrative control of the Irrigation Department. Pursuant to the absorption, the petitioners opted for pension scheme under the Assam Services (Pension) Rules, 1963. As noted above, under condition No. 3, they were also entitled to pensionery benefits under the said rules in the Irrigation Department.
4. Both the petitioners retired from service on attaining the age of superannuation on 30/06/2011 (Petitioner in WP(C) No. 3350/2013) and 28/02/2011 (Petitioner in WP(C) No. 6838/2013). Thereafter they submitted their pension papers in acceptance of which observing the due formalities, were sent to the office of the Accountant General. However, the Accountant General's office vide its impugned communication dated 08/03/2013 (Annexure-18) in WP(C) No. 3350/2013 and dated 24/08/2012 (Annexure-12) in WP(C) No. 6836/2013, intimated the Department that both the petitioners having not rendered the qualifying service, they were not entitled to get any pension except terminal gratuity. It will be pertinent to mention here that from the date of absorption in the Irrigation Department, the petitioner in WP(C) No. 3350/2013 till the date of his retirement, had rendered 5years 11 months and 29 days and the petitioner in WP(C) No. 6836/2013 had rendered 5 years 8 months of service.
5. I have heard Mr. B. Banerjee, learned senior counsel assisted by Mr. A. Dey, learned counsel for the petitioners. I have also heard Dr. B. Ahmed, learned Standing Counsel, Irrigation Department ; Mr. R.K. WP(C) 33350-6836/13 oral dated 19/05/15 Page 5 of 12 Talukdar, learned Standing Counsel, AG ; Mr. B. Gogoi, learned Standing Counsel, Finance Department and Mr. A. Chetry, learned Standing Counsel, Pension and Public Grievances Department. According to Mr. Chetry, Pension and Public Grievance Department has nothing to do in the matter and that the matter is required to be resolved by the Irrigation Department in consultation with the Accountant General. Same is the stand of the Finance Department represented by its Standing Counsel, Mr. B. Gogoi.
6. Both Dr. B. Ahmed, learned Standing Counsel, Irrigation Department and Mr. R.K. Talukdar, learned Standing Counsel, AG submits that the petitioners having not rendered qualifying service, they are not entitled to get pension. However, Dr. B. Ahmed, learned Standing Counsel, Irrigation Department, submits that if the relaxation is provided for by the Government in the Irrigation Department, the petitioners will be entitled to pension. Mr. R.K. Talukdar, learned Standing Counsel, AG submits that in absence of any relaxation and/or sanction behind, the office of the A.G. will have to process the case strictly in accordance with the Pension Rules.
7. Mr. B. Banerjee, learned senior counsel representing the petitioners referring to the notification of absorption, earlier round of litigation and cases earlier dealt with under similar circumstances, entitling the incumbents to monthly pension, etc. submits that the office of the Accountant General has unnecessarily held up the case of the petitioners raising irrelevant and unnecessary questions. He submits that since the petitioners were employees of the respondent corporation under deep and pervasive control of the State Government and administrative control of the Irrigation Department, the services WP(C) 33350-6836/13 oral dated 19/05/15 Page 6 of 12 rendered by the petitioners in the said Corporation before their permanent absorption in the Irrigation Department are required to be counted entitling both the petitioners monthly pension.
8. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. If we go by the order of absorption referred to above i.e. the notification dated 13/05/2005, upon permanent absorption of the petitioners, their pay was to be fixed under FR 22 (1)(b) of the SF & SR. They were also made entitled to pensionary benefits under the Assam Services (Pension) Rules, 1969. It is on record that the closure of the respondent corporation was approved by the Cabinet in its meeting held on 21/06/2005.
9. The petitioner involved in WP(C) No. 3350/2013 had earlier approached this Court along with others by filing a writ petition being WP(C) No. 3701/2008. The said writ petition was heard along with WP(C) No. 4142/2008 involving as many as 17 petitioners. The challenge in the writ petition was to the orders dated 05/10/2005, 11/07/2005 and 04/05/2006 of the Government of Assam in the Irrigation Department, providing that the employees of erstwhile ASMIDC would be absorbed in the feeder post instead of analogous post which they used to hold in the Corporation. Setting aside the orders vide judgement and order dated 12/10/2010, writ petitions were disposed of directing the Government in the Irrigation Department to permanently absorb the petitioners in their respective posts of Head Assistant and Assistant Account Officer from the date of absorption in the feeder cadre of Lower Division Assistant.
10. Referring to the aforesaid decision, it is the case of the petitioners that everything having been protected maintaining continuity WP(C) 33350-6836/13 oral dated 19/05/15 Page 7 of 12 in service, the earlier service rendered by the petitioners in the then Corporation cannot be obliterate disentitling the petitioners from monthly pension.
11. Rule 23 of the Assam Services (Pension ) Rules, 1969 indicate that service where benefit under the Contributory Provident Fund (Assam Services) Rules or similar benefits are admissible. Note-1 to the said rule provides that Persons enjoying such benefit (CPF), if absorbed in regular pensionable service, may count his past service during which benefit of Contributory Provident Fund was enjoyed in accordance with rule 28 of the Contributory Provident Fund (Assam Services ) Rules. Under Rule 23(f), service government by specific contract unless there is stipulation contrary to it in the contract deed, shall also count towards pensionable service.
12. Rule 31, 32 and 33 of the Assam Services (Pension) Rules provide as follows :-
"31. The service of an officer does not qualify for pension unless it conforms to the following three conditions-
Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent;
Thirdly, the service must be paid by Government :
Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled,-
(i) Declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and WP(C) 33350-6836/13 oral dated 19/05/15 Page 8 of 12
(ii) In individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension.
32. The service of an officer does not qualify unless he is appointed and his duties and pay are regulated by the Government, or under conditions determined by the Government.
33. A scientific employee engaged in research in semi- Government institution which is financed from cess or Government grants and who was on a Contributory Provident Fund basis in such an institution may, on permanent appointment without any interruption to a pensionable service or post under the Government, count his previous service in that institution during which he subscribed to that Fund as service qualifying for pension provided that the contribution together with interest thereon paid by the institution is made over to the Government. The service during which he did not subscribe to the Contributory Fund will not be so reckoned unless the previous employer agrees to bear proportionate charges on account of pensionary benefits for the service so rendered. If, however, the officer was not on a Contributory Fund basis in such an institution his previous service will be reckoned as qualifying for pension if the previous employer agrees to bear proportionate charges on account of pensionary benefits."
WP(C) 33350-6836/13 oral dated 19/05/15 Page 9 of 1213. In Doly Borpujari Vs. State of Assam and others reported in 2010 (2) GLT 147, when a question arose whether the petitioner who was appointed in the Official Language Commission, initially for a period of 3 (three) years or till the continuation of the Commission would be entitled to pension upon continuation in service for more than 14 years, the Division Bench of this Court held that the post held by the petitioner stood incorporated as one of the posts under the Legislative Department of the State. Be it stated here that the Commission is under the deep and pervasive control of the Government of Assam in the Legislative Department. It was held that the petitioner would be entitled to superannuation pension. In Md. Hussain Ali Vs. State of Assam & Ors [WP(C) No. 3551/2013], this Court vide judgement and order dated 22/09/2014 held that the petitioner who was serving as Sub-Registrar on commission basis, pursuant to his permanent absorption as Sub-Registrar would be entitled to pension counting his past service.
14. Above apart, the specific case of the petitioners that two of the employees of erstwhile Corporation and similarly situated with the petitioners, namely, Kalpana Banikya, wife of Ram Chandra Banikya, Ex. Peon and Smt. Anu Gogoi, W/o. late Bhuban Gogoi, Ex. Peon of ASMIDC have been granted pension, has not been denied by the respondents. However, according to the Accountant General, the matter is being looked into as to whether there was any mistake in granting them pension. Letters were written to the department on 27/08/2013 and 08/11/2013. However, the fact of the matter is that the wives of the said two ex. Employees of the erstwhile Corporation are still in receipt of family pension. In this connection, Mr. B. Banerjee, learned counsel WP(C) 33350-6836/13 oral dated 19/05/15 Page 10 of 12 for the petitioner has produced the up-to-date bank account statement of Smt. Anu Gogoi, showing receipt of monthly family pension.
15. The above aspect of the matter having been pointed out to Mr. R.K. Talukdar, learned counsel representing the AG, he submits that the office of the A.G. by its letter dated 13/05/2015 has once again requested the Irrigation Department to review the said 2 (two) cases. The stand of the Office of the A.G. cannot be appreciated, firstly, they allowed monthly family pension to the wives of the deceased employees of erstwhile Corporation who were also similarly absorbed in the Irrigation Department, without raising any objection whatsoever. Now being confronted with the discrimination raised by the petitioners, they have taken recourse to the aforesaid course of action. Thus, but for the case of the petitioners, the office of the A.G. would not have raised any objection. On the other hand, while dealing with the case of the petitioners, they raised the objection regarding not having qualifying service to the credit of the petitioners. The petitioners were made to understand that on their permanent absorption in the Irrigation Department, they would be entitled to monthly pension as per the provisions of the Assam Services (Pension) Rules, 1969 and they also exercised their option for pension scheme.
16. The provisions referred to above, provide for counting of past service. Further, Rule 31 also provides for declaration to be made by the Governor that the particular service would qualify for pension. We may also refer to the provisions of Rule 233, 234 and 235 of the Assam Services (Pension) Rules, 1969. While Rule 233 provides for removal of doubt, Rule 234 and 235 makes special provision under which the Governor may sanction the grant of pension in exceptional circumstances WP(C) 33350-6836/13 oral dated 19/05/15 Page 11 of 12 and may also dispense with or relax the requirement of the Rules to remove undue hardship in any particular case.
17. Both the writ petitions are disposed of directing the respondents. More particularly, the Irrigation Department to process the case of the petitioners for monthly pension consistently with the observations made above and thereafter send proposal to the office of the A.G. for their part of action. The required exercise in terms of this judgement and order shall be carried out and completed as expeditiously as possible, but not later than 31/08/2015.
18. There shall be no order as to costs.
JUDGE Sukhamay WP(C) 33350-6836/13 oral dated 19/05/15 Page 12 of 12