Gauhati High Court
Bal Bahadur Pradhan vs The State Of Assam And 7 Ors on 15 March, 2021
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010016562021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./17/2021
BAL BAHADUR PRADHAN
S/O. LT. RATAN BAHADUR PRADHAN, VILL. CHANDMARI, P.O.
MAGURMARI, DIST. KOKRAJHAR, BTAD, ASSAM, PIN-783370.
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCE DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
ASSAM
GUWAHATI-03.
4:THE BODOLAND TERRITORIAL COUNCIL
REP. BY THE SECRETARY
IRRIGATION DEPTT.
BODOFANAGAR
KOKRAJHAR
DIST. KOKRAJHAR
BTAD
ASSAM
PIN-783370.
5:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
BELTOLA
GUWAHATI-29.
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6:THE EXECUTIVE ENGINEER
KOKRAJHAR DIVISION
IRRIGATION DEPTT.
P.O. KOKRAJHAR
DIST. KOKRAJHAR
BTAD
ASSAM
PIN-783370.
7:THE ASSTT. EXECUTIVE ENGINEER
IRRIGATION DEPTT.
KOKRAJHAR SUB DIVN
P.O. AND DIST.- KOKRAJHAR
BTAD
ASSAM-783370.
8:THE TREASURY OFFICER
KOKRAJHAR TREASURY
DIST.- KOKRAJHAR
BTAD
ASSAM
PIN- 783370
Advocate for the Petitioner : MR. M KHAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 15-03-2021 Heard Mr. M. Khan, learned counsel for the review petitioner. Also heard Mr. A. Hassan, learned Standing Counsel, AG and Mr. S. Borah, learned Standing Counsel, BTC.
2. The present review petition has been filed seeking review of the order dated 21.06.2019 passed in WP(C) No.4027/2019 by which a direction was issued to the respondent-authorities to work out the pensionary benefits in favour of the petitioner and release the same with effect from 04.12.2018 in terms of the earlier order passed in WP(C) No.1089/2015.
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3. Learned counsel for the review petitioner, however, submits that the earlier order passed by this Court in WP(C) No.1089/2015, which was followed by this Court in WP(C) No.4027/2019 on the basis of which the writ petition was disposed of on 21.06.2019, has been subsequently modified by a Division Bench of this Court in WA No.18/2019 as follows:-
"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. 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.
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 Page No.# 4/4 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. 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."
4. Accordingly, it is clarified that the order passed by this Court on 21.06.2019 in WP(C) No.4027/2019 shall be read in consonance with the order passed by the Division Bench of this Court in WA No.18/2021 on 26.02.2021.
5. With the above clarification, the review petition is disposed off.
JUDGE Comparing Assistant