Badi Chetry vs The State Of Assam And 7 Ors
2021 Latest Caselaw 3328 Gua

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GAHC010277332019




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/8498/2019

         BADI CHETRY
         W/O- LT PRAKASH CHETRY @ PRAKASH BISTA CHETRI, R/O- VILL-
         UMPANAI,, P.O. UMPANAI, P.S. BAITHALANGSO, DIST- KARBI ANGLONG
         WEST, ASSAM, PIN- 782413



         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PUBLIC
         WORKS DEPTT. (ROADS), DISPUR, GHY-6, DIST- KAMRUP (M), ASSAM

         2:THE CHIEF ENGINEER
          PUBLIC WORKS DEPTT. (ROADS)
          CHANDMARI
          GHY-3
          DIST- KAMRUP (M)
         ASSAM

         3:THE EXECUTIVE ENGINEER
          PWD (ROADS) UMPANAI DIVISION
          ULUKUNCHI
          P.O. UMPANAI
          DIST- KARBI ANGLONG
         ASSAM
          PIN- 782410

         4:THE ASSTT. EXECUTIVE ENGINEER
          PWD (ROADS) UMWANG SUB-DIVISION
          ULUKUNCHI P.O.
          PIN- 782413
          DIST- KARBI ANGLONG
         ASSAM
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            5:THE PRINCIPAL SECRETARY
             KARBI ANGLONG AUTONOMOUS COUNCIL
             DIPHU
             DIST- KARBI ANGLONG
             P.O. DIPHU
             PIN- 782460
            ASSAM

            6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
             PENSION AND PUBLIC GRIEVANCES DEPTT.
             DISPUR
             GHY-06
             DIST- KAMRUP (M)
            ASSAM

            7:THE ACCOUNTANT GENERAL (A AND E)
             MAIDAMGAON
             BELTOLA
             P.O. BELTOLA
             GHY- 29
             DIST- KAMRUP (M)
            ASSAM

            8:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
             FINANCE DEPTT.
             DISPUR
             GHY-06
             DIST- KAMRUP (M)
            ASSA

Advocate for the Petitioner   : MR. D BORAH

Advocate for the Respondent : SC, PWD

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 07-12-2021

JUDGMENT & ORDER (ORAL) Heard Mr. D Borah, learned counsel for the petitioner. Also heard Mr. P Page No.# 3/13

Nayak, learned counsel for the respondents No.1 and 2 being the authorities under the PWD, Assam, Mr. J Chutia, learned counsel for the respondents No.3, 4 and 5 being the authorities in the PWD of the KAAC, Ms. MD Bora, learned counsel for the respondent No.6 being the Pension and Public Grievance Department, Government of Assam and Mr. R Dhar, learned counsel for the respondent No.7 being the Accountant General (A&E) Assam as well as Mr. B Gogoi, learned counsel for the respondent No.8 being the Finance Department, Government of Assam.

2. The husband of the petitioner Prakash Chetri @ Prakash Bista Chetri was a muster roll worker under the Executive Engineer, PWD (Roads) in the Ulukunchi Sub Division in the Karbi Anglong district having been appointed on 01.04.1995. On 28.11.1995, the petitioner was approved to be a worked-charged driver in the PWD subject to availability of vacancy. The husband of the petitioner accordingly discharged the duties of a worked charged Jeep driver in the office of the PWD (Roads) in the Ulukunchi Sub Division. Subsequently by the order dated 29.02.1996, the husband of the petitioner was temporarily appointed as Worked Charged driver in the pay scale of Rs.975- 15- 1005- 20- 1205- EB- 20- 1225-30-1435-40-1635-50-1935/-per month plus other allowances as admissible under the Rules. Although the temporary appointment as worked charged jeep driver in the scale beginning Rs.975/- was made for a period of three months, the husband of the petitioner continued to serve as such till his death in harness on 10.07.2015. But we take note of that the engagement of the deceased husband of the petitioner was in the regular PWD Office in the Ulukunchi Sub Division.

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3. The provision for worked charged engagement is provided under Rule 323 of the Assam Financial Rules, which inter alia provides that works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervisions of specific work or sub-works of specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When an employee is borne on the temporary establishment is employed on work of such nature, their pay should, for the time being, be charged direct to the work. Going by the meaning of the concept worked-charged employee as provided under Rule 323 of the Assam Financial Rules, the manner in which the petitioner was engaged as a worked-charged jeep driver in a regular Division of the PWD cannot be a worked charged engagement as per the concept of worked-charged employment under Rule 323 of the Assam Financial Rules. In other words, it has to be construed that the deceased husband of the petitioner continued to be employed as a muster roll worker but instead of paying remuneration applicable to a muster roll worker, he was paid a scale of pay.

4. Be that as it may, on the death of the husband of the petitioner, this writ petition is instituted claiming for family pension under the Assam Services (Pension) Rules, 1969(for short, the Rules of 1969).

5. The respondents in the PWD of the Government of Assam, PWD in the KAAC, the Pension and Public Grievance Department and the Finance Department, Government of Assam take a joint stand that the deceased husband of the petitioner was not a regular employee in the PWD of KAAC and, therefore, had the husband of the petitioner even completed his tenure of Page No.# 5/13

service, he would not have been entitled to pension. Therefore, the petitioner being the wife of the deceased employee, who would not have been entitled to pension, would also be not entitled to a family pension.

6. Mr. D Borah, learned counsel for the petitioner refers to Rule 31 of the Rules of 1969 to raise the contention that as per the provision of the said Rule, the deceased husband had the qualifying service to be entitled for pension. Rule 31 of the Rules of 1969 is extracted as below:

"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:-

(a) declare that any specified kind of service rendered in a non-

gazetted capacity shall qualify for pension, and

(b) 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."

7. Three conditions are provided under Rule 31 of the Rules of 1969 providing for as to whether the employee concerned meets the condition of qualifying service for pension. The first condition is that the service must be under the Government, the second condition is that the employment must be substantive and permanent and the third condition is that the service must be paid by Government. Admittedly, the first and the third conditions are satisfied by the deceased husband of the petitioner, but as regards the second condition that Page No.# 6/13

the employment must be substantive and permanent, we have to accept the situation that considering the aspect that the husband of the petitioner was a muster roll worker/worked-charged employee as a driver, his employment cannot be construed to have been an employment which was substantive and permanent. As the second condition precedent of Rule 31 of the Rules of 1969 is not satisfied, we have to accept that the deceased husband of the petitioner did not have the qualifying service for pension. Accordingly as the deceased husband of the petitioner did not have the qualifying service under Rule 31, therefore, even under Rule 143 of the Rules of 1969, the petitioner being wife of the deceased employee would not be entitled to family pension.

8. Mr. D Borah, learned counsel for the petitioner also relies upon certain pronouncement of the Supreme Court as well as of this Court to raise the contention that under such provisions, the petitioner would be entitled to family pension.

9. In order to substantiate his contention, Mr. D Borah, learned counsel for the petitioner relies upon the pronouncement of this Court in Sungmo Chang Vs. State of Nagaland & Ors. reported in 2017 (3) GLT 60.

10. In Sungmo Chang (supra), the husband of the petitioner therein had served the department concerned for 24 years in the capacity of being a worked charged employee at a scale of pay and other allowances and he died due to electrocution while performing his duties in the department of Power of the Government of Nagaland. In the said case, an office memorandum dated Page No.# 7/13

22.09.2004 of the Government of Nagaland, Department of Personnel & Administrative Reforms (Administrative Reforms Branch) was relied upon which inter alia provided for regularizing the services of the existing worked charged employees and that no further engagement of worked charged employees would be entertained by the Government of Nagaland. In the aforesaid circumstance, the Court was of the view that the husband of the petitioner therein having served for 24 years as a worked charged employee had the entitlement of being regularized in service and had it not been for the indifferent attitude of the departmental authorities, he would have been regularized under the OM dated 22.09.2004. In the aforesaid circumstance, the Court took the view that the husband of the petitioner in the said matter ought to have been considered to have been entitled for regularization and, therefore, it was held that the petitioner therein would be entitled to a family pension.

11. In the instant case, we find that there is neither any office memorandum nor any decision on the part of the authorities in the Government of Assam to regularize the services of all such muster roll worker/worked charged employees like that of the Government of Nagaland so as to arrive at any conclusion that had the husband of the petitioner not died in the meantime, he would have been regularized.

12. Reference is also made to a pronouncement of the Supreme Court in Vice Chancellor Lucknow University, Lucknow Uttar Pradesh Vs. Akhilesh Kumar Khare and Another, reported in (2016) 1 SCC 521. From paragraph 11 of the pronouncement of the Supreme Court in Vice Chancellor Lucknow University (supra), it is discernible that the employee therein who was working as a daily Page No.# 8/13

wage workers was removed from service and thereafter there was a decision by the authorities in the Government to regularize the daily wage workers. The employee therein had assailed the action of the authorities in removing him from service which went in his favour. In the said circumstance, the Court was of the view that as the employee therein was incorrectly removed and had he not been removed he would have been regularized along with others, therefore, he would also be entitled to the benefit of regularization. But again in the instant case, there is no such decision of the Government of Assam to regularize all such employees on daily wage basis.

13. Reference is also made to a decision of the Allahabad High Court in Geeta Devi Vs. State of Uttar Pradesh and 6 Others in WA No.9201/2018 wherein in paragraph 14 thereof, the Court took note that in Yashwant Hari Katakkar Vs. Union of India and 4 others, it was held that an employee who had served for more than 20 years is entitled to pension and denial of retirement benefit on the ground of not being permanent to any post clearly was in violation of Clause (e) of the Fundamental Rules, 56 and the Department cannot keep a person temporary or on daily wages indefinitely.

14. In paragraph 15 thereof, reference was made to a decision in AP Srivastava Vs. Union of India and 5 Others wherein a view was taken that a temporary employee who had rendered 20 years of service would be entitled to pension, but in the same paragraph an indication is available that the temporary employee referred in paragraph 15 in AP Srivastava (supra) was working against a substantive post, but was not given the benefits thereof. From such point of view, the factual situations that prevailed in the aforesaid two judgments Page No.# 9/13

referred by the Allahabad High Court also do not appear to be present in the facts and circumstances of the present case.

15. However, we also take note of two pronouncements of the Supreme Court in Sheo Narain Nagar and Others Vs. State of Uttar Pradesh and Another, reported in (2018) 13 SCC 432 and Prem Singh Vs. State of Uttar Pradesh and Others reported in AIR 2019 SC 4390. In paragraph 7 of Sheo Narain Nagar (supra), the Supreme Court took note of a misunderstanding by the Government authorities as regards the provisions of the decisions in the Secretary, State of Karnataka and Ors. Vs. Uma Devi and Others reported in (2006) 4 SCC 1. The Supreme Court had taken a judicial notice of the practice of ad-hoc or daily wage employment being continued by the Government Departments and although the spirit of the judgment in Uma Devi (supra) was contrary to such continuation of employment on ad-hoc or daily wage basis. We particularly take note of the view of the Supreme Court that in such circumstances in doing so it is a clear contravention of the constitutional provisions and aspiration of downtrodden classes and that the kind of treatment meted to such kind of employees is not only bad, but equally unconstitutional and is a denial of rights and therefore, a balance is required to be struck between implementing ideology of Uma Devi (Supra) and the attempt of the State Government to flout the requirement of Uma Devi (supra).

16. The Supreme Court had made an observation that in the heydays of their life those employees are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destitutes for there being no provision for pension, retiral benefits etc. Page No.# 10/13

17. The relevant provisions in paragraph 7 in Sheo Narain Nagar (supra) as regards the apprehension in respect of such employees being destitutes is extracted below:

"In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destitute, there being no provision for pension, retiral benefits etc."

18. In the other judgment of the Supreme Court rendered in Prem Singh (supra) in paragraph 35 a view was taken that the employees who worked as worked-charged and were not regularized in spite of having rendered the services for 30-40 or more years would be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for the purpose of pension. The said pronouncement by the Supreme Court as regards entitlement of pension to the worked-charged employees who are not regularized in service is left to be considered in any other matter and as stated by Mr. P Nayak, learned counsel for the PWD and Mr. B Gogoi, learned counsel for the Finance Department that the said issue is pending adjudication in some other writ petitions before the Court inasmuch as, in the instant case the deceased husband of the petitioner had not completed the tenure of service, whereas the observation of the Supreme Court are with regard to such employees who have rendered service for 30 to 40 years.

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19. But in the instant case, the deceased husband of the petitioner died in harness after serving the department for approximately 20 years and had not completed his entire tenure of service. However, we seriously take note of the provisions of the Supreme Court in Sheo Narain Nagar (supra) in paragraph 7 wherein the Supreme Court was of the view that the muster roll worker/worked charged in the heydays of life have served on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destitutes for there being no provision for pension, retiral benefits etc.

20. In the instant case, as we have already noticed the relevant provisions of law as well as the various pronouncements, other than Prem Singh (supra) does not enable the petitioner to make out a case that considering the nature of the employment the deceased husband of the petitioner had held and the period of service he had rendered would entitle him to a pension and that as a consequence under Rule 143 of the Rules of 1969, the petitioner would also be entitled to family pension.

21. Having concluded as indicated, we again take note of the provisions of the Supreme Court that the employees who had served the State Government authorities in a manner other than a regular employee and thereby not being entitled to pension or family pension should also be not allowed to become destitutes and lead their life at the mercy of others. Article 21 of the Constitution of India had been interpreted by the Supreme Court in a manner that right to life also includes the right to food, shelter and a minimum entitlement of life. We have been told that pursuant to the requirement of Article 21 of the Constitution of India several social welfare schemes are Page No.# 12/13

available with the Government authorities to ensure that the right to life of a citizen is not infringed upon, although it is also to be expected that such schemes would only be applicable to a particular category and classes of citizens and not across the board to every citizens who otherwise do not have the requirement of the benefits of such social schemes. If the petitioner would not be entitled to a family pension and as her deceased husband would also be no longer able to bring the financial resources to her family for its sustenance, no deeper anticipation is required to forsee the situation whether the petitioner may be turned to a destitute and would be required to lead her life at the mercy of others.

22. To mitigate the situation, we require the petitioner to submit a representation before the Principal Secretary to the KAAC for grant of adequate financial relief as may be available within the existing schemes and other provisions put in place in furtherance of the provisions of the Constitution of India. The Principal Secretary while considering the representation would extend all possible financial benefits within the existing schemes and other constitutional provision that can be given to the petitioner and in no circumstance, whatever is provided shall be less than what it requires for a dignified life to be maintained by the petitioner as guaranteed by Article 21 of the Constitution of India and more particularly to ensure that the petitioner and other dependent family members do not become destitutes. The reasoned order be passed by the Principal Secretary within a period of one month from the date of the representation. In doing so, the Principal Secretary shall not take a narrow pedantic view of the matter and ensure that maximum financial benefits as may be possible be provided so that the petitioners can live a dignified life Page No.# 13/13

befitting her status as the wife of the deceased husband.

23. We further provide that in the event a law is laid down for entitlement of pensionery benefits to a category of employees to which the deceased husband of the petitioner belonged or any such scheme is adopted by the respondent authorities, liberty is granted to the petitioner to make such claim in the future.

24. Considering the anticipated situation that in the absence of any financial benefit the petitioner and the family member may become destitutes, the claim of the petitioner for such benefits be addressed in an appropriate manner so as to make the petitioner entitled to such benefits.

25. Writ petition, accordingly, stands disposed of.

JUDGE

Comparing Assistant