Naresh Ch Roy vs The State Of Assam And 6 Ors
2021 Latest Caselaw 395 Gua

                                                             Page No.# 1/4

GAHC010186662020




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

                         Case No. : WP(C)/5773/2020

         NARESH CH ROY
         S/O LATE UDAY CH. ROY,
         VILLAGE GHORIAL DONGA, PO MAHAMAYAHAT. DIST DHUBRI, ASSAM,
         783335



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, PUBLIC HEALTH ENGINEERING DEPARTMENT, HENGRABARI,
         GHY 781036

         2:THE UNDER SECRETARY
          GOVT. OF ASSAM
          PUBLIC HEALTH ENGINEERING DEPARTMENT
          DISPUR GUWAHATI 781006

         3:THE CHIEF ENGINEER
          PUBLIC HEALTH ENGINEERING
         WATER
         ASSAM
          GUWAHATI 781036

         4:THE COMMISSIONER AND SECRETARY
          GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI 78106

         5:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
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              BELTOLA
              GUWAHATI 781029

             6:THE SENIOR ACCOUNTS OFFICER

             OFFICE OF THE ACCOUNTANT GENERAL (A AND E) ASSAM
             MAIDAMGAON
             BELTOLA
             GUWAHATI 29

             7:THE EXECUTIVE ENGINEER (PHE)
              DHUBRI DIVISION
              DHUBRI
             ASSAM 78313

Advocate for the Petitioner     : MR. M KALITA

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                 HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                                ORDER

05.02.2021

Heard Mr. M. Kalita, learned counsel for the petitioner. Also heard A. Hasan, learned counsel for the Accountant General (A&E), Assam. Mr. B. Choudhury, learned counsel appears for respondent nos.1, 2 and 3 and Ms. M.D. Borah, learned counsel appears for respondent no.4.

Aggrieved by non-payment of pension, the petitioner has filed the present writ petition. The petitioner's counsel submits that the present case is covered by the judgment passed in Sanjita Roy and Others vs. State of Assam and Others, reported in 2019 (2) GLT 805. He submits that the petitioner should be given pension in terms of the above judgment passed in Sanjita Roy and Others (supra).

The counsels for the respondents fairly submit that the present case is covered by Sanjita Roy and Others (supra). Mr. A. Hasan, learned counsel for the Accountant General (A&E) also submits that as terminal gratuity has been paid to the petitioner, the said amount would have to be adjusted against the pension to be paid to the petitioner.

I have heard counsels for the parties.

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The relevant partition of the judgment in Sanjita Roy and Others (supra) is extracted hereinbelow :

"..............

28. In the said case of R. Lalkhum (Supra), this Court was dealing with asimilar subject of denial of pension to the deceased husband of the petitioner. In paragraph-14 of the said judgment referring to a Constitution Bench judgment of Hon'ble Apex Court it has been held that the pension is not a bounty payable on the sweet-will and pleasure of the Government and on the other hand, the right to pension is a valuable right vesting in a Government servant and right to receive pension is a property under Article 31(1) and by mere executive order the State has no power to withhold the same. On the point of apprehension raised by the Department that grant of pension to the petitioner may open a floodgate causing a huge financial burden on the Department, this Court held that only because floodgates of cases may be opened, itself cannot be a ground to close the doors of the Court of justice. Referring to an earlier decision of the Hon'ble Apex Court reported in 2003 (7) SCC 564 (Guruvayur Devaswom Managing Committee and Anr. vs. C.K. Rajon & Ors.), the Court held that the doors of the Court must be kept open. Further, one may gainfully refer to the observations of the Hon'ble Apex Court in the case of 2007 (9) SCC 625 (Coal India Pvt. Limited vs. Saroj Kr. Mishra) and also 2009 (5) Supreme 4 N Kannadasan vs. Ajoy Khose and others, wherein arguments made on behalf of the State on opening of a floodgate have been negated. The Court held that only because there is a possibility of floodgate of litigation, a valuable right of a citizen cannot be taken away and the Court is bound to determine the respective rights of the parties.

29. Rival submissions of the parties have been duly considered. The decision to grant pension to casual Muster Roll Workers whose services were regularized and have completed 20 years of total service cannot, per se, be termed as arbitrary. The question which rises for determination is whether the decision contained in the Office Memorandum dated 20.05.2009, to deduct 6 years of service meet the test of reasonability under Article 14 of the Constitution of India. While determining the aforesaid question, the Court is reminded of the fact that the petitioners belong to the economically lower strata of the society. As has been held by various judicial pronouncements, it has been laid down that pension is not a bounty or a grace but valuable right accruing by an employee if he fulfills the conditions to be entitled for such pension. The conditions imposed in the instant case for the petitioners who are Muster Roll Workers is completion of a total period of continuous service of 20 years. While this Court, as has been observed above, does not hold that fixation of 20 years of continuous service an arbitrary, the deduction of 6 years does not appear to be reasonable and fair. This Court does no tfind force that the exercise, in publishing the notification dated 20.05.2009 itself was an under Rule 31 of the Rules and therefore, further exercise is not permissible. It will be wholly unfair and unreasonable to deny a Muster Roll Worker who is admittedly completed 20 years of continuous service of pension in terms of Office Memorandum dated 06.09.2003. However, deduction of 6 years or for that matter, any period to calculate 20 years of continuous service, does not appear to be reasonable. The entire exercise of issuing the notification should be in a positive manner so as to ensure that maximum benefit is given to the incumbents who undoubtedly belong to the economically lower strata of the society. It should have been the endeavour of the State not to make a further classification of Muster Roll Workers who have completed 20 years of continuous service by introducing the condition of deduction of 6 years of casual service. Admittedly, there is no difference at all between the services rendered by the petitioners while they wereemployed in a casual manner or after the regularization.

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30. In view of such position, it is held that deduction of 6 years from their services while calculating 20 years of continuous service does not appear to be reasonable and fair. As regards the decision of this Court rendered in the case of Monsing Tisso (Supra), this Court is in agreement with the submission of Mr. Nairthat the decision should be read in the context of the pleadings. It appears that an impression was given to the Court that 10 years of continuous service was the condition precedent for being eligible for pension. However, even without taking recourse to the said decision this Court has considered the present writ petitions inthe forgoing manner.

31. In view of above discussion and by taking into consideration the various judicial pronouncements on the subject, the writ petitions are disposed of directing the respondent authorities to determine the continuous length of service of the petitioners as a Muster Roll Workers and if such service meets the bench mark of 20 years without any deduction, the benefit of pension should be made available to them. While carrying out said exercise, the respondent authorities are also directed to take recourse Rule 67 for those petitioners who fail to meet the bench mark of 20 years by 12 months or less. No order as to cost"

The petitioner's case is squarely covered by the above judgment and as he would have more than 20 years of service, if the initial 6 years of service as Muster Roll employee is not deducted, he would be entitled to pension. Accordingly the respondents are directed to process the pension papers of the petitioner and disburse the same to him within a period of 4 (four) months from the date of receipt of a copy of this order. The respondent nos.1, 2, 3 and 7 shall make the complete pension proposal within a period of 2 (two) months from the date of receipt of copy of this order and submit the same within a further period of one week. As stated earlier, the entire exercise shall be completed within four months.

The terminal gratuity paid to the petitioner shall be adjusted against the pension to be paid to the petitioner.

The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant