Ujala Narzary vs The State Of Assam And 4 Ors
2021 Latest Caselaw 3057 Gua

                                                                 Page No.# 1/9

GAHC010195312021




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

                         Case No. : WP(C)/6193/2021

         UJALA NARZARY
         W/O LATE RWKSMSE NARZARY,
         RESIDENT OF VILLAGE NO. 3, JAINARY, PO SIMBARAGAON, PS AND DIST
         KOKRAJHAR, BTR, ASSAM, 783370



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, PWD(R) DEPARTMENT, DISPUR, GUWAHATI 06

         2:THE EXECUTIVE ENGINEER

          PUBLIC WORKS DEPARTMENT
          KOKRAJHAR ROAD DIVISION
          KOKRAJHAR
          ASSAM

         3:THE ASSISTANT EXECUTIVE ENGINEER
          PWD
          KOKRAJHAR RURAL ROAD DIVISION
          KOKRAJHAR
          BTR
         ASSAM

         4:THE DIRECTOR OF PENSION

          ASSAM
          DISPUR GUWAHATI 06

         5:THE ACCOUNTANT GENERAL ( A AND E)
         ASSAM
                                                                       Page No.# 2/9

             MAIDAMGAON
             BELTOLA
             GUWAHATI 2

Advocate for the Petitioner   : MR. M U MAHMUD

Advocate for the Respondent : SC, AG




                             BEFORE
           HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                       ORDER

24.11.2021

Heard Mr. MU Mahmud, learned counsel for the petitioner, who submits that the petitioner's husband was appointed as a Work-Charged Sectional Assistant on 12.05.1997 and was working under the Kachugaon (R) Sub-Division under Kokrajhar P.W.D (R) Division.

2. The services of the petitioner's husband was extended and renewed from time to time until he passed away on 06.05.2017 while still in service. After the death of the petitioner's husband, the next of kin certificate was issued by the Deputy Commissioner, Kokrajhar on 06.12.2018, in the name of the petitioner and her children.

3. The petitioner in the present case has prayed for payment of pension and other pensionery benefits.

4. The petitioner's counsel submits that the petitioner has received only the Page No.# 3/9

GPF amount, but no pension and other pensionery benefits like gratuity, group insurance etc.

5. The petitioner's counsel submits that the petitioner had made a representation to the Executive Engineer P.W.D(R) for grant of pension and other pensionery benefits. However, the said representation has not been decided by the respondent authorities.

6. The petitioner's counsel has also referred to the decision of this Court dated 06.01.2021 passed in WP(C)No.429/2019 wherein this Court has directed the State respondents to pay pension in respect of a regularized Muster Roll Worker, whose entire service period including the unregularised and regularized service period was more than the 20 years of qualifying service, thereby making him legible for payment of pension.

7. The petitioner's counsel submits that this Court in WP(C)No.429/2019 held that in terms of judgment of this Court in WP(C)No.2733/2015 and WP(C)No.1089/2015, deduction of six years of service from the total number of years of service of a regularized Muster Roll Worker, to determine the question of legibility for grant of pension was not reasonable and accordingly, directed the respondents to count the total number of years of service of the Muster Roll Worker. As the total number of years of service of the petitioner therein met the qualifying service of 20 years, the Muster Roll Worker therein would have to be provided pension. He submits that the case of the petitioner therein is similar to the case of the present petitioner's husband and accordingly, a similar order Page No.# 4/9

should be passed.

8. On a query made by this Court to the petitioner's counsel as to whether the service of the petitioner's husband had been regularized, the petitioner's counsel submits that the service of the petitioner's husband was never regularized.

9. Mr. P Nayak, learned counsel for the respondents No.1, 2 & 3, Ms. A Talukdar, learned counsel appearing for the respondent No.4 as well as Mr. R Dhar, learned counsel for the respondent No.5 submit that the writ petition should be dismissed as the petitioner was not a regular government servant at any point of time and as such, pension cannot be granted under the Assam Services (Pension) Rules 1969 to a person, who is not a regular government servant.

10. I have heard the learned counsels for the parties.

11. The averments made in the writ petition clearly show that the husband of the petitioner was appointed as a Work-Charged Sectional Assistant on 12.05.1997 and his service tenure was extended from time to time until he passed away in 2017.

12. The service of the husband of the petitioner was never regularized at any point of time. The prayer in the writ petition is only for payment of pension and other unpaid retirement benefit.

Page No.# 5/9

13. Rule 31 of the Assam Services (Pension) Rules 1969 (hereinafter referred to as the Pension Rules) states as follows:

"31. Conditions to qualifying service: 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 servant 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

(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."

14. In the case of State of Manipur and Anr. Vs. Ksh. Moirangninthou Singh and Ors. reported in (2007) 10 SCC 544, the Apex Court had held at paragraph 7 as follows:

"7. We are of the opinion that in view of the Constitution Bench Judgment of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., (2006) 4 SCC 1, this Court cannot direct regularization in service. Since the Court has no power to direct regularization, it also Page No.# 6/9

follows that it has no power to direct grant of benefits payable to the regular employees."

15. In the case of "State of Assam Vs. Sri Upen Das and 835 Others", WA No.45/2014, the Division Bench of this Court set aside the orders of the Single Bench, which in turn had set aside the Office Memorandum dated 16.06.2012 issued by the Finance Department, Government of Assam, which stated that there shall be no further regularization of services of Muster Roll Worker/Work-

Charged employee or similarly placed workers even if such workers were engaged prior to 01.04.1993. The OM dated 16.06.2012 also stated that there would be no more regularization by creating superannumery post for one day in respect of Muster Roll Worker/Work-Charged employee who are engaged prior to 01.04.1993, but have died or had retired on being attaining the age of superannuation.

16. The impact of the judgment of the Division Bench in WA No.45/2014 is accordingly to the effect that the OM dated 16.06.2012 would be a valid office memorandum. In any event, no prayer has been made by the petitioner for creating a superannumery post for one day for regularization of the service of the petitioner's husband.

17. It has also been held by the Division Bench of this Court in WA No.45/2014 that after the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors., reported in (2006) 4 SCC 1 and in the case of State of Karnataka vs. M.L.Kesari, reported in (2010) 9 SCC 247, the State Government cannot create post to regularize the services of the Muster Page No.# 7/9

Roll Worker/Work-Charged employees as none of them are working against sanctioned posts.

18. In the present case, the petitioner's husband's service having not been regularized at any point of time, the petitioner's husband cannot be said to be in substantive or permanent employment with the Government. Further, there is no prayer made in the writ petition for regularization of the petitioner's husband's service.

19. In view of the above reasons and the fact that the service of the petitioner's husband was never regularized, this Court is of the view that the petitioner is not entitled to pension in terms of the Pension Rules.

20. In respect of the order dated 06.01.2021 passed in WP(C)No.429/2019 relied upon by the petitioner's counsel, the case therein was with regard to pension not being granted to a regularized Muster Roll Worker, who had more than 20 years of service as a Muster Roll Worker. The issue in the WP(C)No.429/2019 was that the Government had taken a decision, that for payment of pension to a regularized Muster Roll Worker, the Muster Roll Worker would need to have 20 years of qualifying service as Muster Roll Worker, after deducting the initial six years of service as a Muster Roll Worker. Thus a Muster Roll Worker would have needed to have a minimum of 26 years of service to be eligible to receive pension, which would include the period of service prior to regularization. The petitioner in WP(C)No.429/2019, though having more than 20 years of service as a Muster Roll Worker had less than 20 years of service, Page No.# 8/9

after deducting the initial six years of service as a Muster Roll Worker. The Court in WP(C)No.429/2019 thus directed the State Government to count all the years of service of the Muster Roll Worker for computing the 20 years of qualifying service required for grant of pension.

21. In the case of Sanjita Roy and Others Vs. State of Assam and Others, reported in 2019 (2) GLT 805, this Court held that the State Government could not deduct the initial six years of service of a Muster Roll Worker, while computing the total qualifying years of service of a Muster Roll Worker for grant of pension. It was in that context that the regularized Muster Roll Worker in WP(C)No.429/2019 had been granted pension, as the initial six years of service as Muster Roll Worker was also counted to compute the qualifying service of 20 years, for the purpose of grant of pension.

22. In the present case, as stated earlier, the service of the petitioner's husband had never been regularized by the respondents. As such, the fact situation in the present case and the fact situation in WP(C)No.429/2019 are not similar and accordingly, the order passed in WP(C)No.429/2019 is not applicable to the facts of this case.

23. The above being said, it is also noticed that the petitioner has not annexed any representation addressed to the respondents, with regard to her grievance in respect of non-payment of gratuity, group insurance etc. Thus, if the petitioner is still of the view that she is entitled to other retirement benefits other than pension, the petitioner is given the liberty to make a representation Page No.# 9/9

to the respondent authorities for the same by giving particulars. If a representation is filed, the same should be disposed of at the earliest by the respondents.

24. In view of the reasons stated above, this Court does not find any merit in the present writ petition, as the Assam Services (Pension) Rules 1969 is not attracted in the petitioner's case. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant