Biswanath Basumatary vs The State Of Assam And 6 Ors
2021 Latest Caselaw 2449 Gua

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GAHC010067922021




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

                         Case No. : Review. Pet./66/2021

         BISWANATH BASUMATARY
         S/O- LATE GAISING BASUMATARY, R/O- VILL.- HALDIBARI, P.O.
         HALTUGAON TINIALI, DIST.- KOKRAJHAR, BTC, ASSAM, PIN- 783370.

         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         HANDLOOM TEXTILES AND SERICULTURE DEPARTMENT, DISPUR,
         GUWAHATI-6.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI-6.

         3:THE DIRECTOR OF SERICULTURE
         ASSAM
          KHANAPARA
          GUWAHATI-22.

         4:THE ACCOUNTANT GENERAL ( A AND E)
          MAIDAMGAON
          BELTOLA
          GUWAHATI-29.

         5:THE BODOLAND TERRITORIAL COUNCIL
          REP. BY THE SECRETARY
          SERICULTURE DEPTT.
          BODOFANAGAR
          KOKRAJHAR
          BTAD
         ASSAM
          PIN- 783370.
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            6:THE ASSISTANT DIRECTOR OF SERICULTURE
             KOKRAJHAR
             PIN- 783370.

            7:THE TREASURY OFFICER
             KOKRAJHAR TREASURY
             DIST.- KOKRAJHAR
             BTC
            ASSAM
             PIN- 783370

Advocate for the Petitioner   : MR. K R PATGIRI

Advocate for the Respondent : GA, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

Date : 07-10-2021

Heard Mr. K.R. Patgiri, learned counsel for the review-petitioner. Also heard Mr. R. Dhar, learned Standing Counsel, Handloom, Textile & Sericulture Department and Additional Senior Government for the respondent nos. 1, 2 and 3; Mr. R.K. Talukdar, learned Standing Counsel, Accountant General [A&E], Assam for the respondent no. 4; and Ms. P. Baruah, learned counsel appearing on behalf of Mr. P. Nayak, Standing Counsel, BTC and Finance Department for respondent nos. 5, 6 and 7.

2. This review petition has been preferred seeking review/modification of the order dated 18.02.2021 passed in the writ petition, W.P.(C) no. 1669/2020. The writ petition was preferred projecting as follows :-

3. The petitioner was initially appointed as a Muster Roll Worker in the office of the Assistant Director of Sericulture, Kokrajhar, Assam on 01.09.1991. The services of the petitioner came to be regularized w.e.f. 22.07.2005 after creation of 1081 nos. of Grade IV posts [Muster Roll] by the Government in the Handloom, Textile & Sericulture Department Page No. 3/7

vide a letter dated 05.10.2005. In the said letter dated 05.10.2005, a list of 1081 nos. of Muster Roll Workers who were engaged prior to 01.04.1993 and were still working in the establishments under the Handloom, Textile & Sericulture Department without any interruption or break in service was annexed. In the said list, the name of the petitioner figured at serial No. 40 showing his date of engagement as 01.09.1991 and the date of retirement as 31.01.2013. After his service was regularized, the petitioner continued his service till he retired on 31.01.2013 on reaching the age of superannuation. After his retirement, his pension papers were forwarded by the department to the office of the Accountant General [A&E], Assam. The office of the Accountant General [A&E], Assam vide its communication dated 18.05.2018 had intimated the Government in the Handloom, Textile & Sericulture Department that pension would not be admissible to the petitioner as the qualifying service of the petitioner was 15 years 3 months 30 days and a temporary Government Servant with less than 20 years of service at the time of retirement would not be

eligible for any pension and gratuity except terminal gratuity. An amount of Rs. 96,105/- was, thereby, released in favour of the petitioner as terminal gratuity.

3.1. A period of 6 [six] years of initial engagement w.e.f. 01.09.1991 was deducted on the basis of an Office Memorandum dated 20.05.2009 while counting his qualifying service and as a result of such deduction of 6 years, his net qualifying service got counted as 15 years 3 months 30 days. The decision to deduct the 6 years of initial engagement contained in the Office Memorandum dated 20.05.2009 was considered in the writ petition, W.P.(C) no. 1089/2015 [Sanjita Roy vs. the State of Assam and others] and similar other writ petitions. By a judgment and order dated 04.12.2018, this Court has held that the said deduction of 6 years of initial engagement period is impermissible.

4. In the writ petition, W.P.(C) no. 1089/2015 [Sanjita Roy vs. the State of Assam and others] and similar other writ petitions, disposed of by a judgment and order dated 04.12.2018, the deduction of 6 years has been held to be impermissible.

5. The writ petition, W.P.(C) no. 1669/2020 was disposed of with a direction to the respondent authorities to work out the pensionary benefits without deduction of 6 years of Page No. 4/7

initial engagement period in respect of the petitioner and finalize and release the same, within a period of 3 (three) months. It was observed therein that since the order passed in W.P. (C) no. 1089/2015 by the Court was on 04.12.2018, the pensionary benefit in respect of the review petitioner would be granted from the date of 04.12.2018 as had been done in similar cases.

6. Learned counsel for the review petitioner, however, submits that the earlier order passed by this Court in W.P.(C) no. 1089/2015, which was followed by the Court in W.P.(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 and other writ appeals on 26.02.2021 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 Page No. 5/7

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 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 Page No. 6/7

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."

7. Accordingly, it is clarified that the order passed by this Court on 18.02.2021 in W.P.(C) no. 1669/2020 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.

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8. With the above clarification, the review petition is disposed of.

JUDGE

Comparing Assistant