Gauhati High Court
Rabi Ram Kalita vs The State Of Assam And 3 Ors on 28 October, 2021
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GAHC010164222021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5664/2021
RABI RAM KALITA
S/O MANIK CHANDRA KALITA, R/O VILL. MAJPATHORI, P.O. MAJPATHORI,
P.S. NAGAON, IN THE DIST. OF NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE SECY. (E) TO THE GOVT. OF ASSAM, IRRIGATION
DEPTT., DISPUR, GUWAHATI 781006
2:THE CHIEF ENGINEER
IRRIGATION DEPTT.
ASSAM
CHANDMARI
GUWAHATI 781003
3:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI 781036
4:THE EXECUTIVE ENGINEER
KALIABOR INTD. KALLONG DIVISION (IRRIGATION DEPTT.) NAGAON
ASSAM
Advocate for the Petitioner : MR H DAS
Advocate for the Respondent : SC, IRRIGATION
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BEFORE
THE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
order
28.10.2021
Heard Mr. H Das, learned counsel for the petitioner. Also heard Mr. N
Upadhyay, learned counsel for the respondent Nos. 1,2 and 4 and Mr. A Chaliha,
learned Standing counsel for the Finance Department respondent No. 3.
The petitioner served in the post of Chowkidar under the Executive
Engineer, Kaliabor Intd. Kallong Division, Irrigation in the district of Nagaon. His
service was regularized in the said post of Chowkidar on 22.07.2005. The
petitioner in total rendered service for 22 years but due to deduction of 6 years
as the initial period prior to regularization the net qualified service period was
calculated as 17 years by the Accountant General (A&E), Assam. On the basis of
the said calculation, the respondent No. 3 released the terminal gratuity
amounting to Rs. 67,028/-. The said order was passed on 12.05.2017 by the
Assistant Accounts Officer of the said Division. Subsequent thereto this court in
WP(C) 1089/2015 (Sanjita Roy Vs. the State of Assam & Ors.) passed an order
dated 04.12.2018. The relevant portion of the said decision is extracted
hereinbelow:
"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
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with the submission of Mr. Nair that 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 in the
forgoing manner."
The petitioner thereafter approached this court by filing a writ petition
which was disposed of vide order dated 30.10.2020 in batches. However the
same was disposed on the basis of an order dated 21.06.2019 in WP(C)
4027/2019 thereby holding that the pensionary benefit for the retired muster
roll workers subsequently regularized could be granted from the date of
judgment and order in WP(C) 1089/2015 i.e. 04.12.2018. Being aggrieved by
the said decision some of the aggrieved persons similarly situated as that of the
present petitioner preferred WA 18/2021 thereby challenging the order dated
13.10.2020. The said WA 18/2021 was disposed of vide order dated 26.02.2021
and the Hon'ble Division Bench held as follows:
"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
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made by the State Legislature and the Parliament, which are always
prospective in nature, unless again, the law itself makes it retrospective.
The original judgment (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 then
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."
The petitioner accordingly has filed this writ petition for an appropriate
direction to the respondent No. 3 to re-consider the pension papers of the
petitioner for releasing his arrear pensionary benefits with effect from
01.04.2010 to 03.12.2018 which was calculated on the basis of the direction of
this court with effect from 04.12.2018. There is no dispute at bar that the
petitioner is not entitled for the benefits sought for in this writ petition in view of
the clarification given by the Hon'ble Division Bench referred above and as such
this writ petition stands disposed thereby directing the respondent No. 3 to give
the pensionary benefits to the petitioner for the period 01.04.2010 to
03.12.2018 within a period of 90 days from the date of receipt of the copy of
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this order.
With the said observation and direction, this writ petition stands disposed
of.
JUDGE
Comparing Assistant
