Moloy Roy vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2214 Gua

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GAHC010082162021




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

                                 Case No. : WP(C)/3695/2021

            MOLOY ROY
            S/O LATE NAGENDRA KUMAR ROY
            RESIDENT OF NIMBARK BHAWAN, HOUSE NO. 21, LANE NO. 3, PO AND PS
            SILCHAR, DIST CACHAR, ASSAM, 788005



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
            ASSAM, PUBLIC HEALTH ENGINEERING DEPARTMENT, DISPUR,
            GUWAHATI 06

            2:THE CHIEF ENGINEER (PHE) WATER
             ASSAM
             HENGRABARI
            . GUWAHATI 36

            3:THE EXECUTIVE ENGINEER (PHE)
             SILCHAR DIVISION II
             SILCHAR
             DIST CACHAR
            ASSAM
             788014

            4:THE ACCOUNTANT GENERAL (A AND E)
            ASSAM MAIDAMGAON
             BELTOLA
             GUWAHATI 2

Advocate for the Petitioner   : MR. L R MAZUMDER

Advocate for the Respondent : SC, P H E
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 15-09-2021

Heard Mr. L.R. Mazumder, learned counsel for the petitioner, Mr. D. Gogoi, learned Standing counsel for the PHE Department and Mr. R. Ahmed, learned Standing counsel for the respondent no.4.

2. The case of the petitioner is that on 01.02.1993 he had joined service as Muster roll worker in the office of the respondent no.3 and that by office order no. 124 dated 06.10.2005, his service was regularized as Khalasi w.e.f. 22.07.2005. The petitioner had superannuated from service on 31.03.2017. However, as the petitioner has not been granted pensionary benefits, the present writ petition has been filed under Article 226 of the Constitution of India.

3. Notice of motion was issued by order dated 11.08.2021, but no affidavit- in- opposition has been filed. Accordingly, by invoking the principle of non- traverse, the matter has been taken up for disposal in 'admission' stage.

4. The learned counsel for the petitioner has submitted that the petitioner was regularly approaching the office of the respondent no. 3 to enquire about his pension and he was provided with a copy of letter dated 04.12.2017 by which the office of the respondent no. 4 had returned the pension papers to the Under Secretary to the Government of Assam, Public Page No.# 3/7

Health Engineering Department as incomplete uninterrupted service certificate was found attached to the pension papers and it was also informed that their department should follow PPG Department letter no. PPG(P)/ 88/2009/78 dated 08.08.2011. Accordingly, the respondent no. 4 had directed the PHE Department not only to resubmit pension papers in correct and complete shape, but the said authority was also informed that the Government servant was not eligible for pension/ gratuity/ family pension but is to be paid terminal gratuity as per Rule 152(i) of Assam Service (Pension) Rules, 1969 and that pension may be given to the Government servant on obtaining necessary orders from the Governor condoning the shortfall of service. In light of the said observation made in the letter of respondent no. 4, the learned counsel for the petitioner has placed reliance on the ratio laid down by this Court in the case of Sanjita Roy & Ors. Vs. State of Assam & Ors., 2019 (2) GLT 805 , wherein this Court had held that the deduction of 6 years of initial service was illegal and not sustainable.

5. The learned Standing counsel for the respondent nos. 1, 2 and 3 submits that as the said respondents had forwarded the pension papers of the petitioner, he has no instructions in the matter. Therefore, it appears to the Court that the said respondents are not contesting the claim of the petitioner.

6. The query of the Court was to the effect that despite the decision dated 04.12.2018 of this Court in the case of Sanjita Roy (supra), why the respondent no. 4 is still refusing pension and other retiral benefits to muster roll workers whose service have been regularised and have rendered more than 20 years of continuous service, which makes them eligible to pension. To the said query, the learned counsel for the respondent no.4 has no answer.

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7. It is seen that the office of the respondent no. 4 (i.e. Accountant General (A&E) has not disclosed in their letter dated 04.12.2017, if the service rendered by the petitioner does not meet the benchmark of 20 years of service for getting pension. The respondents have not filed any affidavit-in- opposition, denying that the petitioner was appointed in service on 01.02.1993 and that his service was regularised on 22.07.2005 and that he had superannuated on 31.03.2017, while in regular sanctioned post of Khalasi, which was brought under regular establishment. Thus, it is seen that the petitioner had rendered benchmark service of 20 years partly while serving as Muster roll worker and partly in regular sanctioned post, which is not disputed by the respondents.

8. In the case of Sanjita Roy (supra), this Court had elaborately discussed the provisions of the Assam Service (Pension) Rules, 1969 and had referred to the OM dated 06.09.2003, by which the requirement of 20 years of continuous qualifying service was prescribed and that notice of the Court was brought to the OM dated 20.05.2009, whereby it was directed that 6 (six) years of service rendered prior to regularisation would be deducted from the total length of service.

9. The respondents have not placed any material before the Court to demonstrate that the petitioner had not rendered benchmark service which entitles him to pension. Nonetheless, assuming that the pension of the petitioner has been withheld because of the OM dated 20.05.2009, after the decision of this Court in the case of Sanjita Roy (supra) was rendered on 04.12.2018, and many verdicts of this Court in similar matters following the ratio of the said case of Sanjita Roy (supra), whereby by this Court had held Page No.# 5/7

that the deduction of 6 years of service while calculating continuous 20 years of pensionable service was not reasonable or fair, further directing that while carrying out the exercise of determining pensionary benefits, the authorities were to take recourse to Rule 67 for those persons who had failed to meet the bench mark of 20 years by 12 months or less.

10. It appears to the Court that the respondent no. 4, i.e. the Accountant General (A&E) has not only a legal duty but also an obligation to take appropriate steps to release the pension of all those muster roll workers who had rendered 20 years of continuous service from the date of joining as muster roll worker and whose service had been regularized by the State and that the respondent no. 4 also has a legal duty to follow the principle laid down in the case of Sanjita Roy (supra) and not to deduct initial 6 years of service if the tenure of service meets the benchmark of 20 years.

11. The Court is not oblivious of the fact that in the present case in hand, the petitioner had superannuated on 31.03.2017 and that the pension papers of the petitioner was returned on 04.12.2017, prior to the date of 04.12.2018, when the judgment was rendered in the case of Sanjita Roy (supra). Nonetheless, the said judgment having come to the notice of the respondent no.4, followed by innumerable subsequent judgments where the said ratio was followed, it becomes the duty of the respondent no. 4 to pass a general order to recall all those pension proposals which were returned on the ground that after deducting initial 6 years of service, the retired regularised muster roll worker allegedly did not meet the benchmark of 20 years. The inaction on part of the respondent no.4 to take any remedial steps pursuant to the judgment rendered in the case of Sanjita Roy (supra), has become a source Page No.# 6/7

of filing of many writ petitions seeking relief similar to the present case. Resultantly, the respondent no.4 is now directed to pass a consequential order pursuant to the judgment rendered in the case of Sanjita Roy (supra) and to take appropriate remedial measures so that the pension of muster roll workers who have rendered 20 years of continuous service and whose service has been regularised are not denied of their legitimate right to pension on the ground that initial 6 years of service was to be deducted in terms of OM dated 20.05.2009.

12. In the present case in hand, the respondent no.4 has failed to respond why the pension of the petitioner was withheld, therefore, the doctrine of non-traverse has been invoked by the Court. Resultantly, the respondent no. 4 is directed to release the pension of the petitioner within 4 (four) weeks from the date of receipt of a downloaded copy of this order. The respondent no.4 is at liberty to verify the order from the website of the Court and act accordingly.

13. The petitioner shall also serve a downloaded copy of this order to the respondent no.2 so as to enable the said authority to re-send the pension papers of the petitioner to the respondent no.4 within a period of 2(two) weeks, if not already sent.

14. The respondent no. 4 is at liberty to apply for extension of time, if for compelling reasons the said authority is unable to disburse the pension, etc. to the petitioner within the time allowed.

15. The writ petition stands allowed to the extent as indicated above.

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JUDGE

Comparing Assistant