Nagen Chandra Dutta @ Nagen Dutta vs The State Of Assam And 5 Ors
2022 Latest Caselaw 1380 Gua

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GAHC010007982022




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

                          Case No. : WP(C)/1155/2022

         NAGEN CHANDRA DUTTA @ NAGEN DUTTA
         S/O LATE BHOGAI DUTTA, R/O VILL-BAM DHEKIAKHOWA, P.O.-
         DHEKIAKHOWA, P.S.-TEOK, DIST-JORHAT, ASSAM, PIN-785700



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-6

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

         3:THE CHIEF ENGINEER
          IRRIGATION DEPARTMENT
          CHANDMARI GUWAHATI-03

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

         5:THE EXECUTIVE ENGINEER
          JORHAT DIVISION (IRRIGATION)
          JORHAT
          DIST-JORHAT
         ASSAM
          PIN-785001
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            6:THE TREASURY OFFICER
             JORHAT TREASURY
             JORHAT
             DIST- JORHAT (ASSAM)
             PIN-78500

Advocate for the Petitioner    : MR. K R PATGIRI

Advocate for the Respondent : SC, IRRIGATION




                                        BEFORE
                              HONOURABLE MR. JUSTICE K. SEMA

                                            ORDER

Date : 27-04-2022

Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Ms. D. Borah, learned Government Advocate for the respondent No. 2, Mr. N.N Upadhyay, learned Standing counsel for the respondents No. 1, 3 & 5 and Ms. A. Lala, learned counsel appearing for the respondent No. 4.

In the writ petition, the petitioner has inter-alia impugned the Office Memorandum dated 20.05.2009 and also sought for a direction to the respondents to finalize the monthly superannuation pension by considering total length of service of the petitioner without any deductions of service.

The petitioner was engaged as Muster Roll Worker on 01.08.1990. The petitioner's service was regularized w.e.f. 22.07.2005 and the petitioner retired from service on 31.10.2015 on attaining the age of superannuation. After the retirement the pension paper proposal of the petitioner was processed however, it was turned down on the ground that the petitioner has not completed the minimum 20 years of service after deduction of 6 years of initial Muster Roll service. The petitioner has rendered service for 25 years and 3 months but by deducting 6 years of initial of Muster Roll service, the petitioner is deemed to be in service only for 19 years and 3 months. In terms of the Assam Services (Pension) Rules, 1969, a temporary government servant who retires with less than 20 years of service is not entitled to any benefits but only to terminal gratuity at the rate of half month pay for each completed Page No.# 3/5

years of service provided he has completed not less than 5 years continuous service unless service is made confirmed. The fact that the petitioner was not entitled to the pensionary benefits as he has not yet completed 20 years of service was conveyed to the petitioner by the letter dated 05.12.2016 which was written by the Office of the Accountant General to the Under Secretary (E) to the Government of Assam, Irrigation department.

The learned counsel for the petitioner submits that the O.M dated 20.05.2009 which is impugned in the present writ petition was also a subject matter of litigation in W.P.(C) No. 1089/2015 (Sanjita Roy -versus- State of Assam & Others) and the linked cases. In the said writ petition, this Hon'ble Court by the judgment & order dated 04.12.2018, more particularly in paragraph-29, 30 & 31 has held as follows;

"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 not find 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 Page No.# 4/5

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 were employed in a casual manner or after the regularization.

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. 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.

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."

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The learned counsel for the petitioner submits that the present case is squarely covered by the judgment & order dated 04.12.2018 and therefore, submits that the present writ petition may be disposed as per the findings made in the judgment & order dated 04.12.2018.

The learned Government Advocate fairly submits that the present case of the petitioner is covered by the judgment & order dated 04.12.2019 passed in W.P.(C) No. 1089/2015 and the linked cases.

In view of the submissions made by the parties and in the light of the judgment & order dated 04.12.2018 passed in W.P.(C) No. 1089/2015 and the linked cases, it is ordered that the petitioner's service as Muster Roll Worker will be computed from 01.08.1990 till the date of his retirement i.e. 31.10.2015 without deduction of the initial 6 years of Muster Roll period so as to enable the petitioner to qualify for the pensionary benefits. The entire exercise for paying the pensionary benefits to the petitioner shall be completed by the State respondents within a period of 3(three) months from today.

With this directions and observations, this writ petition is disposed.

JUDGE

Comparing Assistant