Gauhati High Court
Azizur Rahman Mazumder vs The State Of Assam And 7 Ors on 2 November, 2022
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GAHC010218982022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6896/2022
AZIZUR RAHMAN MAZUMDER
S/O LATE ASADDAR ALI MAZUMDER, P/R/O VILL AND P.O.-
SONABARIGHAT, DIST- CACHAR, ASSAM, PIN-788013
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, IRRIGATION DEPARTMENT, DISPUR,
GUWAHATI-6
2:THE SECRETARY TO THE GOVERNMENT OF ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6
3:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
CHANDMARI
GUWAHATI-3
KAMRUP (M)
ASSAM
4:THE ASSISTANT ENGINEER
SILCHAR DIVISION (IRRIGATION)
SILCHAR-6
CACHAR
ASSAM
5:THE EXECUTIVE ENGINEER
SILCHAR-UDHARBOND DIVISION (IRRIGATION)
KANAKPUR
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SILCHAR-788006
DIST- CACHAR
ASSAM
6:THE ASSISTANT EXECUTIVE ENGINEER
SILCHAR SOUTH DIVISION (IRRIGATION)
KABUGANJ
DIST- CACHAR
ASSAM
PIN-788115
7:THE PRINCIPAL
M.H.C. HIGHER SECONDARY SCHOOL
SONABARIGHAT
DIST- CACHAR
ASSAM
PIN-788013
8:THE HEAD MASTER
SONABARIGHAT M.V. SCHOOL
P.O.-SONABARIGHAT
DIST- CACHAR
ASSAM
PIN-78801
Advocate for the Petitioner : MR. D CHAKRABARTY
Advocate for the Respondent : SC, IRRIGATION
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 02-11-2022
Heard Mr. D. Chakrabarty, learned counsel for the petitioner and Mr. P.
Nayak, learned counsel for the respondent Nos. 1 to 6.
2. The petitioner's prayer in the writ petition is for a direction to be issued to
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the respondents, to eitheHeard Mr. D. Chakrabarty, learned counsel for the
petitioner and Mr. P. Nayak, learned counsel for the respondent Nos. 1 to 6.
2. The petitioner's prayer in the writ petition is for a direction to be issued to
the respondents, to either treat the petitioner's date of birth as 03.03.1962 or
05.03.1959 and to grant pension and other pensionary benefits.
3. The petitioner's case is that he was engaged as a Muster Roll employee in
the establishment of the respondent No. 5 w.e.f. 01.09.1987. The service of the
petitioner was thereafter regularized vide Order dated 06.10.2005 w.e.f.
22.07.2005. The petitioner's salary was suddenly stopped by the respondents
from 01.10.2019, on the ground that there was some anomaly in the petitioner's
date of birth.
4. The petitioner's counsel submits that the petitioner came across a letter
dated 11.05.2022 issued by the respondent No. 5, which requested all Muster
Roll Workers in the said establishment to verify their school certificates. He
submits that on the basis of an enquiry initiated by the respondents, which was
done without the participation of the petitioner, the respondents came to a
decision that the petitioner's actual date of birth was 05.03.1959 and not
03.03.1962, as had been initially recorded with the respondents.
5. The petitioner's counsel submits that the petitioner is suffering due to non-
payment of his pension and pensionary benefits. He accordingly submits that
even if the petitioner's date of birth is taken to be 05.03.1959, then the
petitioner would be entitled to payment of pension w.e.f. 01.04.2019. However,
as the petitioner has been paid his salary till 30.09.2019, the petitioner would
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not claim payment of pension prior to 01.10.2019, provided there is no recovery
of the salary already paid to the petitioner.
6. Mr. P. Nayak, learned counsel for the respondent Nos. 1 to 6 submits that in
terms of the letter dated 24.10.2019 issued by the respondent No. 5, the
petitioner's actual date of birth after enquiry was found to be 05.03.1959 and
not 01.03.1962. Accordingly, the petitioner would be deemed to have retired on
31.03.2019 and his pension would have to be made on the basis of the last
salary payable to the petitioner in March, 2019.
7. I have heard the learned counsels for the parties.
8. As the respondents have held that the actual date of birth of the petitioner
is 05.03.1959 and as the same is not put to challenge by the petitioner, the
petitioner's date of birth should be accepted and recorded as 05.03.1959.
Consequently, the pension payable to the petitioner would have to be w.e.f.
April, 2019, by calculating his pension on the basis of his last pay drawn in
March, 2019. However, as the petitioner has been given his salary till
30.09.2019, the pension payable to the petitioner should be given from October,
2019. Further, in terms of the judgment of the Apex Court in the State of
Punjab & Others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334,
the salary already given to the petitioner for the period from April, 2019 to
September, 2019 should not be recovered from the petitioner.
9. The respondents are accordingly directed to make the pension proposal of
the petitioner and pay his pension along with all other pensionary benefits,
within a period of 3 (three) months from the date of receipt of a certified copy
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of this order.
10. The writ petition is accordingly disposed of.
r treat the petitioner's date of birth as 03.03.1962 or 05.03.1959 and to grant
pension and other pensionary benefits.
3. The petitioner's case is that he was engaged as a Muster Roll employee in
the establishment of the respondent No. 5 w.e.f. 01.09.1987. The service of the
petitioner was thereafter regularized vide Order dated 06.10.2005 w.e.f.
22.07.2005. The petitioner's salary was suddenly stopped by the respondents
from 01.10.2019, on the ground that there was some anomaly in the petitioner's
date of birth.
4. The petitioner's counsel submits that the petitioner came across a letter
dated 11.05.2022 issued by the respondent No. 5, which requested all Muster
Roll Workers in the said establishment to verify their school certificates. He
submits that on the basis of an enquiry initiated by the respondents, which was
done without the participation of the petitioner, the respondents came to a
decision that the petitioner's actual date of birth was 05.03.1959 and not
03.03.1962, as had been initially recorded with the respondents.
5. The petitioner's counsel submits that the petitioner is suffering due to non-
payment of his pension and pensionary benefits. He accordingly submits that
even if the petitioner's date of birth is taken to be 05.03.1959, then the
petitioner would be entitled to payment of pension w.e.f. 01.04.2019. However,
as the petitioner has been paid his salary till 30.09.2019, the petitioner would
not claim payment of pension prior to 01.10.2019, provided there is no recovery
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of the salary already paid to the petitioner.
6. Mr. P. Nayak, learned counsel for the respondent Nos. 1 to 6 submits that in
terms of the letter dated 24.10.2019 issued by the respondent No. 5, the
petitioner's actual date of birth after enquiry was found to be 05.03.1959 and
not 01.03.1962. Accordingly, the petitioner would be deemed to have retired on
31.03.2019 and his pension would have to be made on the basis of the last
salary payable to the petitioner in March, 2019.
7. I have heard the learned counsels for the parties.
8. As the respondents have held that the actual date of birth of the petitioner
is 05.03.1959 and as the same is not put to challenge by the petitioner, the
petitioner's date of birth should be accepted and recorded as 05.03.1959.
Consequently, the pension payable to the petitioner would have to be w.e.f.
April, 2019, by calculating his pension on the basis of his last pay drawn in
March, 2019. However, as the petitioner has been given his salary till
30.09.2019, the pension payable to the petitioner should be given from October,
2019. Further, in terms of the judgment of the Apex Court in the State of
Punjab & Others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334,
the salary already given to the petitioner for the period from April, 2019 to
September, 2019 should not be recovered from the petitioner.
9. The respondents are accordingly directed to make the pension proposal of
the petitioner and pay his pension along with all other pensionary benefits,
within a period of 3 (three) months from the date of receipt of a certified copy
of this order.
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10. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
