Gauhati High Court
Jogen Malla @ Jogen Mallah vs The State Of Assam And 5 Ors on 10 April, 2023
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GAHC010189672021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6041/2021
JOGEN MALLA @ JOGEN MALLAH
S/O LATE JAGANATH MALLAH, R/O BADULATI, P.S.-NARAYANPUR, DIST-
LAKHIMPUR, ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT,
SACHIVALAYA, DISPUR, ASSAM-781006
2:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
LAST GATE
DISPUR
GUWAHATI
ASSAM-781006
3:THE FINANCE AND ACCOUNTS OFFICER
DIRECTORATE OF PENSION
HOUSEFED COMPLEX
DISPUR
GUWAHATI-781006
4:THE DEPUTY INSPECTOR OF SCHOOL
NORTH LAKHIMPUR
ASSAM-787001
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
NARAYANPUR
NORTH LAKHIMPUR
ASSAM-784164
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6:THE ACCOUNTANT GENERAL
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI-78102
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 10.04.2023
Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr.
S. R. Baruah, learned standing counsel for the respondent Nos. 2 & 3; Mr. N. J.
Khataniar, learned counsel for the respondent Nos. 1, 4 & 5 and Mr. R. Dhar,
learned counsel for the respondent No. 6.
2. The case of the petitioner herein is that the petitioner was appointed on
27.01.1996 as a Stipendary Teacher against the retired vacancy of one- Akan
Neog of Barhampur L.P. School and posted at Meramukh L.P. School.
Subsequent thereto, the petitioner passed the Junior Basic Training Examination
on 21.01.2006 and thereupon was allowed to draw the regular scale of pay
w.e.f 05.10.2005. The petitioner retired on 28.02.2014 while working as the
Assistant Teacher in Chamaguri L. P. School. However, pursuant to his
retirement, the petitioner has not received his pension as well as pensionary
benefits for which the instant writ petition has been filed.
3. This Court vide order dated 17.11.2021 had issued notice making it
returnable by six weeks. This Court further vide the said order also directed for
payment of provisional pension to the petitioner.
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4. No affidavit has been filed by the respondent authorities till date. However,
Mr. Khataniar, learned counsel appearing on behalf of the Elementary Education
Department have placed on record a communication issued by the Additional
Director, Elementary Education to the Secretary to the Government of Assam,
Elementary Education Department wherein it has been mentioned that on
account of the petitioner getting his regular scale of pay after 01.02.2005, the
petitioner had been brought within the ambit of New Defined Contribution
Pension Scheme, 2009. However, as the question as to whether the petitioner
would be entitled to the Assam Service (Pension) Rules, 1969 or the New
Defined Contribution Pension Scheme, 2009 was yet to be ascertained, the
pension as well as the pensionary benefits of the petitioner could not be
finalized.
5. Mr. Borthakur, learned counsel appearing for the petitioner have drawn the
attention of this Court to the Judgment rendered in the case of Purnima Hore
and Anr. -Vs- The State of Assam dated 31.03.2023 passed in WP(C) No. 6403
of 2021 and others writ petitions wherein this Court after taking into the
provisions of Assam Elementary Education (Provincialisation) Act, 1974, Rule- 3
and Rule- 4 of the Assam Elementary Education (Provincialisation) Rules, 1977
as well as the provisions of Assam Elementary Education (Provincialisation)
Service and Conduct Rules, 1981 had observed that those Stipendary Teachers
who were appointed prior to 01.02.2005 by the Deputy Inspector of Schools
irrespective of when they have received their Regular Scale of Pay would be
entitled to the pension in terms with the Assam Service (Pension) Rules, 1969.
6. In the said Judgment, this Court further held that the Stipendary
Teachers appointed prior to 01.02.2005 would be entitled to the benefit under
the Assam Service (Pension) Rules, 1969 and they are not covered under the
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New Defined Contribution Pension Scheme, 2009. It was also observed that
those Stipendary Teachers would also be entitled to the subscribe to the GPF
and would also be entitled to the pensionary benefits to which a Government
Servant corresponding the rank is entitled to.
7. Taking into account the said aspect of the matter, this Court, therefore,
disposes of the instant writ petition by declaring that the petitioner herein would
be entitled to the pension in terms with the Assam Service (Pension) Rules,
1969 and would also be entitled to subscribe to the GPF in terms with General
Provident Fund (Assam Services) Rules, 1937. The petitioner further would be
also entitled to all other pensionary benefits to which a Government servant of
corresponding rank would be entitled to.
8. In view of the said declaration, this Court further directs the respondent
authorities, more particularly, the Director of Elementary Education as well as
the Director of Pension to take appropriate steps to grant the petitioner the
pension as well as the pensionary benefits in terms with the above declaration
which shall be done within a period of 4(four) months from the date a certified
of instant order is served upon the Director of Elementary Education as well as
the Director of Pension.
9. Before parting, this Court further would like to observe that in the
meantime as NPS account has been opened whereby there has been certain
contributions being made on behalf of the State as per the provisions of New
Defined Contribution Pension Scheme, 2009, the said amount shall be deducted
while computing the pension of the petitioner.
10. With the above observation, the instant writ petition disposed of.
11. The instruction so produced by Mr. Khataniar, learned counsel appearing
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on behalf of the Elementary Education Department is kept on record and
marked with the letter "X".
JUDGE
Comparing Assistant
