Tapeswari Basumatary vs The State Of Assam And 6 Ors
2023 Latest Caselaw 282 Gua

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GAHC010011632023




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

                          Case No. : WP(C)/354/2023

         TAPESWARI BASUMATARY
         W/O- LT. PUWA RAM BASUMATARY, R/O- VILL- NIZ AMBAGAON, P.O.
         AMBAGAON, P.S. HARISINGA, DIST.- UDALGURI, ASSAM, PIN- 768110



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, IRRIGATION
         DEPTT., DISPUR, GHY-6

         2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPTT.
          DISPUR
          GHY-6

         3:THE CHIEF ENGINEER
          IRRIGATION DEPTT.
          2ND
          BLOCK-B
          KRISHNA NAGAR
          CHANDMARI
          GHY-03

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

         5:THE BODOLAND TERRITORIAL COUNCIL
          REP. BY THE SECY. IRRIGATION DEPTT.
          BODOFANAGAR KOKRAJHAR
          DIST.- KOKRAJHAR
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             BTAD
             ASSAM
             PIN- 783370

            6:THE EXECUTIVE ENGINEER
             DHANSIRI PROJECT DIVISION
             IRRIGATION
             CANAL NO-II UDALGURI
            ASSAM PIN- 784509

            7:THE TREASURY OFFICER
             UDALGURI TREASURY
             DIST.- UDALGURI
            ASSAM PIN- 78450

Advocate for the Petitioner   : MR. K R PATGIRI

Advocate for the Respondent : SC, IRRIGATION

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

25.01.2023 Heard Mr. K. R. Patgiri, the learned counsel for the petitioner and Mr. N. Upadhyaya, the learned counsel appearing on behalf of the respondent Nos.1 & 3. Also heard Mr. R. A. Choudhury, the learned counsel for the respondent No.2; Mr. R. Dhar, the learned counsel appearing on behalf of the respondent No.4 as well as Mr. R. K. Muchahary, the learned counsel for the respondent No.5, 6 & 7.

The instant writ petition has been filed by the petitioner claiming a writ of certiorari declaring that the Office Memorandum dated 20.05.2009 issued by the Office of the respondent No.2 is null and void as well as for a writ of mandamus directing the respondents to finalise the arrear monthly superannuation pension left by her husband as well as the arrear and current monthly family pension considering the total length of service of the Page No.# 3/6

deceased husband of the petitioner without any deduction from the length of his service from the date following the date of his retirement.

The brief fact of the instant case is that the husband of the petitioner one Puwa Ram Basumatary ( since deceased) was initially appointed as Muster Roll worker under the Office of the Executive Engineer, Dhansiri Project Division, Irrigation, Canal No.II, Udalguri, Assam and his date of joining was 06.06.1989. Subsequent thereto, on 22.07.2005, the post of the husband of the petitioner was regularized. The husband of the petitioner continued to perform his duty without any break to the satisfaction of all concerned without any blemish and retired from service on attaining the age of superannuation on 30.04.2014. Pursuant to his retirement, the respondent No.6 had prepared the pension proposal papers and other benefits like leave encashment salary etc. of the petitioner's husband and the same was forwarded to the Office of the respondent No.3 in furtherance of release of the same in favour of the petitioner's husband who in turn again forwarded the same to the Office of the respondent No.4 for finalization. Thereupon, examining the pension paper, the respondent No.1 returned the pension proposal papers in respect of the petitioners' husband vide the communication dated 19.10.2015 to the respondent No.6 by mentioning that some deficiencies were found in the pension proposal papers. Pursuant to the communication dated 19.10.2015, the respondent No.6 again after due verification resubmitted the said family pension proposal to the Office of the respondent No.1 vide communication dated 12.11.2015. It further appears that the Office of the respondent No.1 thereafter examined the said pension proposal papers and forwarded the same to the Office of the respondent No.4 with a request to provide Page No.# 4/6

monthly superannuation pension as well as the other retirement benefits in favour of the petitioner's husband at an early date. The Office of the respondent No.4, after scrutiny of the aforesaid pension proposal of the petitioner's husband, on 08.02.2017 granted only terminal gratuity amounting to Rs.1,38,420/- in favour of the petitioner's husband. Unfortunately, on 01.01.2014, the husband of the petitioner expired. Upon the death of the husband of the petitioner, the petitioner came to know from the Office of the respondents that though the husband of the petitioner rendered 24 years 10 months 24 days qualifying service but 6 years of the initial engagement have been deducted on the basis of the impugned Office Memorandum dated 20.05.2009 for which net qualifying service of the petitioner is counted as 18 years 10 months 24 days. In that view of the matter, the Office of the Accountant General (A & E) Department, Assam had only sanctioned terminal gratuity but refused to sanction the monthly superannuation pension of the petitioner's husband on the reason of treating the services of the petitioner's husband as temporary Government servant and 6 years of initial engagement was deducted on the basis of the impugned Office Memorandum dated 20.05.2009. It is under such circumstances, the instant writ petition has been filed.

The instant matter has come up before this Court at the stage of motion. The learned counsel for the petitioner submitted that the said Office Memorandum dated 20.05.2009, which has been assailed in the instant writ petition, has already been struck down and declared to be ultra vires by the judgment and order passed by a Coordinate Bench of this Court on 04.12.2018 in the case of Sanjita Roy vs. State of Assam and Page No.# 5/6

Others which have been reported in 2019 (2) GLT 805. He further submitted

that the said Office Memorandum dated 20.05.2009 was also an issue before the Division Bench in WA No.18/2021 wherein the Division Bench vide an order dated 26.02.2021 observed that benefit of the order passed in the case of Sanjita Roy (supra) would have retrospective effect and it would include all similarly situated Muster Roll workers irrespective of their dates of retirement, provided that they are covered by the benefits given to them earlier, and were already availing pension.

The learned counsel for the petitioner, therefore, submitted that the respondent authorities in the garb of the Office Memorandum dated 20.05.2009, which have been held to be bad by the Coordinate Bench of this Court, cannot deduct the period of 6 years while computing the qualifying service of the husband of the petitioner.

Mr. N. Upadhyaya, the learned counsel appearing on behalf of the respondent Irrigation Department submitted that the judgment passed by the Coordinate Bench holding the Office Memorandum dated 20.05.2009 as null and void has attained finality. However, the question as to whether the husband of the petitioner had actually completed 18 years 10 months 24 days without deducting 6 years is subject to necessary verification.

This Court having heard the learned counsel for the parties and upon perusal of the materials on record and the admitted stand to the fact that the Office Memorandum dated 20.05.2009 is no longer survives and accordingly the respondent authorities, in the garb of the Office Memorandum dated 20.05.2009, cannot deduct 6 years of service, disposes of the writ petition with a direction to the respondent Nos.3 & 5 to make necessary verification as to whether the husband of the petitioner had put Page No.# 6/6

18 years 10 months 24 days of service with effect from the date of his appointment.

It is made clear that while making such verification, the Office Memorandum dated 20.05.2009, shall not be taken into account. It is further directed that if upon making the said verification, it is found that the husband of the petitioner has the required number of service for the purpose of granting pensionary benefit, the said respondent No.3/respondent No.5 shall issue consequential directions/orders as regards the petitioner's entitlement. The said exercise be completed within a period of 45 (forty five) days from the date a certified copy of the instant order is served upon.

It is further directed that pursuant to the said verification and the consequential direction issued, the matter be placed before the respondent No.1 as well as the respondent No.4. The said respondent No.1 as well as the respondent No.4 shall within 45 (forty give) days thereafter take necessary steps so that the petitioner is granted her family pension as well as the arrear amount within the time as mentioned herein above by deducting such amount as has already been paid as terminal benefit to the husband of the petitioner.

With the above, the instant petition stands disposed of.

JUDGE

Comparing Assistant