Gauhati High Court
Page No.# 1/12 vs The State Of Assam And 4 Ors on 14 August, 2024
Page No.# 1/12
GAHC010234922022
2024:GAU-AS:7915
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7439/2022
SABITRI DAS
W/O LATE HARENDRA CHANDRA DAS, R/O VILL-THAMNA, P.S.-BARBARI,
DIST-NALBARI
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, PUBLIC WORKS DEPARTMENT, DISPUR, GUWAHATI-06
2:THE UNDER SECRETARY TO THE GOVT. OF ASSAM
PUBLIC WORK DEPARTMENT (AUDIT BRANCH)
DISPUR
GUWAHATI
3:THE CHIEF ENGINEER
PUBLIC WORK DEPARTMENT (ROAD)
CHANDMARI
GUWAHATI-03
4:THE EXECUTIVE ENGINEER
PUBLIC WORK DEPARTMENT
NALBARI RURAL ROAD DIVISION
NALBARI
5:THE SUB-DIVISIONAL OFFICER
PWD BARAMA RURAL ROAD SUB-DIVISION
BARAM
Advocate for the Petitioner : MR H DAS, MR. B C DEKA
Advocate for the Respondent : SC, PWD,
Page No.# 2/12
Date of hearing : 09.08.2024.
Date of Judgment : 14.08.2024
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
:: Judgment and Order ::
[CAV]
Heard Mr. H. Das, learned counsel for the petitioner. Also heard
Mr. R. Dhar, learned Standing counsel, PWD for the State respondents.
2. Considering the subject matter and also at the instance of the
learned counsel for the parties, the writ petition is taken up for disposal
at the admission stage itself.
3. The claim of the writ petitioner is for regularization of the service
of her late husband for pensionary benefits and family pension. The
case of the petitioner is that her late husband Harendra Chandra Das
was appointed as Muster Roll Labour in the Office of PWD (RR) under
the Sub-Division Office PWD (RR), Barama Sub-Division vide
appointment letter dated 08.06.1984. Thereafter the service of the
petitioner's husband was extended from time to time and thus he
rendered service as such till he died on 27.11.2014.
4. The further case of the petitioner is that when her husband was
in service, the Secretary to the Government of Assam, PWD, Audit
Branch issued a circular dated 30.09.2005 for creation of post of 8598
post of Muster Roll Workers and regularization of service of Work
Charged/Muster Roll workers engaged prior to 01.04.1993 and were in
continuous service without any interruption/break and was working in
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their respective establishment. It is further the case of the petitioner
that her husband, late Harendra Chandra Das, having worked as
Muster Roll Labour w.e.f. 08.06.1984 was eligible for consideration for
regularization of his service as per the above circular issued by the
Government dated 30.09.2005. But unfortunately, the name of the
petitioner's husband was inadvertently left out and was not included in
the list of Muster Roll Labours as per the Office order No. 122 of
2005/06 passed by the Executive Engineer, PWD, Nalbari RR Division,
Nalbari dated 07.10.2005 while the case of similarly situated persons
were regularized.
5. Being aggrieved by the non inclusion of his name, the petitioner's
husband had submitted a representation before the SDO, PWD
(Roads), Barama Sub-Division on 10.10.2011 requesting for
regularization of his service as has been done in the case of similarly
situated persons. However, the said representation submitted by the
petitioner's husband was not considered till the date of his death, i.e.,
on 27.11.2014.
6. It is further submitted that the late husband of the petitioner filed
RTI application on 10.10.2011 seeking information regarding the list of
Muster Roll Labours regularized in pursuant to the circular dated
30.09.2005, the Executive Engineer, PWD in his reply dated 16.11.2011
furnished the list sought for and from the said list it was found that
most of the colleaguesof the husband of the petitioner namely;
Ramdhan Das, Pradip Das, Laksman Braman and Jiten Das all his
colleagues were regularized who joined as Muster Roll Labour along
with the husband of the petitioner. But the case of the petitioner's
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husband has been left out due to the mistake of the concerned
authority.
7. The learned counsel for the petitioner submits that in the
meantime, the petitioner's husband expired while in service on
27.11.2014 after serving the Department as Muster Roll Labour from
08.06.1984 till his death on 27.11.2014. Thus, the husband of the
petitioner had completed more than 30 years of service as Muster Roll
Labour in the Department.
8. The further case of the petitioner is that after the death of her
late husband, the petitioner obtained the death certificate and her late
husband, next of kin certificate, etc and the same were submitted
before the concerned authority along with the representation for
consideration. However, the same has not yet been considered. Being
aggrieved the petitioner approached this Court seeking direction to
regularize the service of her husband in terms of the Government
circular dated 30.09.2005, as has been done in the case of similarly
situated persons for the purpose of pension.
9. The learned counsel for the petitioner submits that the husband
of the petitioner having served for more than 30 years since his initial
date of appointment, he was entitled for pension which should be
granted to him.
10. The learned counsel for the petitioner submits that the Hon'ble
Supreme Court and the Hon'ble High Court has passed numerous
orders regarding the release of family pension similar to the case of the
petitioner. In support of his submission, the learned counsel for the
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petitioner has relied upon the recent judgment passed in 2022 LiveLaw
(SC) 785 decided on 19.09.2022, followed by 2022 LiveLaw (SC) 187
dated 18.02.2022 regarding the claim of family pension due to death of
the husband who had rendered more than 30 years as Muster Roll
Labour basis without regularization of his service and other benefits
there to. The relevant portion of the above judgment dated 18.02.2022
passed in the case of State of Gujarat and Others Vs. Talsibhai
Dhanjibhai Patel is reproduced herein below:
"... The State cannot be permitted to take the benefit of its own
wrong. To take the services continuously for 30 years and thereafter to
contend that an employee who has rendered 30 years continuous service
shall not be eligible for pension is nothing but unreasonable. As a welfare
State, the State as such ought not to have taken such a stand. "
11. In the State of Rajasthan and Ors Vs. O.P. Gupta passed by
the Hon'ble Supreme Court on 19.09.2022 reported in 2022 LiveLaw
(SC) 785, the Hon'ble Supreme Court observed:
"27. In this case, the Respondent-Writ Petitioner is claiming
pension, which is a life long benefit. Denial of pension is a continuing
wrong. This Court cannot also be oblivious to the difficulties of a retired
employee in approaching the Court, which could include financial
constraints.
28. It is settled law that when financial rules framed by the
Government such as Pension Rules are capable of more interpretations
than one, the Courts should lean towards that interpretation which goes in
favour of the employee."
12. The learned counsel for the petitioner has also relied upon the
decision of the Hon'ble Supreme Court in the case of Prem Singh Vs.
State of Uttar Pradesh and Ors reported in (2019) 10 SCC 516,
wherein it observed that;
"36. There are some of the employees who have not been
regularized in spite of having rendered the services for 30-40 or more years
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whereas they have been superannuated. As they have worked in the work-
charged establishment, not against any particular project, their services
ought to have been regularized under the Government instructions and
even as per the decision of this Court in Secretary, State of Karnataka &
Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid
down that in case services have been rendered for more than ten years
without the cover of the Court's order, as one time measure, the services be
regularized of such employees. In the facts of the case, those employees
who have worked for ten years or more should have been regularized. It
would not be proper to regulate them for consideration of regularisation as
others have been regularised, we direct that their services be treated as a
regular one. However, it is made clear that they shall not be entitled to
claiming any dues of difference in wages had they been continued in service
regularly before attaining the age of superannuation. They shall be entitled
to receive the pension as if they have retired from the regular establishment
and the services rendered by them right from the day they entered the
work-charged establishment shall be counted as qualifying service for
purpose of pension."
13. By drawing the attention of this Court to Rule 31 of the Assam
Services (Pension) Rules, 1963, the learned counsel has submitted that
the said provision is not restricted only for regular employees and can
be extended also for Work Charged employees. It is submitted that in a
similarly situated case pertaining to some department, there is a
direction of this court by the order dated 20.06.2024 passed in
WP(C)/6582/2023 for consideration of the case of the petitioner.
14. Mr. R. Dhar, learned Standing counsel, PWD who at the very
outset has submitted that the State is not required to file any affidavit
in the instant case has submitted that the claim for pension is
conditional upon the fact as to whether the incumbent was a regular
employee. In the instant case it is not disputed that the petitioner was
working as Muster Roll Worker his service was extended from time to
time till died working in the same capacity. He further submits that in
any order of regularization the grant of pension is not permissible in
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law. As regards the applicability of Rule 31 of the Pension Rule, 1969,
the learned Standing counsel submitted that the employment must be
substantive and permanent and the present work as Muster Roll Basis
cannot be held to be a substantive and permanent employment.
15. The learned Standing counsel for the PWD also referred to the
decision of the Secretary, State of Karnataka and Ors Vs.
Umadevi (3) and Ors reported in (2006) 4 SCC 1 wherein the
Hon'be Supreme Court has laid down the conditions which are required
for regularizing the service and those conditions are not fulfilled by the
husband of the petitioner in the instant case.
16. He has also submitted that the issue has been settled by the
division bench in the case of State of Assam Vs. Upen Das reported
in (2017) 4 GLR 493 wherein the claim of regularization has been
neglected.
17. The rival submissions advanced by both the learned counsel for
the parties have been duly considered.
18. Since the state is not filling any affidavit, all the claim of the
petitioner including the claim that her husband was appointed as MR
labour on 18.06.1984 and continued serving as so till his death on
27.11.2014 remained undisputed. The claim of the petitioner that the
case of her husband was left out from regularization due to the mistake
of the concerned authority while all other colleagues of her husband
were regularized in pursuant to the office circular dated 30.09.2005 has
also not been disputed. The said circular dated 30.09.2005 was issued
by the Government of Assam, PWD, Audit Branch for creation of post
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for regularization of service of Work Charged/Muster Roll worker
engaged prior to 01.04.1993 is clear that the work Charged/Muster Roll
Workers engaged prior to 01.04.1993 is still working in their respective
establishment without any interruption/break in service and as
prescribed are to be regularized against the post creation. In the
instant case, the husband of the petitioner was working as Muster Roll
Labour w.e.f. 08.06.1984 till his death on 27.11.2014. And although the
Muster Roll Labour services of the colleagues of the petitioner's
husband who were appointed along with the petitioner's husband in
the year 1984 have been regularized in terms of the said Office circular
dated 30.09.2005, the case of the petitioner's husband has been left
out from the list. And thereafter, the husband of the petitioner had
immediately made application for regularization of his service during
his life time; however, his case was not considered till the date of his
death. From the certificate issued by the Assistant Executive Engineer,
PWD, Barama RR Sub Division, Barama, it is understood that the
husband of the petitioner was appointed on 08.06.1984 and he was
serving as Muster Roll Labour since then till his death on 27.11.2014. It
is also clear that the husband of the petitioner was eligible for
regularization of his service in terms of the Office circular dated
30.09.2005 when the case of his colleagues MR labours were
considered for regularization. It is also not disputed that by the time he
died, the petitioner's husband had already served for more than 30
years as Muster Roll Labour. It is also not disputed that immediately
after the death of her husband, the petitioner had submitted a
representation before the concerned authority and while reiterating
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that due to mistake of the concerned authority, the MR basis service of
her late husband was not regularized as per the office notification
dated 30.09.2005 while the case of the other colleagues of her late
husband were regularized, and requested for regularization and release
of outstanding family pension. In the absence of specific denial by the
State respondents that the case of the petitioner's husband was not a
left out case for regularization against the sanctioned and created 8598
posts of MR worker, he will be entitled to be considered for
regularization in terms of the Government Circular dated 30.09.2005.
19. Under the circumstances, now the question is whether the
petitioner who has served as Muster Roll Labour since 08.06.1984 till
his death, i.e., on 27.11.2014 should be entitled for regularization and
the arrears of the family pension from the date of regularization of his
colleagues in terms of the Office circular dated 30.09.2005 or not. It is
fairly submitted by the learned counsel for the petitioner that as per
law in vogue as far as arrears are concerned, the husband of the
petitioner may not be entitled. However, the petitioner is entitled for
regularization of his Muster Roll Labour one day before his
retirement/death for the purpose of family pension.
20. Now the question is whether mere length of service rendered by
the husband of the petitioner would entitle him to pension. The
aforesaid issue has been conclusively settled by the Hon'ble Division
Bench in the case of Upen Das (supra), the relevant observation has
been reproduced herein below:
"22. It is, however, heartening to learn that the State Government has
agreed not to terminate the Muster Roll, Work Charged and similarly placed
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employees working since last more than 10 years (not in sanctioned post)
till their normal retirement, except on disciplinary ground or on ground of
criminal offences. The State Government has also agreed to enlist such
employees in Health and Accidental and Death Insurance Scheme, which
will be prepared in consultation with the State Cabinet. We appreciate this
positive stand of the State Government taken as welfare measures for the
betterment and security of the employees, in question. We, accordingly,
direct the State Government to implement the measures without further
delay. Besides this, we, in the light of decision of the Supreme Court in
State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, also direct the State
Government to pay minimum of the pay scale to Muster Roll workers, Work
Charged workers and similarly placed employees working since last more
than 10 years (not in sanctioned post) with effect from 1.8.2017."
21. However, the case of the petitioner is little different in the sense
that in pursuant to the Government Circular dated 30.09.2005, the
services of all others MR workers have been regularised but the case of
her husband was left out due to the mistake of the concerned
authority. Therefore, the petitioner prays for giving similar benefit of
regularisation of the service of her husband in pursuant to the Govt.
Circular dated 30.09.2005. Having regard to the decision of the Hon'ble
Supreme Court and Division Bench of this court referred above and
considering that the Muster Roll Labour service of the similarly situated
person have been regularized in terms of the Office circular dated
30.09.2005 and the case of the petitioner's husband has been left out
due to the mistake on the part of the authority for regularization of his
Muster Roll Labour service along with other similarly situated persons,
and also considering that he had put the long period of service for
more than 30 years as Muster Roll Labour, this Court is of the
considered opinion that the case of the husband of the petitioner
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ought to have been considered for regularisation in disposal of the
representation submitted by him reminding the concerned authority
that his case has been left out due to their mistake and requested for
consideration. The regularization of the service of the petitioner's
husband having not been done at the relevant time, I am of the
considered opinion that the petitioner is entitled to receive the pension
as if her husband had retired from the regular establishment. However,
the petitioner shall not be entitled to claim regularization of the service
of her husband with retrospective effect.
22. Accordingly, the respondents are directed to regularise the
service of the petitioner's husband late Harendra Chandra Das, (then
Muster Role Worker) one day before he expired on 27.11.2014 for the
purpose of giving pensionary benefits, including family pension to his
wife and children.
23. However, so far as the arrears of the pension is concerned, the
petitioner shall be entitled from the date of filing of this writ petition on
15.11.2022. The respondents shall complete the process of granting
pensionary benefit including family pension to the petitioner as stated
above within 4(four) months from the date of receipt of a certified
copy of this order.
24. It is made clear that this order should not be treated as a
precedent in view of the admitted fact that, the case of the petitioner's
husband has been found to be left out at a relevant time due to the
mistake of the concerned authority while other similarly situated
Muster Role Workers have been given the benefit of regularization
against the created sanctioned post of 8598 Nos. of Grade-IV post for
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Muster Role Workers vide the Govt Circular dated 30.09.2005.
25. With the observations made above, this writ petition stands
disposed of.
JUDGE
Comparing Assistant
