Gauhati High Court

Jogeswar Bujarbaruah vs The State Of Assam And 5 Ors on 3 May, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                 Page No.# 1/6

GAHC010223862023




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

                         Case No. : WP(C)/5869/2023

         JOGESWAR BUJARBARUAH
         S/O LATE UGRESWAR BUJARBARUAH, R/O VILL-JAYANTIPUR, P.S.-
         RANGIA, DIST-KAMRUP, ASSAM, PIN-781354



         VERSUS

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

         2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-6

         3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM
         ADMINISTRATIVE REFORMS TRAINING AND PENSION AND PUBLIC
         GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI-6

         4:THE CHIEF ENGINEER
          IRRIGATION ASSAM
          CHANDMARI
          GUWAHATI-3

         5:THE EXECUTIVE ENGINEER
          GUWAHATI MECHANICAL DIVISION (IRRIGATION)
          GUWAHATI-3
          DIST- KAMRUP (M)
                                                                        Page No.# 2/6

             ASSAM

            6:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
            ASSAM
             MAIDAMGAON
             BELTOLA
             GUWAHATI-2

Advocate for the Petitioner   : MR. C BHATTACHARYYA

Advocate for the Respondent : SC, IRRIGATION




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                        ORDER

03.05.2024 Heard Mr. C. Bhattacharyya, learned counsel for the petitioner. Also

heard Mr. D. Bora, learned Government advocate, Assam, Mr. K.K. Medhi,

learned Standing Counsel, Accountant General, Assam and Ms. D.D. Neog,

learned Standing Counsel, Irrigation Department.

2] This writ petition is filed by the petitioner who had served as a Muster Roll

worker in the office of the Executive Engineer, Guwahati Mechanical Division

(Irrigation), Guwahati-3. He was appointed on 15.05.1990 and he was

regularized as a Helper with effect from 22.07.2005 by order dated 06.10.2005.

He retired from his service with effect from 31.01.2021 on superannuation.

When the pension papers were prepared the gross period of service was shown

as 30 years 8 months and 17 days and the net qualifying service was shown as Page No.# 3/6

24 years 8 months and 17 days. The last pay of the petitioner was reflected as

Rs.25,620/- (Rupees Twenty Five Thousand Six Hundred Twenty only) and

accordingly, in the pension payment order, the pension of the petitioner was

shown as Rs.12,560/- (Rupees Twelve Thousand Five Hundred Sixty only).

According to the petitioner the amount of pension that he has received is less

than the amount he is entitled to receive under the provisions of law. It is

submitted that the respondent authorities have deducted his initial 6 (six) years

from the total period of his service while calculating the amount of pension

payable to the writ petitioner. Learned counsel for the petitioner submits that

the said deduction of 6 (six) years of service has been held impermissible by

this Court in WP(C) No.1089/2015 (Sanjita Roy vs. the State of Assam & Ors.)

decided on 04.12.2018, and the respondent authorities were directed to

determine the continuous length of service of the petitioners as Muster Roll

Workers and if such service meets the bench marks of 20 (twenty) years then

the benefit of pension should be made available to them without any deduction

from the total period of service. This view was also upheld by a Division Bench

of this Court by Judgment and Order dated 26.02.2021 passed in W.A.

No.18/2021 (Binapani Das vs. the State of Assam & Ors.).

3] By earlier order dated 06.10.2023 notice was issued to the respondents

and an observation was made that the pendency of the writ petition shall not be Page No.# 4/6

a bar for the respondents to re-calculate the admissible pension and admissible

gratuity in respect of the petitioner.

4] The counsel for the parties have been heard. The pleadings available on

record have been perused.

5] Learned counsel for the respondents does not dispute the position in law

as has been laid down in Sanjita Roy (supra) and which was upheld in Binapani

Das (supra). In Sanjita Roy (supra) the Coordinate Bench of this Court held that

the deduction of 6 (six) years of initial service from the total services rendered

by an incumbent while calculating the period of service towards eligibility of

grant of pension of Muster Roll Workers have been held to be bad. The

Coordinate Bench held that such deduction of initial period of 6 (six) years of

service from the total period of services rendered is contrary to law. The

judgment in Sanjita Roy (supra) was passed on 04.12.2018. In subsequent writ

petitions filed, other Coordinate Benches held that the benefits of Sanjita Roy

(supra) will be effective only from the date of the said Judgment i.e.

04.12.2018. One such order was brought to the Division Bench of this Court in

W.A. No.18/2021 and the Division Bench of this Court in Binapani Das (supra)

(W.A. No.18/2021) by Judgment and Order dated 26.02.2021 while upholding

the proposition laid down in Sanjita Roy (supra), further held that once the Page No.# 5/6

benefit has been granted by way of a judgment, the same cannot be curtailed

to deny the benefit of other similarly situated persons when the original

judgment itself did not restrict such benefit. It was held that the orders of the

Courts are always retrospective in nature unless it is specifically made

prospective in the order itself. The relevant paragraph of the said Judgment and

Order is extracted herein below:

"9. An order of the court is always retrospective in nature, unless it is specifically made prospective in the order itself. This is because the courts do not legislate, they only interpret an existing law. This is unlike the laws made by the State Legislature and the Parliament, which are always prospective in nature, unless again, the law itself makes it retrospective. The original judgement (dated 04.12.2018), passed in WP(C) 1089/2015 (Sanjita Roy vs. State of Assam and Others), does not give benefit to the petitioners from a prospective date. Therefore, in our considered opinion, the order dated 04.12.2018 was retrospective in nature and it would include all similarly situated muster roll workers irrespective of their dates of retirement, provided they are covered by the benefits given to them earlier, and were already availing pension."

6] That apart, the Government of Assam by Office Memorandum dated

31.07.2010 provided that the part of their past Muster Roll services prior to

regularisation have to be counted for the purpose of pension in terms of PPG

Department's OM No.PPG(P)88/2009/2 dated 20.05.2009 on attaining the age

of superannuation by the regularized Muster Roll Workers.

7] Considering the limited prayer before this Court and upon careful perusal

of the writ petition including the judgments passed in Sanjita Roy (supra) and Page No.# 6/6

Binapani Das (supra), this Court is of the view that the issue raised in the writ

petition is squarely covered by the Judgment and Order passed in Sanjita Roy

(supra) which was upheld by the Division Bench of this Court in Binapani Das

(supra).

8] In that view of the matter, the writ petition stands closed with a direction