Gauhati High Court
WP(C)/1517/2023 on 13 May, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010056882023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO.1517/2023
Ranjan Nath, aged about 62 years, Son of late Naresh Ch.
Nath, R/O. Village: Narsingpur Part-I, P.O. Narasingpur,
Dist: Cachar, Assam.
........Petitioner
-Versus-
1. The State of Assam represented by the Principal
Secretary to the Govt. of Assam, Panchayat and Rural
Development, Dispur, Guwahati-06
2. The Principal Secretary to the Government of
Assam, Finance Department, Dispur, Guwahati-06
3. The Commissioner & Secretary to the Govt. of
Assam, Panchayat and Rural Development Department,
Dispur, Guwahati-06
4. The Commissioner, Panchayat and Rural
Development, Assam, Panjabari, Juripar, Guwahati-
37
5. The Commissioner & Secretary to the
Government of Assam, Pension and Public
Grievances Department, Dispur, Guwahati-06
6. The Director of Pension, House fed Complex, Dispur,
Guwahati-06
7. The Treasure Officer, Cachar, Silchar, P.O Silchar,
Dist: Cachar, Assam, PIN- 788001
W.P(C) No. 1517/2023 & W.P.(C) No. 1903/2023 Page 1 of 15
8. The Chief Executive Officer, Cachar Zila Parishad,
P.O. Silchar, Dist: Cachar, Assam, PIN-788001
........Respondents
With
1. Jayanta Sarma, aged about 61 years, Son of Late Siba
Nath Sarma, Retired Tax Collector, Vill: Baghmara,
P.O+P.S.- Ghograpar, Dist: Nalbari, Assam
2. Pradip Kumar Deka, aged about 65 years, Son of Late
Badan Deka, Retired Tax Collector, Vill: Bongaon, P.O.
Banagram, P.S. Belsor, Dist: Nalbari, Assam
........Petitioner
-Versus-
1. The State of Assam represented by the Principal
Secretary to the Govt. of Assam, Panchayat and Rural
Development, Dispur, Guwahati-06
2. The Secretary to the Govt. of Assam, Panchayat and
Rural Development Department, Juripar, Panjabari,
Guwahati-06
3. The Director, Panchayat and Rural Development,
Assam, Panjabari, Juripar, Guwahati-37
4. The Commissioner & Secretary to the
Government of Assam, Finance Department having its
office at Dispur, Guwahati-781006
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioners :Mr. M. Khan, Advocate
Advocate for the respondents :Mr. N.K. Dev Nath, SC, P&RD
Ms. M. Bhattacharjee, Addl. Sr. Govt Advocate
Mr. R.K. Talukdar, SC, Accountant General
Date of Hearing : 15.02.2024
Date of Judgment & Order :13.05.2024
JUDGMENT AND ORDER(CAV)
Both these writ petitions are taken together as it relates to
the claims for pensionary benefits by the respective writ
petitioners.
2. In W.P.(C) No. 1517/2023, the writ petitioner was appointed
as a Tax Collector on temporary basis at Narshingpur Anchalik
Panchayat under Cachar Zilla Parisad for a period of 90 days in
the appropriate scale of pay. His services were thereafter
extended from time to time without any break. Subsequently, by
orders of the Government, petitioner was regularized on
01.06.2023. During his service period as an ad-hoc employee, the
petitioner was receiving the benefit of revised pay-scale. The
petitioner had rendered his services during the ad-hoc period
against a valid sanctioned post. The petitioner rendered his
continuous services as ad-hoc employee from 15.05.1996 to
31.05.2013 which is little more than 17 years. Pursuant to his
regularization, he rendered his services as a regular employee in
the same sanctioned post from 01.06.2013 to 31.05.2021 that is
for 7 years 9 months. Petitioner thereafter superannuated from
service on 31.03.2021. Although the pension papers have been
duly submitted by the petitioner and forwarded to the competent
authorities, his pension has not been released till date. No
provisional pension has also been released till date. Upon queries
made by the petitioner, he was informed that he is not entitled to
pension as he did not complete the minimum years of service
required to qualify for pension which is 10 years as a regular
employee. The writ petition is filed by the petitioner seeking a
direction from this Court to release his pensionary benefits by
taking into account the period of services rendered as ad-hoc
employee as the same was against the vacant post.
3. InW.P.(C) No. 1903/2023, this writ petition is filed by the
petitioners, who are similarly situated and were appointed as Tax
Collectors under the P&RD Department in the year 1996. They
were initially appointed on ad-hoc basis and were extended.
Subsequently, by Notification dated 01.06.2013, the engagements
of the petitioners were regularized without consequential service
benefits including regular salary and payment. The petitioners
upon attaining their age of superannuation, retired from their
respective services on 31.10.2021 and 31.03.2018 respectively.
Although the petitioners have submitted their pension papers and
which were duly forwarded to the competent authorities, their
pension has not been released as they were informed that
pursuant to regularizations, their services rendered in regular
capacity fell short of the mandatory requirement as per the Assam
Services (Pension) Rules, 1969 for being eligible for grant of
pension. Although joint representations were submitted as far
back as 26.08.2021 before the Secretary, Panchayat and Rural
Development, the same has not yet been disposed of. Being
aggrieved the present writ petition has been filed praying for an
appropriate direction to the respondents to grant them their
pensions as per their entitlement.
4. The learned counsel in both the writ petitions have made
similar submissions. It is submitted that they had rendered ad-hoc
services against the valid sanctioned post. Subsequently, their
services were regularized by order of the competent authority
dated 01.06.2013. Although the petitioners had rendered their
services in ad-hoc capacity, their services rendered were
continuous which were duly extended from time to time by the
competent authority. They have received regular scale of pay with
necessary revision as applicable. As such for all practical purposes,
they had rendered their services continuously against the valid
sanctioned post, drawing regular scale of pay and the fact that
their cases were not considered for regularization, is an issue,
which is beyond their control. Be that as it may, by order dated
01.06.2013, the competent authority regularized their services
with effect from the said date. Accordingly, the benefits of the
services rendered by the petitioner during the ad-hoc period, has
not been disputed by the respondents. As such at least that
period of service ought to have been counted to consider the
claims of the petitioners towards their eligibility for grant of
pension and other retiral benefits. It is submitted that there is no
dispute that the petitioners rendered continuous services. Under
such circumstances, the denial of pensionary benefits to the
petitioners that they failed to satisfy the requirement of minimum
years of service after being regularized is wholly arbitrary and
unjust.
5. The learned counsel for the petitioners has referred to the
Assam Panchayat Employees (Provincialisation) Act, 1999.
Referring to the said Act, the learned counsel has brought the
attention of the Court to the definition of "employees" under
Section 2, which means a person in the employment of
Panchayats against regularly sanctioned post. The learned counsel
submits that the definition itself goes to show that so long a
person is working against a sanctioned post, that person is to be
deemed to be an employee under the Panchayat and Rural
Development Department. That apart, under Section 3 of the said
Act, it is provided that all employees of the Panchayat under the
State Government shall be deemed to have been provincialised
from the appointed date and all Rules including Service Rules and
Rules of Conduct, Discipline and Appeal Rules which are
applicable to government servants of corresponding grade and
similarly placed shall also be applicable to the employees of the
Panchayat. Under Section 4 of the Act, it is provided that all the
employees going on superannuation under the provisions of the
Act shall be eligible to pension or gratuity or both in accordance
to the pension rules.
6. The learned counsel for the petitioners, therefore, submits
that the denial of pension to the petitioners for the services
rendered in their respective capacities is contrary to the provisions
of the Act and the Rules as well as the law.
7. The respondents are represented by the Standing Counsel
who submits that an affidavit has been filed in W.P.(C) 1517/2023
and he craves leave of the Court to rely on the same for the
purposes of both the writ petitions.The learned counsel for the
respondents submits that while there is no dispute that the
petitioners had rendered their services against valid sanctioned
posts, but their services were rendered in ad-hoc capacity. He
submits that it is only on 01.06.2013 that these posts have been
regularized. Referring to the Rule 31 of the Assam Services
(Pension) Rules, 1969, the learned counsel for the respondents
submits that Rule 31 of the Pensions Rules prescribes the
eligibility of Government servants who are entitled to pension.
The petitioners are required to fulfill the criteria prescribed under
the pension Rules and they having not so done their eligibility for
pension will be required to be counted from the date their
regularization namely 01.06.2013. However, before they could
complete the minimum years of service necessary to make them
eligible for pension, all the petitioners superannuated from service.
8. The learned counsel for the petitioners,in rejoinder, submits
that a communication has been addressed from the Department
of Panchayat and Rural Development, Government of Assam for
submission of necessary clarifications to the Office of the
Accountant General towards opening of the GPF account for the
petitioner in W.P.(C) No. 1517/2023. However, no such
clarifications have been received as yet and accordingly, the
pension and other retiral benefits have not been released to the
petitioner.
9. The learned counsel for the parties have been heard.
Pleadings on records have been carefully perused.
10. It seen that the petitioners had rendered their initial
services on ad-hoc basis but against regularly sanctioned posts
and were receiving regular scale of pay with appropriate revision.
The petitioners were regularized by order dated 01.03.2013
issued by the Principal Secretary to the Government of Assam,
Panchayat and Rural Development Department. The fact that the
petitioners rendered continues services is also not disputed by the
respondents.
11. Rule 31 of the Assam Services (Pension) Rules, 1969
provided that the service of an officer does not qualify for pension
unless it conforms to the following three conditions:
Firstly, the service must be under Government;
Secondly, the employment must be substantive and
permanent;
Thirdly, the servant must paid by Government:
Provided that the Governor may, even through either or both of
conditions (1) and (2) above are not fulfilled,-
(i) declare that any specified kind of service rendered in a non-
gazetted capacity shall qualify for pension, and
(ii) in individual cases and subject to such conditions as he may
think fit to impose in each case, allow service rendered by an officer to
count for pension.
12. The Assam Panchayat Employees (Provincialisation) Act,
1999 provides that the employees will include person in
employment of Panchayat against the regularly sanctioned post.
The Act further provides that all employees of Panchayats under
the State Government shall be deemed to have been
provincialised on and from the appointed date and upon being
soprovincialized, all Rules including Service Rules and Rules of
Conduct and Discipline and Appeal which are applicable to the
Government servants of corresponding grade and similarly placed
shall be applicable to the employees of the Panchayat.
Section 4 of the Act further provides that all employees
going on superannuation under the provisions of the Act shall be
eligible to pension or gratuity or both. The question whether in
respect of employees working under the department of Panchayat
and Rural Development and employees in the various Panchayats
in various capacities pension and retirement dues would be
available was elaborately dealt with by a Division Bench of this
Court in State of Assam Vs. Sayed Md. Fazlay Rabbi (W.A. No.
145/2009), reported in 2010 SCC OnLine Gau 38. In this
Judgment, the Division Bench had extensively considered the
provisions of the Assam Panchayat Employees (Provincialisation)
Act, 1999.
13. After considering in detail, the facts and circumstances and
the various provisions of the Act, this Court held that the benefit
of the provisions of the Act including those for pension and other
retirement benefits would be available to be provincialised
employees in service on or after 01.10.1991 on the basis of the
services rendered which is to be reckoned from the dates of their
initial appointments. The Division Bench of this Court held that
the prime consideration of the Provincialisation appears to be to
protect the past services of the existing employees as on
01.10.1991 in different levels of the Panchayat institutions of the
State. It was held that the legislation involved namely the Assam
Panchayat Employees (Provincialisation) Act, 1999, being
apparently one to benefit the serving employees of the
institutions and the legislature consciously maintained a
distinction between the 'appointed date' and the 'date of
appointment'. The Division Bench held that the 'appointed date'
has been defined to be the one on which the Act had come into
force. Whereas 'the date of appointment' as found in the Act is in
respect of the employees with regard to their dates of
appointment. It was held that it is patently clear that the
legislature had in its wisdom intended to maintain a distinction
between 'appointed date' and 'the date of appointment' of the
employees to be provincialized under the Act. The Division Bench
held that on a scrutiny of the provisions of the enactment, it is
seen that the appointed date was provided as a cut-off date for
the provincialisation of the services of the existing employees and
the date of appointment was comprehended for the purpose of
continuity of such employees on and from the dates of their initial
appointment to determine their entitlements under the legislation
including the pension and other retirement benefits. It was held
by Division Bench that the Assam Panchayat Employees
(Provincialisation) Act, 1999 was with the statutory object of
provincialisation of the services of the employees to treat them as
State Government Employees. If the 'appointed date'and the 'date
of appointment' are considered to be synonymous then the
services rendered by them prior to the enforcement of the Act
would then have to be treated to be non-existent and this will be
contrary to the scheme of the Act as the prime consideration of
the Provincialisation Act appeared to be to protect the past
services of the existing employees as on 01.10.1991.
14. The Judgment as discussed above held that the employees
of the Panchayat and Rural Development Department working in
the various capacities in the Panchayat are eligible for pension by
taking into consideration the services which were rendered earlier.
15. In Kabiram Rajbangsi Vs. State of Assam & Others, reported
in 1997 (1) GLT 589, the Co-ordinate bench of this Court held
that services rendered prior to regularization can be taken into
account for consideration of the pensionary benefits of the
employee.
16. Similar view was rendered by another Co-ordinate Bench in
Sh. Abdul Hannan Vs. State of Assam & Others in W.P(C) No.
2821/2009.
17. The Apex Court in Prem Singh Vs. State of Uttar Pradesh &
Others, reported in (2019) 10 SCC 516 held that period of service
of an employee prior to his regularization, was also to be counted
as qualifying service for the purposes of pension.
18. Similar views have been held by the Apex Court in The State
of Gujarat & Ors Vs. Talsibhai Dhanjibhai Patel, reported in 2022
LiveLaw (SC) 187 as well as in Habib Ali Barbhuiya Vs. State of
Assam & Ors passed by this Co-ordinate Bench of this Court in
W.P(C) No. 1777/2015.
19. The law laid down by the Apex Court as well as this Court
is that services rendered by any employee prior to their
regularization should be counted towards their pensionary
benefits if there is any shortfall in their services rendered after
being regularized. Under such circumstances, when there is no
dispute that the petitioners have rendered services in ad-hoc
capacity continuously against valid sanctioned posts without any
break in service and they came to be subsequently regularized by
the Government and at the time of their superannuation, the
employees did not have qualifying services from the date of their
regularizations, then in the opinion of this Court and as has been
held by several decisions as discussed above, the period of
services rendered in ad-hoc capacity against valid sanctioned
posts can also be counted for the purposes of satisfying the
qualifying period of service prescribed under Rule 31 of the Assam
Service (Pension) Rules, 1969.
20. Accordingly, the respondents are directed to forthwith the
process the pension papers and forward them to the competent
authority by considering the balance period of service required to
satisfy the qualifying period of service under the pension Rules
from the services rendered earlier in their ad-hoc capacity against
the vacant sanctioned posts.
21. The respondent authorities will thereafter release the
pensions and the other retiral benefits to the writ petitioners as
expeditiously as possible within the outer limit of 90 (ninety) days
from the date of receipt of a certified copy of this order.
22. The writ petitions, are, accordingly allowed and disposed of.
No order as to cost.
JUDGE
Comparing Assistant
