Gauhati High Court

Naren Kalita vs The State Of Assam And 6 Ors on 13 May, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                Page No.# 1/6

GAHC010086562024




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

                         Case No. : WP(C)/2440/2024

         NAREN KALITA
         S/O LATE BHAGORAM KALITA, PRESENT ADD - SARKARI CHAPASAL, P.S.-
         CHANDMARI, P.O.-CHANDMARI, DIST- KAMRUP (METRO), ASSAM, PIN-
         781003, PERMANENT ADD - VILL- ADABARI, P.O. AND P.S.-MUKALMUA,
         DIST- NALBARI (ASSAM), PIN-781126



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-6

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI-6

         3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-6

         4:THE CHIEF ENGINEER
          IRRIGATION
         ASSAM
          GUWAHATI-3

         5:THE ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-29
                                                                        Page No.# 2/6


            6:THE EXECUTIVE ENEGINNER
             BOROLIA DIVISION (IRRIGATION)
            TAMULPUR
             DIST- TAMULPUR (ASSAM)
             PIN-781367

            7:THE TREASURY OFFICER
             MUSHALPUR TREASURY
             DIST- BAKSA
            ASSAM
             PIN-78137

Advocate for the Petitioner   : MR. K R PATGIRI

Advocate for the Respondent : SC, IRRIGATION




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Date : 13-05-2024

Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr.

D. Bora, learned Government Advocate, Assam, Mr. B. Chakravarty, learned

Standing Counsel, Accountant General, Assam and Mr. N. Upadhyay, learned

Standing Counsel, Irrigation Department and Mr. A. Chaliha, learned Standing

Counsel, Finance 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, Borolia Division (Irrigation),

Tamulpur, Assam. He was appointed on 01.02.1992 and he was regularized as a Page No.# 3/6

Grade IV employee with effect from 22.07.2005. He retired from his service on

31.08.2016. It is submitted that when the pension papers were prepared though

the petitioner had rendered 24 years 7 months of qualifying service, 6 years of

initial service period had been deducted on the basis of Office Memorandum

dated 20.05.2009 for which net qualifying service of the petitioner is counted as

less than 20 years and as such, pension of the petitioner was not sanctioned

3] 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.). The respondents do not dispute the position

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

Binapani Das (supra).

4] The counsel for the parties have been heard. The pleadings available on Page No.# 4/6

record have been perused.

5] In Sanjita Roy (supra) a 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 benefit of Sanjita Roy (supra) will be effective

only from the date of the said Judgment, namely from 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 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:

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"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

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