Page No.# 1/ vs The State Of Assam And 3 Ors
2025 Latest Caselaw 1854 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 3 Ors on 9 January, 2025

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GAHC010110322023




                                                            2025:GAU-AS:364
                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2865/2023

          DULAL KRISHNA BHATTA
          S/O LT. CHANDRA SAGAR BHATTA LOCO COLONY NEAR PANDU
          LOKNATH MANDIR GUWAHATI 781012 DIST. KAMRUP ASSAM

          VERSUS

          THE STATE OF ASSAM AND 3 ORS.
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          EDUCATION HIGHER DEPTT. DISPUR GUWAHATI 781006 ASSAM

          2:THE SECRETARY TO THE GOVT. OF ASSAM EDUCATION HIGHER DEPTT.
          DISPUR GUWAHATI 6 ASSAM

          3:THE DIRECTOR OF HIGHER EDUCATION ASSAM
           KAHILIPARA GUWAHATI 19 ASSAM

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

Advocate for the Petitioner : R SARMAH, MR S KHOUND,MR. K MOHAMMED
Advocate for the Respondent : SC, AG, SC, HIGHER EDU

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 09.01.2025 Date of Judgment: 09.01.2025

Judgment & order(Oral) Heard Mr. S. Khound, learned counsel, appearing on behalf of the petitioner. Also heard Mr. D. Upamanyu, learned standing counsel, Higher Education Department, appearing on behalf of respondents No. 1, 2 & 3;

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and Mr. C. Baruah, learned counsel, appearing on behalf of respondent No.

4.

2. The petitioner, by way of instituting the present proceeding has presented a challenge to a speaking order, dated 10.04.2023, issued by the Secretary, Higher Education Department, on the ground that the same is in clear violation of the directions passed by this Court vide order, dated 05.03.2020, in WP(c)3450/2018.

3. As projected in the writ petition, the petitioner, herein, while working as a Supervisory Assistant in Pandu College(a provincialized College), had retired from his service on attaining the age of superannuation w.e.f. 31.01.2006. The age of superannuation being 59 years at the relevant point of time, the petitioner was due for retirement on attaining the age of superannuation w.e.f. 30.06.2005. However, he was continued in his service and had proceeded on superannuation only w.e.f. 31.01.2006. Accordingly, the petitioner had overstayed in his service beyond the age of superannuation. The respondent authorities had, thereafter, fixed the date of his superannuation as 30.06.2004. Being aggrieved, the petitioner had approached this Court by way of instituting a writ petition being WP(c)4067/2008. This Court upon considering the issues arising in the matter, was pleased, vide order, dated 21.02.2011, to dispose of the said writ petition with a direction to the respondent authorities to authorize to the petitioner his pension and DCRG benefits by treating the date of his retirement as 30.06.2005 instead of 30.06.2004. The petitioner, accordingly, in pursuance of the directions passed by this Court vide order, Page No.# 3/10

dated 21.02.2011, approached the respondent authorities, praying for grant of release of his pension and DCRG benefits. The respondent authorities, thereafter, issued to the petitioner, a revised Pension Payment Order(PPO), therein, authorizing to him, his pension and DCRG benefits w.e.f. 01.12.2005. The other pensionary benefits including the leave encashment benefits was, however, released to the petitioner only on 22.06.2015.

4. The petitioner being aggrieved by the action/inaction on the part of the respondent authorities in authorizing to him, his due pension and DCRG benefits, after a lapse of more than 9 years from the date of his original date of superannuation; the petitioner approached this Court by way of instituting a writ petition being WP(c)3291/2016, praying for grant to him of interest for the delayed payment of pension and DCRG benefits in terms of the provisions of Section 197-A of the Assam Service(Pension) Rules, 1969. This Court vide order, dated 20.09.2017, was pleased to dispose of the said writ petition by directing the petitioner to submit a fresh representation before the Secretary, Higher Education Department. The concerned authority was directed to consider the grievance raised by the petitioner and to dispose of the said representation within the time-frame prescribed therein.

5. The respondent authorities having not acted upon the directions passed by this Court, as noted-above; the petitioner being constrained, again approached this Court by way of instituting a writ petition being WP(c)3450/2018. This Court vide order, dated 05.03.2020, on consideration of the issues arising in the matter, was pleased to dispose of Page No.# 4/10

the said writ petition, by requiring the Secretary, Higher Education Department, to consider the claim of the petitioner for payment of interest on delayed payment of pension and other pensionary benefits within the time-frame prescribed. The conclusions reached by this Court in the said order, dated 05.03.2020, passed in WP(c)3450/2018, being relevant, is extracted hereinbelow:

"9. Under the aforesaid circumstances, when there is a specific statutory provision dealing with interest in delayed payment of pension, this Court is of the opinion that the Commissioner & Secretary of Higher Education will be the competent authority as provided under sub-rule (2) of Rule 197-A of the 1969 Rules to determine as to whether there was any administrative lapses. If there is a finding by the Secretary to the effect that there was administrative lapse for delayed payment of pension, obviously, the petitioner would be entitled to interest on delayed payment of pension and gratuity.

10. In this regard, it has been submitted by the learned counsel for the petitioner that the petitioner had already submitted a representation to the Commissioner & Secretary on 02.11.2017. Accordingly, the authorities will consider the said representation submitted by the petitioner on 02.11.2017 and will decide whether there was any administrative lapses for the delayed payment of pension and gratuity to the petitioner and if there is a finding to the effect that the delay in payment of pension and gratuity to the petitioner was caused on account of administrative lapses, the petitioner would be entitled to interest for the aforesaid delay."

6. In pursuance of the said directions passed by this Court vide order, dated 05.03.2020, in WP(c)3450/2018; the Secretary, Higher Education Department, after a lapse of around 3 years therefrom, proceeded to pass a speaking order, dated 10.04.2023, rejecting the claim of the petitioner for being awarded interest on the delayed payment of his pension and DCRG. The conclusions reached by the Secretary, Higher Education Department, in the order, dated 10.04.2023, is extracted hereinbelow, for ready reference:

"Accordingly, as per the information received from the Director of Higher Education, Assam vide No. G(B) Contempt Case/5/2012/248, dated 06-04-2023 the petitioner Sri Dulal Krishna Bhatta retired SA of Pandu College has already enjoyed his pensionary benefit following all the procedures and norms fixed by the Govt. time to time and it is found that there is no administrative lapse either from the Govt or at Detector level.

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Hence, from the above, it is found that the payment of arrear pension with effect from 01-07-2005 to 30-11-2005 is not his legitimate due as per provision o sub- section 1(3) of the Assam College Employees (Provincialisation) Act, 2005 which states that the Act shall come into force on and from the 1st day of December 2005. Thus the claim of arrear Pension and Interest on already paid pensionary benefit is not admissible. Further, the pension case was processed and paid through the Treasury on receipt of AG authority vide PPO No. Pen-2/Rev/2010/GPU/2430 15-03-2012 without any delay."

7. Being aggrieved, the petitioner has instituted the present proceeding before this Court.

8. The learned counsels appearing for the parties have reiterated the stands as taken by them in their respective pleadings and have also reiterated the facts noticed hereinabove.

9. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

10. The facts as noticed hereinabove not being in dispute and it also not being disputed that the petitioner was authorized his pension and DCRG benefits only in the year 2012, the directions passed by this Court vide order, dated 05.03.2020, in WP(c)3450/2018, is required to be examined.

11. The conclusions so drawn by this Court has already been extracted hereinabove. A perusal of the same would go to show that this Court was of the view that there exists a specific statutory provision dealing with interest for delayed payment of pension and DCRG benefits. Accordingly, the said provision having mandated that such delayed payment of pension and DCRG benefits if attributable to administrative lapses; the pensioner would Page No.# 6/10

be entitled to interest at such rates as has been specified under sub- Rule(b) of the said Rule 197-A of the Assam Service(Pension) Rules, 1969.

12. The provisions of Sub-Rule (2) of the said Rule 197-A, mandates that every case of delayed payment of pension and gratuity, shall be considered by the Secretary, Higher Education Department, in respect of its employees and the employees of its attached and sub-ordinate Offices and on such examination, where the Secretary of the Department, is satisfied that the delay in payment of pension and gratuity was caused on account of administrative lapses; the Secretary of the Department, shall sanction payment of interest with concurrence of the Pension and Public Grievance Department.

13. Accordingly, in terms of the provisions of Section 197-A as well as the conclusions drawn by this Court in the matter and extracted hereinabove; the Secretary, Higher Education Department, was required to examine as to whether in the processing of the pension proposal of the petitioner, there occasioned an administrative lapse at any stage which had contributed to a delay occasioning in authorizing to the petitioner, his pension and DCRG benefits.

14. It is well understood that the pension proposal of a pensioner is processed at different levels of the hierarchy existing in the organization before the same is forwarded to the pension disbursing authority which, in the present case, is the Office of the Accountant General(A&E), Assam.

15. The term 'administrative lapse' as finding place in the provisions of Page No.# 7/10

Section 197-A of the Assam Service(Pension) Rules, 1969, would be a lapse so committed by the authorities in timely processing the pension proposal of the pensioner. Accordingly, the Secretary, Higher Education Department, was required to take into account, the time period required at the various stages through which the pension proposal of the petitioner, had proceeded through, before the same was forwarded to the Office of the Accountant General(A&E), Assam, and thereafter, to examine as to whether at any of the stages, the authority concerned dealing with the matter, had unnecessarily delayed such processing beyond the normal required period. The Secretary, Higher Education Department, was also required to ascertain as to whether the delay occasioning in the processing of the pension proposal of the petitioner, herein; the petitioner was in any manner responsible. On coming to a conclusion on the above aspects of the matter; the Secretary, Higher Education Department, was required to take a call as to whether an administrative lapse occasioned which had resulted in an abnormal delay in finalizing the pension and DCRG benefits of the petitioner, herein.

16. Having noticed the manner in which the Secretary, Higher Education Department, was required to examine the claim of the petitioner for being granted interest for the delayed payment of his pension and DCRG benefits; the speaking order, dated 10.04.2023, is being examined.

17. The relevant conclusions drawn by the Secretary, Higher Education Department, in the said speaking order, dated 10.04.2023, has already been extracted hereinabove. A perusal of the said order, dated 10.04.2023, would go to show that the Secretary, Higher Education Department, had Page No.# 8/10

only noticed that the petitioner, on the date of passing of the speaking order, was enjoying his pension and DCRG benefits following all procedures and norms fixed by the Government from time to time and there was no administrative lapse, either, at the Government, or, at the Directorate level. The said conclusion drawn by the Secretary, Higher Education Department, in the said speaking order, is not supported with a disclosure of the materials basing on which such conclusion, was so drawn. Admittedly, there was an abnormal delay in finalizing the pension and DCRG benefits of the petitioner.

18. However, it is seen that the Secretary, Higher Education Department, has not examined the matter in the manner in which the same was required to be so examined under the provisions of Section 197-A of the Assam Service(Pension) Rules, 1969.

19. At this stage, it is to be noted that the Secretary, Higher Education Department, had drawn satisfaction with regard to the rejection made of the claim of the petitioner by observing that the case of the petitioner for pension was processed and paid through the Treasury on receipt of the authority from the Accountant General(A&E), Assam, without any delay, which, in the facts and circumstances of the present case, is clearly perverse.

20. In view of the above position, this Court is of the considered view that the speaking order, dated 10.04.2023, in addition to being in violation of the provisions of Section 197-A of the Assam Service(Pension) Rules, 1969, is also in clear violation of the directions passed by this Court vide Page No.# 9/10

judgment & order, dated 05.03.2020, in WP(c)3450/2018. Accordingly, the said order, dated 05.03.2020, stands set aside.

21. Having interfered with the speaking order, dated 10.04.2023, the matter is now remanded back to the Secretary, Higher Education Department, with a direction for a fresh consideration of the claim of the petitioner for being granted interest for the delayed payment of his pension and DCRG benefits.

22. For the purpose of considering the said claim of the petitioner and for arriving at the conclusion as to whether there occasioned an administrative lapse in the matter by the authorities; the Secretary, Higher Education Department, shall examine the manner in which the pension proposal of the petitioner was examined at the various levels by the authorities concerned and would also evaluate as to whether the authorities who had processed the matter, had, at any stage, caused abnormal delay in such processing. The Secretary, Higher Education Department, shall also examine as to whether the petitioner is, in any manner, responsible for the delay so occasioning in completion of the processing involved for authorizing to the petitioner, his pension and DCRG benefits.

23. Upon carrying-out the exercise in the manner as indicated above; the Secretary, Higher Education Department, shall pass a speaking order in the matter within a period of 2(two) months from the date of receipt of a certified copy of this order and if it is found that there had occasioned an administrative lapse; invoking the provisions of Section 197-A of the Assam Service(Pension) Rules, 1969, proceed to authorize to the petitioner, an Page No.# 10/10

interest on the delayed payment of his pension and DCRG at the applicable rate. In the event, the petitioner is so extended with the interest in the matter; the arrears so working-out in this connection, shall be computed and released to the petitioner by the competent authority within a period of 2(two) months from the date of passing of the speaking order by the Secretary, Higher Education Department.

24. With the above directions and observations, this writ petition accordingly stands disposed of.

JUDGE

Comparing Assistant