[Cites 12, Cited by 0]
Gauhati High Court
WP(C)/1482/2021 on 7 January, 2026
GAHC010037532021
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
WP(C) No. 1482/2021
Smt. Rashmi Rekha Saikia,
W/o Late Pradip Kumar Baruah,
Resident of Vill-Rangagara Hujgaon,
PO-Hoibargaon, PS-Nagaon Sadar,
Dist.-Nagaon, Assam, Pin-782002.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Government of Assam, Elementary Education Department,
Dispur, Guwahati-6, Dist.-Kamrup(M), Assam.
2. The Commissioner & Secretary to the Govt. of Assam,
Pension & Public Grievances Department,
Dispur, Guwahati-06, Dist.-Kamrup(M), Assam.
3. The Director of Elementary Education,
Assam, Kahilipara, Guwahati-19,
Dist.-Kamrup(M), Assam.
4. The District Elementary Education Officer,
Sivasagar, Assam, PO-Sivasagar,
Dist.-Sivasagar, Assam, Pin-785640.
5. The District Elementary Education Officer,
Jorhat, Assam, PO-Jorhat,
Dist.-Jorhat, Assam, Pin-785001.
6. The Director of Pension,
Housefed Complex, Dispur,
Deepjyoti Digitally signed by
Deepjyoti Sarkar
Guwahati-06, Dist.-Kamrup(M), Assam.
Sarkar Date: 2026.01.08 16:43:47
+05'30'
7. The Accountant General (A&E),
Maidamgaon, Beltola, PO-Beltola,
WP(C) 1482/2021 Page 1 of 42
Guwahati-29, Dist.-Kamrup (M), Assam.
8. The Commissioner and Secretary to the
Government of Assam, Finance Department,
Dispur, Guwahati-06, Dist.-Kamrup(M), Assam.
......Respondents.
For the Petitioner : Mr. D. Borah. ......Advocate.
For the Respondents : Mr. P.N. Sharma, SC, Elem. Edu.,
Mr. G. Pegu, GA, Assam,
Mr. C. Boruah, SC, AG,
Mr. A. Chaliha, SC, Finance.
......Advocates.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing :- 16.10.2025, 13.11.2025
& 25.11.2025
Date on which judgment is reserved :- 15.12.2025
Date of pronouncement of judgment :- 07.01.2026
Whether the pronouncement is of :- N/A
the operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
WP(C) 1482/2021 Page 2 of 42
JUDGMENT AND ORDER (CAV)
Heard Mr. D Borah, learned counsel for the petitioner. Also
heard Mr. P.N. Sharma, learned standing counsel, Elementary
Education Department, appearing for the respondent Nos.1, 3, 4
and 5, Ms. K. Phukan, learned Junior Government Advocate, Assam,
appearing for the respondent Nos.2 and 6, Mr. C. Boruah, learned
Standing Counsel, Accountant General, appearing for the
respondent No.7 and Mr. A. Chaliha, learned Standing Counsel,
Finance Department.
2. In this petition, under Article 226 of the Constitution of India,
the petitioner has prayed for issuing direction to the respondents to
release the following:-
(i) Arrear pension/family pension;
(ii) Provisional Gratuity, along with interest,
(iii) Leave Encashment Benefit, along with interest etc.,
(iv) arrear ACPS w.e.f. 01.01.2011, along with interest
acquired there upon (as per revised ROP),
as entitled to by the deceased husband of the petitioner, who had
retired from his service on 31.12.2017, as an Inspecting Auditor in
the Office of the District Elementary Education Officer, Sivasagar,
and died on 29.09.2019.
Background Facts:-
3. The background facts, leading to filing of this present petition,
are briefly stated as under:-
"The husband of the petitioner had joined as an
Inspecting Auditor on 24.01.1994, in the Office of the
District Elementary Education Officer (DEEO), Golaghat,
temporarily on ad-hoc basis. His appointment was
extended from time to time (by order dated 18.06.1994,
24.03.1995, 04.12.1995) and by order dated 20.03.1997;
in which it was reflected that the service of the deceased
husband of the petitioner has been extended from
01.03.1996, till posts are filed up in a regular manner.
Lastly, the husband of the petitioner was transferred
to the Office of the DEEO, Sivasagar and he retired from
his service on 31.12.2017, on superannuation. After
retirement, petitioner's husband had filed a representation
before the DEEO, Sivasagar on 31.05.2018, for releasing
his all retirement benefits. But, the same failed to evoke
any response. As the pensionary and other retirement
benefits of the petitioner's deceased husband had not been
paid, he had instituted a writ proceeding, being W.P.(C)
No. 6896/2018, before this Court. Then this Court, vide
order dated 26.11.2018, had directed the respondent
authorities to release the provisional pension till finalization
of monthly regular pension. As the order had not been
complied with, one Cont. Case(C) No.248/2019, was also
initiated. However, during the pendency of Cont. Case(C)
No. 248/2019, the respondent authorities had released a
sum of Rs.3,81,138/- as provisional pension w.e.f. January,
2018, up to April, 2019, vide letter dated 24.05.2019. Then
the contempt proceeding was closed. But, taking the plea
of closing the Cont. Case(C) No. 248/2019, the respondent
authorities again stopped the provisional pension without
assigning any reason.
Thereafter, the deceased husband of the petitioner
had filed an Interlocutory Application vide. I.A.(C) Sl.
No.13566/2019, but, before the said interlocutory
application was registered and tagged with the W.P.(C) No.
6896/2018, the W.P.(C) No. 6896/2018 was finally heard
on 25.09.2019, and vide order dated 25.09.2019, the
respondent authorities were directed to release all the
admissible retirement benefits and pension to the deceased
husband of the petitioner by observing about stopping of
provisional pension after April, 2019.
But, without receiving any retirement benefits, the
husband of the petitioner died on 29.09.2019, due to lung
cancer disease and the same would not happen, if the
deceased husband had received all pensionary dues in due
time. During the lifetime, petitioner's deceased husband
had only received his provisional pension up to April, 2019
and GPF and GIS deposits, but all other retirement benefits
and regular monthly pension are yet to be received from
the concerned respondent authorities.
Thereafter, the petitioner, through her counsel filed
a representation on 01.09.2020, before the respondent
authorities for releasing the family pension and all other
admissible benefits, but till date the respondent authorities
raised objections and had not been releasing any amount.
Moreover, the provisional pension, which was paid up to
the month of April, 2019 that also not been released by the
respondent authorities after April, 2019 onwards. Being
aggrieved, the petitioner has approached this Court by
initiating the present proceeding."
4. The respondent No. 3 has filed affidavit-in-opposition, wherein a
stand has been taken that the service of the petitioner's husband,
Late Pradip Kumar Barua, has not yet been regularized by the
Government, and a detail report to the Commissioner and Secretary
to the Government of Assam, Education Department, was filed vide
letter No.EAC/Esstt/40/2019/111 dated 29/12/2020, as objection
was raised by the office of the Accountant General, Assam vide
letter dated 17/01/2019. It is also stated that the provisional
pension has been released to the husband of the petitioner for the
period from January, 2018 to April, 2019 by the District Elementary
Education Officer, Sivasagar, vide communication No.EE/SIV/ HC/
COP(C) 249/2019/2020/1138, dated 30th Oct, 2020. It is further
stated in the said communication dated 30/10/2020, that the
documents required to be submitted by the present petitioner has
not been submitted to the Office of the District Elementary
Education Officer, Sivasagar. It is also stated that the admissible
outstanding retirement benefit like DCRG, Leave Encashment
Benefit, including provisional family pension, ACPS have not been
released by the Government due to non-regularisation of the service
of the petitioner's husband.
It is further stated that the cadre of post of Inspecting Auditor
held by Late Pradip Kumar Baruah is a Gazetted post (Grade-II
cadre), and that all sorts of benefit, including the pension as well as
regularization etc. of Gazetted posts is processed by the
Commissioner and Secretary to the Government of Assam Education
Department. It is further stated that the District Elementary
Education Officer, Sivasagar on 15/09/2021, had released an arrear
amount of Rs.7,48,494/- granted as provisional pension.
4.1. The respondent No.3 has filed an additional affidavit where in
it is stated that the petitioner was appointed as Inspecting Auditor
on 12.01.1994, temporarily on ad-hoc basis for a period of 4(four)
months only vide Memo No. EDS.STAT/143/93/7-A, dated
12.01.1994, and subsequently, the post was retained up to
29.06.1996, for 4(four) monthly basis by the DEE, Assam vide
Memo No. and date as mentioned below:-
DEE, Assam Order Dated Period of
No. Retention
EDS/STAT/143/93/50 18/06/1994 For another four
months
EDS/STAT/143/Pt- 24.03.1995 For another four
I/77 months
EDS/STAT/143/93/Pt- 04.12.1995 Extended up to
1/118 29.06.1996
Thereafter, on 29.03.1997, the office of the DEE, Assam had issued
another order, vide Memo No. EDS/STAT/143/Pt-I/144, whereby the
term of appointment of Inspecting Auditors were extended from
01.03.1996, till the posts were filled up through regular manner.
The petitioner retired from the post of Inspecting Auditor from the
Office of the District Elementary Education Officer, Sivasagar on
31.12.2017. He died on 29.09.2019 before finalization of his pension
matter.
It is also stated that the DEEO, Sivasagar vide letter No.
EE/SIV/PEN/08(B)/17-18/2274, reported that all the pension papers
along with the original service book in respect of Late Pradip Kumar
Baruah were submitted to the office of the AG(A&E), Assam for
finalization of his pension case. But the AG, Assam had raised
objection that the date of regularization of service of Pradip Kumar
Baruah was not mentioned/recorded in the Service Book and then
returned the original Service Book, along with the pension papers
vide letter dated 17.01.2019 to DEEO, Sivasagar.
It is also stated that as the post of Inspecting Auditor held by
Late Pradip Kumar Baruah is a gazetted post (Grade-II cadre), and
the issue of service regularization order, pension case etc. are to be
processed in the Govt. of Assam level and hence the original Service
Book and other family pension related papers/ documents as
submitted by the DEEO, Sivasagar, was forwarded to the Govt. vide
letter No. EAC/Esstt/40/2019/225, dated 26.11.2021, for taking
necessary action as the incumbent concerned had already expired
on 29.09.2019. It is also stated that vide letter under Memo No.
EAC/Estt/40/2019/291, dated 29.08.2023, the regularization of
service and finalization of pensionary benefits in respect of Late
Pradip Kumar Baruah has already been communicated to the Govt.
for necessary action. The Govt. has carefully examined the claim of
the petitioner, W/O. Late Pradip Kumar Baruah, for payment of
family pension as well as unpaid retirement benefits like GPF
deposits, Provisional Gratuity, Leave Encashment benefits etc. and
subsequently, the Department of School Education, Dispur, Assam
sought consultation from the Administrative Reforms, Training,
Pension & Public Grievance (ARTP&PG) Department, and the
Finance Department, regarding the regularization of service of Late
Pradip Kumar Baruah, to facilitate the finalization of pensionary
benefits.
However, both the Departments regretted the proposal. In
view of the above, the proposal for regularization of service of Late
Pradip Kumar Baruah, retired Inspecting Auditor could not be
considered. As communicated by Govt. vide its letter No. E-
276784/217, dated 28/11/2024.
4.2. The respondent No.7 i.e. the Senior Deputy Accountant
General (Admn.) in the Office of the Principal Accountant General
(A&E), Assam has filed its affidavit-in-opposition, wherein it has
been stated that - after passing of the order dated 25.09.2019, in
W.P No. 6896/2018, the Office of the AG, Assam vide letter No.Pen-
2/PRD/19/WP(C)6896/2018/2019-20/2610, dated 05.02.2020,
informed the Director of Elementary Education, Assam that the
pension case in respect of Sri Pradip Kumar Baruah, Inspecting
Auditor is yet to be received by his Office and accordingly,
requested the authority to forward the pension case in complete
shape to his Office, at an early date. But, till today the department
has not submitted the pension proposal.
It is also stated that the Office of the Accountant General
(A&E), Assam is no way involved with the grant of provisional
pension to the retired employee, like as the deceased husband of
the petitioner. It is the concerned department, under whom the
retired employee was working, who has the authority to grant
provisional pension and admissible retirement benefits. The Office of
the Accountant General (A&E), Assam shall issue the final authority
in the form of Pension Payment Order once the pension proposal is
submitted before this office in complete shape. There is no willful
delay or negligence on the part of the Office of the Accountant
General (A&E), Assam.
5. The respondent No. 8 has filed an affidavit in opposition
wherein it had taken a stand that a proposal was received by the
Finance Department from the School Education Department
regarding the payment of pension and pensionary benefits to the
petitioner. The said proposal of the Education Department was
regretted by the Finance Department vide Office Note dated
14.11.2024, of the Under Secretary, as per the views of
Administrative Reforms, Training, Pension and Public Grievances
Department endorsement which states that ........ "there are no
such rules in Assam Services (Pension) Rule, 1969 or
Office Memorandum/ Notification regarding payment of
pension and pensionary benefits to the employees under
ad-hoc appointment unless their services are
regularized."
6. The respondent No.2 had filed its affidavit in opposition and it
has taken a stand that the Office of the Administrative Reform
Training Pension & Public Grievance Department had received an E-
File, referred by the Department of School Education vide ECF No.
276784, for approval in the matter of regularization of service period
on ad-hoc basis in respect of Late Pradip Kumar Baruah, Inspecting
Auditor towards finalization of pensionary benefit and to invoke
Rule-31 (2nd Provision) read with Rule 235 of Assam Service
(Pension) Rules, 1969, so as to make the service rendered by the
husband of the petitioner pensionable and release of all pensionary
benefits including family pension. Then the Department of School
Education was advised to obtain the views of the Personal
Department and the Finance Department since the matter of
regularization of services does not come under the purview of
ARTP&PG Department vide ECF No 435210, dated 24/01/2024.
7. The petitioner has filed her affidavit-in-reply against the
affidavit-in-opposition filed by the respondent No.3, wherein she
stated that her husband, Late Pradip Kumar Baruah had continued
his service as an Inspecting Auditor for long 23 years 11 months
7 days, on the basis of his ad-hoc appointment extension order
dated 20.03.1997, wherein it was stated that in continuation of the
office order dated 04.12.1995, their services has been extended
from 01.03.1996, till the posts are filled up in a regular manner.
Therefore, it is the duty on the part of the concerned respondent
authorities/Government to regularize the service of the deceased
husband of the petitioner.
It is also stated that by an order dated 23.06.2022, this Court
had directed the Secretary to the Govt. of Assam, Elementary
Education Department to place the relevant order before this Court,
whereby the Principal Accountant General (A & E), Assam can pass
necessary order towards payment of family pension as well as
unpaid retirement benefits etc. to the petitioner. Again, vide order
dated 30.01.2023, this Court has directed the Elementary Education
Department regarding compliance of the order dated 23.06.2022.
Thereafter, also on 31.08.2023, this Court had directed to the
Secretary to the Govt. of Assam, Elementary Education Department
to apprise the Court about its decision to regularize the service of
the late husband of the petitioner.
It is also stated that more than 5 years had already elapsed
and without getting monthly family pension and other retirement
benefits the petitioner had only received provisional family pension
on the basis of the various orders passed in the instant case, at
different points of time and the respondent authorities, till date, had
not made any final decision about the regularization of service of
the deceased husband of the petitioner, who held a Gazetted post
of Inspecting Auditor on ad-hoc basis.
Further, it is stated that though the Administrative Reforms,
Training, Pension & Public Grievance (ARTP & PG) Department and
the Finance Department had regretted the proposal for
regularisation of service of Late Pradip Kumar Baruah by enclosing
the order dated 21.03.2025 (Annexure-A, Page-95 to the Affidavit),
but in the said order dated 21.03.2025, issued by the Deputy
Secretary to the Govt. of Assam, Department of School Education
there is no any explanation as to why both the Departments had
regretted the proposal for regularization of service of Late Pradip
Kumar Baruah to facilitate the finalisation of pensionary benefits. It
is also stated that on the basis of the prayer made by deceased
husband of the petitioner, in his W.P.(C) No.6896/2018, by order
dated 25.09.2019 while disposing of the said writ petition, this
Court had already directed that- "let the respondent No.3, the
Director of Elementary Education, Assam submit all the relevant
documents and proposals to the respondent No.7, the Accountant
general (A&E), Guwahati, Assam, as sought for, so that the
petitioner can enjoy his pensionary and retiral benefits, which
exercise shall be undertaken within 4 (four) months from the date of
receipt of a certified copy of this order." But, without receiving
regular monthly pension, the husband of the deponent died on
29.09.2019. One contempt petition vide Cont. Case (C)
No.248/2019, was also filed by the deceased husband of the
deponent during the pendency of W.P.(C) No.6896/2018, for non-
compliance of the order dated 26.11.2018 and thereafter,
provisional pension has been granted to him and since then the
petitioner had received only provisional family pension till date as
the Government has not regularized the service of the deceased
husband of the petitioner till date. It is the duty of the
Government/concerned respondent authorities to regularise the
service of the deceased husband of the petitioner on the basis of his
long continuous service of 23 years 11 months 7 days.
Further it is stated that in the instant petition, while issuing
notice to the respondents, this Court vide order dated 08.03.2021,
had observed that- "It is disheartening to take note of that in the
meantime, the husband of the petitioner Pradip died on 29.09.2019
due to illness and it is stated that adequate medical treatment also
could not be given due to stoppage of the provisional pension to the
beneficiary" and accordingly, directed the respondents Elementary
Education Department as well as the Accountant General (A&E),
Assam to file an affidavit by stating therein that why compensation
should not be awarded to them, in the circumstance where the
husband of the petitioner in whose favour the order for payment of
provisional pension was made had in the meantime died.
Thereafter, also it was observed by this Court on 21.02.2022, that
the steps taken with regard to the issue of compensation should
also be reflected in the affidavit by fixing the next date on
10.03.2022. But, the answering respondent as well as the other
respondent till date not stated in their affidavits in a single word
regarding the issue of payment of compensation as directed by the
order dated 08.03.2021 and 21.02.2022, which facts goes to show
that the concerned respondent authorities had always flouted the
directions passed in this instant writ petition and also had not
regularize the service of the deceased husband of the petitioner and
had passed the order dated 21.03.2025 (Annexure-A, Page-95 to
the affidavit) by stating that as both the departments had regretted
the proposal as stated herein above. It is also stated that the matter
of regularisation of service has unnecessarily been delayed for long
7 years, for which this Court may be pleased to direct the concerned
respondent authorities to pay interest as per provisions of Rule-
197-A of the Assam Services (Pension) Rules, 1969.
8. The petitioner has also filed her reply to the affidavit in
opposition filed by the respondent No.2. It is stated that the
deceased husband of the petitioner had served the Department as
an Inspecting Auditor for last long 23 years 11 months 7 days and
had retired from service on 31.12.2017. For releasing pensionary
benefits petitioner's deceased husband had filed W.P.(C)
No.6896/2018, and the said writ petition was finally heard on
25.09.2019, and had directed to complete the whole exercise within
4 months from the date of receipt of a certified copy of the order by
the concerned respondents and the present respondent No.2 was
also the respondent No.2 in the said W.P.(C) No.6896/2018. The
husband of the petitioner died on 29.09.2019, immediately after
passing this Court's order dated 25.09.2019 and at that time, he had
received provisional pension only after filling a Contempt Case the
said provisional pension was continued. Even, after his death the
respondent authorities now and then stopped her provisional family
pension, and this Court had issued directions for releasing
provisional family pension continuously to the deponent while
passing various orders for placing the records and other instructions
regarding regularization of the service of the deceased husband of
the petitioner. At present, even after more than 7 years, the matter
remains unsolved. Though she had received monthly provisional
family pension, the other benefits like Gratuity, Leave Encashment
etc. have not yet been released to her and it happened as the
matter was the fault of the respondent authorities who had not
finalized the proposal of regularization of the deceased husband of
the petitioner under the aforesaid provisions.
9. The petitioner has also filed her reply to the affidavit-in-
opposition filed by the respondent No.8, wherein she stated that it is
the duty of the Government to regularize the service rendered by
her deceased husband and a fresh proposal should be sent to the
Government after regularizing the service of the deceased husband
of the petitioner. She also states that as per Annexure-K & L (page-
45 & 46) of the writ petition, financial upgradation was also
approved to her deceased husband, along with others as per
Assured Career Progression Scheme (ACPS) and hence the service
of her deceased husband ought to have been regularized. It is also
stated that though the respondent No.8, quoting and enclosing the
note regarding regretting the proposal for pension and other
admissible benefits, as there is no rules in Assam Services (Pension)
Rules, 1969 or office memorandum/notification as per views of
ARTP&PG Department, but as per Office Memorandum, under Memo
No. PPG(P)196/92/61 dated 06.09.2003, a person is eligible for
pensionary benefits rendering 20 years of continuous service
without being confirmed.
It is further stated that as per Office Memorandum, under
memo No. PPG(P)7/2012/8, dated 21.06.2012, all Administrative
Department/Heads of Department and Heads of offices of District
shall issue provisional pension/provisional family pension and DCRG
to all retired Government Employees of the State Government as
admissible soon after their retirement till final PPO is issued by the
Accountant General (A&E) Assam and Director of Pension, Assam.
But, in the instant case though provisional family pension was
granted to the deponent, but till date no DCRG has been granted to
the petitioner for which direction may be issued for immediate
release of DCRG amount, along with interest acquired thereupon on
the basis of the prayer made by deponent in the instant writ
petition. It is also stated that while she is going to file this affidavit-
in-reply, on 28.05.2025 she had received another copy of the
affidavit-in-opposition from the Respondent No.2, i.e. Commissioner
& Secretary to the Govt. of Assam, Pension & Public Grievances
Department (Now ARTP & PG), Dispur, Guwahati-06, in which it was
stated that there is one E-File vide ECF No. 276784 for approval in
the matter of regularisation of service period on ad-hoc basis, in
respect of the deceased husband of the petitioner, towards
finalisation of pensionary benefits and to invoke Rule-31 (2nd
Provision) read with Rule 235 of the Assam Services (Pension)
Rules, 1969 to make the service rendered by the deceased husband
of the petitioner pensionable. Therefore, the respondent No.8 in
various earlier occasions, while the matter taken up by this Court
had not make any statements regarding the aforesaid provisions of
law for regularisation of service and had unnecessarily delayed the
matter for long 7 years, for which this Court may be pleased to
direct the concerned respondent authorities to pay interest as per
provisions of Rule- 197-A of the Assam Services (Pension) Rules,
1969.
Submissions:-
10. Mr. Borah, the learned counsel for the petitioner, narrating the
background fact of the present petition, submits that present case
portrays a dismal affair, that has been going on in the department
of School Education and it also very poorly reflects the performance
of the respondent departments in discharging its constitutional
obligation.
10.1. Mr. Borah also submits that the deceased husband of the
petitioner had joined as an Inspecting Auditor on 24.01.1994, in the
Office of the District Elementary Education Officer, Golaghat,
temporarily on ad-hoc basis. Thereafter, his service was extended
from time to time (by order dated 18.06.1994, 24.03.1995,
04.12.1995). Thereafter, vide order dated 20.03.1997; the service of
the deceased husband of the petitioner has been extended from
01.03.1996 till posts are filed up in a regular manner. Lastly, her
husband was transferred to the Office of the DEEO, Sivasagar and
he retired on superannuation on 31.12.2017. Thereafter, the
husband of the petitioner had filed a representation before the
DEEO, Sivasagar on 31.05.2018, for releasing his all retirement
benefits. The representation, so filed, has failed to evoke any
response.
10.2. Then the husband of the petitioner has approached this
Court by filing W.P.(C) No. 6896/2018, to address his grievances.
This Court, vide order dated 26.11.2018, directed the respondent
authorities to release the provisional pension till finalization of
monthly regular pension. On non-compliance of said direction, one
contempt case being Cont. Case(C) No.248/2019, was instituted and
during the pendency of Cont. Case(C) No. 248/2019, the respondent
authorities had released a sum of Rs. 3,81,138/- as provisional
pension w.e.f. January, 2018 up to April, 2019 vide letter dated
24.05.2019. When the contempt proceeding was closed the
respondent authorities again stopped the provisional pension
without assigning any reason.
10.3. Then an Interlocutory Application vide. I.A. (C) Sl.
No.13566/2019, was filed which was registered and tagged with the
W.P.(C) No. 6896/2018, and this Court vide order dated
25.09.2019, directed the respondent authorities to release all
admissible retirement benefits and pension to the deceased husband
of the petitioner. Thereafter, without receiving any retirement
benefits, the husband of the petitioner died on 29.09.2019, due to
lung cancer which would not happened, if the deceased husband of
the petitioner had received all pensionary dues in due time. He also
submits that except provisional pension up to April, 2019 and GPF
and GIS deposits, he received nothing. Thereafter, the petitioner
had filed a representation on 01.09.2020, before the respondent
authorities for releasing the family pension and other benefits, but
till date the respondent authorities have raised objections and had
not been releasing any amount. Further, the provisional pension
after April, 2019 onwards has also not been paid.
10.4. Referring to the stands taken by the respondent authorities
in their respective affidavit in opposition, Mr. Borah submits that the
main ground for not releasing the regular pension and other
pensionary benefits, is non-regularisation of service of the late
husband of the petitioner by the concerned department and the
petitioner's husband is no way responsible for the same and that he
had rendered his service for long 23 years 11 months 7 days, since
his date of appointment on 24.01.1994, till his retirement on
31.12.2017, and as such the ground for refusal to regularize the
service of the late husband of the petitioner is illegal and arbitrary
and is violative of the right guaranteed under Article 14, 16(1) and
21 of the Constitution of India.
10.5. Mr. Borah has also drawn attention of this Court to one
Office Memorandum, No. PPG (P) 196/92/61 Dated Dispur,
the 6th September, 2003, to contend that a Govt. Servant
rendering 20 years of continuous Service without being confirmed
shall be eligible for pensionary benefits, but the respondent
authorities had defied the same and compelled the petitioner to
approach this Court repeatedly.
10.6. Under the given facts and circumstances, Mr. Borah submits
that the respondent authorities, may be directed to release the
arrear (provisional) pension/family pension, leave encashment
benefits, gratuity, arrear ACPS w.e.f. 01.01.2011 (as per revised
ROP) and all other admissible benefits including interest, as per
provisions of Rule- 197-A of the Assam Services (Pension) Rules,
1969, acquired in each head till the finalization of the regular
monthly family pension, along with all due admissible benefits from
29.09.2019, for denial of constitutional right.
10.7. Mr. Borah has referred following decisions in support of his
submission:-
(i) Balkishor Mody vs. Arun Kumar Singh and Ors.
reported in (2001) 10 SCC 174;
(ii) State of Gujarat & Ors. vs. Talsibhai
Dhanjibhai Patel, in Special Leave to Appeal
(C) No. 1109/2022 (Arising out of impugned
final judgment and order dated 13-10-2020 in
LPA No. 762/2020 passed by the High Court of
Gujarat at Ahmedabad);
(iii) WP(C) No. 3252/2012 (Smti. Jonali Das vs. The
State of Assam and Ors.);
(iv) W.P.(C) No. 5801/2013 (Parsing Puma @ Persingh
Puma vs. The State of Assam & Ors.).
11. Per contra, Mr. Sharma, learned standing counsel for the
respondent No. 1, 3, 4 and 5 submits that as per order of this Court,
dated 25.09.2019, passed in W.P.(C) No. 6896/2018, the proposal
for regularization of service of the late husband of the petitioner had
already been forwarded to the (ARTP & PG) Department and the
Finance Department but, both department had regretted the
proposal for regularisation of service of Late Pradip Kumar Baruah
by enclosing the order dated 21.03.2025 and due to non-
regularization of service of the petitioner, the regular pension and
other retirement benefit could not be released to the petitioner.
12. On the other hand Mr. C. Baruah, learned standing counsel for
the respondent No. 7, i.e. the Accountant General, Assam submits
that once the pension proposal is received by the Office of the AG,
the same will be granted as soon as practicable.
13. Ms. K. Phukan, learned Government Advocate, appearing for
the respondent No. 2 and 6 submits that once the proposal is
received by the respondent No.2 and 6, the same will be considered
in accordance with law.
14. Mr. Chaliha, learned standing counsel for the respondent No.8,
i.e. the Finance Department, submits that the proposal of the
Education Department was regretted by the Finance Department as
per the views of Administrative Reforms, Training, Pension and
Public Grievances Department endorsement, wherein it has been
stated that - "there are no such rules in Assam Services (Pension)
Rule, 1969 or Office Memorandum/ Notification regarding payment
of pension and pensionary benefits to the employees under ad-hoc
appointment unless their services are regularized."
14.1. However, when the attention of Mr. Chaliha was drawn to
the decision of Hon'ble Supreme Court in the case of Talsibhai
Dhanjibhai Patel(supra), he submits that in view of said
decision, there remains nothing to be submitted by him.
15. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the petition and the
documents placed on record. Also perused the Office Note of the
Joint Secretary, dated 30.09.2024 of the department of ARTP & PG,
Dispur and the Office Note dated 14.11.2024, of the Under
Secretary of the Finance Department. Also gone through the
decisions referred by Mr. Borah, learned counsel for the petitioner
and the Assam Services (Pension) Rules, 1969.
16. From the contentions being made in the respective pleadings
of the parties and also from the submissions of learned counsel for
both the parties, following facts and circumstances emerges:-
(i) The deceased husband of the petitioner had joined as an
Inspecting Auditor on 24.01.1994, in the Office of the
District Elementary Education Officer, Golaghat,
temporarily on ad-hoc basis.
(ii) His service was extended from time to time (by order
dated 18.06.1994, 24.03.1995, 04.12.1995). Thereafter,
vide order dated 20.03.1997; the service of the
deceased husband of the petitioner has been extended
from 01.03.1996, till the posts are filed up in a regular
manner.
(iii) Lastly, her husband was transferred to the Office of the
DEEO, Sivasagar from where he retired on
superannuation on 31.12.2017.
(iv) Though the husband of the petitioner had filed a
representation before the DEEO, Sivasagar on
31.05.2018, for releasing his all retirement benefits, the
same failed to evoke any response.
(v) Then the husband of the petitioner had filed W.P.(C) No.
6896/2018, to address his grievances. Then this Court,
vide order dated 26.11.2018, directed the respondent
authorities to release the provisional pension, till
finalization of monthly regular pension.
(vi) On non-compliance of said direction, Cont. Case(C)
No.248/2019, was instituted and during the pendency of
Cont. Case(C) No. 248/2019, the respondent authorities
had released a sum of Rs. 3,81,138/- as provisional
pension, w.e.f. January, 2018 up to April, 2019 vide
letter dated 24.05.2019. When the contempt proceeding
was closed the respondent authorities again stopped the
provisional pension, without assigning any reason.
(vii) Then an Interlocutory Application vide. I.A. (C) Sl.
No.13566/2019, was filed, which was registered and
tagged with the W.P.(C) No. 6896/2018, and this Court
vide order dated 25.09.2019, had directed the
respondent authorities to release all the admissible
retirement benefits and pension to the deceased
husband of the petitioner.
(viii) Thereafter, without receiving any retirement benefits, the
husband of the petitioner died on 29.09.2019, due to
lung cancer, which would not happened, if her deceased
husband had received all pensionary dues in due time.
(ix) Except provisional pension, up to April, 2019 and GPF
and GIS deposits, he received nothing.
(x) The petitioner had filed a representation on 01.09.2020,
before the respondent authorities for releasing the family
pension and other benefits, but till date the respondent
authorities raised objections and had not been releasing
any amount and even the provisional pension after
April, 2019 onwards has also not been paid.
(xi) While the relevant file was sent to the department of
ARTP & PG, Dispur, then vide office Note of the Joint
Secretary, dated 30.09.2024 the same was regretted by
holding that "there are no such rules in Assam
Services (Pension) Rule, 1969 or Office
Memorandum/ Notification regarding payment of
pension and pensionary benefits to the
employees under ad-hoc appointment unless
their services are regularized."
(xii) Then vide office Note dated 14.11.2024, the Under
Secretary of the Finance Department also regretted the
same.
(xiii) The main ground for not releasing the regular pension
and other pensionary benefits, is non-regularisation of
service of the late husband of the petitioner by the
concerned department.
(xiv) The petitioner's husband is no way responsible for the
same and that he had rendered his service for long 23
years 11 months 7 days, since his date of appointment
on 24.01.1994, till his retirement on 31.12.2017, being
an ad-hoc employee.
(xv) The ground for refusal to regularize the service of the late
husband of the petitioner is illegal and arbitrary and is
violative of the rights guaranteed under Article 14, 16(1)
and 21 of the Constitution of India.
17. It is to be noted here that already there is an Office
Memorandum issued by the Secretary to the Govt. Assam, Pension
and Public Grievances Department, which provides that a Govt.
Servant rendering 20 years of continuous service without being
confirmed shall be eligible for pensionary benefits, but the
respondent authorities had defied the same and compelled the
petitioner to approach this Court repeatedly. For ready reference,
the same is extracted herein below:-
GOVERNMENT OF ASSAM PENSION AND PUBLIC
GRIEVANCES DEPARTMENT DISPUR : : GUWAHATI: :6.
OFFICE MEMORANDUM
No. PPG (P) 196/92/61 Dated Dispur, the 6th
September, 2003.
In continuation of this Deptt. O.M. NO.
PPG. (P) 196/92/35 dated 12-9-96, it is
reiterated that said O.M. clearly lays down
that a Govt. Servant rendering 20 years of
continuous Service without being confirmed
shall be eligible for pensionary benefits. The
focus is on 20 years of continuous service.
After rendering 20 years of Service if the
Govt. servant is superannuated or incapacitated
or dead is not** root point. Any confusion in
this regard is against the spirit of the O.M.
referred to above. It is therefore, clarified
that pensionary benefit as contemplated in the
above O.M. shall be admissible to a Govt.
Servant who died after rendering 20 years of
Continuous Service. Other terms and conditions
for eligibility of Pension shall remain same as
usual.
Sd/- A. AHMED
Secretary to the Govt. Assam,
Pension and Public Grievances Department.
17.1. This office memorandum was widely circulated amongst all
the Departments of the Govt. including the Accountant General
(A&E), Maidamgaon, Beltola, Guwahati-29 (respondent No.7).
17.2. At the time of rejection of the claim of the petitioner, this
OM, dated 06.09.2003, was in force. But, this OM has been ignored
by the respondent authorities while considering the claim made by
the petitioner.
17.3. It is a fact that subsequently, vide executive order dated
04.09.2025, in File No. - PPG-11012/9/2025/15(609016), the earlier
OM dated 06.09.2003 and 12.09.1996, were withdrawn and it is
provided in the said executive order that only those Government
employees who have been appointed in a sanctioned regular post
following due process of law and extant rules and have rendered at-
least 20 years of continuance service without any brake, may be
treated as deemed confirmed in service. Further, they shall be
eligible for pension and other related benefits under the Assam
Services (Pension) Rules, 1969, if otherwise eligible under respective
Pension Rule.
17.4. The aforementioned executive order is extracted herein
below:-
GOVERNMENT OF ASSAM
ADMINISTRATIVE REFORMS, TRAINING,
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
EXECUTIVE ORDER
File No. -PPG-11012/9/2025/15(609016):
Subsequent to the issue of Executive Order No.
PPG- 11012/9/2025/14(609016), dated 04/09/2025
for withdrawal of the Office Memoranda issued
vide No. PPG(P)196/92/35 dated 12/09/1996 and
No. PPG(P)196/92/61 dated 06/09/2003, on the
grounds of misinterpretations and complications
in implementation of various Pension Schemes
i.e. Old Pension Scheme and New Pension Scheme,
it is further clarified that only those
Government employees who have been appointed to
a sanctioned regular Post following due process
of Law and extant Rules and have rendered at
least 20 years of continuous service without any
break; may be treated as Deemed confirmed in
Service. Further, they shall be eligible for
pension and other related benefits under the
Assam Services (Pension) Rules, 1969, if
otherwise eligible under respective Pension
Rule.
Secretary to the Govt. of Assam,
Administrative Reforms, Training,
Pension and Public Grievances Department.
17.5. But, the respondent authorities have never considered the
OM dated 06.09.2003 and also the OM dated 12.09.1996. Moreover,
it is nobody's case that the late husband of the petitioner was not
appointed in a sanctioned regular post following due process of law
and extant rules and it is also not in dispute that he had rendered
23 years 11 months 7 days continuous service.
17.6. In view of above, the action of the respondent authorities in
rejecting the claim of the petitioner for non-regularisation of service
of late husband of the petitioner is arbitrary and illegal.
18. It is to be noted here that while dealing with the issue of ad-
hocism, Hon'ble Supreme Court in the case of Dharam Singh &
Ors. vs. State of U.P. & Anr, in Civil Appeal No(s).
8558 of 2018, held as under:-
17. Before concluding, we think it necessary to
recall that the State (here referring to both
the Union and the State governments) is not a
mere market participant but a constitutional
employer. It cannot balance budgets on the
backs of those who perform the most basic and
recurring public functions. Where work recurs
day after day and year after year, the
establishment must reflect that reality in its
sanctioned strength and engagement practices.
The long-term extraction of regular labour
under temporary labels corrodes confidence in
public administration and offends the promise
of equal protection. Financial stringency
certainly has a place in public policy, but it
is not a talisman that overrides fairness,
reason and the duty to organise work on lawful
lines.
18. Moreover, it must necessarily be noted that
"ad-hocism" thrives where administration is
opaque. The State Departments must keep and
produce accurate establishment registers,
muster rolls and outsourcing arrangements, and
they must explain, with evidence, why they
prefer precarious engagement over sanctioned
posts where the work is perennial. If
"constraint" is invoked, the record should
show what alternatives were considered, why
similarly placed workers were treated
differently, and how the chosen course aligns
with Articles 14, 16 and 21 of the
Constitution of India. Sensitivity to the
human consequences of prolonged insecurity is
not sentimentality. It is a constitutional
discipline that should inform every decision
affecting those who keep public offices
running.
19. Having regard to the long, undisputed service
of the appellants, the admitted perennial
nature of their duties, and the material
indicating vacancies and comparator
regularisations, we issue the following
directions:
(i) Regularization and creation of
Supernumerary posts: All appellants
shall stand regularized with effect 18
Civil Appeal No. 8558 of 2018 from
24.04.2002, the date on which the High
Court directed a fresh recommendation by
the Commission and a fresh decision by
the State on sanctioning posts for the
appellants. For this purpose, the State
and the successor establishment (U.P.
Education Services Selection Commission)
shall create supernumerary posts in the
corresponding cadres, Class-III (Driver
or equivalent) and Class-IV
(Peon/Attendant/Guard or equivalent)
without any caveats or preconditions. On
regularization, each appellant shall be
placed at not less than the minimum of
the regular pay-scale for the post, with
protection of last-drawn wages if higher
and the appellants shall be entitled to
the subsequent increments in the pay
scale as per the pay grade. For
seniority and promotion, service shall
count from the date of regularization as
given above.
(ii) Financial consequences and arrears: Each
appellant shall be paid as arrears the
full difference between (a) the pay and
admissible allowances at the minimum of
the regular pay-level for the post from
time to time, and (b) the amounts
actually paid, for the period from
24.04.2002 until the date of
regularization /retirement/death, as the
case may be. Amounts already paid under
previous interim directions shall be so
adjusted. The net arrears shall be
released within three months and if in
default, the unpaid amount shall carry
compound interest at 6% per annum from
the date of default until payment.
(iii) Retired appellants: Any appellant who
has already retired shall be granted
regularization with effect from
24.04.2002 until the date of
superannuation for pay fixation, arrears
under clause (ii), and recalculation of
pension, gratuity and other terminal
dues. The revised pension and terminal
dues shall be paid within three months
of this Judgement.
(iv) Deceased appellants: In the case of
Appellant No. 5 and any other appellant
who has died during pendency, his/her
legal representatives on record shall be
paid the arrears under clause (ii) up to
the date of death, together with all
terminal/retiral dues recalculated
consistently with clause (i), within
three months of this Judgement.
(v) Compliance affidavit: The Principal
Secretary, Higher Education Department,
Government of Uttar Pradesh, or the
Secretary of the U.P. Education Services
Selection Commission or the prevalent
competent authority, shall file an
affidavit of compliance before this
Court within four months of this
Judgment.
18.1. It is to be noted here that in the case of Talsibhai
Dhanjibhai Patel (supra), Hon'ble Supreme Court has held as
under:-
"1. It is unfortunate that the State continued
to take the services of the respondent as an
ad-hoc for 30 years and thereafter now to
contend that as the services rendered by the
respondent are ad-hoc, he is not entitled to
pension/pensionary benefit. 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 continues 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.
2. In the present case, the High Court has not
committed any error in directing the State to
pay pensionary benefits to the respondent who
has retired after rendering more than 30 years
service.
3. Hence, the Special Leave Petition stands
dismissed."
18.2. Again in the case of Vijoy Kumar vs. Central Bank of
India & Ors. Civil Appeal No. ......of 2025 (Arising out of
SLP© No...... of 2025 @ D.No. 39520/2014, Hon'ble Supreme
Court, in para No. 17 held as under:-
"17. There is no cavil that pension is not
discretion of the employer, but a valuable
right to property and can be denied only
through authority of law. When an authority is
vested with the discretion to grant pension
less than the full pension admissible under the
Pension Regulations, all procedural safeguards
in favour of the employee including prior
consultation must be strictly followed."
18.3. In the case of Deokinandan Prasad vs. State of Bihar,
reported in (1971) 2 SCC 330, Hon'ble Supreme Court has held
that pension is a right and not a bounty, flowing from statutory
rules. It was held that a Government servant falling within those
rules was entitled to claim pension. It was also held that the grant
of pension did not depend upon anyone's discretion. It has further
been held that the pension is neither a bounty nor a matter of grace
depending on the sweet will of the employer. It was held that it was
a social welfare measure rendering socio-economic justice to those
who in the hey-day of their life ceaselessly toiled for the employer
for an assurance that in their old age they would not be left in
lurch. It was held that it was not an incentive but a reward for past
service.
18.4. Thereafter, in the case of D.S. Nakara vs. Union of
India, reported in (1983) 1 SCC 305, where the Court expanded
the concept of pension as a measure of socio-economic justice and
part of the right to livelihood. Further in the case of State of
Jharkhand vs. Jitendra Kumar Srivastava, reported in
(2013) 12 SCC 210, Hon'ble Supreme Court has held that pension
cannot be withheld in the absence of statutory authority, and
executive instructions cannot override statutory rules. It has also
been held that the right to property is not a fundamental right, but
it is a constitutional right. The right to receive pension has been
recognized as a right to property. A person cannot be denied his
right to pension without the authority of law which is a
constitutional mandate enshrined in Article 300 A of the
Constitution.
19. In the instant case, it appears that the pension and
pensionary benefit has been denied to the petitioner on the ground
of non-regularisation of service of the late husband of the petitioner
by the concerned department. And indisputably, the husband of the
petitioner was no way responsible for the same. He had rendered
long 23 years 11 months 7 days of service, since his date of
appointment on 24.01.1994, till his retirement on 31.12.2017. Being
the post held by the late husband of the petitioner is a Gazetted
post, (Grade-II Cadre) it was the responsibility of the Commissioner
and Secretary of the Education Department, respondent No.1 to
regularize the service of the late husband of the petitioner in
accordance with relevant Rules prevailing at the relevant time, in
view of the averment made by the respondent No.3, the Director of
Elementary Education, Assam in the affidavit-in opposition at para
No.8.
19.1. Now, to get rid of the mess committed by the respondent
No.1, and also instead of complying with the direction issued by this
Court in WP(C) No. 6896/2018, he has sent the file to other
departments, including the ARTP&PG Department and further it
appears from the affidavit filed by the respondent No.2 that the
matter of regularization of service does not comes under the
purview of the said department. Here the question that arises is if
the matter does not comes under the purview of the ARTP&PG
department, then why the file was sent to the said department?
19.2. Further, it appears that those departments also, without
being alive to the situation, had acted like a post office and rejected
the legitimate claim of the petitioner, despite specific direction of
this Court in the order dated 25.09.2019, as if they are the appellate
authority of the High Court. The high handed attitude of the
functionaries of these departments deserves to be deprecated in
strongest terms. There cannot be any good instance of carelessness
of the respondent departments, like the present one.
20. Thus, having examined the grounds for rejection of claim of
the petitioner for pension and pensionary benefits of her late
husband, and also the ground for non regularization of service of
the late husband of the petitioner, in the light of the decisions of
Hon'ble Supreme Court in the case of Dharam Singh &
Ors.(supra) and in Talsibhai Dhanjibhai Patel (supra),
this Court is of the considered opinion that the same failed to
withstand the legal scrutiny.
21. In the result, this Court finds sufficient merit in the petition
and accordingly, the same stands allowed. By a mandamus of this
Court the respondent No.1, i.e. the Commissioner and Secretary to
the Govt. of Assam, Elementary Education Department, (now School
Education Department) is directed to regularize the service of the
petitioner within one month from the date of receipt of certified
copy of this judgment and order, and within one month thereafter,
his pension proposal (complete in all respect) has to be forwarded
to the respondent No.7 i.e. the Accountant General (A & E), Assam
and on such proposal being received, the respondent No.7 shall
release the pension and other pensionary benefits, which are legally
due to the late husband of the petitioner, to the petitioner. This
Court hope and trust that the assurance given by Mr. Baruah, the
learned standing counsel for the respondent No.7 shall be translated
into action, within a period of next 15 days of receipt of the pension
proposal.
22. Before parting with the record, this Court also considered the
submission of Mr. Borah, the learned counsel for the petitioner, to
award compensation to the petitioner as for denial of constitutional
right of the late husband of the petitioner and also for no fault of
her late husband and for compelling her late husband to approach
this Court on two occasions and the present petitioner for one
occasion and they have been compelled to suffer for long seven
years and for which the late husband of the petitioner could not be
given proper treatment while he was suffering from lung cancer.
22.1. There appears to be substance in the contention, so made
by Mr. Borah, learned counsel for the petitioner and his submission
appears to be in consonance with the provisions of Rule- 197-A of
the Assam Services (Pension) Rules, 1969. Moreover, the decisions
referred by him in this regard also supported his contention.
22.2. In the case of Bal Kishore Mody (supra), Hon'ble
Supreme Court, for delayed release of the retiral benefit to the
petitioner, had directed the respondents to pay interest @ 15% per
annum, on the retiral benefits. Again in WP(C) No. 3252/2012
(Smti. Jonali Das vs. The State of Assam and Ors.) a
Co-ordinate Bench of this Court has awarded 9% interest per
annum, upon pensionary benefit of the petitioner on account of
delayed payment. And in W.P.(C) No. 5801/2013 (Parsing
Puma @ Persingh Puma vs. The State of Assam & Ors.)
another co-ordinate Bench of this Court has awarded 12 % interest
per annum for delayed payment of arrear amount of pension
payable to the petitioner.
22.3. Accordingly, drawing premises from the illuminating
discourse, and also to meet the ends of justice, this Court is inclined
to grant interest upon the pension and pensionery benefits of the
late husband of the petitioner from the date of accrual of such
benefit till its full payment. And in the given factual backdrop, this
Court is inclined to quantify the same @9% per annum.
22.4. This matter does not end here. For full and final adjudication
of the same, this Court is constrained to move forward further. As
noticed herein above, the late husband of the petitioner retired on
superannuation on 31.12.2017. Despite his representation, his
pension and pensionary benefits have not been released. He was
compelled to approached this Court by filing WP(C) No. 6896/2018.
Then this Court had directed the respondents to release the pension
and pensioner benefits vide order dated 26.11.2018. The
respondents did not comply with that order for which contempt
proceeding was initiated. And only during pendency of the contempt
proceeding, some amount was released. On closure of the contempt
proceeding, the provisional pension of the late husband of the
petitioner was again stopped without assigning reason. Then one
I.A. (C) No. 13566/2019 was filed which was tagged with the WP(C)
No. 6896/2018 and then this Court had finally disposed of the said
WP (C) No. 6896/2018, vide order dated 25.09.2019, directing the
respondent authorities to release all the admissible retiral benefits
and pension to the deceased husband of the petitioner. But, the
husband of the petitioner died on 29.09.2019, due to lung cancer,
without receiving any retirement benefits. It is the categorical
contention of the petitioner that the same would not happened if
the deceased husband had received all pensionary dues in time.
Thereafter, the petitioner through her counsel filed a representation
on 01.09.2020, before the respondent authorities for releasing the
family pension and all other admissible benefits, but till date the
respondent authorities raised objections and had not been releasing
any amount. Moreover, the provisional pension which was paid up
to the month of April, 2019 was also not been released by the
respondent authorities after April, 2019 onwards. Only after
interference of this Court, the same is being paid now.
22.5. The sequence of events, as narrated herein above, have a
far reaching bearing upon various departments and its functionaries
of the Government. It is well settled in the catena of decisions of
Hon'ble Supreme Court, as discussed in the forgoing para, that the
pension is neither a bounty nor a matter of grace depending on the
sweet will of the employer and that it was a social welfare measure
rendering socio-economic justice to those who in the hey-day of
their life ceaselessly toiled for the employer for an assurance that in
their old age they would not be left in lurch, and that it is not an
incentive, but a reward for past service. It is equally well settled
that it is not a fundamental right, but it is a constitutional right that
has been recognized as a right to property and a person cannot be
denied his right to pension without the authority of law, which is a
constitutional mandate enshrined in Article 300 A of the
Constitution.
22.6. The failure on the part of the respondent authorities and
the respective departments and its functionaries to discharge its
obligation towards a poor fellow, who died of lung cancer without
proper treatment for non payment of pension and pensionery
benefits reflects very poorly upon the functionaries of the
respondent departments of the Government. It is difficult to believe
that this is a welfare state, at least, the conduct of its functionaries
lead us to such a painful state.
22.7. Under the given factual scenario, this Court is constrained to
direct the Chief Secretary to the Government of Assam to constitute
a High Level Committee, comprising of at least two Additional Chief
Secretaries, to enquire into the matter of non regularization of
service of the late husband of the petitioner and to fix responsibility
for the same and also to enquire as to for whose fault the pension
and pensionery benefit of the late husband of the petitioner could
not be paid for long seven years, compelling late husband of the
petitioner to die of lung cancer, without proper treatment for non -
payment of pension and pensionery benefits, in spite of existence of
OM dated 06.09.2023, which was prevalent at that time, within a
period of one week from the date of receipt of certified copy of this
judgment and order. The Committee shall furnish its report within
one month thereafter.
22.8. In the event of fixing the responsibility, upon any
functionary, the amount of interest, which has been accrued upon
the pension and pensionery benefit, shall be recovered from his
salary. The action taken report, upon the report of enquiry, to be
furnished by the said Committee shall be forwarded to the Registry
of this Court.
22.9. The Registry shall forward a copy of this judgment and
order to the Chief Secretary to the Government of Assam, by a
special messenger within one week from today. The petitioner shall
also obtain a certified copy of this judgment and order and place the
same before the respondents, as mentioned in para No.21 above.
23. In terms of above, this petition stands disposed of leaving the
parties to bear their own costs.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
