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2008 DIGILAW 692 (GAU)

Upendra Nath Misra v. State of Assam

2008-09-15

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. U. Bhuyan, learned Counsel for the Petitioner. Also heard Mr. T. Islam, learned standing counsel for the Education Department. Mr. J. Handique, learned Counsel appears for the Pension and Public Grievances Department. 2. The Petitioner, who retired as Professor of Mathematics from the Assam Engineering College, Guwahati on 31.1.1997, is before this Court to challenge the decision of the Government to grant him proportionate pension benefit by invoking Rule 98 of the Assam Services (Pension) Rules, 1969 ('the Pension Rules') by considering his service in the Engineering College from 1.7.1963 to 31.7.1993 and ignoring the services rendered by him from 1.8.1993 to 31.1.1997 (date of superannuating) on lien basis as a Reader of the Gauhati University. 3. The Petitioner while serving as a Professor in the Engineering College, which is a Govt. post in the Higher Education Department, was granted lien initially for one year by the order dated 18.6.1993 issued by the Govt. to enable him to join as a Reader of Mathematics under Gauhati University. The Petitioner was released from the Engineering College w.e.f. 31.7.1993 to join under the University and the initial lien granted to him was extended by two extension orders dated 16.3.1995 and 13.12.1995, granting him lien up to 31.7.1996. 4. While the Petitioner was serving on deputation basis in the Gauhati University, he made a request for permission to return to the post of Professor in the Engineering College and although the said application was forwarded to the Govt. by the Director of Technical Education on 10.12.1993, no decision on the request of repatriation was taken and instead the two lien extension orders referred to above were passed. The Petitioner also made a request to go on voluntary retirement prior to reaching the age of superannuating but the said request of the Petitioner also went unheeded. 5. Eventually the Petitioner reached the age of superannuate on as a Govt. servant on 31.1.1997 while serving in the Gauhati University on lien basis from 1.8.1993 to 31.1.1997. It is relevant to note that when the Petitioner joined the Gauhati University he did not opt for personable service nor for provident fund benefit and accordingly the services rendered by the Petitioner in the Gauhati University from 1.8.1993 to 31.1.1997 was purely on deputation basis. 6. It is relevant to note that when the Petitioner joined the Gauhati University he did not opt for personable service nor for provident fund benefit and accordingly the services rendered by the Petitioner in the Gauhati University from 1.8.1993 to 31.1.1997 was purely on deputation basis. 6. At the time of computation of the retirement benefits payable to the Petitioner, the Education Department by communication dated 8.11.2001 (Annexure-'G') granted only pro rata pension benefit to the Petitioner by treating his case to be covered under Rule 98 of the Pension Rules and it is not in dispute, that if the said Rule 98 is applied the Petitioner stands to lose substantial amount of retirement benefits and his service would not be considered eligible for family Pension benefit. 7. A reading of Rule 98 of the Pension Rules indicates that proportionate pension under Rule 98 is to be computed if a Govt. servant resigns his post and such resignation is accepted, for enabling the Govt. servant to continue in employment permanently under a body corporate owned and controlled by the Govt. 8. Three conditions, therefore, are required to be fulfilled in order to attract the provisions of Rule 98 of the Pension Rules: (i) there has to be a resignation by a Govt. servant; (ii) there has to be acceptance of such resignation; (iii) there has to be permanent employment under a body corporate own and controlled by the Govt. 9. In the instant case, the Petitioner has not resigned from his Govt. post of Professor of the Engineering College. Thus, the question of acceptance of his resignation from the said post does not arise. The Petitioner also was not employed under a body corporate owned and controlled by the Govt. as he was serving in the Gauhati University, which cannot be described as such an entity. Even assuming that the Gauhati University can be described as a body corporate owned and controlled by the Govt. (which of course is not the case) the employment of the Petitioner with the Gauhati University was only on deputation basis and he continued to hold a lien in his substantive Govt. post of Professor in the Engineering College. 10. Even assuming that the Gauhati University can be described as a body corporate owned and controlled by the Govt. (which of course is not the case) the employment of the Petitioner with the Gauhati University was only on deputation basis and he continued to hold a lien in his substantive Govt. post of Professor in the Engineering College. 10. Under the aforesaid circumstances when the Petitioner served the Gauhati University on deputation basis and not being permanently absorbed he continued to hold a lien in his substantive post, it is difficult to understand how the Respondent authorities had decided to apply Rule 98 of the Pension Rules to grant only pro rata pension to the Petitioner and deny him full pension benefits for the services rendered by him under the State Govt. 11. Mr. T. Islam, learned standing counsel appearing for the Education Department refers to the counter affidavit filed by the Secretary of the Higher and Technical Education Department where it is averred that as the Petitioner did not join the parent department after expiry of his lien period on 31.7.1996, he is deemed to have been absorbed by the Gauhati University authority w.e.f. 1.8.1996. It is also averred in the counter affidavit that the Petitioner accepted appointment under Gauhati University on his own volition without tendering resignation from the State Govt. service and under such circumstances there would be forfeiture of past services rendered by the Petitioner in the Govt. Engineering College. 12. Mr. Bhuyan, learned Counsel in response submits that there cannot be a deemed termination of lien and absorption by the Gauhati University as no specific order has been passed by the Govt. terminating the lien of the Petitioner and there is no order passed by the Gauhati University absorbing him on permanent basis in the services under the University. Accordingly, it is contended that there cannot be any deemed absorption or deemed termination of lien of the Petitioner. In support of this contention, the learned Counsel for the Petitioner has relied upon the Supreme Court decision in Bal Krishna Pandey v. State of Bihar AIR 1996 SC 888 , where the Supreme Court has held that "it is settled law that an employee on temporary promotion would continue to hold the lien in his substantive post until it is duly terminated". 13. 13. There cannot be any dispute with the service status of the Petitioner that on being granted lien upto 31.7.1996, the Petitioner continued to hold on substantive basis the Govt. post in his parent department at least until the said date, i.e., 31.7.1996. If the Petitioner is considered to be substantively holding the Govt. post while being deputed to serve in the Gauhati University, to deny him the benefit of the services rendered by him on deputation basis, while holding lien on his substantive basis, for the purpose of calculating his pensioner benefits would appear to be clearly unjustified by application of Rule 98 of the Pension Rules. 14. As application of Rule 98 to grant only pro rata pension to the Petitioner is found to be unjustified, the decision conveyed in the communication dated 8.11.2001 (Annexure-G) and the communication dated 2.7.2005 (Annexure-K) based on the application of the said rule is not found to be in order. Therefore, to determine the actual entitlement of the Petitioner, the authorities must consider the entitlement by application of the correct rule and not Rule 98 of the Pension Rules. 15. In view of above, this writ petition stands allowed by quashing the decisions taken on 8.11.2001 and 2.7.2005 with a further direction to the Respondent-authorities to reconsider the entitlement of the Petitioner to pensionary benefit by not invoking the Rule 98 of the Pension Rules. 16. As more than a decade has passed since the Petitioner has retired from the Govt. service, an expeditious reconsideration is required to be made and accordingly the same is directed to be made within a period of three months from the date of receipt of a copy of this Court's order by the competent authority. 17. With the aforesaid direction, this writ petition stands allowed in the manner indicated above. Petition allowed.