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2012 DIGILAW 1172 (GAU)

Md. Hussain Ali v. State of Assam

2012-10-01

B.K.SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. Heard Mr. N. Deka, learned counsel for the petitioner as well as Mr. B. Gogoi, learned Standing Counsel, Finance Department. I have also heard Mrs. V.L. Singh, learned Standing Counsel, Revenue Department. By means of this writ petition, the petitioner has prayed for a direction to the respondents to count his 24 years of service rendered on commission basis entitling him to pensionary and other retirement benefits. In the process, the petitioner has also challenged the Annexure-C order dated 3.12.2011, by which, the Government of Assam in the Revenue and D.M. (Registration) Department has rejected the case of the petitioner for such benefits. 2. The facts are in a narrow campus. The petitioner joined as Sub-Registrar on commission basis on 3.5.1984. On completion of approximately 24 years of service, he was regularized in his service as Sub-registrar by order dated 25.4.2008. Upon such regularization, he received his salary in the minimum pay scale. The petitioner is now at the verge of retirement and will retire on attaining the age of superannuation with effect from 28.2.2013. 3. When the petitioner made representation urging for counting of his past services rendered on commission basis entitling him to pensionary and other retirement benefits, the department representing by the Principal Secretary passed the impugned order dated 5.12.2011 rejecting the case of the petitioner holding that his past service on commission basis is not countable for the purpose of pension. 4. In the counter affidavit filed by the Finance Department, it has been stated that the department is not opposed to examine the case of the petitioner, if a proposal is made by the department. The Revenue Department has also filed its counter affidavit, in which, it has been stated that although regular appointments had been to the post of Sub-Registrar way back in 1992, the petitioner did not avail the opportunity for regular appointment and preferred to continue on commission basis and thus he is now precluded from raising the issue that he is entitled to pension upon counting the aforesaid 24 years of service on commission basis. It has also been stated that since the petitioner was regularized in service with effect from 25.4.2008 taking into account the period of service that the petitioner would render from the said date, his case does not come under Rule 31 of the Assam Services (Pension) Rules, 1969. 5. It has also been stated that since the petitioner was regularized in service with effect from 25.4.2008 taking into account the period of service that the petitioner would render from the said date, his case does not come under Rule 31 of the Assam Services (Pension) Rules, 1969. 5. In the rejoinder affidavit filed by the petitioner to the said counter affidavit of the Revenue Department, it has been stated that the petitioner was never apprised of the selection that was conducted in 1992. It has also been stated that even if he had been apprised of, he could have appeared being over aged. It is the case of the petitioner that Rule 31 of the said Rule does not have any application. 6. In the counter affidavit filed by the Accountant General, it has been stated that since no proposal has been received from the concerned Department, the office of the Accountant General has nothing to do with the matter at this stage. 7. Mr. N. Deka, learned counsel for the petitioner in support of his argument that the services rendered by the petitioner on commission basis is required to be counted for the purpose of pensionary and other retirement benefits has placed reliance on the following decisions: 1. (2001) 4 SCC 78 , State of UP. v. Chandra Prakash Pandey; 2. 1997 (1) GLT 589, Kabiram Rajbongshi v. State of Assam; 3. (2004) 3 GLR 211, Pulin Goswami v. State of Assam; 4. 2010 (2) GLT 147, Dolly Borpujari v. State of Assam; 5. (1996) 7 SCC 113 , Yasawant Hari Katakkar v. Union of India. 8. In Chandra Prakash Pandey (supra), the Apex Court held that Kurk Amins working in the Co-operative Society towards realization of outstanding dues on commission basis are holders of civil post. It has also been held that the said Amins are entitled salary at par with their counter parts in the Revenue Department. In this connection, it has been observed thus: 10. The question as to when a person can be said to be holder of a civil post has been the subject matter of consideration before this Court on numerous occasions. In this connection, it has been observed thus: 10. The question as to when a person can be said to be holder of a civil post has been the subject matter of consideration before this Court on numerous occasions. In the case of State of Assam v. Kanak Chandra Dutta a Constitution Bench of this Court was considering a case where a Mouzadar was appointed for collection of land revenue under the Mauzadar system prevailing in the Assam Valley whose primary duty was to collect land revenue and other government revenues. He was working as a revenue Officer and ex officio Assistant Settlement Officer exercising delegated powers of the Government and the State had the power and right to select and appoint him inasmuch as power to suspend and dismiss. The Mauzadar was drawing not a regular salary but commission by way of a remuneration. The Court observed that there must be existence of relationship of master and servant between the State and its employees and such a relationship can be established by presence of all or some of the ingredients. After due consideration of the entire matter, the Court laid down the law as follows: 11. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds and office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State. 12. Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State. 12. Counsel for the State stressed the fact that normally a Mauzadar does not draw a salary. But a post outside the regularly constituted services need not necessarily carry 'a definite rate of pay'. The post of a Mauzadar carried with it a remuneration by way of a commission on collection government dues. Counsel stressed the fact that a Mauzadar is not a whole time employee. But a post outside the regularly constituted services may be a part-time employment. The conditions of service of a Mauzadar enable him to engage in other activities. 13. In Venkata Swamy v. Supdt. Of Post Offices the Orissa High Court held, on a consideration of the relevant conditions of employment that a temporary Extra Departmental Branch Postmaster was not a person holding a civil post, by the observation in that case that a part-time employee cannot be the holder of a civil post outside the regularly constituted services is too wide and cannot be supported. 15. From a bare perusal of the aforementioned decisions of the two different Benches of the High Court it would be clear that after taking into consideration all relevant factors as laid down by this Court in its judgment referred to above, the High Court has come to the conclusion and recorded a finding of fact that Kurk Amins appointed on commission basis for recovery of outstanding dues of the cooperative societies were members of the service and government servants. On behalf of the State, it has not been challenged that the aforesaid statements of facts in the two judgments are incorrect. On behalf of the State, it has not been challenged that the aforesaid statements of facts in the two judgments are incorrect. During the course of arguments learned-Senior Counsel appearing on behalf of the State made an unsuccessful attempt to refer to a scheme prepared by the registrar of Cooperative Societies, but in view of the fact that neither any counter-affidavit was filed before the High Court nor was the said scheme filed before this Court either along with the special leave petitions or with any other affidavit, we are of the opinion that it is not possible for us to look into the said scheme; as such the same can be of no avail to the State by its mere production in Court during the course of argument. 9. In Kabiram Rajbongshi (supra), this Court has held that although the petitioner involved in the said writ petition did not have qualifying service to his credit, but the State Government is empowered to make appropriate declaration under Rue 31 of the pension Rules to count any kind of service towards pension. In the said case, the petitioner was a work charged employee under the State Government and did not have qualifying service to his credit. 10. In Pulin Goswami (supra) when the petitioner had continuously served in a post for 37 years and he was also given permanent status and fixed pay, this Court directed for payment of pensionary benefits to him. In Dolly Borpujari (supra), the Division Bench of this Court while holding that the appellant is entitled to superannuation pension also held that non completion of 20 years of service (in the said case the appellant had 14 years of service to her credit) would not stand on the way of the appellant to get pension. The appellant continued in service on the basis of the retention and extension orders passed time to time. However, when the appellant continued in the particular commission under the State Government without any intervention for long 14 years, it was held that the commission attained permanent status entitling the petitioner to pension. 11. In Yashwant Hari Katakkar (supra), the Apex Court has held that the employee having had 18-1/2 long years of quasi-permanent service was entitled to pension. 12. 11. In Yashwant Hari Katakkar (supra), the Apex Court has held that the employee having had 18-1/2 long years of quasi-permanent service was entitled to pension. 12. As noticed above, the Apex Court in Chandra Prakash Pandey (supra) held that the Kurk Amins working in the Co-operative Society for the particular purpose of realization of outstanding dues are to be treated at par with their counter part in the Revenue Department. It has also been held that they are holders of civil post. 13. In the instant case, the petitioner was appointed when there was necessity for Sub-Registrar in the particular operational area. He rendered his services to the State Government and in lieu thereof he was paid commission. While he was continuing as such, his service was regularized with effect from 25.4.2008. Now in view of his regularization of service with effect from the said date till his superannuation on 28.2.2013, will fall short of the required length of service and/or qualifying service for pension. Hence, it is the stand of the respondents that he is not entitled to monthly pension. However, Rule 31 of the Pension Rules while laying down the conditions for qualifying service has also made exception to the said provision, which provides that the Governor may even though either or both of conditions in Rule 31 are not fulfilled, (i) declare that any specified kind of service, rendered in a non-gazetted capacity shall qualify for pension, and (ii) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension. 14. In view of the above and since the Finance Department is not opposed to ex-amine the case of the petitioner on receipt of the proposal from the Revenue Department, the writ petition is disposed of directing the respondents more particularly the Revenue and Finance Department to examine the case of the petitioner in the light of the observations made above and then to pass a speaking order as expeditiously as possible, preferably within 31.12.2012. 15. Whatever may be the outcome of the examination of the case of the petitioner in the above manner, the same shall be communicated to him. With the above direction and observation, the writ petition is disposed of, without, however, any order as to costs.