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2012 DIGILAW 889 (GAU)

Bhupendra Nath Sarma v. State of Assam

2012-07-26

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. B. Sarma, learned Counsel for the petitioner. Also heard Mr. S.M.T. Chisti, learned Standing Counsel, Education Department. By way of this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to count the service rendered by him as lecturer in Bajali College for the period from 01-08-1967 to 26-07-1988 for the purpose of computation of his pension and other pensionary benefits. 2. Case of the petitioner is that after due selection he was appointed as lecturer in the department of Assamese, Bajali College, in which post he joined on 01-08-1967. At that point of time, the Bajali College was under the deficit system of Grants-in-Aid. 3. The petitioner served in the Bajali College from 01-08-1967 to 26-07-1988, initially as lecturer and finally as selection grade lecturer. 4. Thereafter, on being selected and recommended by the Assam Public Service Commissioner (APSC), the petitioner was appointed as Inspector of Schools, Sonitpur District Circle on 13-07-1988, which was modified and he joined as Inspector of Schools, Nalbari District Circle on 27-08-1988. When the petitioner joined as Inspector of Schools, he retained his lien on the post held by him in the Bajali College and he was released from the service of the Bajali College on completion of the maximum period of lien. Subsequently, the Government regularised the period when the petitioner left the college till he joined as Inspector of Schools. The Education Department fixed the pay of the petitioner by reckoning the pay drawn by the petitioner as selection grade lecturer. 5. The petitioner retired from service on 31-12-1998 on reaching the age of superannuation. Thus the petitioner had rendered service in the Bajali College for the period from 01-08-1967 and 26-07-1988 and in the Education Department from 27-08-1988 to 31-12-1998. 6. The authorities of the Education Department released the pension and other pensionary benefits to the petitioner vide Pension Payment Order No. KAM-77559 in the year 2000 by authorizing to him a monthly pension of Rs. 2175/- only. The said pension was sanctioned by taking into consideration the period of service rendered by the petitioner in the Education Department only i.e. for the period of 27-08-1988 to 31-12-1998. The earlier period of service rendered by the petitioner in the Bajali College was not included while computing his pension and other pensionary benefits. 7. 2175/- only. The said pension was sanctioned by taking into consideration the period of service rendered by the petitioner in the Education Department only i.e. for the period of 27-08-1988 to 31-12-1998. The earlier period of service rendered by the petitioner in the Bajali College was not included while computing his pension and other pensionary benefits. 7. After the enactment of the Assam College Employees (Provincialisation) Act, 2005, the Bajali College was provincialised. As the ex-employees of the Bajali College became entitled to pension subject to return of the Contributory Provident Fund (CPF) amount drawn by them, the petitioner deposited with the Government an amount of Rs. 15,277/- which he had earlier drawn as CPF. Petitioner claimed pension for the service rendered in the Bajali College but there was no response. 8. Though the petitioner submitted representation dated 22-04-2002 and appeal dated 02-03-2006 for counting the period of service rendered in the Bajali College towards computation of his pension, no decision was taken by the authority in this regard. 9. Aggrieved, the petitioner is before this Court. Though the case is pending before this Court since the year 2006, no affidavit has been filed by the respondents. 10. Learned counsel for the petitioner submits that the service rendered by the petitioner in the Bajali College could not have been excluded while computing his pensionable service. He submits that as per the Assam College Employees (Provincialisation) Act, 2005 (2005 Act), the petitioner is entitled to pension subject to fulfillment of the condition mentioned therein which the petitioner has complied with. Learned counsel further submits that in the case of two officers similarly placed like the petitioner, the services rendered by them prior to joining the Education Department were taken into account for the purpose of computing their pensionable service. He therefore submits that there is no justifiable reason to deny similar benefit to the petitioner. 11. Though no affidavit has been filed by the respondents, learned Standing Counsel, Education Department submits that as the representation of the petitioner is pending before the authority, the same may be directed to be considered and disposed of by a speaking order. 12. The submissions made have been considered. 13. As per section 8 of the 2005 Act, employees who retired/died prior to 01-01-2005 are entitled to superannuation pension or family pension as may be applicable under the existing pension Rules of the Government. 12. The submissions made have been considered. 13. As per section 8 of the 2005 Act, employees who retired/died prior to 01-01-2005 are entitled to superannuation pension or family pension as may be applicable under the existing pension Rules of the Government. Their entitlement to such pension is, however, dependent upon refund of the Government's share of their CPF amount within six months. It is submitted at the Bar that the aforesaid period of six months has since been extended from time to time. As noticed above, the petitioner had refunded the Government's share of his CPF amount. 14. Under Rule 31 of the Assam Services (Pension) Rules, 1969, the service of an officer does not qualify for pension unless it conforms to the following three conditions:- (1) the service must be under Government, (2) the employment must be substantive and permanent, (3) the service must be paid by Government. 15. Admittedly, the appointment of the petitioner in the Bajali College on 01-08-1967 was against a Government sanctioned post and that his aforesaid employment was a substantive and permanent one. There is also no denial of the fact that the pay of the petitioner as College lecturer was fixed by the Government from time to time and his said pay was made from Government funds. Further, there had been no break in service since 01-08-1967 till his retirement on 31-12-1998. 16. In view of the aforesaid, this Court is of the considered opinion that all the three conditions mentioned in Rule 31 of the Assam Services (Pension) Rules, 1969 are satisfied in the present case and there is no impediment to count the service rendered by the petitioner in the Bajali College towards computation of his pension. Accordingly, the service rendered by the petitioner in the Bajali College from 01-08-1967 to 26-07-1988 should be construed to be pensionable service entitling him to pension for the said period under the aforesaid Rules. 17. At this stage, it may also be noted that as pointed out by the learned counsel for the petitioner, the Government of Assam in the Education Department had taken a decision to count the past services rendered by two officers of the Department, namely, Shri Mohsin Ali and Shri B. Dev Misra, before joining the Department towards pensionary benefits. 17. At this stage, it may also be noted that as pointed out by the learned counsel for the petitioner, the Government of Assam in the Education Department had taken a decision to count the past services rendered by two officers of the Department, namely, Shri Mohsin Ali and Shri B. Dev Misra, before joining the Department towards pensionary benefits. This is contained in the departmental communication dated 08-12-1997 addressed to the Accountant General, Assam (Annexure-5 to the writ petition). 18. Having regard to the above, this Court is of the considered view that exclusion of the petitioner's service rendered in the Bajali College from 01-08-1967 to 26-07-1988 while computing his pension and other pensionary benefits is not justified. Accordingly, the respondents are directed to take into account the aforesaid period for the purpose of computation of the petitioner's pension and other pensionary benefits and, thereafter, to recalculate the petitioner's pensionary dues, both arrear and current. The aforesaid exercise shall be carried out by the State respondents within a period of 3 (three) months from the date of receipt of a certified copy of this order. 19. Writ petition accordingly stands allowed. No cost. Petition allowed.