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2014 DIGILAW 899 (GAU)

Hussain Ali v. State of Assam

2014-09-22

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 04.05.2013 issued by the 1st respondent declining the prayer of the petitioner for pension by counting the period of his service as Sub-Registrar from 03.05.1984 rendered on commission basis and seeks a direction to the respondents to count his 24 years of service as Sub-Registrar on commission basis for the purpose of computation of pension. Facts are not disputed. However, those need to be briefly referred to facilitate adjudication of the dispute raised. 2. By order dated 28.04.1984 issued by the Deputy Secretary to the Government of Assam, Registration Department, petitioner was appointed as Sub-Registrar at Mukalmua in the then undivided district of Kamrup on commission basis. He joined on 03.05.1984. After about 24 years of service on commission basis, service of the petitioner was regularized vide Government notification dated 25.04.2008. 3. Since petitioner was to retire from service on attaining the age of superannuation on 31.03.2013, he moved the respondent No. 1 to consider the period of service rendered by him on commission basis while counting qualifying service for entitlement to pension. Be it stated that the period of service rendered by the petitioner from the date of regularization i.e. 25.04.2008 till his superannuation on 31.03.2013 did not make up the qualifying service which would entitle him to pension. Since no decision was taken on his above prayer, petitioner approached this Court by filing WP (C) No. 5044 of 2011. Following interim order of this Court, the representation of the petitioner was considered by the Principal Secretary of the Revenue and Disaster Management (Registration) Department but by the order dated 05.12.2011 the same was rejected. 4. In view of above, WP (C) No. 5044 of 2011 was closed by this Court by giving liberty to the petitioner to challenge the aforesaid order dated 05-12-2011. 5. Accordingly, petitioner filed WP (C) No. 1614 of 2012 challenging the legality and validity of the order dated 05.12.2011. 4. In view of above, WP (C) No. 5044 of 2011 was closed by this Court by giving liberty to the petitioner to challenge the aforesaid order dated 05-12-2011. 5. Accordingly, petitioner filed WP (C) No. 1614 of 2012 challenging the legality and validity of the order dated 05.12.2011. The Finance Department in its affidavit filed in WP (C) No. 1614 of 2012 took the stand that it would have no objection to examine any proposal to notionally fix the petitioner's pay under FR 22 as Sub-Registrar w.e.f. the date of his joining on commission basis till his regularization on notional basis if such a proposal was submitted by the parent department. 6. A Single Bench of this Court by order dated 19.10.2012 disposed of WP (C) No. 1614 of 2012 and remanded the matter back to the Revenue Department as well as the Finance Department to examine the case of the petitioner in the light of the observations made in the order and to pass a speaking order thereafter. The remand was made keeping in view the stand taken by the Finance Department as noticed above. 7. Petitioner retired from service on attaining the age of superannuation on 31.03.2013. 8. After obtaining the views of the Finance Department and the Pension and Public Grievances Department, the 1st respondent passed the impugned order dated 04.05.2013 rejecting the claim of the petitioner. 9. Hence the present writ petition. 10. Petitioner has contended that the impugned decision is ex-facie illegal being in violation of the letter and spirit of the order of this Court dated 19.10.2012. The impugned order is also in violation of the law laid down by the Apex Court in the case of State of U.P. vs. Chandra Prakash Pandey, (2001) 4 SCC 78 . Decision of the respondents not to include the service of the petitioner rendered on commission basis for the purpose of computation of eligible pensionable service cannot be sustained. Consequently, denial of pension to the petitioner on the ground of ineligible pensionable service cannot be justified and requires interference by this Court. 11. Case was admitted for hearing on 27.06.2013. 12. Following receipt of notice, respondent No. 2 i.e. Finance Department has filed affidavit. Consequently, denial of pension to the petitioner on the ground of ineligible pensionable service cannot be justified and requires interference by this Court. 11. Case was admitted for hearing on 27.06.2013. 12. Following receipt of notice, respondent No. 2 i.e. Finance Department has filed affidavit. Stand taken in the said affidavit is that there is no provision in the Fundamental Rules (FR) and Subsidiary Rules (SR) to allow the claim of the petitioner for fixation of his pay w.e.f. the date of his regularization on 25.04.2008 as Sub-Registrar by notionally counting his past service rendered as commission basis Sub-Registrar. The Revenue and the Disaster Management Department had advertised the post of Sub-Registrar twice through the Assam Public Service Commission (APSC) and filled up more than 40 posts in 1990 and 1997. Petitioner made no attempt to get himself appointed on regular basis. Hence claim of the petitioner is not justified and is also unacceptable. 13. Revenue and Disaster Management Department has filed an affidavit through Smti. Salma Ahmed Hussain, Joint Secretary of the Department. Stand taken in the affidavit is that Sub-Registrars appointed on commission basis cannot be treated as departmental officers until and unless they are regularized by the Department. Since the petitioner retired from service on 31.03.2013 after serving for 4 years 11 months 6 days from the date of his regularization on 25.04.2008, question of consideration of his case under FR 22 does not arise. 14. Petitioner has filed separate reply affidavits to the above two affidavits contesting the stand taken by the answering respondents and reiterating the contentions advanced in the writ petition. However, in respect of the affidavit of the Finance Department, it is additionally stated that the stand taken by the Finance Department is contrary to the stand taken in the affidavit filed in the earlier round of litigation i.e. in WP (C) No. 1614 of 2012. 15. Subsequently, in the course of hearing, respondent No. 2 i.e. the Finance Department filed an additional affidavit on 29.08.2014 stating that there is no minimum qualifying length of service for enjoying the benefits of the New Defined Contribution Pension Scheme as introduced by the Government Office Memorandum dated 06.10.2009 which is applicable to all employees of the State Government who had entered service on or after 01.02.2005. 16. Heard Mr. N. Deka, learned Counsel for the petitioner and Mr. B. Gogoi, learned Standing Counsel, Finance Department. 16. Heard Mr. N. Deka, learned Counsel for the petitioner and Mr. B. Gogoi, learned Standing Counsel, Finance Department. Also heard Mrs. V.L. Singh, learned Counsel for the Revenue and Disaster Management Department, Mr. U.K. Nair, learned Counsel for the Pension and Public Grievances Department and Mr. M. Choudhury, learned Counsel for the Inspector General of Registration. 17. While Mr. Deka, learned Counsel for the petitioner argued that service rendered by the petitioner as Sub-Registrar on commission basis cannot be excluded while computing the pensionable service, learned Counsel for the respondents are however unanimous in their submission that such service cannot be counted. They have supported the Government decision declining to count the period of service rendered on commission basis for computing pensionable service. According to them, service rendered by the petitioner since his regularization can only be counted to determine qualifying pensionable service. There is no legal basis for the petitioner's claim, they contend. Mr. B. Gogoi, learned Standing Counsel, Finance however makes a submission that since the petitioner was regularized in service on 25.04.2008 his case would come under the New Defined Contribution Pension Scheme. 18. Submissions made have been considered. 19. Before proceeding further, it would be apposite to refer to the two decisions of the Revenue and Disaster Management Department by which the claim of the petitioner has been declined. The two orders are dated 05.12.2011 and 04.05.2013. Relevant portion of the order dated 05.12.2011 reads as under:- "(1) That it is evident from the records that the Finance Department was moved several times for their concurrence towards conversion of Commission Basis Sub-Registry office, Mukalmua into Govt. Sub-Registry office with regular posts of Sub-Registrar and subordinate staff. But on each time the Finance department regretted their inability to agree to the proposal. Ultimately as per Cabinet decision dated 05.04.2007 the Mukalmua CBSR office has been provincialized vide notification No. REGN.39/2000/120 dtd. 22.06.2007 and as per concurrence of the Finance department conveyed vide their U/O No. FSI 61/08 dated 19.03.2008 the service of Md. Hussain Ali was regularized w.e.f. 25.04.2008 against newly sanctioned post of Sub-Registrar, Mukalmua created vide letter No. REGN.39/2000/125 dated 25.04.2008. Hence it is beyond the control of the Revenue & D.M. (Registration) Department to regularize the service of Md. Hussain Ali with retrospective date. (2) That it is not permissible to grant pensionary benefits to Md. Hussain Ali was regularized w.e.f. 25.04.2008 against newly sanctioned post of Sub-Registrar, Mukalmua created vide letter No. REGN.39/2000/125 dated 25.04.2008. Hence it is beyond the control of the Revenue & D.M. (Registration) Department to regularize the service of Md. Hussain Ali with retrospective date. (2) That it is not permissible to grant pensionary benefits to Md. Hussain Ali for his past service rendered as Sub-Registrar on Commission Basis for the period w.e.f. 03.05.1984 to 24.04.2008 as per provision of the Note 2(iv)(a) below the Rule 44 of the Assam Services (Pension) Rules, 1969 according to which Govt. servants, who are not in receipt of pay but are remunerated by commission, are not entitled for pension. (3) That "The Assam Registration Service Rule, 2010" has come into force w.e.f. 18.11.2010 when it was published in the official gazette while the service of Md. Hussain Ali was regularized on an earlier date i.e. w.e.f. 25.04.2008 when the aforesaid Service Rule was not in existence. Hence there is no scope for application of Rule 13(a) of the aforesaid Service Rules. (4) That the prayer for reemployment of Md. Hussain Ali is not maintainable since his prayer involves only with his own interest. There is nothing on record about his special suitability and his services being indispensible in public interest. With the above observations, it is held that the prayer of Md. Hussain Ali, Sub-Registrar, Mandia made in his representation dated 15.06.2011 cannot be accepted." Likewise, the relevant portion of the order dated 04.05.2013 reads as under:- "Taking into consideration the views of the Finance (Estt.-A) Department and the Pension and Public Grievances Department, the claim made by Md. Hussain Ali, Sub-Registrar (now retired) with regard to re-fixation of his salary and seniority alongwith payment of Pensionary and other retirement benefits w.e.f. 25.04.2008 by counting his past service rendered as Sub-Registrar on commission basis with effect from 03.05.1984 as notional service is not acceptable. Further, as the services of Md. Hussain Ali as Sub-Registrar was regularized on 28.04.2008, and all posts created after 01.02.2005 do not fall under the purview of the Assam Services (Pension) Rules, 1969, his claim for pensionary benefits under the above Pension Rules, cannot be entertained. Further, as the services of Md. Hussain Ali as Sub-Registrar was regularized on 28.04.2008, and all posts created after 01.02.2005 do not fall under the purview of the Assam Services (Pension) Rules, 1969, his claim for pensionary benefits under the above Pension Rules, cannot be entertained. Again, payment of pension to him under the New Defined Contribution Pension Scheme, 2009 is applicable for employee joining after 01.02.2005 also cannot be entertained as he has not rendered service for the minimum period required in the post of Sub-Registrar. In view of the circumstances/grounds as narrated above, Govt. regrets its inability to agree to the prayer of the petitioner for re-fixation of his pensionary/retirement benefits by counting the period of his Commission basis service from 03.05.1984." 20. Issue is not of retrospective regularization of the service of the petitioner. Question for consideration is whether the service rendered by the petitioner as Sub-Registrar on commission basis should be counted while computing his pensionable service. In the order dated 05.12.2011, the stand taken by the Govt. was that since the petitioner received remuneration by way of commission and not by way of salary, he would not be entitled for pension in view of the provisions contained in the Note 2(iv)(a) below Rule 44 of the Assam Services (Pension) Rules, 1969. Provisions of Assam Registration Service Rules, 2010, which provides for counting of such service rendered on commission basis under Rule 13(a) would not be applicable in the case of the petitioner as he was regularized on a prior date i.e., w.e.f. 25.04.2008, whereas, the Assam Registration Service Rules, 2010 came into force w.e.f. 18.11.2010. The said Rules are prospective and cannot be applied retrospectively. 21. In the second order dated 04.05.2013, which has been impugned in the present proceeding, the stand taken is that as the service of the petitioner was regularized w.e.f. 28.04.2008, his case would not fall within the purview of the Assam Services (Pension) Rules, 1961, as all the posts created after 01.02.2005 are covered by the new pension scheme, viz., New Defined Contribution Pension Scheme, 2009. 22. As already discussed above, the core issue which arises for consideration in this proceeding is whether the previous service rendered by the petitioner as Sub-Registrar on commission basis should be counted for the purpose of computation of his qualifying pensionable service? That is the moot question which requires to be gone into. 23. 22. As already discussed above, the core issue which arises for consideration in this proceeding is whether the previous service rendered by the petitioner as Sub-Registrar on commission basis should be counted for the purpose of computation of his qualifying pensionable service? That is the moot question which requires to be gone into. 23. The Registration Act, 1908 is an act to consolidate the enactments relating to registration of documents. Section 5 provides that the State Govt. shall form districts and sub-districts for the purpose of the said Act. Under Section 6, the State Govt. may appoint such persons whether public officers or not, as it thinks proper, to be Registrars of the districts and to be Sub-Registrars of the sub-districts. Under Section 7, the State Govt. shall establish in every district an office to be styled the office of the Registrar and in every sub-district, an office or offices to be styled the office of the Sub-Registrar. The Act does not distinguish between Sub-Registrars appointed on salary basis or on commission basis. Rather, Section 6 provides that the State Govt. may appoint such persons, whether public officers or not, to be the Registrars or Sub-Registrars. 24. Statutory orders have been framed under the Registration Act, 1908, which is compiled in the form of the Registration Manual, Assam (the latest one being of the year 2007) called Assam Registration Manual, 2007. As per executive orders contained in Part-II Chapter-II, Rules for appointment of Sub-Registrars are mentioned. In the Rules, there is no separate mention about recruitment of Sub-Registrars on commission basis. However, in Rule 2(11), it is stated that the powers of appointment, dismissal and suspension of Sub-Registrars rest with the Government. Rule 4 mentions that Sub-Registrars under the commission system are not entitled to continue in the service of the State Govt. after they have attained the age of 55 years without special permission. The Inspector General of Registration is empowered to grant extensions to such officers upto the age of 60 years. Extension of service beyond 60 years is not to be allowed except under orders of the State Govt. Rule 5 provides that the Sub-Registers under the commission system are not subject to ordinary Leave Rules. All leaves and extension of leaves must receive the sanction of the Inspector General. Extension of service beyond 60 years is not to be allowed except under orders of the State Govt. Rule 5 provides that the Sub-Registers under the commission system are not subject to ordinary Leave Rules. All leaves and extension of leaves must receive the sanction of the Inspector General. Under Rule 7, Sub-Registrars on commission basis are not treated as Government servants for the purpose of grant of allowance for appearance as a witness before a Court, but they would be entitled to the same allowance as professional witnesses. Rules 49 & 50 deal with the method of preparing commission bills of Sub-Registrars. Commission bills require counter signature of the Registrar and deductions are to be made on account of income tax and such other dues. 25. From a careful analysis of the above, it is evident that Sub-Registrars appointed on commission basis discharge their functions in the service of the State Government. But instead of salary, they are paid commission. Their appointment, dismissal and suspension are in the hands of the State Government. Their continuance in service beyond 55 years depends on the Inspector General of Registration and the State Government. Matters relating to their leave are regulated by the Inspector General of Registration. Deductions are made on account of income tax and other dues from their commission amount. 26. Learned counsel for the respondents have not been able to show any distinguishing feature in the nature of the work discharged by the Sub-Registrars on commission basis and by the Sub-Registrars on salary basis. The fact that both categories of Sub-Registrars discharge similar nature of duties has been acknowledged by the Assam Registration Service Rules, 2010, which have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The said Rules came into force w.e.f. 19.11.2010. Rule 13 of the Assam Registration Service Rule, 2010 provides that subject to suitability as may be decided by the Selection Board and by the appointing authority in consultation with the APSC, a Sub-Registrar employed on commission basis may be appointed to the regular cadre of Sub-Registrar of the Assam Registration Service, subject to fulfillment of three conditions, namely:- (i) Provided he has rendered continuous service as Sub-Registrar on commission basis for a period of not less than eight years. (ii) Holds a bachelor degree. (iii) Is below 45 years of age. (ii) Holds a bachelor degree. (iii) Is below 45 years of age. Though the aforesaid Rules may not have retrospective effect, nonetheless the same is an acknowledgement of the fact that Sub-Registrars, whether on commission basis or in the regular cadre, perform similar nature of job. 27. In State of Assam vs. Kanak Ch. Dutta, AIR 1967 SC 884 , a Constitution Bench of the Supreme Court was considering the question as to whether a Mouzadar appointed in the Assam Valley for collection of land revenue was a holder of civil post under the State. The Apex Court held that the State had the power and the right to select and appoint a Mouzadar and also the power to suspend and dismiss him. Though he receives remuneration by way of commission, there is a relationship of master and servant between the State and him. It was held that a Mouzadar in Assam Valley is a holder of civil post under the State. 28. Referring to the said decision in Kanak Ch. Dutta (Supra), Supreme Court in the case of Chandra Prakash Pandey (Supra), did not interfere with the decision of the Allahabad High Court that Kurk Amins appointed on commission basis for recovery of outstanding dues of the Co-operative Societies were members of the service and Govt. servants. It was held that Kurk Amins appointed on commission basis stand on the same footing as that of Kurk Amins appointed on salary basis, in whose case it was held that they held civil post and entitled to regular scale of pay. 29. In Dolly Borpujari vs. State of Assam & Others, 2010 (2) GLT 147, a Division Bench of this Court held that if an employment is of perennial nature having permanency, it would entitle the incumbent to superannuation pension. 30. From an analysis of the nature of appointment, nature of work discharged and considering the perennial nature of work, it is evident that there is a master and servant relationship between Sub-Registrars working on commission basis and the State. Viewed in the above context, there is no justifiable reason to exclude the work and the experience rendered by a Sub-Registrar on commission basis for the purpose of computing qualifying pensionable service after he is regularized and brought into the regular cadre of Sub-Registrar. Viewed in the above context, there is no justifiable reason to exclude the work and the experience rendered by a Sub-Registrar on commission basis for the purpose of computing qualifying pensionable service after he is regularized and brought into the regular cadre of Sub-Registrar. In such a case, the fact that commission was paid for the earlier period of service rendered instead of salary would not make any material difference. Reliance placed by the respondents on Note 2(iv)(a) to Rule 44 of the Assam Services (Pension) Rules, 1969 appears to be misplaced, inasmuch, as the same provides that a Govt. servant who is not in receipt of pay, but is remunerated by fees or commission, would not be entitled to pension. Here in this case, petitioner was no longer being paid commission. He was drawing regular scale of pay. Therefore his case would not come under the purview of Note 2(iv)(a) below to Rule 44 of the Assam Services (Pension) Rules, 1969. 31. Proviso to Rule 31 of the Assam Services (Pension) Rules, 1969 empowers the State Government to declare any specified kind of service as qualifying for pension. Referring to the above, this Court in the previous order dated 19.10.2012 while remanding the matter back for a fresh decision held as under:- "14. 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 25.04.2008. Now in view of his regularization of service with effect from the said date till his superannuation on 28.02.2013, 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. Now in view of his regularization of service with effect from the said date till his superannuation on 28.02.2013, 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. 15. In view of the above and since the Finance Department is not opposed to examine 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 31.122012." Though this Court stopped short of declaring that the service rendered by the petitioner on commission basis should be counted towards pension, the indication given was quite clear and discernible. Unfortunately, the respondents failed to examine the matter in tune with the letter and spirit of the aforesaid order. 32. Thus having regard to the discussions made above, claim of the petitioner that the service rendered by him as Sub-Registrar on commission basis should be included for the purpose of computation of his pensionable service has merit and deserves consideration. 33. Respondents are accordingly directed to count the service rendered by the petitioner as Sub-Registrar on commission basis prior to his regularization as Sub-Registrar on 25.04.2008 while computing his pensionable service and thereafter to grant all consequential reliefs. Writ petition is allowed, but there shall be no order as to costs. Petition Allowed.