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2015 DIGILAW 640 (GAU)

BANAMALI GOSWAMI v. STATE OF ASSAM

2015-05-27

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Heard Mr A Dasgupta, counsel for the petitioner and Mr UK Goswami, Standing Counsel, Education (Secondary) Department, Govt. of Assam. The case of the petitioner is that he was appointed as an Assistant Teacher on 21.1.1972 in Manaha High School which is a provincialised school. His services as Assistant Teacher was confirmed with effect from 2.1.1976. Thereafter, a new school, namely, Manaha Girls’ High School was established in the year 1986 and the State respondents initially granted the petitioner lien for one year w.e.f. 1.6.86. The petitioner accordingly joined Manaha Girls’ High School on 12.6.86. The petitioner’s counsel submits that the lien given by the State respondents for joining the Manaha Girls’ High School was extended from time to time upto 18.11.91 which is reflected in the order dated 5.12.97 and is also reflected in Paragraph 5 of the affidavit-in-opposition filed by the respondent No.2. Counsel for the petitioner further submits that Manaha Girls’ High School was provincialised on 19.11.91 and the petitioner was absorbed as the Headmaster of the said school on the same date. The pay of the petitioner was fixed at Rs. 2635/- on 19.11.91 in the pay scale of Rs. 1785/- to Rs. 4000/- vide order dated 11.12.97 passed by the Inspector of Schools, Morigaon. The petitioner retired as Headmaster of Manaha Girls’ High School on 30.11.2008. Thereafter, letter dated 23.6.2010 was issued by the under Secretary to the Govt. of Assam, Education (Secondary) Department and addressed to the Director of Secondary Education, Assam which is to the following effect: “Sir, With reference to your letter on the subject cited above, I am directed to say that Govt. in Education (Secondary) Department is pleased to accord approval to give full pensionary benefits towards qualifying service rendered by Shri Banamali Goswami as Asstt. Teacher in Manaha High School (Provincialised) and Manaha Girls High School, Morigaon with effect from 2-1-72 to 30-11-2008, as Shri Goswami look lien and joined in Manaha Girls High School (Ad-hoc) with effect from 12-6-86 as Headmaster and the said school was subsequently provincialised with effect from 19-11-1991 and finally Shri Goswami absorbed in Manaha Girls High School as Headmaster, who retired from Service on superannuation on 30-11-2008. Necessary follow up action may be taken accordingly. This is issued with the approval of P & P.G. Deptt. communicated vide their U/O No. 454/2009, dated 23-4-10. Necessary follow up action may be taken accordingly. This is issued with the approval of P & P.G. Deptt. communicated vide their U/O No. 454/2009, dated 23-4-10. Yours faithfully, Sd/- Under Secretary to the Govt. of Assam, Education (S)Department.”. The Inspector of Schools, Morigoan while processing the pension papers of the petitioner raised certain objections vide letter dated 6.8.2010 contending wrong fixation of pay of the petitioner in the year 1991. The Director vide letter dated 27.8.2010 submitted the objections raised by the Inspector of Schools, Morigaon to the Government for instructions whether the fixation of pay of the petitioner w.e.f 19.11.91 could be reviewed. The Under Secretary to the Govt. of Assam, Education (Secondary) Department wrote a letter dated 7.4.2011 to the Director of Secondary Education stating that the Government had no objection to review the erroneous fixation of pay and to fix the pay of the petitioner at the initial stage of Rs. 1785/- in the scale of pay of Rs. 1785/- to Rs. 4200/- per month w.e.f. 19.11.91, i.e. from the date of provincialisation of Manaha Girls’ High School and to further fix his pay on revision of pay as per ROP Rules, 1998 and ROP Rules, 2010. The petitioner being aggrieved by the letter dated 7.4.2011, has filed this writ petition praying that he should be given the full pension by fixing his pay at the rate of Rs. 2635/- w.e.f 19.11.91 and not Rs. 1785/-. Mr A Dasgupta, counsel for the petitioner submits that the respondents should have counted his past services w.e.f 2.1.72 i.e. the date on which joined Manaha High School which was a provincialised school. He also submits that the petitioner’s services in the Manaha Girls’ High School from 11.6.86 to 18.11.91 (i.e. one day before the date of provincialisation of Manaha Girls’ High School) should also be counted for the purpose of fixation of pay on 19.11.91. Petitioner’s counsel also submits that the Government having given approval for taking lien by the petitioner to Manaha Girls’ High School from 11.6.86 to 18.11.91, the State respondents committed illegality in not counting his services from 2.1.72 to 18.11.91. Petitioner’s counsel also submits that the Government having given approval for taking lien by the petitioner to Manaha Girls’ High School from 11.6.86 to 18.11.91, the State respondents committed illegality in not counting his services from 2.1.72 to 18.11.91. Counsel for the petitioner thus submits that the petitioner having rendered service in Manaha Girls’ High School on the basis of lien given by the State respondents, the State respondents cannot be now allowed to turn around and say that the service rendered in Manaha Girls’ High School prior to provincialisation cannot be counted for the purpose of fixation of his pay. Mr UK Goswami, counsel for the respondents submits that the petitioner’s initial lien was in Manaha High School w.e.f 2.1.72. His lien was transferred to Manaha Girls’ High School w.e.f 11.6.86 to 18.11.91. As the petitioner had not returned to his original post/ lien in Manaha High School and had instead been absorbed in the newly provincialised Manaha Girls’ High School w.e.f 19.11.91, the petitioner’s past services prior to 19.11.91 cannot be counted for the purpose of fixation of his pay. Accordingly, the petitioner’s pay was rightly fixed at the initial pay of Rs. 1785/- in the pay scale of Rs. 1785/- to Rs. 4200/-. Counsel for the respondents further submits that the petitioner’s lien was not terminated at any point of time and he was absorbed into the Manaha Girls’ High School on 19.11.91. He also submits that there is some factual mistake in the petitioner’s submissions, in as much as, when the petitioner joined the Manaha Girls’ High School, his pay was fixed at Rs. 1785/- as on 19.11.91. However, the Inspector of Schools issued an order on 11.12.97 to the effect that the petitioner’s pay with effect from 19.11.91 should be fixed at Rs. 2635/-, as his service period from 11.6.86 to 18.11.91, should also be counted for the purpose of fixation of his pay. Accordingly, the petitioner’s pay was fixed at Rs. 2635/- w.e.f. 19.11.91 in the year 1997. Mr UK Goswami submits that the petitioner’s pension has been finalized vide PPO No. ADP/PPO/GPO/2015-16/019942 dated 21.4.2015. The pension order dated 21.4.2015 has, however, been made on the basis of the petitioner’s pay being fixed on 19.11.91 at the rate of Rs. 1785/- and not at the rate of Rs. 2635/-. I have heard the counsels for the parties. Mr UK Goswami submits that the petitioner’s pension has been finalized vide PPO No. ADP/PPO/GPO/2015-16/019942 dated 21.4.2015. The pension order dated 21.4.2015 has, however, been made on the basis of the petitioner’s pay being fixed on 19.11.91 at the rate of Rs. 1785/- and not at the rate of Rs. 2635/-. I have heard the counsels for the parties. The respondents have also produced the service book of the petitioner which shows that the petitioner’s lien was never terminated even while he worked in the Manaha Girls’ High School from 11.6.86. The service book also shows that the petitioner’s service in the Manaha High School as Assistant Teacher was with effect from 21.1.72. The service book does not indicate anywhere that the petitioner’s service was broken at any point of time. The petitioner having rendered his service in the Manaha Girls’ High School (prior to provincialisation) w.e.f. 11.6.86 to 18.11.91 with the approval of the State respondents by retaining his lien, the respondents cannot now be allowed to ignore the service rendered by the petitioner during that period. The petitioner’s service from 1972 in Manaha High School and in Manaha Girls’ High School w.e.f 1996 to 1991 having been utilized by the State respondents and thereafter the petitioner having been absorbed in the provincialised Manaha Girls’ High School on 19.11.91 would go to show that the said shifting of the petitioner to the school subsequent to Manaha High School is a continuity in the transfer process approved by the respondents. The service book having also indicated that the entire service career of the petitioner is continuous from 1972 till his retirement, the action of the respondents in fixing his initial pay at Rs. 1785/- w.e.f 19.11.91 on the basis of the order dated 7.4.2011 issued by the Under Secretary to the Govt. of Assam, Education (Secondary) Department after the petitioner’s retirement without counting his past services from 1972 is arbitrary. It may also be noted that the petitioner retired from service on 30.11.2008 and the respondents have, without issuing any notice to the petitioner or without giving any reason, unilaterally reviewed the petitioner’s pay scale w.e.f 19.11.91 in the year 2011. A perusal of the service book shows continuity of the petitioner’s service from 1972 till the date of his retirement. Thus, the actions of the respondents are arbitrary and no justification for the same is made out. A perusal of the service book shows continuity of the petitioner’s service from 1972 till the date of his retirement. Thus, the actions of the respondents are arbitrary and no justification for the same is made out. The transfer of the petitioner from Manaha High School to the Manaha Girls’ High School with lien by the Government from 1.6.86 is a transfer in public interest. The subsequent absorption of the petitioner in the provincialised Manaha Girls’ High School has to be deemed to be a transfer in public interest. The respondents have unfairly and arbitrarily given the lowest pay fixation to the petitioner on 19.11.91 without taking into account the fact that the pay scale of the petitioner was Rs. 1785/- to Rs 4200/- (pre revised) in the year 1972 and the pay of the petitioner could not have been fixed in the year 1991 at the same amount given in 1972. Due to the aforesaid reasons, I find that the fixation of the petitioner’s pay on 19.11.91 at Rs. 1785/- is arbitrary and is accordingly set aside. The petitioner’s pay should be fixed at Rs. 2635/- as on 19.11.91 by counting his past service from 21.1.72. Accordingly, PPO No. ADP/PPO/GPO/2015-16/019942 dated 21.4.2015 which has been based upon fixation of petitioner’s pay w.e.f 19.11.91 at the rate of Rs. 1785/- is arbitrary and is accordingly set aside. The respondents shall pay to the petitioner his pension and other pensionary benefits by fixing his pay at the rate of Rs. 2635/- w.e.f 19.11.91. The Education Department shall submit the pension paper proposal of the petitioner by fixing his pay as on 19.11.91 at the rate of Rs. 2635/- and send the same to the Director of Pension within a period of six weeks from the date of receipt of a certified copy of this order. The Director of Pension shall thereafter approve and send the sanctioned amount found payable to the petitioner within a further period of one month. The letter No. ASE.260/2009/57 dt. 7.4.2011 issued by the Under Secretary to the Govt. of Assam, Education (S) Department is also set aside. The writ petition stands disposed of with the aforesaid directions. No cost.