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2016 DIGILAW 83 (GAU)

Debendra Nath Sarma v. State of Assam

2016-02-04

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER A.K. Goswami, J. - Heard Mr. B. Sarma, learned counsel for the petitioner. Also heard Mr. U. K. Nair, learned Standing counsel, Directorate of Pension, appearing for respondent No. 4; and Mr. D. Chetia, learned Standing counsel, Elementary Education Department, appearing for respondent Nos. 1 to 3. 2. As agreed to by the learned counsel for the parties, this writ petition is disposed of at the admission stage. 3. The petitioner was appointed as Assistant Teacher in Gandhia M.V. School vide appointment letter dated 04.11.1966. Subsequently, by order dated 06.11.1966, he was transferred to Bahjani M.E. School as Assistant Teacher. He retired from service on 31.12.2009. 4. It is stated by the petitioner that the petitioner was sent on deputation to Barnarddi Girls' M.V. School as its Headmaster for the period from 01.01.1986 to 27.01.1989 and, after expiry of the period of deputation, he resumed service as Assistant Teacher of Bahjani M.E. School with effect from 28.01.1989. It is also averred that during the period of deputation, he held lien on the post of his substantive appointment as Assistant Teacher in Bahjani M.E. School. After the petitioner went on superannuation, provisional pension was granted to him without finalising regular pension. This prompted the petitioner to make enquiry as to why his regular pension was not being paid and, during the course of such enquiry, the petitioner came to learn that pension proposal of the petitioner was returned back to the District Elementary Education Officer, Nalbari, due to certain deficiencies with a request to re-submit the same. A copy of the communication dated 21.01.2014, issued by the Finance and Accounts Officer of the Pension Department, Assam, was also furnished to the petitioner. Thereafter, the petitioner made certain communications to various authorities in the Government for release of his regular pension, but, till date regular pension has not been paid to the petitioner. The petitioner was given to understand verbally that the Annual Increments accorded to the petitioner during his deputation period were not admissible and, therefore, recovery of excess payment made to the petitioner in the form of Annual Increment was contemplated. The petitioner was given to understand verbally that the Annual Increments accorded to the petitioner during his deputation period were not admissible and, therefore, recovery of excess payment made to the petitioner in the form of Annual Increment was contemplated. In the backdrop of the aforesaid factual matrix, the petitioner had approached this Court by filing this writ petition with a prayer to issue a writ of mandamus to the respondent authorities to sanction his regular pension immediately and also not to recover any amount from him on account of the alleged excess drawal of pay and allowances in the form of Annual Increment during the period from 01.01.1986 to 27.01.1989. 5. Mr. Sarma, learned counsel for the petitioner has submitted that the petitioner's pension has been arbitrarily withheld by the respondent authorities on a purported notion that the lien granted to the petitioner during the period of his deputation was without the approval of the Director of Elementary Education. Drawing attention of the Court to the materials on record, Mr. Sarma submits that the same would demonstrate in unequivocal terms that the petitioner had lien during his deputation period on the basis of the approval granted by the Director of Elementary Education and that the said documents would also demonstrate that the petitioner was allowed to draw Annual Increments. It is submitted by Mr. Sarma that the petitioner could not join immediately after his deputation period had expired as he was not released by the Barnarddi High School and, therefore, by the time he could join at his original place of posting, there was a gap period of twenty-seven days and this is sought to be covered by granting extension on the strength of the letter of the Director of Elementary Education dated 28.01.1989. 6. Relying on an affidavit filed by respondent No. 2, Mr. Chetia has submitted that the petitioner was on deputation with lien as granted by the Deputy Inspector of Schools and the District Elementary Education Officer, Nalbari. 7. Mr. U.K. Nair, learned Standing counsel, Directorate of Pension, has submitted that the documents, which are part of the records in the writ petition, were not forwarded to the Directorate of Pension by the Education Department along with pension proposal. 8. I have heard the learned counsel for the parties and have perused the materials on record. 9. 7. Mr. U.K. Nair, learned Standing counsel, Directorate of Pension, has submitted that the documents, which are part of the records in the writ petition, were not forwarded to the Directorate of Pension by the Education Department along with pension proposal. 8. I have heard the learned counsel for the parties and have perused the materials on record. 9. That the petitioner was on deputation is not in dispute. What is sought to be disputed is that the petitioner did not have lien during the period of deputation, which was approved by the Director of Elementary Education. This will be apparent from the letter dated 12.10.2015, issued by the Director of Pension to the Director of Elementary Education, Assam (Annexure-A to the Additional affidavit filed by the petitioner). In the said letter dated 12.10.2015, a stand has been taken that the petitioner had availed lien sanctioned by the Deputy Inspector of Schools without prior approval of higher authority, i.e., Director of Elementary Education, Assam. By the said letter, while returning the Service Book and other documents, in original, a request was made to the Director of Elementary Education for further necessary action and to move the Government in Pension and Public Grievance Department. 10. A perusal of the order dated 25.02.1986, issued by the Deputy Inspector of Schools, Nalbari (Annexure-2) goes to show that the petitioner was granted lien for six months with effect from 01.01.1986 as per the letter No. E.A.A.9/76/186 dated 03.01.86 of the Director of Elementary Education. The order dated 31.01.1989 (Annexure-3) goes to show that lien was granted to the petitioner for a period of two years six months with effect from 01.07.1986 to 31.12.1988 on the basis of the letters under Memo Nos. ELA/9/76/207 dated 16.12.1986, ELA/9/76/209 dated 09.02.1987 and ELA/9/76/273-A dated 28.01.1989 of the Director of Elementary Education. 11. The last of the series of the orders issued in respect of lien of the petitioner is the order dated 13.03.1989 issued by the District Elementary Education Officer, Nalbari (Annexure-4), whereby extension of lien for a period of twenty-seven days, from 01.01.1989 to 27.01.1989, was granted to the petitioner in continuation of the letter of the Director of Elementary Education vide Memo No. ELA-9/76/273 dated 28.01.1989. 12. 12. By means of the additional affidavit, the petitioner has placed on record, as a part of Annexure-B, a photocopy of the order in vernacular dated 28.01.1989 and the English translation thereof, which reads as follows: "Government of Assam Office of The Director of Elementary Education: Assam No. E.L.A.-9/76/273 Dated 28.01.89 To:-The District Elementary Education Officer, Nalbari. Subject:- In connection with sanction of Lien Leave. Reference:- Your Office Letter bearing No. 946 dated 03.02.88. Sir, With reference to the subject cited above, it is hereby informed that you are directed to sanction Lien Leave to Sri Debendra Nath Sarma, Assistant Teacher of Bahjani M.V. School, w.e.f. 01.01.1988 for a period of one year. Sd/- Additional Director Elementary Education, Assam, Kahilipara, Guwahati-19" 13. The above-referred letter of the Additional Director of Elementary Education, Assam shows that the District Elementary Education Officer, Nalbari, was directed to sanction Lien Leave to the petitioner for a period of one year with effect from 01.01.1988. Apparently, the deputation period of the petitioner expired on 31.12.1988. 14. It appears from the materials on record that the Director of Elementary Education had accorded sanction for Lien by order dated 28.01.89 with retrospective effect from 01.01.1988. The affidavit filed by the Education Department is conspicuously silent in respect of the references made to the letters of the Director of Elementary Education in the letters dated 25.02.1986 (Annexure-2) and 31.01.1989 (Annexure-3). Therefore, it cannot be said that the Director of Elementary Education had not granted sanction of Lien from 01.01.1986 to 31.12.1988. Viewed in that perspective, the petitioner would be entitled to increments for the aforesaid period. 15. The submission of Mr. Sarma that there was a gap period of twenty-seven days because of his not being released by the school where he was deputed, is not reflected in the pleadings. There appears to be no order of the Director of Elementary Education granting lien for the period 01.01.1989 to 27.01.1989. At this distance of time, it will be too technical a point to raise that the petitioner did not have a valid lien from 01.01.1989 to 27.01.1989 and, as such, he is not entitled to pension. 16. There appears to be no order of the Director of Elementary Education granting lien for the period 01.01.1989 to 27.01.1989. At this distance of time, it will be too technical a point to raise that the petitioner did not have a valid lien from 01.01.1989 to 27.01.1989 and, as such, he is not entitled to pension. 16. Therefore, in the facts and circumstances of the case, I consider it appropriate to issue a writ of mandamus to the Director of Elementary Education to accord ex post facto approval granting lien to the petitioner for the period from 01.01.1989 to 27.01.1989 within a period of fifteen days from to-day and, after grant of such ex post facto approval, such order shall be communicated to the Director of Pension along with pension papers of the petitioner within a period of ten days and, thereafter, the Director of Pension will ensure that pension of the petitioner is finalised within a period of six weeks. 17. Writ petition is disposed of in terms of the above observations and directions. 18. Let a copy of this order be furnished to Mr. Chetia and Mr. Nair for their doing the needful in terms of this order.