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2017 DIGILAW 869 (GAU)

Bani Kanta Talukdar v. State of Assam

2017-07-10

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. S. Hoque, learned counsel for the petitioner. Also heard Dr. B. Ahmed, learned counsel appearing on behalf of respondent Nos. 1, 2 and 3 and Mr. R.K. Talukdar, learned counsel for the respondent No.4 and Mr. R. Borpujari, learned counsel appearing for the respondent No.5 as well as Mr. A. Chetry appearing for the Pension Department. 2. The petitioner was appointed as a Muster Roll Khalasi on 07.11.1988 in the Office of the Executive Engineer, Pahumara Rupahi Division (Irrigation) Sarupeta and since then, he continued to serve in the said capacity. Subsequently, by the notification dated 22.07.2005 of the Irrigation Department, the service of the petitioner was regularized along with other similarly situated persons. After being regularized, the petitioner superannuated from service on 28.02.2011. 3. In this writ petition, the petitioner claims for a direction that in the aforesaid factual background, the respondent authorities be directed to pay the pension to the petitioner on and from 01.03.2011 along with interest of 18% per annum. 4. Mr. A. Chetry, learned counsel for the respondent No.6 submits that the writ petitioner being a Muster Roll worker, the minimum qualifying service for being entitled for pension is 20 years. 5. It is also stated that for computing the period of 20 years, 6 years of service as Muster Roll worker has to be deducted from the calculation. The petitioner served as a Muster Roll employee from 07.11.1988 to 22.07.2005 i.e. for a period approximately 16 years and 8 months. Accordingly, if 6 years is taken out from the service rendered by the petitioner as a Muster Roll worker, the service rendered by him as a Muster Roll worker would be 16 years 8 months minus 6 years that would be equal to about 10 years 8 months. 6. Accordingly, if 6 years is taken out from the total period of service rendered by the petitioner from 07.11.1988 to 28.02.2011, which otherwise comes to about 22 years 3 months, the total service rendered by the petitioner would again be approximately 16 years and 3 months. 7. Learned counsel for the petitioner has relied upon a judgment and order of this Court rendered by Biren Chandra Das Vs. State of Assam & Ors., in WP(C) No. 6225/2016 which was decided on 25.04.2017. 8. 7. Learned counsel for the petitioner has relied upon a judgment and order of this Court rendered by Biren Chandra Das Vs. State of Assam & Ors., in WP(C) No. 6225/2016 which was decided on 25.04.2017. 8. In the said writ petition although the petitioner therein had served as a Muster Roll worker and subsequently regularized, but the issue therein was that the petitioner fell short of the 20 years qualifying service by about 6 months. 9. Accordingly, this Court by taking recourse to Rule 67 of the Assam Services (Pension) Rules 1969 (in short Rule of 1969) had directed the respondent authorities to give consideration as to whether the eligibility of pension for the said writ petitioner can be condoned. But the facts and circumstance of the present case, as already noticed is that, the petitioner fell short of the qualifying period by almost 3 years and 4 months and in such view of the matter, a similar direction for consideration under Rule 67 cannot be issued, inasmuch as under Rule 67, the Governor may condone a deficiency not exceeding twelve months in the qualifying service of an officer. 10. In the circumstance, the petitioner makes an alternative submission that his case for condoning the qualifying period of service may be considered under Rule 31 of the Rules of 1969. Rule 31 of the Rules of 1969 reads as follows:- “31. The service of an officer does not qualify for pension unless it conforms to the following three conditions:- Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent; Thirdly, the service must be paid by the Government: Provided that the Governor may, even though either or both of conditions (1) and (2) above 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.” 11. Learned counsel for the parties relies upon the proviso to the said Rule, which provides that the Governor may even though either of conditions (1) and (2) are not fulfilled, may still declare any specified kind of service rendered in a non-gazatted capacity to be qualified for pension or further 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 be counted for pension. 12. Accordingly, it is submission of the learned counsel for the parties that ends of justice would be met, if a direction is issued to the respondent authorities to give a consideration to the case of the petitioner as to whether the deficiency in his qualifying period of service can be condoned under the Proviso of Rule 31 of the Rules of 1969. 13. It is pointed out that the aforesaid process for condoning the delay would be required to be initiated by the administrative department which in the present case is the Irrigation Department. The Irrigation Department is accordingly directed to give a consideration as to whether the qualifying period of service for the purpose of being entitled to pension, can be condoned under the Proviso to Rule 31 of Rule of 1969. 14. It is made clear that this direction to give a consideration should be construed to be a direction to condone and it is to be ensured that the direction is to be construed only to be a direction to give consideration to the same and exercise their discretionary power under the proviso. The aforesaid exercise to consider as to whether the qualifying period of service of the petitioner can be condoned be carried out within a period of three months from today. Upon consideration, the authorities shall pass a speaking order by giving justifying reasons either agreeing or not agreeing to condone the qualifying period of service. With the above observation, this petition stands disposed of.