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2018 DIGILAW 1281 (GAU)

Rakhi Nath v. State of Assam

2018-08-30

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : Songkhupchung Serto, J. 1. Heard Mr. F.U. Borbhuiya, learned counsel for the petitioner and also heard Mr. B. Goswami, learned Additional Advocate General appearing for the respondent No. 1, 4 & 5, Mr. A. Hasan, learned counsel appearing for the respondent No. 6, Mr. R. Borpujari, learned Standing Counsel appearing for the Finance Department and Mr. N. Goswami, learned Government Advocate appearing for the respondent No. 2. 2. The petitioner's husband was appointed as work charged helper under the SDO (M), Flood Control Department, Silchar for a period of 3 months w.e.f. 01.10.1982, vide order No. 179, dated 07.10.82, issued by the Executive Engineer, Mechanical Division, F.C. Department in the scale of pay of Rs. 190-2-200-3-242-4-250/- P.M. plus other allowances as admissible and sanctioned by the Govt. from time to time. He continued as such till he was regularised w.e.f. 01.01.1991, vide order No. 24, dated 22.01.1991, issued by the Executive Engineer Mechanical Division F.C. Department. After continuing as regular employee as work-charge helper for more than 7 years, vide order No. 39 of 1997-98, dated 17.11.97 issued by the Executive Engineer, Silchar Mechanical F.C. Division he was promoted provisionally as work-charge Asstt. Welder in the scale of pay of Rs. 975-15-1005-20-1205-EB-20-1225-30-1435-40-1635-50-1935/- P.M. plus other allowances as admissible under rules for a period of 89 (eighty nine) days with effect from 1.12.97. After his promotion he continued in that post for about 14 years and while serving as work-charge employee he expired on 11.08.2011 leaving behind his wife i.e. the petitioner in this writ petition and 3(three) minor children. After the death of her husband GPF money of her husband was released to her but no other pensionary benefits including the family pension was given to the petitioner. Therefore, she approached the Executive Engineer concerned and the concerned Executive Engineer requested the Chief Engineer, Water Resource Department, vide his letter dated 23.09.2011, to pass necessary order so that the petitioner and her family members are able to enjoy pensionary benefits. Thereafter the petitioner submitted a representation to the Commissioner and Secretary to the Govt. of Assam, Pension and Grievances Cell on 20.01.2017 requesting him to intervene in the matter so that the family pension along with other pensionary benefits are released to her and her minor children. Thereafter the petitioner submitted a representation to the Commissioner and Secretary to the Govt. of Assam, Pension and Grievances Cell on 20.01.2017 requesting him to intervene in the matter so that the family pension along with other pensionary benefits are released to her and her minor children. Since the petitioner did not get the desired result she has come to this Court by filing the present writ petition praying for issuance of appropriate writ or order or direction directing the respondents to sanction and release the service benefits of her husband and to finalise the family pension accrued from her husband's service and pay the same within a stipulated period of time and at the earliest. 3. No affidavit has been filed by the respondents however, the learned Additional Advocate General submits that his submission is based on instruction received from the concerned authorities. 4. Mr. F.U. Borbhuiya, learned counsel for the petitioner submits that altogether the petitioner was in Government service for 28 years 9 months and 11 days counting from the time he was appointed as work-charge helper i.e. on 07.10.2008. Therefore, the petitioner is entitled to get the pensionary benefits including the family pension. The learned counsel further submits that even if one has to count the service period of the husband of the petitioner from the date he was regularised i.e. w.e.f. 1.1.1991 till he died on 11.08.2011 he was in service for 20 years 7 months and 11 days, therefore, in any case the petitioner is entitled to receive pensionary benefits that flows from the service of her husband. The learned counsel referred to Rule 31 of the Assam Services (Pension) Rules, 1969 which reads as follows:- "Conditions of qualifying service 31. The learned counsel referred to Rule 31 of the Assam Services (Pension) Rules, 1969 which reads as follows:- "Conditions of qualifying service 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 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." After referring to the above rule learned counsel submitted that the petitioner's husband was very much in govt. service and he was in substantive and permanent post and paid by the government, therefore, all the pensionary benefits including family pension ought to have been released by the respondents to the petitioner and her children since they are the legal heirs of the deceased Govt. Servant. In support of his submission the learned counsel also cited the judgment of this Court passed in the case of Pulin Goswami Vs. State of Assam and Others, reported in 2004 (3) GLR 211 para-10 and 11 of the judgment. The paragraphs are reproduced herein below:- "10. Admittedly, the appointment of the petitioner in the year 1963 has been against the Government sanctioned post. There is no denial of the fact that the pay of the petitioner was fixed by the Government from time to time and that the petitioner was granted a permanent status in course of his service. His pay as released by the Council during his tenure under it was made from the Government funds. There has been no break in service since 1963 till his retirement in the year 2000. 11. Having regard to the materials on record and the stand of the parties, I am of the view that the services rendered by the petitioner from 1963 till 1995 under the Karbi Anglong Distinct Council till he was transferred to Puranigudam Model L.P. School, Nowgong should be construed to be a pensionable service of entitling him for his pensionary benefits under the Assam Services (Pension) Rules, 1969. In my considered opinion all the conditions enumerated in Rule 31 of the said Rules for receiving pension are satisfied in the instant case and there appears to be no impediment in law to release the pensionary benefits to the petitioner. As a matter of fact from the para-wise comments produced before this court, the State authorities also appear to have initiated an exercise in this direction. The petition therefore has to succeed. It is therefore directed that the State respondents would immediately take up the case of the petitioner for release of his pensionary benefits and the process should be complete within a period of 2 months from the date of receipt the certified copy of this order." 5. The learned Additional Advocate General submitted that the minimum requirement of government servant to be entitled to pensionary benefits including family pension for his family members he should have to serve at least 20 years in a substantive and permanent post. However, in the case of the petitioner's husband after having served as helper on regular basis for 7 years he relinquished the same and accepted his appointment as work-charge, therefore when he died he was not in a substantive and regular post. As such, the requirement of 20 years length of service was not met. This has created a problem for the department to decide the issue as to whether the petitioner would be entitled to pensionary benefits from the service of her husband. The learned Counsel appearing for the other respondents are in agreement with the submission of the learned Addl. A.G. 6. In reply the learned counsel for the petitioner submitted that the appointment of the petitioner's husband to the work-charge Asstt. Weldar vide order dated 17.11.97 was on promotion though it was for a period of 89 days only. The learned counsel further submitted that the petitioner's husband on promotion was given scale of pay as was given to government employees of that level or rank appointed on regular basis. Therefore, to say that he relinquished his post and joined the post of work-charge Asstt. Weldar is not right. The learned counsel further submitted that the petitioner's husband on promotion was given scale of pay as was given to government employees of that level or rank appointed on regular basis. Therefore, to say that he relinquished his post and joined the post of work-charge Asstt. Weldar is not right. The learned counsel further submitted that the petitioner's husband thereafter served for 13 years 11 months and 24 days and his non-regularisation was not his fault but due to the inaction of the respondents, as such, his family members should not be denied the benefit of his service. The learned counsel also referred to the Office Memorandum issued by the Pension and Public Grievance Department Govt. of Assam, dated 6th September, 2003 No. PPG(P)196/92/61 which reads as follows:- "In continuance of this Deptt. O.M. No. PPG(P) 196/92/35 dated 12-9-96, it is reiterated that said O.M. clearly lays down that a Govt. Servant rendering 20 years of continuous Service without being confirmed shall be eligible for pensionary benefits. The focus is on 20 years of Continuous Service. After rendering 20 years of Service if the Govt. Servant is superannuated or incapacitated or dead is not the moot point. Any confusion in this regard is against the spirit of the O.M. referred to above. It is, therefore, clarified that pensionary benefit as contemplated in the above O.M. shall be admissible to a Govt. Servant who died after rendering 20 years of continuous Service. Other terms and conditions for eligibility of Pension shall remain same as usual." After referring to the above cited memorandum the learned counsel submitted that the case of the petitioner is covered by this O.M. 7. I have considered the submissions of the learned counsels in the light of the fact and circumstances of the case and the laws relevant thereto. There is no dispute on the fact that the petitioner was first appointed as work-charge helper on 6.10.1982, w.e.f. 1st Oct. 1982 and was regularised in that post vide order dated 22.01.1991, w.e.f. 1.1.91 and promoted to the post of work-charge Asstt. Weldar provisionally w.e.f. 1.12.97, vide order dated 17.11.97, issued by the Executive Engineer, Silchar Mechanical I.F.C. Division and continued as such till he died on 11.08.2011. Therefore, the petitioner was in service for a period of 28 years 9 months and 11 days altogether. Weldar provisionally w.e.f. 1.12.97, vide order dated 17.11.97, issued by the Executive Engineer, Silchar Mechanical I.F.C. Division and continued as such till he died on 11.08.2011. Therefore, the petitioner was in service for a period of 28 years 9 months and 11 days altogether. On careful perusal of the O.M. dated 6th September, 2003 referred to by the learned counsel for the petitioner contents of which has been re-produced in the above paragraph it appears that the focus is on 20 years of continuous service and that is the only thing that has to be taken into consideration while determining the issue of entitlement of pensionary benefits of a government servant who died or demitted office on completion of 20 years continuous service. Taking this into consideration, I am of the view that the petitioner's husband was eligible for pension and pensionary benefits. The contention of the learned Additional A.G., that the petitioner's husband had joined work-charge Asstt. Welder after relinquishing his post of helper to which he was regularised appears to be a little far fetch because the word promoted was used in the order dated 17.11.97, issued by the Executive Engineer Silchar Mechanical F.C. Division. It is well settled principle of law that a Government order has to be read and understood as per the meaning of the word or words used therein. For proper appreciation and easy reference the relevant portion of the order of the Executive Engineer is re-produced hereunder; "In the interest of public service, Sri Bikramaditya Nath, Regular Helper is promoted provisionally as W/C Asstt. Welder in the Scale of pay Rs. 975-15-1005-20-1205-EB-20-1225-30-1435-401635-50-1935/- P.M. plus other allowances as admissible under rules for a period of 89 (eighty nine) days with effect from 1.12.97. This arrangement is made purely on temporary basis for smooth running of some emergent departmental Flood protection works etc. due to shortage of staff and will be reverted to his original post at any time without notice and without assigning any reason thereon." As stated above from the above order of the Executive Engineer there can be no doubt that the petitioner was promoted though provisionally to a higher post. Therefore petitioner's husband was in continuous service till he died on 11.08.2011. Therefore petitioner's husband was in continuous service till he died on 11.08.2011. Taking that into consideration even without counting the period of his service as helper before his regularisation in the post the petitioner's husband completed more than 20 years in service. Therefore, I am of the view that the petitioner's husband was eligible for pension and pensionary benefits, and as such, the petitioner who is none other than his wife would naturally be entitled to the benefits accrued because of her husband's service. Now, the only question is by which scale of pay the family pension would be worked out. That is left with the authorities concerned to apply the relevant rules and determine the same. 8. In view of the observations and conclusions drawn above this writ petition is disposed of with a direction particularly to the respondent No. 1 to take necessary action for granting pension and pensionary benefits to the petitioner and her minor children at the earliest but not later than 3(three) months from the date of receipt of a copy of this order.