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2018 DIGILAW 629 (GAU)

Kunja Bordoloi v. State of Assam

2018-04-10

MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : 1. The issue for determination is whether the petitioner is entitled to pension in terms of Rule 108 (b) of the Assam Services (Pension) Rules, 1969 whereby amount of pension is regulated in case of service of not less than 10 (ten) years. 2. Admitted facts are that way back on 25.03.1985, the petitioner Smti. Kunja Bordoloi was temporarily appointed as Lecturer in Assamese at Digboi Mahila Mahavidyalaya, Digboi. For the period between 04.10.1988 to 03.10.1989 she was granted permission to pursue M. Phil. course without pay. On completion of the course she was appointed as Lecturer in the said college against regular scale of pay. Such appointment was made on 14.09.1991. In so far as the College in question is concerned, it was brought under the deficit system of grants in aid by order dated 01.02.1989, w.e.f.01.03.1988 by order of the Director of Public Instructions, Assam. The petitioner retired from service on 31.03.2002 on attaining the age of superannuation at 60 years. Pertinent to mention, the petitioner was governed by the provisions of the Assam Aided College Employees Rules, 1960 (in short 1960 Rules) wherein at Rule 11 it is provided that an employee of an Aided College would retire on attaining the age of 60 years. By simple arithmetics, the petitioner served as Lecturer in the College for more than 10 (ten) years, thereby entitling her to the benefit of pension under Rule 108 (b) of the aforesaid Assam Services (Pension) Rules, 1969. 3. Mr. H. Buragohain, learned counsel standing for the petitioner submits that benefit of pension was introduced by the Assam College Employees (Provincialisation) Act, 2005 (in short Act of 2005). Under the 1960 Rules, an employee was only entitled to Contributory Provident Fund as per Rule 13 of the said Rules. Moreover, under the Act of 2005, more particularly Section 8 thereof, it lays down the mode of pension to employees who retired/died prior to 1st January 2005. The second proviso to Section 8 puts in a rider to the effect that in case an employee who retired/died prior to 1st January 2005 do not refund the Governments share of Contributory Provident Fund (CPF) within the stipulated period, no superannuation pension or family pension would be made admissible. The second proviso to Section 8 puts in a rider to the effect that in case an employee who retired/died prior to 1st January 2005 do not refund the Governments share of Contributory Provident Fund (CPF) within the stipulated period, no superannuation pension or family pension would be made admissible. It is the case of the petitioner that within six months from the date of coming into force of the Act of 2005 the Governments share of Contributory Provident Fund was duly refunded, making her entitled to receive pension as envisaged under Rule 108 (b) of the aforesaid Pension Rules, 1969. Mr. Buragohain also makes reference to a judgment and order dated 31.05.2016 in WP (C) 87/2014, which was rendered in similar context, in which, the petitioner therein had successfully claimed pension upon retirement from service on attaining the age of 60 years, as in the case of the petitioner herein. 4. As in the aforesaid WP (C) 87/2014 and in the present case, the respondent no. 4 i.e. the Accountant General, Assam have declined to pay pension on the ground that the petitioner have not completed the pensionable service of minimum 10 (ten) years. Justification is made by relying upon Section 9 of the Act of 2005 which provides for the age of superannuation on attaining such age at which a Government servant similarly situated superannuates. Mr. R. K. Talukdar, learned counsel standing for the respondent no. 4 submits that at the relevant time when the petitioner retired from service, the age of superannuation in respect of Government servant was 58 years and not 60 years. Meaning thereby that the petitioners date of retirement fell on 31.03.2000 and in that respect she had only completed 8 years 6 months 17 days in service. Thus, it is contended that by no stretch of imagination, the petitioner can reap the benefit flowing out of Rule 108 (b) of the Pension Rules, 1969. 5. I have heard the learned counsels for the parties and have perused the materials on record. There is no gainsaying that the College was brought under the deficit system of grants in aid by order dated 01.02.1989, effective from 01.03.1988. 5. I have heard the learned counsels for the parties and have perused the materials on record. There is no gainsaying that the College was brought under the deficit system of grants in aid by order dated 01.02.1989, effective from 01.03.1988. Also, the petitioner was appointed against regular scale of pay as Lecturer on and from 14.09.1991, in which post she continued until she retired on 31.03.2002 on attaining the age of superannuation at 60 years, as provided under Rule 11 of the 1960 Rules. Having regard to the date of appointment and the date of retirement, the petitioner undisputedly rendered service for more than 10 years. It is not the case of the respondent no. 4 that the petitioner is seeking to take advantage of pension by retaining the Government share that she had received by way of Contributory Provident Fund on her retirement. No case is made out by the respondent no. 4 establishing to the satisfaction of this Court that the petitioner has in any way contravened/violated the second proviso to Section 8 of the Act of 2005, thereby disentitling her to the benefit of pension. 6. This Court is of the opinion that under the facts and circumstances the respondent no. 4 cannot take recourse to Section 9 of the Act of 2005 to deny pension to the petitioner, which she is legitimately entitled to by dint of her service over 10 years and in terms of Rule 108 (b) of the Pension Rules, 1969. It would be pertinent to observe that the State respondents, barring the Accountant General, Assam do not oppose to the petitioners claim for pension. Rather, Mr. K. Gogoi, learned counsel representing the State submits from written instructions that the petitioner have put in more than 10 years of service as a regular Lecturer in the College in question. On record, there is also a letter of the Director of Higher Education, Assam dated 06.01.2014 (Annexure-Q) requesting the respondent no. 4 to look into the matter and issue Pension Payment Order (PPO) to the petitioner. 7. Having regard to the above, this Court is of the firm opinion that the petitioner had the requisite minimum qualifying period of service making her eligible for receiving pension in terms of Rule 108 (b) of the Pension Rules, 1969. In view thereof, let consequential action be taken by the State respondents, including the respondent no. 7. Having regard to the above, this Court is of the firm opinion that the petitioner had the requisite minimum qualifying period of service making her eligible for receiving pension in terms of Rule 108 (b) of the Pension Rules, 1969. In view thereof, let consequential action be taken by the State respondents, including the respondent no. 4, to finalise the pension case of the petitioner. Let the required exercise be completed within a period of 4 (four) months from today. Writ petition stands allowed. No cost. Written instructions, as produced by Mr. K. Gogoi, is retained as part of the records.