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2019 DIGILAW 656 (GAU)

Chaya Rani Das v. State of Assam

2019-05-27

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. M.H. Choudhury, learned counsel for the petitioner as well as Mr. J. Handique, learned Standing counsel for the respondents No. 1, 1(A) and 2. Also heard Mr. G. Baishya, learned Standing counsel for the Accountant General (A & E), Assam (respondent No.3) and Mr. N. Goswami, learned Government Advocate appears for the respondent No.4. 2. In view of the nature of grievance raised in the present writ petition, this writ petition stands admitted for hearing by issuing rule returnable forthwith. The matter has been heard on the instance of the learned counsel for all sides. 3. In this writ petition filed under Article 226 of the Constitution of India, the case projected by the learned counsel for the petitioner is that the husband of the petitioner was appointed as a Chainman in the year 1968 and in this regard he has placed reliance on the letter and a memo dated 18.08.1983 by which the provisional seniority list of the casual/temporary chainman was prepared and notified wherein the name of the husband of the petitioner appeared at Sl. No.2. The husband of the petitioner retired on 30.04.2012 on the basis of the order under memo dated 24.04.2012 and accordingly, the husband of the petitioner was released in afternoon on 30.04.2012. After his retirement, the husband of the petitioner applied for pensionary benefit but the office of the Accountant General (A & E) Assam informed the Settlement officer, Karimganj vide letter under memo dated 31.08.2012, while returning the pension case of the husband of the petitioner, that the date of joining the government service of the husband of the petitioner was 04.10.2001 and the date of retirement is 30.04.2012. Hence, his qualifying service was less than 20 years (i.e. 10 years 6 months 26 days). It was further informed that his service was not confirmed during his service period and, as such, he was not entitled to pension except terminal gratuity as per the Rule 31 and Rule 152 (1) of Assam Service (Pension) Rules, 1969 and he was requested to submit the case after observing all formalities. 4. The learned counsel for the petitioner has placed reliance on the affidavit-in-opposition filed by the respondent No.2 filed by the Additional Director of Land Records, Assam. Para-4 on which he has relied is extracted below: "4. 4. The learned counsel for the petitioner has placed reliance on the affidavit-in-opposition filed by the respondent No.2 filed by the Additional Director of Land Records, Assam. Para-4 on which he has relied is extracted below: "4. That with regard to the statements made in paragraph 10 of the writ petition, the deponent begs to state that the cases of such employees who had completed 10 years of service but less than 20 years without confirmation were referred to the Govt. seeking instructions for ex-post facto confirmation for payment of pensionery benefit and the Govt. directives are awaited. The case of the petitioner's husband is not received in this Directorate. The Settlement Officer Karimganj submitted the family pension case direct to the Accountant General Assam for which no records available in this Directorate." 5. The learned counsel for the petitioner by relying on the case of Kabiram Rajbongshi Vs. State of Assam and ors., (1997) 1 GauLT 589, Kalicharan Rabidas Vs. State of Assam and ors., (2000) 3 GauLT 206 , Naoman Ch. Kalita Vs. State of Assam & ors., (2003) 1 GauLT 523 , has projected that if confirmation was the only hurdle for the petitioner to receive pension, in those case this Court had directed that the authorities to make necessary declaration as provided under Proviso to Rule 31 of the Assam Service (Pension) Rule, 1969 as such, the petitioner is also entitled to similar order. 6. The learned counsel for the petitioner has further referred to the judgment and order dated 27.04.2006 passed by this Court in the case of Md. Jalaluddin Vs. State of Assam and others in WP(C) 6237/2004 which was followed in the case of Biswajit Debnath Vs. State of Assam and 4 others in WP(C) 7364/2015 (disposed of by order dated 19.02.2010). The direction passed by this Court is extracted below: "The confirmation service being a glorious uncertainty and the employee having no hand to it, I am of the considered opinion that it will be inappropriate not to provide pensionary and other retirement benefits to the petitioner only on that ground, more particularly when the petitioner has rendered more than 10 years of qualifying service. If the confirmation in the service of the petitioner is a hurdle, the said respondents shall take appropriate action towards ex post facto confirmation of the petitioner." 7. If the confirmation in the service of the petitioner is a hurdle, the said respondents shall take appropriate action towards ex post facto confirmation of the petitioner." 7. The learned counsel for the petitioner has also referred once again to the provisional seniority list as prepared and notified by the Office of the Settlement Officer under Officer, Karimganj the memo dated 18.08.1983 and it is submitted that the name of the petitioner, namely, Md. Jalaluddin in WP(C) 6237/04 appeared at Sl. No.1 of the said gradation list and the name of the husband of the petitioner appeared at Sl. No.2. Hence, it is submitted that as the similarly situated persons have got benefits of direction passed by this Court by directing the State respondents to take appropriate action towards ex-post facto confirmation and as the husband of the petitioner was a similarly situated Chainman, the learned counsel for the petitioner prays for a similar relief to the petitioner in this case. 8. The learned Standing counsel for the Accountant General (A & E), Assam has referred to the affidavit-in-opposition filed by the respondent No.3 and it is submitted that as per the records submitted by the Office of the Accountant General (A & E), the deceased government servant namely, Late Birendra Chandra Das, Ex-Chairman was appointed on 04.10.2001 and his date of retirement from service was quoted on 30.04.2012 and accordingly, the net qualifying service of the deceased husband of the petitioner was 10 years 6 months 21 days. Accordingly, it is submitted that unless the competent authority of the government clarifies that the husband of the petitioner fulfilled the condition of qualifying service as indicated in Rule 21 of the Assam Service (Pension) Rules, 1969 or unless the appropriate authority passes an order to issue declaration in terms of the provision appended to Rule 31 and the petitioner would not qualify for pension. Similar stand is also taken by the learned State counsel for the respondents No.1, 1(A), 2 and 4. 9. It is seen that the affidavit-in-opposition filed by the respondent No.2 is not on record. Therefore, this Court has directed the learned Standing counsel, Revenue department to provide a photocopy of the same to the Court Master to be kept on record as none of the counsel for the parties have disputed that the copy of the affidavit-in-opposition by the respondent No.2 was not served on them. Therefore, this Court has directed the learned Standing counsel, Revenue department to provide a photocopy of the same to the Court Master to be kept on record as none of the counsel for the parties have disputed that the copy of the affidavit-in-opposition by the respondent No.2 was not served on them. 10. It is seen that in para-4 of the said affidavit-in-opposition filed by the respondent No.2, it is stated that the matter has been referred to the Government, seeking instruction for ex-post facto confirmation for payment of pensionary benefits to the petitioner and the government directions are awaited, further stating that the Settlement Officer, Karimganj had submitted family pension case directly to the Accountant General Assam for which no records were available in the Office of the Directorate of Land records, Assam. It is seen that the person at Sl. No.1 of the provisional Gradation List of casual/temporary Chainman, namely, Sri Jalaluddin was the writ petitioner in WP(C) 6237/04, and that in the said Gradation list the name of the petitioner appears at Sl. No.2. Moreover, while the said Jalaluddin was given the benefit of declaration that the service rendered by him would qualify for his pension such declaration was not given in respect of the husband of the petitioner. It is also seen that another similarly situated person, namely, Biswajit Debnath, the petitioner in WP(C) 7364/15 was also allowed similar benefits. Hence, in view of similar relief being granted to other similarly situated persons, this Court is inclined to direct the Director of Land records & Surveys, Assam to examine the family pension case of the petitioner, namely, Chaya Rani Das, wife of Late Birendra Chandra Das (retired Chainman in the establishment of the Settlement Officer, Karimganj). 11. Accordingly, the petitioner is permitted to produce a certified copy of this order before the Settlement Officer, Karimganj who on receipt of the same shall forward the pension case of the petitioner along with the service book of the petitioner's husband and all other documents which may be necessary for examining the family pension case of the petitioner and the same would be sent to the Director of Land Records and Service, Assam within a period of 1(one) month from the date of receipt of the certified copy of this order. 12. 12. On receipt of the same the Director of Land Records and Service, Assam shall examine the family pension case of the petitioner and the said authority shall take a call of whether to or not to issue a declaration in terms of the proviso appended to Rule 31 of the Assam Service (Pension) Rules, 1969 which shall be done within a period of 2(two) months from the date of receipt of proposal from the Settlement Officer, Karimganj. 13. The petitioner shall be at liberty to submit a representation before the Settlement Officer, Karimganj (respondent No.4) authorities and enclose thereto any documents on which she intends to rely. 14. The writ petition stands disposed of. 15. The Rule is made absolute in terms of this order. 16. There shall be no order as to cost.