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IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
Bidya Chandra Singha – Petitioner
Versus
State of Assam and Ors. – Respondents
W.P.(C) No. 87 of 2014
Decided On : 31-05-2016
Constitution of India,1950 - Article 14 - Assam College Employees (Provincialisation) Act 2005 - Section 8 - Article 9 - Assam Aided College Employees Rules 1960 - Assam Non-Government Management Rule 2001 - Assam Service (Pension) Rules 1969 - Assam Service (Pension) Rules 1969 and as per Rule 108 and Rule 110 - Appointed temporarily against a non-sanctioned post - Inability to grant pension - Service - Entitled to pension - Appearing for respondent Nos. learned standing counsel, Accountant General - Appearing for respondent Nos. 2 and 3, learned counsel appearing for respondent No. 6 - By an order name of Director of Pension and Public Grievances was arrayed as respondent No. 4, was struck off - Petitioner was appointed as lecturer in Department against a non-sanctioned post in College - Petitioner was appointed temporarily against a non-sanctioned post at College - He was appointed on regular basis as a Lecturer in Department in same college against a sanctioned post - Petitioner joined post - Writ petition has averred he retired submitted pension papers - Senior Accounts Officer of Office of Accountant General, Assam issued a letter to Inspector of Colleges, Office of Director, Higher Education - Expressing his inability to grant pension to petitioner on ground that petitioner served only months is 7 months less than minimum requisite years service for receiving pension as per Rules - With reference to your letter No.DHE/PEN on subject cited that as per Service Book & other documents - Appointment of lecturer was approved and his date of retirement falls on according to his date of birth his Qualifying Service stands only months at time of his retirement - At least years Qualifying Service is required to get pension as per Rule 108 no pensionary benefit is admissible to him - Connected Pension papers and Service Book in original - Lecturer are returned herewith for necessary action at your end – Held, Petitioner may have conceded in additional affidavit that going by stand taken in letter he was to retire - Factually, in conformity with 1960 Rules, he retired at age of years - Court will not bind petitioner for making - Court is more concerned in doing justice and admission made by petitioner, touching upon legal interpretation of his of retirement on a mistaken notion cannot be basis for adjudication - Admitted position as has emerged is that undoubtedly petitioner had rendered service legally - Order to apply the provisions of 2005 Act years of service rendered by petitioner had been curved out by Accountant General reducing qualifying service rendered by petitioner - Authorities is antagonistic to law and strikes a body blow on concept of Article 14 of Constitution of India - Authorities could not have deducted two years of service actually rendered by petitioner for purpose of reckoning qualifying service purportedly in compliance of Section 9 of 2005 Act to bring down age of retirement to 58 years to make it at par Government servants - Court no such idea can be imbibed or read into in Section 9 - Petitioner had rendered service for detailed analysis age of retirement of Government servants in year 2005 for purpose of adjudication of writ petition is not called for - petitioner had requisite minimum qualified service so as to make him eligible for grant of pension - Respondents are directed to finalize pension case of petitioner a period of three months from date of receipt of certified copy of this order - Petitioner may obtain a certified copy of order and place same before respondent authorities for doing needful in terms of this order - Prayer made by for grant of interest is not favourably considered because petitioner had chosen to approach Court after six years of letter - Petition stands partly allowed
Arup Kumar Goswami, J.
Heard Mr. A.M. Borbhuiya, learned counsel for the petitioner. Also heard Mr. M.K. Misra, learned standing counsel, Higher Education, appearing for the respondent Nos. 1 and 5, Mr. C. Barua, learned standing counsel, Accountant General, Assam, appearing for the respondent Nos. 2 and 3 and Mr. B.K. Purkayastha, learned counsel appearing for the respondent No. 6.
2. By an order dated 8.1.2014, the name of the Director of Pension and Public Grievances, Assam, who was arrayed as respondent No. 4, was struck off.
3. The petitioner was appointed as lecturer in the Department of Manipuri against a non-sanctioned post in Radha Madhab College, Silchar in June, 1981 and he continued as such till 1986. On 10.11.1988, the petitioner was appointed temporarily against a non-sanctioned post at Guru Charan College, Silchar. Subsequently, he was appointed on regular basis as a Lecturer in the Department of Manipuri in the same college against a sanctioned post on 26.7.1993. The petitioner joined the post on 2.8.1993. The petitioner, in the writ petition, has averred that he retired on 31.12.2004 and thereafter, submitted pension papers. On 19.11.2008, the Senior Accounts Officer of the Office of the Accountant General, Assam issued a letter to the Inspector of Colleges, Office of the Director, Higher Education, Assam expressing his inability to grant pension to the petitioner on the ground that the petitioner served only 9 years 5 months which is 7 months less than the minimum requisite of 10 years service for receiving pension as per Rules.
4. At this stage it will be appropriate to quote the said letter dated 19.11.2008:
“Office of the Accountant General (A&E) Assam,
Beltola Guwahati-29.
No. Pen-2/K-63915/1-11/PC/08/1463
dated 19/11/2008
To
The Inspector of Colleges,
O/o the Director of Higher Education,
Kahilipara, Guwahati-19.
Sub:- Pension Case in r/o Shri Bidya Chandra Singha, Retd. Lecturer.
Sir,
With reference to your letter No.DHE/PEN/2865/2008/3 dated 29/08/08 on the subject cited above, I am to state that as per Service Book & other documents, the appointment of Shri Bidya Chandra Singha, Retd. Lecturer was approved w.e.f. 02-08-1993 and his date of retirement falls on 31.12.2002 according to his date of birth i.e. 01-01-1945. Therefore, his Qualifying Service stands only 09 years and 05 months at the time of his retirement. At least 10 years Qualifying Service is required to get pension as per Rule 108 of A.S.P.R.-1969.
In the above circumstances, no pensionary benefit is admissible to him. As such, all connected Pension papers and Service Book in original in r/o Shri Bidya Chandra Singha, Retd. Lecturer are returned herewith for necessary action at your end.
Moreover, processing of such type of cases should be stopped in the initial stage, so that family of the govt. servant need not deposit 50% of the C.P.F. as it is done in this case.
Enclo:-As stated above
Yours faithfully,
Sd/-
(B. Choudhury)
Sr. Accounts Officer.”
5. An affidavit was filed by the Director of Higher Education which is based on the letter dated 19.11.2008 of the Senior Accounts Officer of the Office of the Accountant General, Assam (A&E) and thus contending that as there was short fall of 7 months, the petitioner did not have the minimum qualifying service of 10 years and so, he was not entitled to pension in terms of Rule 108 of the Assam Service (Pension) Rules, 1969 (for short the, 1969 Rules).
6. An affidavit-in-opposition was filed by the respondent Nos. 2 and 3 reiterating the stand taken in the letter dated 19.11.2008 and also taking a stand that responsibility for declaration of past temporary service rendered prior to regularization to treat the same as qualifying service under the Proviso of Rule 31 of the 1969 Rules lies with the Governor.
7. The respondent No. 6 in his affidavit stated that the petitioner retired from service on 31.12.2004 on completion of 60 years of age.
8. An additional affidavit was filed by the respondent Nos. 2
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