Entitlement to pensionary benefits based on service confirmation under the Assam Service (Pension) Rules, 1969.

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. 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 employe