The entitlement to pensionary benefits under the Assam Service Pension Rules, 1969 and other relevant laws is upheld even if an employee was under suspension and the departmental proceeding against him was not completed.

JUDGMENT

Achintya Malla Bujor Barua, J. - Heard Mr. R.C. Saikia, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned counsel for the Secondary Education Department.

2. Notice had been served on the respondent No.4 being the Principal of Tezpur Academy Higher Secondary School, Tezpur. But none appears for the respondent No.4. Considering it is a matter of 2014, we deem it appropriate to proceed with the hearing of the matter in the absence of the respondent No.4.

3. We have taken note of that the petition was instituted by Rabindra Nath Patangia claiming pensionary benefits for the services he had rendered during his service period. Rabindra Nath Patangia died on 08.11.2019 and on his death the present petitioner Smti. Bina Patangia has been substituted, being the legal heir of deceased Rabindra Nath Patangia. As it is a claim for pensionary benefit, the right to sue and to be sued of the deceased Rabindra Nath Patangia survived and therefore, we now take up the writ petition on behalf of Smti. Bina Patangia who is the legal heir of the deceased Rabindra Nath Patangia.

4. Rabindra Nath Patangia was appointed as a Lower Division Assistant in the respondent Tezpur Academy Higher Secondary School, Tezpur in the year 1970 and he was promoted as UDA in the year 1974. On an allegation of misappropriation of an amount of Rs.1250, an FIR was lodged against the deceased by the Tezpur Academy Higher Secondary School, Tezpur in the Court of the Chief Judicial Magistrate, Tezpur under Section 488/477(A) IPC. In the trial, Rabindra Nath Patangia was sentenced to under Simple Imprisonment of one year and to pay a fine of Rs.500/- for the offence under Section 408 and a further Simple Imprisonment of 6 months and a fine of Rs.300/- in the default thereof for the offence under Section 477(A). On an appeal being carried before the Additional Sessions Judge, Sonitpur, the conviction was retained but the sentence were interfered. Be that as it may, in connection with the said alleged offence against the Rabindra Nath Patangia, he was also placed under suspension in the year 1974. The deceased Rabindra Nath Patangia continued to remain suspended for the entire period of his service career till his date of superannuation on 31.01.2011. We also take note of that in the year 1974 when the deceased Rabindra Nath Patangia was placed under suspension, the respondent No.4 was at that relevant point of time an institute under the deficitgrants-in-aid.

5. The Assam Secondary Education (Provincialisation) Act, 1977 (in short Act of 1977) was enacted providing for provincialisation of secondary education covered by the deficit scheme of the Govt. of Assam. The respondent No.4 being a school under the deficit scheme of the Govt. of Assam also stood provincialized by the Act of 1977, which received the assent of the Governor on 12.10.1977 and came into force from 01.10.1977. The implication of the Act of 1977 in respect of the respondent No.4 school was that the said school was provincialised w.e.f. 01.10.1977. Section 3 of the Act of 1977 is extracted as below:

"3.Employees to be Government servants-Subject to the provision of Article 30 of the Constitution of India, on and from the appointed day all employees of all secondary schools in State of Assam shall be deemed to have become employees of the State Government of Assam with effect from the date of appointment on the following terms and conditions:-

(1) All rules including service rules and rules of conducts and discipline which are applicable to Government servant of corresponding ranks shall be applicable to all employees;

2) All employees shall get such emoluments as salary and allowances as may be prescribed;

Provided that no employee shall get as emoluments any amount which is less than the amount he was getting immediately before the appointed day.

3) Services of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this