Point of Law : Disqualification under Rule 31 of the 1969 Pension Rules would not be applicable to the case of the petitioner.

JUDGEMENT :

Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned counsel for the respondent nos.1, 3, 6, 7, 8 & 9 and Mr. R. Mazumdar, learned counsel for the respondent no.5. Mr. J. Handique, learned counsel appears for the respondent nos.2 and 4.

2. The petitioner’s case is that he was temporarily appointed as a Patowari in the office of the respondent no.9 on 10.03.1966. The petitioner was thereafter sent for training for the Recorders’ Class Certificate Course in 1982 and after completion of the course, he was given a Certificate dated 09.06.1983. However, the petitioner’s service as an untrained temporary Patowari was terminated by discharging him from service w.e.f 01.07.1982, vide order dated 23.06.1982. The petitioner thereafter did not work for 5 (five) years. The petitioner was subsequently temporarily re-appointed into service, vide order dated 11.08.1987 w.e.f. the date of joining.

3. The petitioner thereafter retired from service on attaining the age of superannuation on 29.06.2002. As no pension and other pensionary benefits was being given to the petitioner, the petitioner has filed the present writ petition 13 years later, praying for grant of pension and other pensionary benefits.

4. During the course of the proceedings of this case, the respondents came to a finding that the petitioner should have actually retired from service on 31.08.2001 and in view of the petitioner overstaying his service period, the respondents sought to recover an amount of Rs.48,069/-from the petitioner, due to excess pay given for overstay in service.

5. The petitioner’s counsel submits that the post of Patowari is a Grade-III post. He submits that as the petitioner had no hand in the overdrawal of his pay and overstay in service, the respondents cannot be allowed to make recovery of the amount of Rs.48,069/-, in terms of the judgment of the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334. He also submits that the State respondents have to count the period from 13.08.1987 to 31.08.2001, i.e. 14 years 18 days alongwith the petitioner’s earlier service period from 10.03.1966 till 01.07.1982, for the purpose of grant of pension. However, the period of five years from 01.07.1982 to 10.08.1987 was not required to be counted for the purpose of pension, as the petitioner was not in service during the said period.

6. The petitioner’s counsel submits that the petitioner having worked continuously from 10.03.1966 to 01.07.1982 and from 13.08.1997 to 31.08.2001 in a regular sanctioned post, the petitioner’s service has to be deemed to have been regularized. Further, the petitioner having been allowed to go on superannuation retirement, the petitioner cannot be denied payment of pension in terms of Rule 108 (b) of the Assam Service (Pension) Rules, 1969, herein after referred to as the ‘1969 Pension Rules’. In support of his submissions, the learned counsel for the petitioner has relied upon the judgments of the Apex Court and this Court, which are as follows:-

(1) Prem Singh Vs. State of Uttar Pradesh & Others reported in 2019 (10) SCC 516.

(2) The State of Gujarat & Others Vs. Talsibhai Dhanjibhai Patel, 2022 LiveLaw (SC) 187.

(3) Dolly Borpujari Vs. State of Assam & Others reported in 2010 (2) GLT 147.

(4) Kabiram Rajbangshi Vs. State of Assam & Others reported in 1997 (1) GLT 589.

(5) Judgment & Order dated 08.03.2018 passed in Sh. Abdul Hannan Vs. State of Assam & Others in WP(C) No. 2821/2009.

7. Mr. T.C. Chutia, learned counsel for the respondent nos. 1, 3, 6 to 9 submits that the petitioner’s service was terminated vide order dated 23.06.1982 w.e.f. 01.07.1982. He also submits that the petitioner had been suspended prior to his discharge/termination from service vide order dated 23.06.1982. Thereafter the petitioner was without a job for 5 years and he was again re-appointed as a Patowari on temporary basis vide order dated 11.08.1987. The petitioner’s serv