Point of Law: Rule 31 of Assam Services Pension Rule, 1969 entitles a person for pension when service is under Government, secondly, employment is substantive and permanent and thirdly, servant must be paid by Government.

JUDGMENT :

A.D. Choudhury, J.

1. Heard Mr. K. Konwar, learned Additional Advocate General, Assam for the appellants representing the P&RD Department, Government of Assam. Also heard Mr. M. Islam, learned counsel for the sole respondent.

2. The factual background of the case:

I. The present intra court appeal is directed against the Judgment and Order dated 05.08.2022 passed by the learned Single Judge in WP (C) No. 4397/2022.

II. The sole respondent, who is a Gaon Panchayat Secretary, approached the Single Bench by filing the aforesaid writ petition seeking a writ of certiorari for setting aside and quashing an order dated 28.03.2018 issued by the Secretary to the Govt. of Assam, P&RD, by which the State authorities accorded ex-post-facto approval for creation of 1272 numbers of post of Gaon Panchayat Secretary with effect from 30.05.2003 to 03.02.2016. However, it was provided that such creation of post shall not be treated for the purpose of the Gaon Panchayat Secretaries to receive pension and other retiral benefits. This part of the communication dated 28.03.2018 is the offending part as pleaded by the writ petitioner.

III. The learned Single Judge allowed the writ petition and directed the appellants to pass necessary order on the entitlement of the petitioner for pension by taking note of law laid down by a Division Bench of this court in its order dated 24.03.2010 passed in Writ Appeal No. 145/2009 (The State of Assam –Vs- Syed Md. Fazlay Rabbi).

3. The arguments advanced on behalf of appellants State:

Mr. K. Konwar, learned Additional Advocate General, Assam assailing the impugned judgment advances the following arguments:-

I. The respondent was initially engaged on 08.10.1993, on daily wage basis and such wage was paid by the Panchayati Raj Institutions (PRIs) created under Assam Panchayati Raj Act, 1986 (hereinafter referred to as Act, 1986) and such engagement was not permissible under the Act, 1986 inasmuch as the mandate of the said Act was that Gaon Panchayat Secretaries were to be appointed by the State Government. Therefore, the appointment of the petitioner was itself illegal.

II. The Government of Assam by a notification dated 04.02.2006, regularized the service of the petitioner along with similarly situated Gaon Panchayat Secretaries and such order of regularization clearly mandates that such regularization shall be prospective in nature, which shall be effective from the date of their joining in the post pursuant to such order. Therefore, the initial appointment on daily wage basis cannot be counted for giving them the benefit of the Assam Services Pension Rules, 1969 (hereinafter referred to as Rules, 1969), rather they shall be covered by the New Defined Contribution Pension Scheme, 2005 (hereafter referred as to the New Pension Scheme), which came into effect on 01.02.2005. Such fact has been overlooked by the learned Single Judge.

III. As the posts in question were created in the year 2006, therefore, even if the petitioner was working in the PRI without a valid sanctioned post, such period cannot be treated as service under the Government.

IV. As the initial entry of the service of the respondent is without any due selection process and was adhoc appointment, there cannot be any question of regularization of such appointment. In support of his contention, Mr. Konwar, places reliance on the judgments of the Hon’ble Apex Court in the case of Ashwani Kumar &Ors –Vs State of Bihar reported in (1997) 2 SCC 1 and Umarani –Vs-Registrar, Cooperative Societies and Others reported in (2004) 7 SCC 112 and also Secretary, State of Karnataka and Ors –Vs-Umadevi and Ors reported in (2006) 4 SCC 1.

V. The initial engagement of the respondent was in derogation of the provision of Section 10 (6) of the Act, 1986 inasmuch as the appointment was not made by the Government. The appointment was made by an incompetent authority. In support of such contention, Mr. Konwar, relies on the decision of the Hon’ble Apex Court in the case of