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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, J.
Thaneswar Bora S/o Lt. Ratneswar Bora – Appellant
Versus
The State Of Assam And Ors – Respondents
WP(C) 7406 of 2015
Decided on : 13-12-2023
PENSION ENTITLEMENT - GOVERNMENT EMPLOYMENT - Assam Services (Pension) Rules, 1969 - Rule 31
Fact of the Case:
The petitioner, having served in various departments of the Government of Assam, claimed for pension upon attaining the age of superannuation. The respondents contended that the petitioner, who had worked under the District Rural Development Agency (DRDA), a society under the law, was not entitled to any pension.
Finding of the Court:
The court found that the petitioner's service, initially under the Government of Assam, was later placed at the disposal of the DRDA. It held that the petitioner, after more than 40 years of service, was entitled to pension based on the principle that the State cannot benefit from its own wrong.
Issues: The main issue was whether the petitioner, after being placed at the disposal of the DRDA, was entitled to pension under the Assam Services (Pension) Rules, 1969.
Ratio Decidendi: The court relied on the principle that the State cannot benefit from its own wrong, as established in the case of State of Gujarat and Ors. Vs. Talsibhai Dhanjibhai Patel. It also emphasized that the petitioner's service, despite being placed before the DRDA, was effectively an implied deputation from the Government.
Final Decision: The court directed the respondents to pay the pension to the petitioner as per the entitlement of his last drawn salary, based on the principle established in the case of State of Gujarat and Ors. Vs. Talsibhai Dhanjibhai Patel.
JUDGMENT :
Heard Mr. P. Kataki, learned counsel for the petitioner and Mr. K. Konwar, learned Addl. Advocate General for the respondents No. 1, 2, 4 and 5, being the authorities in the P&RD and DRDA. Also heard Mr. R.K. Talukdar, learned counsel for the respondent No. 3, being the Accountant General (A&E), Assam.
2. The petitioner has a history of an employment under the respondent authorities which was taken note in the order dated 14.03.2023, wherein in course of the hearing the original service book of the petitioner was placed before the Court. The petitioner in this writ petition having served his entire career in various departments of the Government of Assam, upon attaining the age of superannuation, claims for pension.
3. The respondents take a stand that since the year 1982, the petitioner had been working under an entity which is called District Rural Development Agency (DRDA). Mr. K. Konwar, learned Addl. Advocate General for the respondents No. 1, 2, 4 and 5 takes a stand that the DRDA is a society under the law, and not a department of the Government of Assam and therefore, the petitioner is not entitled to any pension. A further stand taken is that the petitioner never worked on a permanent basis against any sanctioned post nor had been appointed by following the due procedure of law and from such point of view, he would not be entitled to any pension.
4. As per the original service book of the petitioner, it is discernible that the petitioner was initially appointed as Mandal on temporary basis as per the letter dated 09.10.1965 and thereafter he was placed in a scale of pay of Rs. 125-4-145-EB-4-165-EB. In the process the petitioner was allowed increment and he was also allowed to cross the efficiency bar as per various orders of the Settlement Officer of Dibrugarh and Lakhimpur. The records reveal that the petitioner was also granted earned leave from time to time as otherwise entitled to a regular employee. However, a stage came when the Settlement Office of Dibrugarh and Lakhimpur was probably required to have been closed and at that stage, the Assistant Settlement Officer made an endorsement in the service book of the petitioner by providing that the petitioner would be facing retrenchment from the Settlement Office and accordingly he was released from the office of the Assistant Settlement Officer as per the order dated 01.08.1979. In the aforesaid circumstance, upon being retrenched or otherwise from the Settlement Office, the petitioner was temporarily appointed as an LDA in a scale of pay for census work where again benefits of earned leave etc. was granted to the petitioner.
5. Later on, as per the order of the Deputy Commissioner, Dibrugarh dated 28.05.1981, the petitioner was made to join in the office of the Mahkuma Parishad, Tinsukia w.e.f. 01.06.1981 where he continued to work. Thereafter by the order of the Deputy Commissioner, Dibrugarh dated 26.05.1982, the petitioner was released from the office of the Mahkuma Parishad, Tinsukia and by another order of the Deputy Commissioner, Dibrugarh dated 26.05.1982 which was as per the approval of the Governing body of the agency, the petitioner was placed/appointed as an LDA temporarily under NREP work. The service book also revealed an order dated 26.05.1982 of the Deputy Commissioner, Dibrugarh by which in the interest of public service, the service of the petitioner was placed at the disposal of the Project Director, DRDA, Dibrugarh, where he worked for the balance of his entire career till superannuation sometime in the year 2005, which is sought to be corrected by Mr. P. Kataki, learned counsel for the petitioner by stating it to be 30.09.2006.
6. Whatever may be the date of superannuation, the question for decision before the Court in the aforesaid circumstance is whether the petitioner would be entitled to any pension.
7. Mr. K. Konwar, learned Addl. Advocate General refers to Rule 31 of the Assam Services (Pension) Rules, 1969 and submits that the condi
The State cannot benefit from its own wrong, and an employee, after rendering service for the complete career and upon attaining the age of superannuation, is entitled to pension.
The main legal point established in the judgment is that the period of services rendered in ad-hoc capacity against valid sanctioned posts can be counted for satisfying the qualifying period of servi....
Absence of prior permanent status disqualifies entitlement to pension under the Assam Services (Pension) Rules, despite permanent absorption in a non-pensionable establishment.
The court affirmed that an employee appointed before the New Pension Scheme is entitled to benefits under the Old Pension Scheme, regardless of any undertaking given under duress.
Pension eligibility is contingent upon completing 5 years of continuous service before a specified date, as per relevant government circulars.
Temporary service may be counted towards qualifying service for pension eligibility, emphasizing continuous service acknowledgment under relevant pension rules.
The entire service period of a Panchayat employee must be considered for pension computation, not just the provincialized period.
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