Allowed

Aminul Hoque Barbhuiya v. the State of Assam and 5 Ors.

Gauhati HC1 Aug 2018WP(C)/893/2017

Case brief

AI extract

What is this about?

In a writ petition, the court held that the petitioner's father, a provincialized Panchayat Secretary, is entitled to pension based on judgments granting relief to similarly situated employees. The court rejected the State's reliance on a specific notification excluding the petitioner from a 354-name list as discriminatory under Article 14 and directed the authorities to finalize the pension propo

What did the court decide?

Directing respondent to finalize petitioner's father's pension proposal within two months and make payment within one month.

Aminul Hoque Barbhuiya Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2018)

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Page No.# 1/7

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GAHC010122332017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 893/2017

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1:AMINUL HOQUE BARBHUIYA S/O. SAFIQUE UDDIN BARBHUIYA, VILL. and P.O.- KRISHAPUR, DIST. KACHAR, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM and 5 ORS.

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REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT and RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI- 06.

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2:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPTT. DISPUR GUWAHATI- 06.

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3:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI- 06.

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4:THE COMMISSIONER PANCHAYAT and RURAL DEVELOPMENT ASSAM JURIPAR SIX MILE GUWAHATI- 37.

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5:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX GUWAHATI- 06.

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6:THE TREASURY OFFICER

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Page No.# 2/7

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CAHSER TREASURY SILCHAR P.O. SILCHAR DIST. CACHAR ASSAM PIN

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Advocate for the Petitioner : MS. S SAIKIA Advocate for the Respondent : SC, FINANCE

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER

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Date : 01-08-2018

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1. Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Government Advocate, appearing for the respondent Nos. 1, 2, 4 and 5 and Mr. P. Nayak, learned Standing Counsel, Finance Department for the respondent Nos. 3 and 6.

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2. The petitioner’s prayer in the writ petition is for payment of pension to the petitioner’s father, for services rendered as Secretary of the Gaon Panchayat under the Cachar Zilla Parishad. The writ petitioner has filed this writ petition on the strength of a Power of attorney issued by his father on 07.10.2016.

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3. The petitioner’s case in brief is that his father was appointed as Gaon Panchayat Secretary under Cachar Zilla Parishad on 18.07.1957. His service was provincialized on 01.10.1991 and he retired from service on superannuation on 31.05.1993.

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The petitioner’s father, thereafter, made a claim for family pension and other pensionary benefits. During the relevant period of time, similarly situated persons, who were also Gaon Panchayat Secretaries of various Zilla Parishads in Assam, filed WA 145/2009 and WP(C) 4239/2009. The above two cases were disposed of by the Division Bench of this Court vide judgment and order dated 24.03.2010, the operative portion of which is as follows:-

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“We are, therefore, of the considered view that the benefit of the provisions of the Act including those for pension and other retirement dues would be available to the provincialized employees in service on and after 01.10.1991 on the basis of the length of their service reckoned from the date(s) of their initial appointments.

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Page No.# 3/7

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Needless to say, the provisions of the pension rules applicable to the State Government would apply subject to the above. Vis-a-vis, the provincialized employees who have expired on and after 01.10.1991, the benefits in terms of the Act as well as contemplated by the pension rules would be available to those eligible thereunder.

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On a totality of the considerations as hereinabove, we find no merit in the appeal. The writ petitions, claiming pension and other retirement benefits under the Act stand allowed in terms of the determination made in the present adjudication. The concerned State departmental authorities would take immediate steps for computation and release of the benefits claimed to the surviving writ petitioners and/or to the nominees, family members etc., who are otherwise entitled under the pension rules to receive the same. As it is submitted at the Bar that the writ petitioners have retired from service since long and are passing their days in great financial stringency, the process, as above, should be expedited and be completed in not later than three (3) months herefrom. No costs.”

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4. The State Government, thereafter, filed an appeal in the Apex Court against the judgment and order passed in WA 145/2009. However, the same was dismissed by the Apex Court, vide order dated 02.08.2010 in SLP(Civil) No. 19351-19360/2010.

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Thereafter, the Commissioner and Secretary to the Government of Assam issued the Order of the Governor, vide notification dated 17.03.2011, wherein it has been stated that pension and other retirement dues applicable to the State Government employees would be applicable to the provincialized Panchayat employees, who were in service on or after 01.10.1991, on the basis of the length of their service reckoned from the date(s) of the initial appointment in the service of the Panchayat.

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5. Subsequent to the above, the State Government issued a notification dated 03.07.2013, wherein the provincialized Panchayat employees, who had retired from service on or after 01.10.1991, after serving more than 10 years and not less than 20 years from their date of initial appointment, were made eligible for payment of pension as per the Assam Service (Pension) Rules, 1969.

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6. As the case of the petitioner’s father was not being considered by the State respondents, the petitioner’s father along with other similarly placed persons filed WP(C) 3771/2012, with a prayer for grant of their pensionary benefits. WP(C) 3771/2012 was disposed of vide order dated 10.09.2013, the operative portion of which is as follows:-

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“The matter pertains to pensionary benefits to the provincialized Panchayat employees. According to the petitioners, their services having been provincialized, they are entitled to get pensionary benefits taking into account their earlier services. Mr. Nair, learned counsel representing the Director of Pension has produced the copy of the notification dated 03.07.2013 which reads as follows:

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Page No.# 4/7

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Notification

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No PDA 246/2003/Pt-I/21 Dated Dispur the 3rd July 2013

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The Governor of Assam is pleased to sanction the payment of pension to the Provincialized Panchayat Employees by relaxation of provision made under Rule 31 of the Assam services (Pension) Rules, 1969 for enabling entitlement of pension whose services had been provincialised under the Assam Panchayat Employees (Provincialisation) Act, 1999 and who had retired from service on or after 01.10.1991 after serving more than 10 years and less than 20 years from the date their initial appointment as special case not to be precedent.

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Further, the Govt. Employees rendering less than 10 years of service are not eligible for pension. Therefore such Govt. employees are eligible for service gratuity under Rule 108(a) of the Assam Service (Pension) Rules, 1969.

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In view of the above, the respondents, more particularly the respondents No. 2 &5 are directed to examine the case of the petitioners as to whether they are covered by the said notification or not. Upon such examination, if it is found that the petitioners are covered by the said notification, consequential follow up action shall be taken. Let the entire exercise be carried out and completed as expeditiously as possible, but at any rate, not later than 3(three) months from today.

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This writ petition is disposed of.”

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7. Subsequent to the above developments, the Commissioner to the Government of Assam, P&RD, issued an office order dated 06.01.2014, stating that sanction had been accorded to the petitioner’s father for drawal of provisional pension @ Rs.450/- per month for a period of 1 (one) year w.e.f. 01.06.1993 to 31.05.1994. Another office order dated 06.01.2014, was also issued whereby the petitioner’s father was given Rs. 12,995/-, as provisional DCRG.

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8. The Joint Director in the office of the Commissioner, P&RD, thereafter wrote a letter dated 02.05.2014 to the Director of Pension, Assam, in respect of the submission of the pension papers including service book of the petitioner’s father. The letter stated that the pension proposal made in favour of the petitioner’s father should be treated as most immediate, as the pension case was related to the order of the High Court.

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9. The office of the Director of Pension, thereafter, wrote a letter dated 04.06.2016, to the Chief Executive Officer, Zilla Parishad, Cachar, stating that there was a deficiency in the pension papers of the petitioner’s father, inasmuch as, the order copy of the service confirmation was found to be wanting.

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In reply to the above letter, the Chief Executive Officer, Cachar Zilla Parishad, wrote

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Page No.# 5/7

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a letter dated 12.07.2016 to the Director of Pension, stating that he was resubmitting the pension case of the petitioner’s father along with a copy of the service confirmation order issued vide Government notification No. PPG.(P)116/2010/28 dated 17.03.2011. The letter dated 12.07.2016 also requested the issuance of the PPO and GPO to the petitioner’s father.

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10. Thereafter, the office of the Director of Pension again wrote a letter dated 15.09.2015 to the CEO, Cachar Zilla Parishad, stating that the pension proposal of the petitioner’s father was found to be deficient, as there was no order copy of the service confirmation and that the net qualifying service of the petitioner’s father was less than 20 years.

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In reply to the above, the CEO, Cachar Zilla Parishad, wrote a letter dated 23.09.2016, stating that the net qualifying service is 17 years 11 months and 30 days in respect of the petitioner’s father and copy of the service confirmation order was again enclosed for ready reference of the Director of Pension.

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11. The petitioner’s counsel submits that despite the above facts and circumstances, the pension of the petitioner’s father has not been finalized, only due to the notification dated 22.12.2014, which says that the name of the petitioner’s father is not in the list comprising 354 names of provincialized Panchayat employees made by the State Government, who had retired on or after 01.10.1991.

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The petitioner’s counsel submits that as it is an admitted fact that the petitioner’s father was a provincialized Panchayat employee, the absence of the name of the petitioner’s father from the list could not be a ground for denying the pensionary benefits to the petitioner’s father.

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12. The counsels for the respondents submit that the State Government had, as a special case, granted pension only to 354 provincialized Panchayat employees and the same could not be taken to be precedent for allowing the same benefits to the other retired provincialized Panchayat employees, including the petitioner’s father.

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13. I have heard the learned counsels for the parties.

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Page No.# 6/7

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14. The facts of the case make it abundantly clear that the case of the petitioner’s father is covered by the judgment and order dated 24.03.2010 passed in WA 145/2009 and the notifications dated 17.03.2011 and 03.07.2013.

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15. The notification dated 22.12.2014, on the basis of which the respondents are denying the payment of pension to the petitioner’s father, is reproduced below:-

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“After careful observation of P&RD Department’s Notification No. PDA 246/2003/Pt-i/21 dated 3^rd July, 2013 and Order No. PDA 246/2003/Pt-I/26 dated 11^th Nov, 2014 and Director of Pension’s letter No. DP186/Pt-II/2011/48 dated 09.06.2014, the Governor of Assam is pleased to allow pension and other retirement benefits to the retirees numbering 354 (three hundred & fifty four numbers) of Provincialized PRi Employees who had retired from service on or after 01.10.1991 rendering more than 10 years but less than 20 years of Govt. service from the date of their initial appointment in relaxation of Rule 31 of Assam Services (Pension) Rule, 1969 by invoking the provisions of Rule 235 of the said Rules as per Govt. Notification No. PPG(P)116/2010/28 dated 17.03.2011 as a special case not to be treated as precedent.

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Further, the govt. Employees rendering less than 10 years of service are not eligible for pension but are entitled to service gratuity under Rule 108 (a) of the Assam Services (Pension) Rules, 1969.

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This has the approval of Hon’ble Chief Minister, Assam. ”

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The above notification dated 22.12.2014 cannot be made the basis for not giving pension to the petitioner’s father, as he is similarly situated as the 354 provincialized Panchayat employees, reflected in the notification dated 22.12.2014. Article 14 of the Constitution of India does not permit discrimination and as the law has to be applied equally to persons who are similarly situated, the benefits given under the earlier notifications dated 17.03.2011 and 03.07.2013 cannot be denied to the petitioner. Further, the judgment and order dated 24.03.2010 passed in WA 145/2009 and the order dated 10.09.2013 passed in WP(C) 3771/2012 have attained finality. The petitioner’s father is also entitled to pension as per the notifications dated 17.03.2011 and 03.07.2013. This is also accepted by the State respondents, inasmuch as, they have already initiated the process for payment of pension to the petitioner’s father by submitting a pension proposal to the competent authority. They have also paid the provisional pension to the petitioner’s father for 1 (one) year and also paid the provisional DCRG. The judgment and orders passed in the above cases have also been implemented by the State respondents by issuing various notifications, which covers the case of the petitioner’s father.

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Page No.# 7/7

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16. The stand taken by the Directorate of Pension that the pension papers of petitioner’s father are found deficient is not supported by the documents on record, inasmuch as, the petitioner’s father had worked for more than 30 years prior to his service as Gaon Panchayat Secretary being provincialized. Further, in the case of Someswar Kakati –Vs- State of Assam and 6 others (WP(C) 4873/2017), this Court, vide order dated 11.07.2018, has held that the deficiency regarding want of service confirmation order was not sustainable, in view of the fact that the petitioner therein (who was a provincialized Panchayat employee) had rendered service of 19 years 5 months and 10 days even without confirmation. The Court had accordingly directed the respondents to process payment of pensionary benefits to the petitioner therein.

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In the present case however, the letter issued by the CEO, Cachar Zilla Parishad, specifically states that the service confirmation order has been provided.

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17. In view of the reasons stated above, this Court finds that the non-payment of pension to the petitioner’s father is arbitrary and not in conformity with the judgment and orders passed by this Court and the notifications issued by the State Government. The State respondents, including the Directorate of Pension, are directed to finalize the pension proposal of the petitioner’s father within a period 2 (two) months from the date of receipt of a certified copy of this order and pay the same to the petitioner’s father or to his legal representatives within a further period of 1 (one) month.

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The writ petition is accordingly allowed.

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JUDGE

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Comparing Assistant

Aminul Hoque Barbhuiya v. the State of Assam and 5 Ors.

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Aminul Hoque Barbhuiya v. the State of Assam and 5 Ors.

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