Allowed

Burhan Uddin Barbhuiya v. the State of Assam and 3 Ors.

Gauhati HC13 May 2019WP(C)/934/2019

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Petitioner's case reconsidered for appointment under die in harness scheme treating father as regularly appointed w.e.f. 23.03.1990.

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Burhan Uddin Barbhuiya Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010023342019

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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) 934/2019

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1:BURHAN UDDIN BARBHUIYA S/O- LT LATIFUR RAHMAN BARBHUIYA, VILL AND P.O. UJANKUPA PARTII, P.S. AND DIST- HAILAKANDI, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS.

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TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF PUBLIC HEALTH ENGINEERING, DISPUR, GHY-6

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2:THE EXECUTIVE ENGINEER PHE HAILAKANDI DIST- HAILAKANDI ASSAM

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3:THE SUPERINTENDING ENGINEER (PHE) HAILAKANDI CIRCLE DIST- HAILAKANDI ASSAM PIN- 788151

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4:THE DY. COMMISSIONER HAILAKANDI CUM CHAIRMAN DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT DIST- HAILAKANDI ASSA

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Advocate for the Petitioner : MR M J QUADIR Advocate for the Respondent : SC, P H E

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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Page No.# 2/3

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ORDER

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Date : 13-05-2019

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Heard Mr. M.J. Quadir, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned Standing Counsel, PHE, for the respondent Nos.1 to 3 as well as Mr. D. Nath, learned Additional Senior Government Advocate for the respondent No.4.

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The grievance of the petitioner is that though the petitioner’s father was earlier serving as a Pump Operator in the Office of the Executive Engineer, PHE, Hailakandi and was brought to the regular establishment posthumously in the said post w.e.f., 23.03.1990, the concerned DLC while considering his case in their meeting held on 31.12.20118 had taken a restrictive view of the said posthumous regularization by holding that at the time when he died, he was merely working on work charge basis and as such, since the scheme for appointment under the die in harness scheme is applicable to only regular employee and not to a person who is appointed under on daily/ casual/ contract/ ad hoc/ apprenticeship basis, the case of the petitioner could not be considered and accordingly was rejected.

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It is not in dispute that the petitioner’s father who was working as a Pump Operator on work charge basis, died while in service in the said capacity, was later on posthumously brought to regular establishment w.e.f. 23.03.1990.

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It has been submitted by the learned Standing Counsel for the PHE that the said posthumous regularization of his service was for the purpose of grant of pension and since the OM relating to the scheme of appointment under the die in harness scheme postulates that the concerned Government servicemen must be appointed on regular basis at the time of death and not working on daily wages or regular or apprentice or an ad hoc basis or contract basis or retro basis, the case of the petitioner could not be considered.

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This Court is of the view that though the regularization of the work in charge appointed the petitioner’s father posthumously w.e.f., 23.03.1990, the said order has not been varied by the authorities. There is also nothing to indicate that the aforesaid regularization was only for the purpose of grant of pension. If that is so, this Court is of the view that the benefits attending regularization of service will also be available to a person though he may be posthumously regularized since the effective date has been given from the

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Page No.# 3/3

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prior date i.e., 23.03.1990, when the concerned Government employee was alive.

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In the present case, it is not also a dispute that on 23.03.1990, the petitioner’s father was alive and working, though on work charge basis but because of the order of posthumous regularization, he shall be deemed to have been regularly appointed w.e.f., 23.03.1990, by fiction of law.

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He shall be deemed to have been on regular establishment at the time of death, of fiction of law, because of the posthumous regularization from a retrospective date on which date his father was alive.

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This Court is of the view that in absence of any specific order in that regard it may be proper to restrict the scope of the said regularization only for the purpose of pension. All benefits attending the regularization of the service must be given. Accordingly, since the petitioner’s father was deemed to have been regularly appointed w.e.f. 23.03.1990 i.e. when he was alive the benefit under the die in harness scheme also can be extended to him.

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Accordingly, for the reasons discussed above, the decision taken by the DLC in their meeting held on 31.12.2018 needs to be revised/ reviewed and the petitioner’s case shall be reconsidered by the DLC again by treating his father to be on regular establishment w.e.f. 23.03.1990.

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As regards the vacancy position, it may be mentioned that the authorities will also reexamine the same in the light of Para-15 of the OM.NO.ABP.50/2006/Pt/182 dt.01.06.2015 which provides for considering the availability of vacancy in other departments not only in the department in which the deceased Government employee was serving.

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Accordingly, this petition is allowed by setting aside the decision of the DLC in their meeting held on 31.12.2018 as far as the petitioner is concerned for reconsideration for appointment under the die in harness scheme as per rules and also as observed above, preferably within a period of 3(three) months from the date of receipt of a certified copy of this order or the next DLC meeting, whichever is earlier.

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JUDGE

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Comparing Assistant

Burhan Uddin Barbhuiya v. the State of Assam and 3 Ors.

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Burhan Uddin Barbhuiya v. the State of Assam and 3 Ors.

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