Allowed

Baharul Islam v. the State of Assam and 5 Ors.

Gauhati HC11 Nov 2021I.A.(Civil)/1828/2021

Case brief

AI extract

What is this about?

Petitioner, a retired Head Teacher, filed an interlocutory application for provisional pension. The Court held that the allegation of excess salary drawal could not prevent the mandatory statutory payment of provisional pension under Rule 22 of the Assam Services (Pension) Rules, 1969.

What did the court decide?

Response directed to process and pay provisional pension from December 2021 onwards as per Rule 22 of the Assam Services (Pension) Rules, 1969.

Baharul Islam Vs the State of Assam and 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/3

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GAHC010177572021

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

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Case No. : I.A.(Civil)/1828/2021

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BAHARUL ISLAM

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S/O LATE SOLEMAN ALI, VILL.- KHAKHARISAL, P.O.- KHAKHARISAL, P.S.MUKALMUA, DIST.- NALBARI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS

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TO BE REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT.OF ASSAM ELEMENTARY EDUCATION DEPARTMENT, ASSAM, DISPUR, GUWAHATI 6

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT ASSAM DISPUR GUWAHATI 6

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3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19

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4:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX NEW BUILDING DISPUR-6

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5:THE BLOCK ELEMENTARY EDUCATION OFFICER PASHIM NALBARI P.O. P.S. AND DIST.-NALBARI

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Page No.# 2/3

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ASSAM

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6:THE TREASURY OFFICER NALBARI P.O. P.S. AND DIST.-NALBARI ASSAM

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Advocate for the Petitioner : MR. A M BARBHUIYA

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Advocate for the Respondent : SC, ELEM. EDU

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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11.11.2021

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Heard Mr. AM Barbhuiya, learned counsel for the applicant/writ petitioner, Mr. A Phukan, learned counsel for the respondents No. 1, 3 and 5 being the authorities under the Elementary Education Department of the Government of Assam, Mr. A Chaliha, learned counsel for the respondents No. 2 and 6 being the authorities under the Finance Department of the Government of Assam and Mr. P Saikia, learned counsel for the respondent No. 4 being the authorities in the Pension Department.

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The petitioner, who was the Head Teacher of Mohbiyeni LP School in the Nalbari district, retired on 10.08.2021 upon attaining the age of superannuation. After his retirement, a communication dated 13.09.2021 was issued by the incharge Block Elementary Education Officer of the concerned Block requiring the petitioner to refund the excess drawal of monthly salary on an allegation of having over stayed in service.

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The communication dated 13.09.2021 was assailed in WP(C) No.

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Page No.# 3/3

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4936/2021 and by the interim order dated 28.09.2021, the recovery of excess drawal of salary was stayed.

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In the circumstance, this interlocutory application is instituted for payment of provisional pension to the petitioner as the final pension has not been settled.

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Rule 22 of the Assam Services (Pension) Rules, 1969 provides that in the event of the pendency of any disciplinary proceeding or a criminal proceeding against a retired employee, it would be mandatory on the part of the authorities to pay the retired employee at least a provisional pension at a rate to be determined. The requirement of paying the provisional pension being mandatory under the law, in the instant case also, we are of the view that the existence of an allegation against the petitioner that there was an excess drawal of salary during his service period cannot be a reason for the respondent authorities not to pay the provisional pension to the petitioner.

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Accordingly, the respondents in the Elementary Education Department are directed to process and arrive at their decision as to at what rate the provisional pension is to be paid to the petitioner and upon doing the needful, pay the provisional pension from the month of December, 2021 onwards.

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The interlocutory application stands allowed to the extent indicted above.

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JUDGE

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Comparing Assistant

Baharul Islam v. the State of Assam and 5 Ors.

Case brief

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Baharul Islam v. the State of Assam and 5 Ors.

Case brief

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