Disposed

MD Mahibullah Sheikh v. the State of Assam and 4 Ors.

Gauhati HC1 Mar 2021WP(C)/594/2021

Case brief

AI extract

What is this about?

Petitioner, a retired Arabic Classical Teacher, filed a writ petition for arrears of pay, increments, gratuity, and leave encashment. The court held that except for leave encashment, other prayers require filing a representation to the authority as multiparties had not requested redressal before approaching the court.

What did the court decide?

Petitioner directed to file representation before Director of Secondary Education, Assam; immediate payment ordered for 62 days leave encashment; no other relief while representation pending.

MD Mahibullah Sheikh Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010007662021

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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)/594/2021

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MD MAHIBULLAH SHEIKH

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S/O. LT. AMIN SHEIKH, VILL. AND P.O. AG GUMI, VIA- CHHAYGAON, DIST. KAMRUP, ASSAM, PIN-781131.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS THROUGH- THE COMM. AND SECY. TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPTT., DISPUR, GUWAHATI-781006

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2:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019.

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3:THE INSPECTOR OF SCHOOLS KAMRUP DISTRICT CIRCLE DADARA GUWAHATI PIN-781104 DIST. KAMRUP ASSAM.

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4:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX LAST GATE DISPUR GUWAHATI-781006. 5:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON

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BELTOLA

GUWAHATI-781029

Advocate for the Petitioner : MR. T DEWAN Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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01.03.2021

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Heard Mr. S. Das, learned counsel for the petitioner, Mr. R Mazumdar, learned counsel for the Secondary Education Department of the Government of Assam, Mr. B Deori, learned counsel for the Director of Pension, Assam and Mr. A Hasan, learned counsel for the respondent AG (A&E) Assam.

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The petitioner worked as an Arabic Classical Teacher in the Samina Anchalik High School in the Kamrup district and he retired from service upon attaining the age of superannuation on 30.04.2019. The petitioner has instituted this writ petition on the following grievances:-

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Directing/ commanding the respondent authorities to immediately pay the arrear arising out of differences in pay scale of Rs. 560/- to Rs. 1165/- as entitled and Rs. 500/- to Rs 875/- per month paid to him for the period from 01.03.1980 to 30.11.1984 to the petitioner.

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Directing/ commanding the respondent authorities to immediately pay the petitioner his entitled 3 numbers of increments due on 01.12.1989, 01.12.1991 and upon crossing of Efficiency bar.

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Directing/ commanding the respondent authorities to immediately pay the petitioner his remaining entitled DCRG (Gratuity) for 4 (four) months (i.e. entitled 18 months- 14 months paid).

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Directing/commanding the respondent authorities to immediately pay the petitioner the entitled 300 days Leave Encashment arrears i.e. 300-238 = 62 days.

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Directing the respondent authorities to immediately pay the petitioner the entitled 3% increments of MACPS w.e.f 01.01.2017 as per Order dated 30.08.2019 (Annexure No. 2) and MACP Scheme (Annexure No. 3).

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Directing the respondent authorities to refix his last pay by taking into consideration the above entitled 3% MACPS increments and enhance his pension accordingly and to pay the arrears and revised pension.

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To grant all such benefits to which the petitioner is legally entitled to including the entitled benefits arising out of revision of pay as per Pay Commissions; and after perusal of the of records, cause or cause shown if any and upon hearing the parties, Your Lordships may be pleased to make the Rule absolute and/ or pass such appropriate Order/ Orders or direction as Your Lordships may deem fir and proper in the interest of justice.

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And

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Further, it is also prayed that pending disposal the Rule, Your Lordships would be pleased to direct the respondent authorities to at least pay 50% of the aforesaid arrear, gratuity, leave encashment etc. to the petitioner as immediate financial assistance, in the interest of justice.

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The first prayer pertains to a claim of the petitioner that for the period from 01.03.1980 to 30.11.1984, he was entitled to a salary in the scale of pay of Rs.580/- to Rs.1165/- per month, but he was paid in the scale of Rs.500/- to Rs.875/- per month. The second prayer relates to three increments which were due to the petitioner during his service tenure on 01.12.1989, 01.12.1991 and the third upon crossing the Efficiency Bar.

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Mr. R Mazumdar, learned counsel for the Secondary Education Department raises an objection to the said prayer by referring to a pronouncement of this Court in Harendra Chandra Nath –vs- State of Tripura, reported in (2013) 2 GLT 1094 by taking a stand that the claim would be time barred. Regarding the third prayer, as regards entitlement of Death-cumRetirement Gratuity for four months, Mr. R Mazumdar, learned counsel contends that a calculation would be required to be made by the department on the said claim. Regarding the fourth prayer for leave encashment for 62 days which is pursuant to entitlement of 300 days, we are of the view that the petitioner would be covered by an earlier judgment in WP(C) No.20/2018 dated 05.01.2018 and the department may make a calculation of the actual number of days of leave entitlement of the petitioner that may have remained unclaimed as yet and by arriving at such figure, the required amount be paid to the petitioner within a period of two months from the date of receipt of a certified copy of this order.

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The fifth prayer of the petitioner is claiming an entitlement of 3% increment under the MACP Scheme, the sixth prayer is for re-fixing his last pay by taking into account the 3% MACP increment, which is related to prayer No.5 and the seventh prayer is a claim of such benefits that the petitioner is legally entitled that may arise out of revision of pay as per Pay Commission.

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Except for the fourth prayer, we are of the view that the other prayers require a representation to be submitted by the petitioner before the respondent authorities inasmuch as all such prayers relates to issuing a writ in the nature of mandamus and one of the prerequisite for issuing a mandamus is that the person concerned must have a legal right, the legal right must be violated and upon such violation, the authorities must be requested for redressal of the grievance and such request must be refused. The third requirement of

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making a request is not satisfied in this writ petition.

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Accordingly, the petitioner is required to file a representation before the Director of Secondary Education, Assam as regards the prayer Nos. 1, 2, 3, 5, 6 and 7 as mentioned above. Upon such representation being submitted, the Director may pass a reasoned order within a period of three months from the date of receipt of such representation.

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The writ petition stands disposed of in the above terms.

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Comparing Assistant

MD Mahibullah Sheikh v. the State of Assam and 4 Ors.

Case brief

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MD Mahibullah Sheikh v. the State of Assam and 4 Ors.

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