Partly allowed

Hc(B)(Ex-S)(Retired) Chakradhar Deka v. the State of Assam and 10 Ors.

Gauhati HC17 Jun 2022WP(C)/2258/2020

Case brief

AI extract

What is this about?

The court rejected the claim that the petitioner's service break was artificial. However, it held the petitioner potentially entitled to time scale pay under the 2011 Governor's Order and directed authorities to verify service particulars and modify pension accordingly.

What did the court decide?

Respondent directed to verify service particulars and pass a reasoned order within two months. If eligible, time scale pay and corresponding pension modification to be granted.

Hc(B)(Ex-S)(Retired) Chakradhar Deka Vs the… — Pension and Retirement Benefits | Gauhati HC (2022)

¶1

Page No.# 1/5

¶2

GAHC010072162020

¶3

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

¶4

Case No. : WP(C)/2258/2020

¶5

HC(B)(EX-S)(RETIRED) CHAKRADHAR DEKA S/O LT. DHIRMESWAR DEKA, R/O GANESHNAGAR, GUWAHATI, P.O. BAMUNIMAIDAN, P.S. CHANDMARI, DIST. KAMRUP (M), ASSAM-781021

¶6

VERSUS

¶7

THE STATE OF ASSAM AND 10 ORS. REP. BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME (A) DEPTT. DISPUR-781006

¶8

2:THE ADDITIONAL DIRECTOR GENERAL OF POLICE (BORDER) HEAD QUARTER (B) ASSAM BHANGAGARH SRIMANTAPUR GUWAHATI-781032 3:THE ADDITIONAL DIRECTOR GENERAL OF POLICE (ADMINISTRATION) ASSAM ULUBARI GUWAHATI-07

¶9

4:THE INSPECTOR GENERAL OF POLICE (BORDER) ASSAM BHANGAGARH SRIMANTAPUR GUWAHATI-781032 5:THE DEPUTY COMMISSIONER OF POLICE (BORDER) ASSAM P.O BHANGAGARH SRIMANTAPUR

¶10

Page No.# 2/5

¶11

GUWAHATI-781032 6:THE SUPERINTENDENT OF POLICE (BORDER) ASSAM P.O BHANGAGARH SRIMANTAPUR GUWAHATI-781032 7:THE OFFICE OF THE SUPERINTENDENT OF RAILWAY POLICE ASSAM PANDU GUWAHATI-781012 (FROM OFFICE WHERE THE PETITIONER LAST RETIRED) 8:THE STATE OF ASSAM REP. BY ITS PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. (ESTT-A) DISPUR GUWAHATI-781006 9:THE STATE OF ASSAM REP. BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPTT. BLOCK-D 2 ND FLOOR JANATA BHAWAN (CIVIL) DISPUR GUWAHATI-781006 10:THE ACCOUNTANT GENERAL ASSAM O/O THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-781029 11:THE TREASURY OFFICER KAMRUP METRO TREASURY GOVT. OF ASSAM GUWAHATI-78100

¶12

Advocate for the Petitioner : MR H GUPTA

¶13

Advocate for the Respondent : GA, ASSAM

¶14

Page No.# 3/5

¶15

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

¶16

JUDGMENT

¶17

Date : 17-06-2022

¶18

Heard Mr. H Gupta, learned counsel for the petitioner. Also heard Mr. C S Hazarika, learned Junior Government Advocate for the respondents no. 1, 2, 3, 4, 5, and 7 being the authorities under the Home Department and Assam Police, Mr. B Gogoi, learned counsel for the respondents no. 8 and 11 being the authorities under the Finance Department, Government of Assam, Mr. R K Talukdar, learned counsel for the respondent no. 10 being the Accountant General, Assam and Mr. H Sarma, learned Additional Senior Government Advocate for the respondent no. 9 being the authorities under the Pension & Public Grievances Department, Government of Assam.

¶19

The petitioner who is an ex service man was appointed as an adhoc head constable in the Border Organization under the Office of the Additional Director General of Police Border as per the letter of agreement dated 12.09.2000. The letter of agreement also contained the Clause that if an appointee is incapacitated from carrying out the duties on being involved in civil or criminal proceeding, then it may be lawful for the authorities to terminate the agreement.

¶20

It is stated that the petitioner in course of his employment was involved in GR Case No. 403/2003 in the Court of learned Judicial Magistrate 1^st Class at Lakhimpur. Subsequently, by the order dated 22.03.2006, he is acquitted in the criminal proceeding. In the resultant situation, the petitioner was discharged from service as per the order dated 23.10.2003 of the Deputy Inspector General of Police (SR), Assam. However, by a subsequent letter of agreement dated 29.06.2006, he was again appointed as an adhoc head constable in the same Border Organization under the Office of the Additional Director General of Police Border, Assam. The petitioner accordingly continued to serve and retired from service on 31.03.2020.

¶21

This writ petition is instituted for two purposes. Firstly, the petitioner claims that the break in service between the date of his discharge on 23.10.2003 and his subsequent appointment by the letter of agreement dated 29.06.2006 was an artificial break in service and accordingly, relied upon a pronouncement of the Supreme Court in Mohd. Abdul Kadir

¶22

Page No.# 4/5

¶23

and another v. Director General of Police, Assam reported in (2009) 6 SCC 611.

¶24

We are in agreement with the aforesaid proposition of law rendered by the Supreme Court in Mohd. Abdul Kadir (supra) but the said proposition is in respect of an artificial break in service i.e. the person otherwise continues in the same service but to take advantage of the service conditions, the authorities bring the person concerned out of service for a given short interval of time and thereafter, again allows to continue in service.

¶25

In the instant case, the petitioner was discharged from service by the order dated 23.10.2003 by invoking Clause 13 of the letter of agreement by which he was appointed and there is no challenge to such discharge from service by the petitioner. However, by a later letter of agreement he was again appointed in the same post after being acquitted in the criminal proceeding, the reason for which he was earlier discharged. Upon perusal of the materials on record, it is discernable that the break in service of the petitioner from the date of discharge on 23.10.2003 upto his subsequent appointment on 29.06.2006 was not an artificial break in service but it was a break as because he was discharged from his service in his earlier engagement and thereafter, given a fresh appointment after the reason for his earlier discharge stood mitigated.

¶26

From such point of view, we are unable to accept the claim of the petitioner that he be deemed to be in continuous service without any break and to accept the break due to discharge in service to be an artificial break.

¶27

But the second purpose for which this petition is preferred is that as per the order of Governor contained in the order dated 23.09.2011, it had been provided as extracted:

¶28

“………..in view of the above, those who were appointed on time scale of pay should be granted the benefit of increment from the date of initial appointment while those appointed on fixed pay may also be conferred with the benefit of time scale of pay as well as incremental benefits from the date of initial appointment….”

¶29

Further the said order concludes that the Governor of Assam is pleased to order that all ex service men appointed under the Additional PIF Scheme will get the benefit of time scale of pay with effect from their initial appointment which is again is extracted as below:

¶30

“………..in view of the above, those who were appointed on time scale of pay should

¶31

Page No.# 5/5

¶32

be granted the benefit of increment from the date of initial appointment while those appointed on fixed pay may also be conferred with the benefit of time scale of pay as well as incremental benefits from the date of initial appointment….”

¶33

A reading of the provisions in the order dated 23.09.2011 makes it discernable that for the employees of the category of the petitioner, although they may be appointed at a fixed scale of pay, but there is an entitlement provided by the said order for time scale of pay. Accordingly, if the petitioner satisfies the requirement of the order dated 23.09.2011, he would also be entitled to a time scale for the service he had rendered. In view of such conclusion, we direct the respondent no. 2 being the Additional Director General of Police, HQ - Assam to call for the records containing the service particulars of the petitioner and if it is found that he was an ex serviceman and appointed at a fixed pay under the PIF Scheme, a reasoned order be passed for his entitlement for a time scale of pay as provided in the order dated 23.09.2011. If upon verification of the records, the Additional Director General of Police finds anything contrary which may disentitle the petitioner, a reasoned order accordingly may also be passed.

¶34

The reasoned order be passed within a period of two months from the date of receipt of the certified copy of this order. If the reasoned order results in an entitlement of the petitioner for the time scale of pay for the period of service he had actually rendered notwithstanding that there is a break in service because of the order of discharge, an appropriate calculation be made for his entitlement as per the time scale of pay and the benefits be given to him within a period of another two months thereafter.

¶35

As the writ petitioner had retired from service and is drawing the provisional pension, if the order for entitlement of time scale goes in his favour, the provisional pension be also accordingly modified.

¶36

Writ petition stands partly allowed as indicated above.

¶37

JUDGE

¶38

Comparing Assistant

Hc(B)(Ex-S)(Retired) Chakradhar Deka v. the State of Assam and 10 Ors.

Case brief

What is this about?

What did the court decide?

Hc(B)(Ex-S)(Retired) Chakradhar Deka v. the State of Assam and 10 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

North Eastern Coal Fields Vs the State of Assam and 4 Ors.

Ram Kumar Deori and 6 Ors. Vs the State of Assam and 2 Ors.

Union of India and 2 Ors. Vs M/S Dharampal Satyapal Ltd.

Girindra Narayan Dakua Vs the State of Assam and 4 Ors.

Nayan Moni Sarma Vs the State of Assam and 3 Ors.

Bapan Baishya Vs the State of Assam and 5 Ors.