Allowed

Azizur Rahman v. the State of Assam and 6 Ors.

Gauhati HC2 Sept 2022WP(C)/4414/2022

Case brief

AI extract

What is this about?

The Gauhati High Court held that a Gaon Panchayat Secretary's entire service period of 41 years, including pre-1991 tenure, must be reckoned for pension calculation. The court set aside an order reducing service to 24 years and directed fresh computation to reflect the full qualifying service under the provincialisation Act.

What did the court decide?

Impugned decision not counting 17 years of service set aside; respondent directed to compute pension on 41 years of service with fresh Pension Payment Order within two months.

Azizur Rahman Vs the State of Assam and 6 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No. 1/5

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GAHC010123052022

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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)/4414/2022

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AZIZUR RAHMAN

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S/O. LT. SHAHEB ULLAH SARKAR, VILL. AND P.O. JHOWDANGA, DIST. SOUTH SALMARA MANKACHAR, ASSAM, PIN-783131.

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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

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

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3:THE COMMISSIONER AND SECRETARY 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 DISPUR

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Page No. 2/5

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GUWAHATI-06.

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6:THE CHIEF EXECUTIVE OFFICER SOUTH SALMARA MANKACHAR ZILLA PARISHAD P.O. FEKAMARI DIST. SOUTH SALMARA MANKACHAR ASSAM PIN-783135.

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7:TREASURY OFFICER SOUTH SALMARA TREASURY AT HATSINGIMARI P.O. FEKAMARI DIST. SOUTH SALMARA MANKACHAR ASSAM PIN-783135

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Advocate for the Petitioner : MR. M ISLAM

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 02-09-2022

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Heard Mr. M. Islam, learned counsel for the petitioner; Mr. K. Konwar, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 4 & 6; Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent nos. 2 & 5; and Mr. P. Nayak, learned Standing Counsel, Finance Department for the respondent nos. 3 & 7.

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The necessary facts which are not in dispute can be stated as follows :- the petitioner had joined as a Gaon Panchayat Secretary initially under the Duhubri Zilla Parishad pursuant to an order of appointment dated 01.04.1958 and he retired from service as Secretary of Fekamari Gaon Panchayat under the South Salmara Mancachar Zilla Parishad after it was bifurcated from Dhubri Zilla Parishad, on 31.03.1999 on reaching the age of superannuation. During the tenure of his service, the State Government had enacted the

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Page No. 3/5

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Assam Panchayat Employees [Provincialisation] Act, 1999 [‘the Act, for short] and as per the provisions of the Act, the provincialised Panchayat Secretaries are to be provided pension and other retirement dues in terms of the provisions of the Act. The services of the petitioner came to be provincialised accordingly in terms of the provisions of the Act.

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When a dispute arose as regards the date from which the period of services of the provincialised Panchayat Secretaries was to be counted for the purpose of pension and other retirement dues under the provisions of the Act, litigations ensued. A Division Bench of this Court in a writ appeal, Writ Appeal no. 145/2009 [The State of Assam & another vs. Syed Md. Fazlay Rabbi] and a batch of writ petitions in its common judgment and order dated 24.03.2010 set the issue at rest by holding that the benefits of the provisions of the Assam Panchayat Employees [Provincialisation] Act, 1999 [the Act] including those for pension and other retirement dues would be available to the provincialised employees in service on or after 01.10.1991 on the basis of the length of their services reckoned from the dates of their initial appointments. Special leave petitions, Special Leave to Appeal [Civil] Nos. 19351– 19360/2010 preferred against the common judgment and order dated 24.03.2010 was dismissed by the Hon’ble Supreme Court of India on 02.08.2010. Thereafter, the State Government in the Pension and Public Grievances Department issued a Notification dated 17.03.2011, whereby, it had been ordered that the benefits of the provisions of the Assam Panchayat Employees [Provincialisation] Act, 1999 [the Act] including those for pension and other retirement dues applicable to the State Government Employees, would also be available to the provincialised Panchayat Employees who were in service on or after 01.10.1991 on the basis of the length of their service reckoned from the dates of their initial appointments in the service of Panchayats. The said Notification was issued with the concurrence of the Finance Department.

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The Pension Payment Order, dated 04.06.2011, issued in respect of petitioner has specifically stated that the date of petitioner’s entry in service is 01.04.1958 and the petitioner’s date of retirement is 31.03.1999. The total period of service rendered by the

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petitioner was 41 years. Yet, the pension disbursal authority had calculated the petitioner’s monthly pension @ Rs. 1,560/- per month w.e.f. 01.08.1999 with the observation that a period of 17 years could not be counted for the purpose of pension and the petitioner’s net qualifying service would be only 24 years.

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Mr. Goswami, learned Additional Senior Government Advocate, Assam has submitted that he has received instructions from the Pension and Public Grievances Department vide Communication no. ARTPPG[P] 323/2022/69 dated 21.07.2022. The instruction reads as under :-

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“In terms of the judgment and order dated 24.03.2010 passed in connection with Writ Appeal no. 145 of 2009, the Govt. of Assam vide notification no. PPG[P] 116/2010/28 dated 17.03.2011 ordered that the benefit of the provisions of the Assam Panchayat Employees [Provincialisation] Act, 1999, including those for pension and other retirement dues applicable to the State Govt. Employees, would be available to the provincialised 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 their initial appointments in the service of Panchayats. The same was issued with the concurrence of Finance Department.”

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A joint reading of the judgment and order dated 24.03.2010 passed in a writ appeal, Writ Appeal no. 145/2009 [The State of Assam & another vs. Syed Md. Fazlay Rabbi], the Notification dated 17.03.2011 and the instructions of the Pension and Public Grievances Department, quoted hereinabove, has unerringly pointed out to the position that for the purpose of pension and other retirement dues, the entire period service of 41 years from the petitioner’s date of entry in service, 01.04.1958 to till his date of retirement, 31.03.1999 is required to be counted for the purpose of pension and other retirement dues. As such, the decision not to count a period of 17 years for the purpose of pension and making calculation of the pension amount on that basis are found to be incongruent and impermissible and

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Page No. 5/5

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accordingly, the same are set aside.

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As a corollary, the respondent authorities shall now work out the entitlement of the pension and other retirement dues of the petitioner by counting his total period of service as 41 years and issue a fresh Pension Payment Order in supersession of the earlier Pension Payment Order. The entire exercise shall be undertaken and completed within a period of 2 [two] months from the date submission of a certified copy of this order by the petitioner at the office of the respondent no. 4 and the respondent no. 5. In the event such exercise is not completed within a period of 2 [two] months from the said date, the same will carry an interest of 6% per annum.

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The Communication bearing no. ARTPPS [P].323/2022/69 dated 21.07.2022, placed by Mr. Goswami, learned Additional Senior Government Advocate, Assam, is kept as part of the record.

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Consequently, the writ petition is allowed to the extent indicated above. No cost.

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JUDGE

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Comparing Assistant

Azizur Rahman v. the State of Assam and 6 Ors.

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Azizur Rahman v. the State of Assam and 6 Ors.

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