Smti Maheswari Choudhury, Vs the State of Assam and 6 Ors.

2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCE DEPTT. ASSAM DISPUR GUWAHATI 6 3:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-6 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 GUWAHATI-6

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6:THE CHIEF EXECUTIVE OFFICER KAMRUP ZILLA PARISHAD AMINGAON P.O. AND DIST. KAMRUP ASSAM PIN 781031 7:THE TREASURY OFFICER KAMRUP TREASURY AMINGAON P.O. AMINGAON DIST. KAMRUP ASSAM PIN 78103

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Advocate for the Petitioner : MR. M ISLAM, MS A KHATUN

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Advocate for the Respondent : GA, ASSAM, SC, P AND R.D.,SC, FINANCE

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BEFORE

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HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 03.09.2025

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Heard Mr. M. Islam, learned counsel for the petitioner; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 4 & 6; Ms. M. Bhattacharjee, learned Additional Public Prosecutor for the respondent nos. 2 & 5; and Mr. R. Borpujari, learned Standing Counsel, Finance Department for the respondent nos. 3 & 7.

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As all the parties are represented by their respective learned counsel, this writ petition is taken up for final consideration at the motion stage itself, at the request of the learned counsel for the parties.

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The facts which are necessary for the purpose of adjudication can be stated, in brief, as follows :-

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3.1. The petitioner’s husband, Late Kalpa Choudhury joined as a Gaon Panchayat Secretary and during his service tenure as Gaon Panchayat Secretary, he served in different Gaon Panchayats within the territorial jurisdiction of Kamrup Zilla Parishad under the respondent Panchayat & Rural Development [P&RD] Department, Government of Assam. The petitioner has claimed that Late Kalpa Choudhury was appointed as a Gaon Panchayat Secretary in Karara Gaon Panchayat under Kamrup Zilla Parishad on 15.06.1965. After being so appointed, he continued to render his services.

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3.2. During the service tenure of Kalpa Choudhury, the State Government had enacted the 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 of 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

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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 petitioner has stated that Late Kalpa Choudhury retired from service on reaching the age of superannuation on 31.08.2004 as provincialised Secretary of Sualkuchi Gaon Panchayat under Kamrup Zilla Parishad. Late Kalpa Choudhury expired on 02.03.2015. At the time of his death, Late Kalpa Choudhury was receiving his pension on the strength of a Pension Payment Order [PPO]. Subsequently, after the death of Kalpa Choudhury, the petitioner was a Pension Payment Order [PPO] vide PPO no. ADP/PRI/PPO/GPO/ 2012/001068. In the Pension Payment Order, the date of birth and the date of appointment of Late Kalpa Choudhury are mentioned as 03.08.1946 and 15.08.1965 respectively. The date of retirement is mentioned as 31.08.2004. While granting superannuation pension, the respondent authorities calculated Late Choudhury’s gross service as 39 [thirty-nine] years 16 [sixteen] days and non-qualifying services as 10 [ten] years 7 [seven] months 23 [twentythree] days, thereby, taking 28 [twenty-eight] years 4 [four] months 28 [twenty-eight] days as the net qualifying service. Based on the net qualifying service of 28 [twenty-eight] years 4 [four] months 28 [twenty-eight] days, the net pension was worked out as Rs. 2,161/- per month. As the period of 10 [ten] years 7 [seven] months 23 [twenty-three] days which Late Kalpa Choudhury rendered prior to provincialisation of his service, has not been counted as qualifying service resulting in lesser amount of pension, the petitioner is before this Court.

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The main contention of the petitioner is that Late Kalpa Choudhury rendered a total 39 [thirty-nine] years 16 [sixteen] days service as Panchayat Secretary since 15.08.1965 and the entire period is to be counted for calculating admissible amount of pension and the act of non-consideration of 10 [ten] years 4 [four] months 23 [twenty-three] days as non-qualifying service is illegal and arbitrary.

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On a plain reading of the Judgment and Order dated 23.04.2010 passed the writ appeal, Writ Appeal no. 145/2009 [State of Assam and another vs. Syed Md. Fazlay Rabbi] and the Notification dated 17.03.2011, it is clearly discernible that for the

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purpose of pension and other retirement benefits, the entire service period of a provincialised Secretary is to be taken into account. According to the petitioner, the entire period of service of 39 [thirty-nine] years 16 [sixteen] days is to be taken as the qualifying period for the purpose of pension and other retirement dues, taking the initial date of appointment of Late Kalpa Choudhury, that is, 15.08.1965 into account.

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Mr. Borpujari, learned Standing Counsel, Finance Department has submitted that the fact that Late Kalpa Choudhury joined service on 15.08.1965 as Secretary in Gaon Panchayat would require verification before acceptance of 39 [thirty-nine] years 16 [sixteen] days as the qualifying period of service for the purpose of pension and other retirement dues. Therefore, the respondent authorities will first verify and determine whether the date of initial appointment of Late Kalpa Choudhury was 15.08.1965 or not. If after such verification and determination, the date of appointment is found as 15.08.1965 then the period of qualifying service of Late Kalpa Choudhury for the purpose of pension and other retirement benefits is to be worked out accordingly. In the event, it is found that the total period of qualifying service is 39 [thirty-nine] years 16 [sixteen] days then the respondent authorities would be required to modify the Pension Payment Order [PPO] by recalculating the pension and other retirement benefit as in that event, the Pension Payment Order [PPO] already issued in favour of Late Kalpa Choudhury and for that matters, to the petitioner would be incongruent.

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In the above fact situation, this writ petition is disposed of with a direction to the respondent authorities to verify and determine the initial date of appointment of Late Kalpa Choudhury as Secretary in a Gaon Panchayat. If after such verification and determination, there arises a necessity for enhancement in the total qualifying service period of Late Kalpa Choudhury, then the respondent authorities shall recalculate the pension and other retirement benefits entitled to Late Kalpa Choudhury and the family pension and other retirement benefits payable to the petitioner by counting his total period of service on the basis of 39 [thirty-nine] years 16 [sixteen] days or any other due period, if the period of 10 [ten] years 7 [seven] months 23 [twenty-three] days, earlier treated as non-qualifying service, or any other period is required to be taken into account. After completing the exercise, a fresh Pension Payment Order [PPO] in supersession of the earlier Pension Payment Order [PPO] is to be

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issued, if required. The entire exercise shall be carried out and completed within a period of two months from the date of 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 two months from the said date and the petitioner is found entitled for a higher pension amount, then the same will carry an interest at the rate of 6% per annum for the period beyond two months till the date of payment.

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With the observations made and directions given above, the writ petition is disposed of. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Smti Maheswari Choudhury, v. the State of Assam and 6 Ors.

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Smti Maheswari Choudhury, v. the State of Assam and 6 Ors.

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