Gunu Chetia Hati Boruah Vs the Govt. of Assam and 4 Ors.

Heard Mr. B.J. Ghosh, learned counsel for the petitioner; Ms. S. Chutia, learned standing counsel for the Elementary Education Department, respondent Nos. 1, 3 & 4; Mr. Mr. R. Borpuzari, learned standing counsel for the Finance Department, respondent No. 2; and Ms. S. Konwar, learned standing counsel for the Pension Department respondent No. 5.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for:-

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(i) Issuing direction to the respondent authorities to pay arrear regular scale of pay to her from 20.10.2012 to 28.02.2015, in terms of the Office Memorandum dated 27.04.2015 and conferential orders dated 10.09.2015, 19.12.2015, 29.12.2015 and 09.02.2016;

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(ii) Quashing the action of the respondent authorities to bring her under the New Defined Contribution Pension Scheme 2009; and

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(iii) Issuing direction to the respondent authorities to bring her under the Assam Services (Pension) Rules, 1969 and to extend benefits under the said Rule and also to confirm her service as per rule w.e.f. 30.01.1996.

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3. Mr. Ghosh, learned counsel for the petitioner submits that the petitioner was appointed as stipendiary teacher on 30.01.1996, at Uttar Khatani Lower

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Primary School, under Narayanpur Block in the Lakhimpur district, after due selection process against a sanctioned vacant post at a stipend of Rs. 900/- per month. Thereafter, she was regularized in her service, vide order dated 03.04.2001, from the date of her joining. Mr. Ghosh further submits that the Monoharan Committee has also selected the petitioner and allowed her to draw her pay @ Rs. 1800/- per month in the same school against the retired vacant post of Sri Indreswar Deka of Simaluguri Bapuji L.P. School. Thereafter, on 27.04.2015, as per court’s order or otherwise, the Government had issued an Office Memorandum to pay regular scale of pay to the teachers of elementary schools, who could not undergo basic training or appointed till 20.10.2012. Mr. Ghosh also submits that though the respondent authorities decided to pay regular scale of pay w.e.f. 20.10.2012, the same was paid to the present petitioner only from March, 2015 in violation of the said Office Memorandum. But, regular scale of pay is due from 20.10.2012 to 28.02.2015.

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3.1. Further submission of Mr. Ghosh is that the petitioner was brought under the New Defined Contribution Pension Scheme 2009 instead of Assam Services (Pension) Rules, 1969. The said New Scheme of 2009 is applicable to the Government servant who joined services on or after 01.02.2005, on regular basis. But, the present petitioner was appointed on 30.01.1996 and joined in her service on 07.02.1996. As such, the New Scheme of 2009 is not applicable in her case, rather she would be governing by Assam Services (Pension) Rules, 1969 and the petitioner's pensionary benefit has to be given under the Assam Service (Pension) Rules, 1969, as per letter dated 25.11.2002. Mr. Ghosh also submits that the petitioner was confirmed in her service vide order dated 02.11.2016, instead of 30.01.1996.

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3.2. Referring to a decision of this court in the case of Purnima Hore and

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Another vs. State of Assam and 3 Others , in W.P.(C) 6403/2021 , Mr. Ghosh submits that the present case is also covered by the said decision. And since the present petitioner is similarly situated with the petitioners of W.P.(C) 6403/2021 , similar benefits may be extended to her also.

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4. Per-contra, Ms. Chutia, learned standing counsel for the Elementary Education Department, respondent Nos. 1, 3 & 4, submits that she has no objection in the event of granting similar relief, like the petitioners in W.P.(C) 6403/2021 , to the present petitioner also, as she is similarly situated with the petitioners of the said case.

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5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the judgment and order, so passed by this court, in the case of Purnima Hore (Supra) .

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6. It is to be noted here that in the case of Purnima Hore (Supra) , this court has held as under:-

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“ 118. In the backdrop of the above, this Court, therefore, disposes of the instant batch of writ petitions with the following observations and directions:-

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(i) The writ petitioners who come within the fold of Stipendiary Teachers are entitled to the benefits under the Rules of 1969 and they are not covered under the NDCPS, 2009. The said petitioners are also entitled to subscribe to the GPF. The said petitioners would also be entitled to all other pensionary benefits to which a Government servant of corresponding rank is entitled to.

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(ii) The writ petitioners who come within the fold of Dropped Teachers are not entitled to pension in terms with the Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

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(iii) The teachers coming within the fold of Teachers Appointed under the Operation Black Board, and more particularly, those teachers who were appointed pursuant to the creation of 7066 posts on 08.03.2021, would not be entitled to pension in terms with Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. They shall be governed by the New Pension Scheme applicable to State Government employees of corresponding rank.

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(iv) The writ petitioners who come within the fold of Excess Teachers would not be entitled to the pension in terms with the Rules of 1969 as well as also shall not entitled to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, butthey shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

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(v) The writ petitioners who come within the category of Teachers appointed on Ad-hoc Grant Basis would not be entitled to pension in terms

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with the Rules of 1969, but shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. They would also not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937.

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(vi) The Teachers who have been brought within the fold of the State Sector Employees by regularization of their services by the Dima Hasao Autonomous District Council on or after 01.02.2005 would not get the benefit in terms with the Rules of 1969, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

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(vii) The teachers coming within the category of Dropped Teachers, Operation Black Board, Excess, Ad-hoc Grant as well as Dima Hasao as mentioned in Sub-Paragraph Nos.(ii), (iii), (iv) (v) & (vi) herein above as they come within the ambit of the New Defined Contribution Pension Scheme, 2009 shall be eligible for the benefit of retirement gratuity and death gratuity on the same terms and conditions as are applicable to the employees covered by the Rules of 1969 in view of the Office Memorandum dated 01.02.2021.

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(viii) The communication dated 23.02.2010 issued by the Director, Finance (Budget) Department to the Deputy Accountant General (P & A) is set aside and quashed.

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(ix) It is observed that the instant judgment will come into effect prospectively. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to an employee on the basis of the directions passed by the various orders of this Court earlier. This direction has been given specifically for the fact that the State Government had allowed such orders so passed by the Coordinate Bench as well as the Division Bench of this Court to attain finality and have granted benefit to them. These persons shall continue to be entitled to the pension under the Rules of 1969 as per the directions of this Court earlier. The above directions is based upon the judgment of the Supreme Court in the case of Umadevi (3) (supra) wherein the Supreme Court at paragraph No.53 had categorically observed that those regularizations, if any, already made but not subjudiced need not be reopened based on the observations made in the said judgment.

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(x) Court further is of the opinion that the persons similarly situated to that of the writ petitioners coming within the category of Stipendiary Teachers, but who have not been able to approach this Court on account of various reasons, need not be deprived of the benefits of pension in terms with the Rules of 1969 as well as to subscribe to the fund in terms with the General Provident Fund Page No.# 8/8 (Assam Service) Rules, 1937. This Court, therefore, directs the respondent authorities to grant the benefits of pension in terms with

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the Rules of 1969 as well as to allow such persons to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937 after completing the necessary verification in that regard. The same may be done within a period of 6 (six) months from the date of the instant judgment.”

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7. Since, admittedly, the present petitioner is similarly situated with the petitioners in W.P.(C) 6403/2021 , this court is inclined to dispose of this petition by granting similar reliefs to the present petitioner also.

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8. The respondent authorities are directed to examine the case of the present petitioner and to verify her service record and if it is found that she is similarly situated with the petitioners of W.P.(C) 6403/2021 , then similar relief shall be granted to her.

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9. This exercise has to be carried out within a period of 3 (three) months from the date of receipt of the certified copy of this order.

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10. The petitioner shall obtain a certified copy of this order and shall place the same before the respondent authorities within a period of 2 (two) weeks from today.

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11. In terms of above, this writ petition stands disposed of.

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12. The parties have to bear their own costs.

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JUDGE

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Comparing Assistant

Gunu Chetia Hati Boruah v. the Govt. of Assam and 4 Ors.

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Gunu Chetia Hati Boruah v. the Govt. of Assam and 4 Ors.

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