High Court · 2009

ave remained uncontroverted. Mr. Dhar, has urged with reference to the Assam Services (Pension) Rules, 1969 a nd Assam Elementary Education (Provincialisation) Service and Conduct Rules, 198 1 (hereafter for short also referred to as the 1981 Rules), that as the petition er was entitled to have her services confirmed with effect from the date of prov incialisation of the School, she is qualified to receive pension as well as grat uity thereunder and that therefore, the impugned letter as well as the denial of other retrial benefits is, per se, arbitrary and is liable to be adjudged as su ch. While referring the Rule 4 of the 1981 Rules, in particular, the learned co unsel has contended that as the petitioner satisfied all the conditions laid dow n therein, her services ought to have been confirmed w.e.f 01.10.1995. Placing reliance on the provisions 108, 109 and 152 of the Rules, Mr. Dhar, has argued t hat as is apparent therefrom, the petitioner is entitled to pension as well. Mr. Mishra, on the other hand, has submitted that as obviously, the petitioner h as not rendered 10 years of qualifying service as required under the Rules, her claim for pension is misconceived. As her services have not been confirmed, the impugned direction to her to refund the amount of gratuity disbursed, is also u nassailable in law, he urged. The facts relating to the service profile of the petitioner, are not in dispute. Though, her services have been regularized w.e.f. 01.10.1995, no order as such confirming her service, had been made before her superannuation. The State respondents have not disputed the correctness of the assertions made b y the petitioner that before her superannuation, she had completed three years o f continuous service after provincialisation and that she has, as well successfu lly undergone the necessary training prescribed by the Department. As a matter of fact, the unrefuted averments made in the petition supported by an affidavit bear out the above. In that view of the matter, prima facie, the petitioner was entitled to have her service confirmed in terms of Rule 4 of the 1981 Rules. R ule 108 and 152 of the Rules endorse, having regard to the service career of the petitioner following the provincialisation thereof, payment of gratuity at the rates mentioned therein. There is no dispute either that the petitioner had bee n rendering her services in the aforementioned School from the year 1970. This is in context of Rule 31 of the Rules, which empowers the Governor of the State to declare any kind of service rendered in a non-gazetted capacity to count for pension, if called for in the exigency of the facts and circumstances of the cas e. It is a matter of record that the petitioner, eventually, to alleviate her g rievances, in the meantime, has submitted a representation before the Commission er, Government of Assam, Education Department on 27.01.2003. Mr. Dhar, submits on instructions that this representation as on date remains un disposed. The impugned letter dated 08.05.2003 though, had directed the petitio ner to refund the gratuity money is silent about her other entitlements as retri al benefits. Having regard to the facts set out hereinabove and the provisions of law relied upon by the learned counsel for the petitioner, this Court is of the view that a s a scrutiny of the facts bearing on the petitioner’s claim ought to be made bef ore finally deciding thereon, it would be appropriate to remit the matter to the departmental authorities to do the needful. This petition is, therefore, close d with a direction to the Commissioner & Secretary, Government of Assam, Educati on Department to cause the examination of the facts bearing on the service profi le of the petitioner and her claim for pension and other retirement benefits inc luding gratuity in the touchstone of the Rules referred to hereinabove. As the decision would have a vital bearing on the petitioner’s interest, the aforementi oned authority would ensure her participation in the process. Having regard to the fact that the petitioner has retired from service on 31.12.2001, the exercis e, as ordered, should be completed within a period of two (2) months from the da te of receipt of the certified copy of this order. The petitioner would place a copy of this order along with the writ peti tion and the annexures thereto, before the aforenamed authority, who would forth with, thereafter, do the needful as required. No costs.