Kabiram Rajbangshi v. State of Assam and others) and
Case Details
WP(C) 4620/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. U.K. Nair, learned Standing Counsel, Director of pension, Mr. U.K. Goswami, learned S tanding Counsel, Education. The matter pertains to denial of pension on the grou nd of non-fulfillment of one of the conditions of qualifying service i.e. 10 (te n) years of regular service in a regular establishment. The petitioner was the found teacher of the Okrabari Venture LP School w here she served since 6.4.1980. Her service was provincialised w.e.f. 1.8.1995 o n the strength of the order dated 21.12.1995 (Annexure-2), issued by the DI of S chools, South Salmara, Mankachar. On reaching the superannuation age, the petiti oner retired from service on 31.12.2004 and her gratuity dues amounting to Rs. 2 5,313/- was released by the Director of Pension against the pension payment orde r (PPO) No. PPO/E/SP/55648. The grievance of the petitioner relates to denial of pension on the ground that she did not serve for minimum 10 years, as a provinc ialised teacher to qualify her for pension. The petitioner projects that she served for 9 years 4 months and if her service is counted from the date when the post was sanctioned on 18.1.1994, the requisite 10 years qualifying service will be satisfied to make her eligible for pension.
Legal Reasoning
Mr. S. Barthakur, learned counsel for the petitioner referring to the An nexure-2 order dated 21.12.1995 by which the services of the petitioner was prov incialised w.e.f. 1.8.1995 as second teacher of the School, submits that since t he post in question was created vide Govt. letter dated 18.1.1994, in case of ti mely provincialisation of the service of the petitioner, the situation as has em erged would not have been there. The petitioner retired from service on attainin g the age of superannuation on 31.12.2004. Counting his service from the date of provincialisation w.e.f. 1.8.1995, she has got 9 years 4 months of service and thus she falls short by 8 months. It is in this context, the learned counsel for the petitioner submits th at had timely action being taken for provincialisation of service of the petitio ner, this problem could not have arisen. Referring to the provisions of the Assa m Services (Pension) Rules, 1969, if necessary the Governor may extend necessary relaxation entitling the petitioner to receive pension. In this connection, he has placed reliance on two decisions of this Court reported in 1997 (1) GLT 589 (Kabiram Rajbangshi Vs. State of Assam and others) and 2003 (1) GLT 523 (Naoman Ch.Kalita Vs. State of Assam and others). In both the decisions, this Court havi ng regard to the facts and circumstances involved in those two cases, directed f or providing pension to the incumbents invoking relaxation as provided for in th e Pension Rules. In the counter affidavit filed by the respondent no.2 i.e. the Director of Pension, it has been stated thus :- (cid:28)4. That as per the recordings made in the service book of the petit ioner, the petitioner joined on 06.04.1980 as honorary teacher in Okarabari Vent ure LP School. The School provincialised w.e.f. 01.081.995 and from that date sh e was allowed monthly stipend of Rs. 900/- per month till passing the teacher tr aining exam. The Head of the Office had recorded her date of beginning of servic e as on 01.08.1995 in the pension papers. As such reckoning her service w.e.f. 0 1.08.1995 till 31.12.2004, the petitioner has not completed the minimum qualifyi ng service for pension. The service rendered by the petitioner prior to 01.08.19 95 cannot be reckoned as qualifying service for pension and pensionary benefits. (cid:29) Mr. U.K. Nair, learned counsel representing respondent no.2 and Mr. U.K. Goswami, learned Standing Counsel, Education submit that since the case of the petitioner is not covered under any provision of the aforesaid Pension Rules, th is Court cannot issue any direction for providing pension to the petitioner de h ors the said Rules. Rule 31 of the Pension Rules requires confirmation of the fo llowing 3(three) conditions for qualifying service:- (cid:28)Firstly, the service must be under Government. Secondly, the employment must be substantive and permanent. Thirdly, the servant must be paid by Government. (cid:29) However, the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled - (cid:28)(i) declare that any specified kind of service rendered in a non-gaz etted capacity shall qualify for pension, and (ii) o impose in each case allow service rendered by an officer to count pension. (cid:29) in individual cases and subject to such conditions as he may think fit t Rule 234 and 235 of the Pension Rules provides as under :- (cid:28)234. Special Provision :- in any case in which a pension is not admis sible under any specific provision of any of these rules, the Governor may sanct ion the grant of pension in exceptional circumstances, if the grant is not incon sistent with the general spirit of the rules. 235. Where the Governor of Assam is satisfied that the operation of a ny of these rules causes undue hardship in any particular case, he may dispense with or relax the requirements of that rule to such extent and subject to such c onditions as he may consider necessary for dealing with the case in a just and e quitable manner provided that the case shall not be dealt with in a manner less favourable than that provided in these rules. (cid:29) From the above what is seen is that the Governor is empowered to sanctio n pension in exceptional circumstances if the same is not in consistent with the general spirit of the rules. Needless to say that the spirit of the rules is to grant pension and not to deny the same. As noted above, the petitioner fall sho rt by only 8(eight) months for grant of pension. It is to be borne in mind that she had rendered about 15 (fifteen) years of service in the non-provincialised S chool before her service was provincialised.
Decision
In view of the above, the matter is remanded back to the Government of A ssam in the Education Department for re-consideration of the case of the petitio ner consistently with the observations made above and also the provisions of the Pension Rules and the aforesaid two decisions referred to by the learned counse l for the petitioner. Let the required exercise be carried out with appropriate order preferab ly within 31.01.2014. With the above direction and observation, the writ petition stands dispo sed of, without however, any order as to costs.