High Court
Case Details
WP(C) 4407/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. J. Abe din, learned Standing Counsel, Education Department. I have also heard Mr. R.K. Talukdar, learned Standing Counsel, AG. By means of this writ petition, the petitioner who has since retired fro m service on attaining the age of superannuation on 31/05/2009, has prayed for a direction to the respondents to release all pensionary benefits following the U GC scale of pay. According to the petitioner, who has retired from service as Li brarian of the respondent College, he is entitled to receive UGC scale of pay fo llowed by pensionary benefits on that basis. In the counter affidavit filed by the respondent No.2, the aforesaid ple a of the petitioner has been denied. It has been stated that for grant of UGC sc ale of pay, one has to be a Master Degree hold, which the petitioner is not. He was initially appointed as Librarian and his such appointment was provisionally approved w.e.f. 30/10/1980. His appointment was approved on 18/02/1993 with effe ct from the date of sanction of the post of Librarian i.e. 20/05/1980. The petit ioner obtained Bachelor Degree in Library Science from the Indira Gandhi Nationa l Open University in the year 2005 and the Governing Body of the College passed the resolution No. 3 on 15/11/2007 recommending the appropriate scale of pay wit h effect from 12/05/2005.
Legal Reasoning
Referring to the provisions of the Assam College Employees (Provincialis ation) Act, 2005, which came into force on 01/12/2005, it has been stated in the counter affidavit that for the post of Librarian, the candidate must have minim um qualification of Master Degree in Library Science, entitling him to UGC scale of pay. It has further been stated that the petitioner being not a Master Degre e holder, is not entitled to his pay and the College authority did not confirm h is service as being an under qualified Librarian and for which the CPF account w as not opened in the name of the petitioner. Referring to Section 8 of the said Act, which has also been stated that the petitioner having not refunded the Govt . share of the contribution along with interest, he is not entitled to get pensi on. Mr. J. Abedin, learned Standing Counsel, Education has also referred to Sect ion 8 of the said Act, which reads as follows :- (cid:28)Employees who retired /died, as the case may be, prior to 1st January, 2005 shall be given only superannuation pension or family pension, as may be app licable under the existing pension Rules of the Government. They shall not be en titled to any other pensionary benefits ; Provided that the payment of such superannuation or family pension as th e case may be, are subject to refund of the Government’s share of their Contribu tory Provident Fund within six months from the date of coming in to force of thi s Act ; Provided further that if the Government’s share of Contributory Providen t Fund is not refunded in respect of a retired/deceased employee within tdhe afo resaid stipulated period, no superannuation pension or family pension shall be a dmissible in respect of such employees. (cid:29)
Legal Reasoning
Mr. P.J. Saikia, learned counsel for the petitioner on the other hand su bmits that since the petitioner has to his credit the requisite qualifying servi ce, he is entitled to receive pension and that if the authority did not deduct t he required amount towards contribution of Provident Fund, the petitioner cannot be attributed with any fault. In paragraph 11 and 12 of the counter affidavit, it has been stated thus :- (cid:28)11. That the deponent states that as mentioned earlier in this affid avit the writ petitioner was paid and received salaries under the State Governme nt’s Scale of Pay. The College authority did not confirm his service as being an under qualified Librarian and for which the Contributory Provident Fund Account
Decision
was not opened in the name of the writ petitioner. As per Section 8 of the Assa m College Employees (Provincialisation) Act, 2005 the incumbent who have refunde d the Government’s share of Contributory Provident Fund money in the treasury th ey are entitled to get the benefit of pension. But the writ petitioner did not r efund the Government’s share of the Contributory Provident Fund money in the Tre asury as his Contributory Provident Fund account was not opened during his servi ce tenure. 12. That the deponent states and submits that services rendered by t he writ petitioner in the college till 30/11/2005 is not countable for the purpo se of pension as the College was at the time receiving Deficit Grants in Aid fro m the State Government and the services of the incumbents rendered in the Colleg e receiving Grants in Aid are not entitled for pensionary benefits. The College was provincialised only with effect from 1/12/2005. The writ petitioner is admit tedly under qualified librarian as per the Norms of the UGC having educational q ualification of Bachelor in Library Science. But as per the Norms of the UGC the Minimum educational qualification for the posts of Librarian is Master Degree h older in Library Science with 55% marks in the Master Degree. Therefore the clai m of the writ petitioner for getting UGC scale of pay is not tenable. (cid:29) From the above, what is seen is that the petitioner having not fulfilled the requisite qualification entitling him to UGC scale of pay, he cannot claim payment of salary in the UGC scale of pay and consequential pensionary benefits on that basis. As regards the plea of the petitioner that even otherwise also he is entitled to get pension in terms of the aforesaid Rules, as provided in the aforesaid Act, it will be open for the petitioner to show to the respondents tha t he had exercised the required option in terms of Section 8 and 8A of the Act. There is nothing to show in the writ petition that the petitioner had exercised the required option entitling him to grant of pension in terms of the aforesaid Act of 2005. Subject to the above liberty, the writ petition stands disposed of, with out however, any order as to costs.