Ble High Court
Case Details
WP(C) 3564/2011 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA The petitioner, who has since retired from service on attaining the age of super annuation on 31.7.2006 as L.P. School Teacher has filed this writ petition prayi ng for a direction to the respondents to provide her monthly pension by setting aside and quashing the order dated 19.5.2010, by which, her such claim has been rejected. The impugned order has been issued by the Director of Elementary Educa tion, Assam. For a ready reference, the order is quoted below: (cid:28)ORDER Perused the order of the Hon’ble High Court dtd. 14/12/2007 passed in WP(C) No. 6361/2007 of Smti Sipra Kar Vs. State of Assam and also read the detailed report submitted by the Deputy Inspector of Schools, Karimganj vide letter No. DIK/200
Legal Reasoning
9-2010/Court case/5443 dtd. 31/03/2010. The petitioner’s grievance is that, though she retired from service on 31/07/200 6 on her superannuation, she has not been paid her pension nor has been paid her retired/pensionary benefits. The Hon’ble High Court disposed of the case with a direction that (cid:28)the respondents No. 3 namely the Director of Elementary Educati on, Assam shall examine the grievance of the petitioner in accordance with law a nd if upon such examination, the petitioner is found entitled to pension and pen sionary benefit as claimed by her, the same shall be made available to her. (cid:29) On examination it reveals that the petitioner Smti. Sipra Kar joined as stipendi ary teacher on 28/09/1994 in a fixed stipend of Rs. 900/- P.M. which was subsequ ently enhanced to Rs. 1800/- P.M. w.e.f. 01/12/1999 and after passing the Junior Basic Training Examination, the petitioner was absorbed on regular time scale w .e.f. 11.01.2001 and retired on superannuation w.e.f 31/07/2006 as per date of b irth being 17/07/1947. She retired from service after rendering 5 years 6 months 20 days on the regular time scale of pay. The services rendered by a stipendiary teacher does not qualify for pension or g ratuity as during that period she does not hold a regular post having a time sca le. Hence, the qualifying service in respect of the petitioner is 5 years, 6 mon ths and 20 days. As the teacher did not complete 10 years of qualifying service, hence the petitioner is entitled to neither pension not DCRG. The petitioner is only entitled to get proportionate gratuity benefit as per rules 152 of Assam S ervice (Pension) Rules, 1969 which has already been paid to the petitioner as pe r report of the Deputy Inspector of Schools, Karimganj. On examination it is found that the petitioner is not entitled to get pension an d pensionary benefit due to non qualifying services rendered by the petitioner a nd thus the prayer of the petitioner is rejected. This is issued in compliance of the Hon’ble High Court order dtd. 14/12/2007 pas sed in WP(C) No. 6361/2007 of Smti Sipra Kar Vs. State of Assam.
Legal Reasoning
Sd/- Sri D. Mahanta Director Elementary Education, Assam. (cid:29) The respondents have filed their counter affidavit supporting the impugned order . According to the respondents, since the petitioner was appointed as stipendiar y teacher on 28.9.1994 in a fixed stipend of Rs. 900/- per month, which was subs equently enhanced to Rs. 1800/- per month with effect from 1.12.1999, her initia l period of service is not to be counted for pensionary benefit. Be it stated he re that the petitioner was provided with salary in the time scale of pay with ef fect from 11.1.2001, when she passed the Junior Basic Training. Thus, in the tim e scale of pay, the petitioner has rendered 5 years 6 months 20 days of service, but. If her service is counted from the initial date of appointment i.e. 27.9.1 994, she has the qualifying service of more than 10 years. The question for determination is as to whether the petitioner’s appointment aga inst a clear vacancy, although, may not be in the time scale of pay, but on paym ent of monthly stipend should be counted towards qualifying service. Another que stion, which may fall consideration of the respondents is as to whether, Rule 23 3, 234 and 235 of the Assam Service (Pension) Rules, 1969 are required to be inv oked in the instant case. Although, Mr. P.N. Goswami, learned Standing Counsel, Education Department has p laced reliance on the judgment dated 3.5.2007 passed in W.A. No. 142/2006, but t he said judgment was primarily on the issue of interpretation of Rule 31 of the aforesaid Rules and the same did not deal with the aforesaid provision of the Pe nsion Rules. Mr. A. Chetri, learned Standing Counsel, Director of Pension has ad opted the arguments advanced by Mr. Goswami, learned Standing Counsel, Education Department. Be it stated here that the Directorate of Pension has not filed any counter affidavit and thus their stand in the matter is not discernible.
Decision
In view of the above, the matter is remanded back to the Director of Elementary Education, Assam, who has passed the impugned order dated 19.5.2010 for re-consi deration of the case of the petitioner in reference to the aforesaid facts, more particularly, when the petitioner was appointed against a clear vacancy and tha t clearing the Junior Basic Training was not in her hand. The question to be dec ided as to whether the service rendered by the petitioner against a clear vacanc y should be counted for qualifying service or not. The second question fall for consideration of the said authority is as to whether the Governor can sanction p ension in the instant case or not and if need be, by relaxing the requirement of the rules. Let the appropriate order be passed in this regard as expeditiously as possible, preferably within three months. If any consideration is also requir ed to be made by the Government in the Education Department i.e. the respondents No. 1 and 2, such consideration be made by the said authority in terms of this order in consultation with the Director of Elementary Education, Assam i.e. the respondent No. 3. The writ petition is disposed of.