High Court
Case Details
WP(C) 5987/2011 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. A.M. Buzurbaruah, learned counsel for the petitioner. Also hea rd Mr. U.K. Goswami, learned Standing Counsel, Education Department. I have also heard Mr. A. Chetri, learned counsel representing the Commissioner and Secretar y, Pension and Public Grievance Department. Mr. R.K. Neog, appearing for the Acc ountant General has made his submission. The matter pertains to the claim of the petitioner for providing pension and other retirement benefits. The petitioner retired from service on attaining the age of superannuation on 30.04.2005. The petitioner is the Founder Principal of Kharupetia College, which was established in the year 1981. By order dated 20.08.1988 of the Government of As sam in the Education Department, the College was taken over in the deficit syste m of grants-in-aid w.e.f 25.03.1998. Pursuant thereto by an office order dated 2 6.02.1999 the posts of all the teaching and non teaching staff of the colleges w ere provisionally approved with effect from 25.03.1998 and regular salary was pa id from 01.04.1999. The arrear salary from 25.03.1998 to 28.02.1999 was subseque ntly sanctioned in the year 2005 in respect of all the colleges including the Co llege in which the petitioner had served. By the Assam Provincialised College Employees Act, 2005, the services of all employees of colleges, save and except those employees who exercise option to continue in the existing terms and conditions of service, become employees of the Government on and from the date on which the college had been brought under the deficit system of grants-in-aid. In the instant case, the grievance of the petitioner is in respect of no n acceptance of his claim for providing him pensionary benefits. U/S 3 of the af oresaid Act of 2005 and as noted above, all the employees of the colleges save a nd except the indicated above, shall be deemed to have become the employees of t he Government on and from the date on which the college had been brought under d eficit system of grants-in-aid. The particular conditions of become the employee s of the Government with which the present proceeding is concern, are as follows :- (cid:28)(d) the existing employees who want to continue in the existing terms a nd conditions of service shall give an option in writing to the Director, Higher Secondary Education, Assam within a period of three months from the date of com ing into force of this Act. (g) all existing employees who do not exercise option under clause (d) s hall to refund the State Government’s share of the Contributory Provident Fund w ith interest within six months from the date of coming into force of this Act. (cid:29) It is the stand of the respondents that since the petitioner has not ref unded the State Government’s Share of the CPF with interest within six months fr om the date of coming into force of the Act, he is not entitled to convert CPF t o that of GPF entitling him to get monthly pension and other retirement benefits . As noted above, an existing employee who wants to continue with the existing t erms and conditions of the clause shall give an option in writing to the Directo r, Higher Education, Assam, within a period of three months from the date of com ing into force of the Act. In the instant case the plea of the respondents is that since the petiti oner was in the CPF scheme, in case of his intention to discontinue with the sam e, it was incumbent on his part to furnish information in writing and also to re fund the State Government’s share of the CPF with interest. As has been brought on record by the petitioner, no CPF account was open ed during his service tenure and thus there was no question on his part to refun d the Government’s contribution along with the interest due thereon. However, it is the stand of the respondents in their counter affidavit that it was a fault on the part of the petitioner not to have opted for CPF scheme. Referring to the above noted provisions, it is their further stand that since the requirement to switch over to the other scheme other than the CPF is to refund the Government’ s contribution along with the interest, it is only on fulfillment of the said re quirement, the petitioner would have been entitled to switch over to the other s cheme from the CPF scheme. If the petitioner did not have CPF account, it is not understood as to h ow he could have refunded Government’s contribution along with interest. Since t he petitioner did not have any CPF account, there was no contribution to the sai d account by the Government and consequently there is also no question of making any refund by the petitioner. Refund of the Government’s contribution has been made the condition precedent enabling the incumbent to switch over to the other scheme as per the provisions of the aforesaid Act. If the petitioner did not hav e any CPF account, he was also not under any obligation to refund any amount. The State Respondents in their counter affidavit have attributed the fault on th e part of the petitioner in not opening the CPF account. It was their duty to op en the account. It is only on opening of the account, the petitioner could have contributed his share of the amount with simultaneous contribution on the part o f the Government. Since the same did not materialize, there is no question of re funding any amount by the petitioner as Government’s contribution. As per the provisions of Section 11 of the aforesaid Act of 2005, in cas e of any difficulty as to the interpretation of any provisions of this Act, the Governor may, by order do anything not inconsistent with the provisions of this Act, which appear to him to be necessary for the purpose of removing the difficu lty. In the instant case, the difficulty has arisen in view of the fact that the petitioner did not have CPF account. Had there been a CPF account, then only the question of refund of the Government contribution would have arisen.
Decision
In view of the above, the writ petition is disposed of directing the res pondents, more particularly respondent No.1 to pass appropriate order consistent ly with the observations made above, as expeditiously as possible, preferably wi thin 31.01.2014. Thereafter, further process in the matter shall be undertaken a nd finalized by the respective authorities.