West Garo Hils, Tura- 794104 v. 1. 2. 3. The Commissioner & Secretary to the Education Department, Government of Meghalaya
Case Details
IN THE HIGH COURT OF MEGHALAYA WP(C) No. 44 of 2013 …… Petitioner Smti. Rehana Begom W/o Md. Nurul Islam, R/o New Bhaitbari, P.O. New Bhaitbari District : West Garo Hils, Tura- 794104 - versus 1. 2. 3. The Commissioner & Secretary to the Education Department, Government of Meghalaya Civil Secretariat, Shillong. The Director of Elementary & Mass Education, Government of Meghalaya, Laitumkhrah, Shillong-793003. The District Education Officer, previously the Inspector of Schools West Garo Hills District, Tura Meghalaya. 4. The Accountant General (A&E) Meghalaya, Shillong-1 …… Respondents BEFORE THE HON’BLE MR JUSTICE SR SEN Advocate for the Petitioner Advocate for the Respondents Date of Hearing Date of Judgment and Order : : : : BK Deb Roy
Legal Reasoning
Mr. P Nongbri Mr. R Debnath 26.11.2013 26.11.2013 JUDGMENT AND ORDER This instant petition is directed against the letter dated 27.11.12 bearing No. PEN (M) T-7/2012-13/6538. 2. The petitioner’s case in nut shell is that, “the petitioner’s husband Nurul Islam was appointed as Assistant Teacher in the Bhaitbari Aided M.E. School on 18.04.1967 and he continued as WP(C) No. 44 of 2013 Page 1 of 6 Assistant Teacher till September 1999. When the post of the Headmaster in the said school had fallen vacant, the Inspector of Schools, West Garo Hills, Tura by his order dated 21.9.1999 upgraded the post of the husband of the petitioner as Headmaster. The Deputy Inspector of Schools, Dadenggri, West Garo Hills by an order dated 6.11.2000 authorized the petitioner to be Drawing and Disbursing Officer of the said school on behalf of the Deputy Inspector of Schools w.e.f. 3.1.2000. 3. The husband of the petitioner has claimed that being the Headmaster of the school duly appointed by the Respondent and his service also having been confirmed he be paid regular salary as a Headmaster from the head of the Accounts of the government servant which claim was rejected by the State Respondent and thereafter he filed a writ petition before this Hon’ble Court which was registered as W.P(C) No. 232 (SH) 2004. The said writ petition was dismissed by the learned single judge vide judgment and order dated 5.7.2006 being devoid of merit and a writ appeal was filed which was numbered as W.A. No. 42 (SH) 2006 and the said appeal was allowed vide Judgment and Order dated 20.8.2009 quashing and setting aside the impugned judgment and order dated 5.7.2006. 4. The respondents had failed to comply with the order dated 20.8.2009 for a long time and thereafter the husband of the petitioner had filed a contempt petition which was numbered as C.O.P. No. (SH) 22 of 2010 in W.A. (SH) 42 of 2006 and the said contempt petition was finally disposed of vide order dated 15.11.2011 directing the respondents to prepare the pension papers of (L) Nurul Islam for onward submission to Accountant General, Meghalaya and to do the needful within 3(three) months and in view of the fact that the husband WP(C) No. 44 of 2013 Page 2 of 6 of the petitioner had died on 30.6.2011 and he was duly substituted by his legal heirs. 5. The petitioner could somehow learn upon enquiry that Accountant General (A&E) sometime in 2011 has turned down the application for pension and other pensionary benefits and thereafter petitioner’s lawyer has sent a pleader notice under section 80 C.P.C wherein respondent No. 4 was the notice receiver making requisition for payment of the pension. 6. That, in spite of being not a party in the above mentioned Writ petition and writ appeal, the respondent No. 4 ought to have acted upon the order of this Hon’ble Court passed in W.A. No. 42 (SH) 2006 and Contempt Petition No. 22 (SH) 2010, but the respondent No. 4 has stated specifically in his reply to the pleader notice dated 14.11.2012 to the effect that the pension case of (L) Nurul Islam was returned to the department on the ground that Deficit School Teachers are not entitled for pensionary benefits as depicted in Rule 11 of MCS (Pension) Rule 1983 vide his Memo No. PEN (M) T-7/2012-13/6538 dated 27.11.2012 and be it mentioned that the stand of the respondent No. 4 is highly irregular, illegal and beyond the jurisdiction, hence this writ petition praying for issuance of direction to the Respondents to examine the entire issue of payment of the GPF afresh so that the petitioner may be entitled to receive all the benefits and she should not be denied of any benefits whatsoever”. 7. Mr. B.K. Deb Roy, the learned counsel appearing for on behalf of the petitioner has submitted that the petitioner has not received the family pension till date, hence, this instant petition. The learned counsel also contended that, in spite of the Judgment & Order passed in the Division Bench of the erstwhile Guahati High Court, the petitioner did not receive any pension nor any steps has been taken by WP(C) No. 44 of 2013 Page 3 of 6 the respondents No. 1,2 & 3, so necessary direction may be passed as this Court found deem fit and proper. 8. I have perused the Judgment & Order passed by the erstwhile Guahati High Court in WA No. 42 (SH) of 2006 wherein the Hon’ble High Court was pleased to direct as follows: “24. As to under what circumstances and with what terms and conditions Late Surat Zaman was appointed as Headmaster is not discernible. Only thing we can say is that the petitioner was not appointed and or promoted against any ex-cadre post nor he was upgraded along with the post of Assistant Teacher. He was clearly appointed in the post earlier being held by Late Surat Zaman. As to what would be the consequence thereof is for the respondents to decide.
Decision
In view of the above, this writ appeal is disposed 25. of directing the respondents to consider the case of the appellant/writ petitioner treating his promotion to the post of Headmaster being the one against the post earlier held by Late Surat Zaman and not treating the same to be a promotion against an ex-cadre post or a promotion along with the post personal to the dispassionate appellant. consideration and also in view of the facts and circumstances stated above, the impugned judgment and order dated 05.07.2006 passed by the learned Single Judge in WP(C) No. 232(SH)/2004 is interfered with and stands set aside and quashed. Facilitating such 26. Entire exercise shall be carried out by the respondent authorities in terms of this judgment order as expeditiously as possible preferably within three months. The respondent authorities shall pass a speaking order and shall communicate the same to the petitioner.” 9. Mr. P Nonbri, the learned counsel appearing for on behalf of the respondents No. 1, 2 & 3 has submitted that, the respondent is ready to pay the family pension in favour of the petitioner provided it should not be as a precedent in future cases or in any other cases as the post has already been abolished. The learned counsel has also drawn my attention to the affidavit-in-opposition specifically Para-17 which is reproduced herein under: WP(C) No. 44 of 2013 Page 4 of 6 “17. That it is further submitted, that assuming for a moment that this Hon’ble Court is of the respectful view, that in the peculiar circumstances of the instant case, the Petitioner is entitled to pension and family pension which otherwise is de-hors the prevailing pension rules since the appointment of the late Shri. Nurul Islam by the Inspector of Schools, Tura, to the said post of Headmaster was itself illegal and void, the answering respondents in such a situation, humbly prays before this Hon’ble Court that if deemed fit, such relief if any, may only be granted by treating this instant case as an exceptional case and that the same should not be set as a precedent for any other case in future.” 10. Mr. R Debnath, the learned counsel for respondent No. 4 has submitted that, he was not a party in the previous writ proceeding; however, the respondent No. 4 has no objection and has specifically stated in the affidavit Para-20 which is also reproduced herein under: it “20. That is submitted that the answering respondent has raised the objection as per Rules and if the Hon’ble Court considered that the writ petitioner is entitled for said benefit and the state government is ready to make payment in such eventuality your answering respondent will issue the authorization for the same, within the time frame on receipt of the requisite documents for the department.” 11. After hearing the submissions advanced by the learned counsel at bar and after perusal of the Judgment & Order of the erstwhile Guahati High Court, Division Bench as well as the affidavits- in-opposition of the respondents No. 1,2,3 & 4, it is cleared that the respondents are ready to pay the family pension in favour of the petitioner only; but it should not be as a precedent in future cases or in other cases as submitted for by the learned counsel for the respondents No. 1,2 & 3. 12. Since the respondent is ready to pay the family pension, therefore, the respondent is directed to take necessary steps to pay the family pension to the petitioner concerned w.e.f. 21.09.1999 till WP(C) No. 44 of 2013 Page 5 of 6 31.01.2005 within a period of 3(three) months from the date of receipt of this order. 13. It is also to be mentioned here that, this Judgment & Order will not be as a precedent in future cases or in any other cases since this Judgment & Order has been passed considering as an exceptional case. 14. With these observations and directions, the petition is allowed and the matter stands disposed of. JUDGE V. Lyndem WP(C) No. 44 of 2013 Page 6 of 6