Debmohan Rajbongshi v. The State of Assam and Ors

JUDGMENT & ORDER (ORAL)

¶1Heard Mr. A. R. Tahbildar, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Additional Senior Government Advocate for the State of Assam.

¶2The present writ petition is filed with the following prayers:- "Issue Rule calling upon the respondents to show-cause as to why the petitioner should not be allowed to be re-instated and allowed to continue in service w.e.f., 08.07.2004 in terms of the direction passed by this Hon'ble Court in W.P.(C) No. 3099/2006 vide its order dated 02.06.2010 and the order dated 22.04.2009 passed by the Hon'ble Apex Court in Civil Appeal No. 7922/2002, and secondly, why the petitioner should not be paid back wages for the period of illegal termination caused due to illegal discontinuance of service on invalid grounds w.e.f., 08.07.2004 and upon perusal of the records and upon cause or causes shown if any, the Hon'ble Court may be pleased to make the said rule absolute".

¶3The undisputed facts leading to the present writ petition are as under:- Page No.# 4/6 I. The petitioner is an ex-serviceman and after his retirement, he was engaged as Constable (B) in the Assam Police Border Organization, Assam under a scheme called Prevention of Infiltration of Foreigners (PIF). II. By an order dated 07.08.2004, the service of the petitioner as Constable (B) under the scheme was not renewed w.e.f. 08.07.2004 for the reason of poor performance. III. Subsequently, such order was interfered with by this Court under its order dated 02.06.2010 passed in WP(C) No.3099/2006. IV. This Court relying on the decision of the Hon'ble Apex Court passed in Md. Abdul Kadir –Vs-Director General of Police interfered with the order of discontinuation and held that the annual termination and re-appointment in case of person appointed under the scheme is not permissible in terms of the determination made by the Hon'ble Apex Court in Md. Abdul Kadir (supra). Accordingly, a direction of reinstatement of the petitioner was issued subject to assessment of medical fitness. However, it was made clear that the petitioner shall not be entitled for any back wages. V. Thereafter, the petitioner was allowed to rejoin in the service in terms of this Court's order dated 02.06.2010 passed in WP(C) No. 3099/2006 w.e.f. 09.07.2010. VI. Subsequently, the present writ petition was filed with a prayer of payment of back wages w.e.f. 08.07.2004, when the petitioner's service was discontinued till 09.07.2010. Page No.# 5/6

¶4In view of the determination made by this Court in WP(C) No. 3099/2006 (supra), preferred by the petitioner, wherein in no unambiguous term, it was held that the petitioner shall not be entitled for any back wages, this Court is of the view that such prayer cannot granted in the present writ petition filed by the petitioner against the same respondents and for the same period, which was subject matter of the previous writ petition being WP(C) No. 3099/2006.

¶5So far relating to the claim of back wages for the period from the date of issuance of the direction by this Court in WP(C) No. 3099/2006 till actual reinstatement, in absence of any challenge to such decision, this Court is not inclined to interfere. Accordingly, this writ petition stands dismissed.

¶6However, at this stage, the learned counsel for the petitioner referring to the Judgment of the Hon'ble Apex Court in Md. Abdul Kadir (supra), submits that in terms of the judgment of the Md. Abdul Kadir (supra), a person cannot be discontinued annually and subsequently, by an office memorandum dated 21.01.2019 issued by the Commissioner & Secretary to the Government of Assam, Pension & Public Grievances Department, a policy decision was taken to give pro-rata pension to those persons who were engaged under the PIF scheme on completion of 10 years service. It is a case projected at this stage by the petitioner that the petitioner during the pendency of the present writ petition has retired on 31.05.2014 and therefore, a direction should be issued to the respondent authorities to grant him the pension in pro-rata basis in terms of the office memorandum dated 21.01.2019.

¶7This Court is afraid that such dispute can be adjudicated in the present Page No.# 6/6 writ petition where there is no pleading or prayer in that regard. However, the petitioner shall always be at liberty to agitate his grievance for non grant of pension if permissible under law and dismissal of this writ petition will no way affect such right of the petitioner.

¶8With the aforesaid observation, this writ petition stands dismissed. Parties to bear their own cost. JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010007202012 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3594/2012ooooooooo DEBMOHANoRAJBONGSHI S/OoLT.oRALANoMONIoRAJBONGSHI oR/OoVILLAGEoV.I.P.oROAD oMILANoNAGAR oP.O.oGUWAHATIoAIRPORT oDISTRICToKAMRUP.I oVERSUS THEoSTATEoOFoASSAMoANDoORS REPRESENTEDoBYoTHEoCHIEFoSECRETARYoTOoTHEoGOVoERNMENToOFo ASSAM oDISPUR-781o006. 2:THEoSECRETARY TOoTHEoGOVERNMENToOFoASSAM oPENSIONoANDoPUBLICoGRIEVANCESoDEPARTMENT oDISPUR oGUWAHATI-781o006. o3:THEoCOMMISSIONER ANDoSECRETARYoTOoTHEoGOVERNMENToOFoASSAMoHOMEoAoDEPARTMENT oDISPUR oGUWAHATI-781o006. o4:THEoDEPUTYoSECRETARY TOoTHEoGOVERNMENToOFoASSAM oHOMEoA oDEPARTMENT Page No.# 2/6 DISPUR GUWAHATI-781 006. 5:THE DIRECTOR GENERAL OF POLICE ASSAM GUWAHATI-781 007. 6:THE DIRECTOR GENERAL OF POLICE BORDER ASSAM. SRIMANTAPUR BHANGAGARH GUWAHATI-781 032. 7:THE ADDITIONAL DIRECTOR GENERAL OF POLICE BORDER HQ B ASSAM KHANAPARA GUWAHATI-781 021. 8:THE SUPERINTENDENT OF POLICE BORDER ASSAM KHANAPARA GUWAHATI-781 021. 9:THE STATE OF ARUNACHAL PRADESH AND ORS BEING REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI - 110 001. ------------ Advocate for : MR.H GUPTA Advocate for : ASSTT.S.G.I. appearing for THE STATE OF ASSAM AND ORS Page No.# 3/6 BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Mr. A. R. Tahbildar. Advocate. For the Respondents : Mr. R. Dhar, Addl.Sr.G.A. Date of Hearing : 13.12.2023 Date of Judgment : 13.12.2023