Habibur Rahman and 3 Ors v. The State of Assam and 9 Ors

ORDER Date : 29.05.2024

¶1Heard Mr. A. Hassan, learned counsel for the petitioners.

¶2Also heard Mr. B. Kaushik, learned standing counsel, Elementary Education Department, for respondent Nos. 1, 3, 6, 7 & 9; Mr. A. Chalia, learned standing counsel, Finance Department, for respondent Nos. 2, 8 & 10; Mr. R. Boro, learned counsel appearing on behalf of Mr. C. Baruah, learned standing counsel, Accountant General, for respondent No. 4 and Mr. B. Deori, learned Government Advocate, for respondent No. 5.

¶3The petitioner Nos. 1, 2 & 3 were appointed temporarily as Stipendiary Teachers by separate orders, all dated 30.01.1996 and posted at Indira Gandhi L.P. School, Gosaipukhuri Joymoti L.P. School and Bagicha L.P. School respectively under North Lakhimpur. The petitioner No. 4 was appointed temporarily as Stipendiary Teacher and posted at Dowlatpur L.P. School, North Lakhimpur, by an order dated 27.01.1996. Thereafter, the petitioners were Page No.# 4/7 deputed to undergo to Junior Basic Training Course in the year, 2005, which the petitioners completed successfully. On completion of the Junior Basic Training Course, the petitioners were granted regular time scale of pay and other allowances by different orders, all dated 31.07.2007. The services of the petitioners were also confirmed in their respective posts, in which, they were serving. However, the petitioners were not allotted the GPF account number by the office of the Accountant General and instead they were allotted NPS account number in the year 2011 inasmuch as the petitioners were allowed to draw regular scale of pay w.e.f. 31.08.2006. It is also submitted at the Bar that the petitioner No. 2 has retired on 29-02-2024.

¶4Learned counsel for the petitioners submits that the issue involved in the present case is with regard to the grant of pension under the Old Pension Scheme to the petitioners. It is submitted that the issue involved is already covered by the judgment of this Court in the case of Purnima Hore and another Vs. State of Assam, reported in 2023 SCC Online Gau. 1165.

¶5Mr. B. Kaushik, learned Standing counsel, Elementary Education Department fairly submits that the case of the petitioners is covered by the case of Purnima Hore (supra).

¶6In the case of Purnima Hore (supra), this Court passed the following directions : "118. In the backdrop of the above, this Court, therefore, disposes of the instant batch of writ petitions with the following observations and directions:-

(i) The writ petitioners who come within the fold of Stipendiary Teachers are entitled to the benefits under the Rules of 1969 and they are not covered under the NDCPS, Page No.# 5/7 2009. The said petitioners are also entitled to subscribe to the GPF. The said petitioners would also be entitled to all other pensionary benefits to which a Government servant of corresponding rank is entitled to.

(ii) The writ petitioners who come within the fold of Dropped Teachers are not entitled to pension in terms with the Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

(iii) The teachers coming within the fold of Teachers Appointed under the Operation Black Board, and more particularly, those teachers who were appointed pursuant to the creation of 7066 posts on 08.03.2021, would not be entitled to pension in terms with Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. They shall be governed by the New Pension Scheme applicable to State Government employees of corresponding rank.

(iv) The writ petitioners who come within the fold of Excess Teachers would not be entitled to the pension in terms with the Rules of 1969 as well as also shall not entitled to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

(v) The writ petitioners who come within the category of Teachers appointed on Ad-hoc Grant Basis would not be entitled to pension in terms with the Rules of 1969, but shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. They would also not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937.

(vi) The Teachers who have been brought within the fold of the State Sector Employees by regularization of their services by the Dima Hasao Autonomous District Council on or after 01.02.2005 would not get the benefit in terms with the Rules of 1969, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. Page No.# 6/7

(vii) The teachers coming within the category of Dropped Teachers, Operation Black Board, Excess, Ad-hoc Grant as well as Dima Hasao as mentioned in Sub-Paragraph Nos.(ii), (iii), (iv) (v) & (vi) herein above as they come within the ambit of the New Defined Contribution Pension Scheme, 2009 shall be eligible for the benefit of retirement gratuity and death gratuity on the same terms and conditions as are applicable to the employees covered by the Rules of 1969 in view of the Office Memorandum dated 01.02.2021. (viii) The communication dated 23.02.2010 issued by the Director, Finance (Budget) Department to the Deputy Accountant General (P&A) is set aside and quashed.

(ix) It is observed that the instant judgment will come into effect prospectively. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to an employee on the basis of the directions passed by the various orders of this Court earlier. This direction has been given specifically for the fact that the State Government had allowed such orders so passed by the Coordinate Bench as well as the Division Bench of this Court to attain finality and have granted benefit to them. These persons shall continue to be entitled to the pension under the Rules of 1969 as per the directions of this Court earlier. The above directions is based upon the judgment of the Supreme Court in the case of Umadevi (3) (supra) wherein the Supreme Court at paragraph No.53 had categorically observed that those regularizations, if any, already made but not subjudiced need not be reopened based on the observations made in the said judgment.

(x) This Court further is of the opinion that the persons similarly situated to that of the writ petitioners coming within the category of Stipendiary Teachers, but who have not been able to approach this Court on account of various reasons, need not be deprived of the benefits of pension in terms with the Rules of 1969 as well as to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. This Court, therefore, directs the respondent authorities to grant the benefits of pension in terms with the Rules of 1969 as well as to allow such persons to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937 after completing the necessary verification in that regard. The same may be done within a period of 6 (six) months from the date of the instant judgment." Page No.# 7/7

¶7This Court, after considering the facts in the present case, is also of the considered opinion that the judgment passed in the case of Purnima Hore (supra) covers the case of the petitioners in hand.

¶8Accordingly, this writ petition is disposed of directing the respondent-authorities to verify the documents as regards the appointment of the petitioners as Stipendiary Teachers and after making necessary verification, if it is found that the petitioners fall within the ambit of the Stipendiary Teacher and were not granted the benefit of the pension under Assam Services (Pension) Rules, 1969, although, the regular scale of pay was given to them, the petitioners shall be granted the benefits of pension in terms of the Rules of 1969.

¶9The respondents are, therefore, directed to consider the case of the petitioners in terms of the directions passed in the case of Purnima Hore (supra).

¶10After verification and after the relevant documents are submitted to the Office of the Accountant General, the Office of the Accountant General shall also allot the GPF accounts to the petitioners.

¶11With the above observations and directions, the writ petition is disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010072162024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2010/2024o HABIBURoRAHMANoANDo3oORSo S/O-oLATEoTOMIZUDDINo R/O-oVILLAGE-oDOULATPURo P/O-oDOULATPURo P/S-oBIHPURIAo DISTRICT-LAKHIMPUR,oASSAMo PINoNO.-787054 2:oSUHRABUDDIN oS/O-oZOHURUDDINo R/O-oVILLAGE-oGOSAIDOLONIo P/O-SONAPURo P/S-oBIHPURIAo DISTRICT-LAKHIMPUR oASSAMo PINoNO.-o787054 3:oARCHANAoHAZARIKA oAGE-o51oYEARSo W/O-oBISWADEURIo R/O-oVILLAGE-oMORNOITHENGALo P/O-oKHORAMORNOIo oP/S-oBIHPURIAo DISTRICT-LAKHIMPUR oASSAMo PINoNO.-784161 4:oHONUFAoBEGUM oW/O-oABDULoKHALEQUEo R/O-oVILLAGE-oFATEHPURo P/O-oKUTUBPURo oP/S-oBIHPURIAo DISTRICT-LAKHIMPUR oASSAMo Page No.# 2/7 PIN NO.-78705 VERSUS THE STATE OF ASSAM AND 9 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF ELEMENTARY EDUCATION, DISPUR, GUWAHATI, 781006 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI 781006 3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 4:THE ACCOUNTANT GENERAL (A and E) ASSAM MAIDAMGAON BELTOLA PIN-781029 5:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-781006 6:THE DISTRICT ELEMENTARY EDUCATION OFFICER LAKHIMPUR. P.O and P.S- NORTH LAKHIMPUR DISTRICT-NORTH LAKHIMPUR ASSAM PIN-787001 7:THE DEPUTY INSPECTOR OF SCHOOLS NORTH LAKHIMPUR P.O and P.S NORTH LAKHIMPUR DISTRICT-LAKHIMPUR PIN 787001 8:THE TREASURY OFFICER LAKHIMPUR P.O and P.S-LAKHIMPUR DISTRICT-LAKHIMPUR ASSAM PIN-787001 Page No.# 3/7 9:THE BLOCK ELEMENTARY EDUCATION OFFICER BIHPURIA P.O and P.S- BIHPURIA DISTRICT-LAKHIMPUR ASSAM PIN-784161 10:THE TREASURY OFFICER BIHPURIA SUB-TREASURY P.O and P.S-BIHPURIA DISTRICT-LAKHIMPUR ASSAM PIN-78416 Advocate for the Petitioner : MD. A HASSAN Advocate for the Respondent : SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR