Lakhi Prasad Borah v. The State of Assam and 7 Ors

PageoNo.#o1/6 GAHC010085902024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2338/2024o LAKHIoPRASADoBORAHo S/O-oLATEoTHANESWARoBORAH,oR/O-oVILL.oANDoP.O.oGABHARUoTUNIJAN,o DIST.oLAKHIMPUR,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo7oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM,o DEPARTMENToOFoSCHOOLoEDUCATIONo(ELEMENTARY),oDISPUR,oGHY-781006. 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oFINANCEoDEPARTMENT oDISPUR oGUWAHATI-781006. 3:THEoACCOUNTANToGENERALo(AoANDoE) oASSAM oMAIDAMGAON oBELTOLA oGUWAHATI-781029. 4:THEoDIRECTORoOFoPENSION oHOUSEFEDoCOMPLEX oDISPUR oGUWAHATI-781006. 5:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA Page No.# 2/6 GUWAHATI-781019. 6:THE DISTRICT ELEMENTARY EDUCATION OFFICER LAKHIMPUR P.O. AND DIST. LAKHIMPUR ASSAM PIN-787001. 7:THE DEPUTY INSPECTOR OF SCHOOLS LAKHIMPUR P.O. AND DIST. LAKHIMPUR ASSAM PIN-787001. 8:THE BLOCK ELEMENTARY EDUCATION OFFICER BIHPURIA P.O. BIHPURIA DIST. LAKHIMPUR ASSAM PIN-784161 Advocate for the Petitioner : MR. S ISLAM Advocate for the Respondent : GA, ASSAM

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR

27.05.2024 O R D E R

Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned Standing Counsel, Elementary Education Department, Government of Assam, for respondent Nos.1, 5, 6, 7 and 8; Mr. P. Nayak, learned Standing Counsel, Finance Department, Government of Assam, for respondent No.2; Mr. S.K. Medhi, learned Standing Counsel, AG, for respondent No.3 and Ms. D.D. Barman, learned Additional Senior Government Advocate, Assam, for respondent No.4. Page No.# 3/6

¶2The petitioner was initially appointed as a fixed pay teacher and posted at Gabharu Tunijan LP School by an order, dated 08.03.2001, issued by the Deputy Inspector of Schools, North Lakhimpur. Thereafter, the petitioner along with 64 other teachers were allowed to draw regular pay-scale by an order, dated

19.12.2015, issued by the Director of Elementary Education, Assam. The name of the petitioner appears at Serial No.49 in the said order, dated 19.12.2015. The petitioner, thereafter, retired from service on 31.07.2020 as Head Teacher of Gabharu Tunijan LP School. However, till date, no pensionary benefits has been paid to the petitioner under the Assam Services (Pension) Rules, 1969.

¶3Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the case of Purnima Hore and others Vs. State of Assam and others, reported in 2023 (3) GLT 451.

¶4Mr. B. Kaushik, learned Standing Counsel, Elementary Education Department, Government of Assam, does not object to the submissions made by the learned counsel for the petitioner.

¶5Upon perusal of the case of Purnima Hore (supra), this Court is also of the considered opinion that the issue involved in the present writ petition is similar with the case of Purnima Hore (supra) and the present writ petition will be covered by the case of Purnima Hore (supra).

¶6In the case of Purnima Hore (supra), the following directions were passed:-"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, 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. Page No.# 4/6

(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.

(vii) The teachers coming within the category of Dropped Teachers, Operation Page No.# 5/6 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) Page No.# 6/6 months from the date of the instant judgment.

¶119Taking into account the facts involved in the instant batch of writ petitions, there is no order as to costs."

¶7Accordingly, this writ petition is also disposed of in terms of the directions passed in Purnima Hore (supra) and the claim of the petitioner shall be addressed in terms of the directions contained in the case of Purnima Hore (supra).

¶8With the above observations and directions, this writ petition is disposed of.

JUDGE Comparing Assistant