Naren Kalita v. The State of Assam and 6 Ors

ORDER Date : 13-05-2024 Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr. D. Bora, learned Government Advocate, Assam, Mr. B. Chakravarty, learned Standing Counsel, Accountant General, Assam and Mr. N. Upadhyay, learned Standing Counsel, Irrigation Department and Mr. A. Chaliha, learned Standing Counsel, Finance Department. 2] This writ petition is filed by the petitioner who had served as a Muster Roll worker in the office of the Executive Engineer, Borolia Division (Irrigation), Tamulpur, Assam. He was appointed on 01.02.1992 and he was regularized as a Page No.# 3/6 Grade IV employee with effect from 22.07.2005. He retired from his service on

31.08.2016. It is submitted that when the pension papers were prepared though the petitioner had rendered 24 years 7 months of qualifying service, 6 years of initial service period had been deducted on the basis of Office Memorandum dated 20.05.2009 for which net qualifying service of the petitioner is counted as less than 20 years and as such, pension of the petitioner was not sanctioned 3] Learned counsel for the petitioner submits that the said deduction of 6

(six) years of service has been held impermissible by this Court in WP(C) No.1089/2015 (Sanjita Roy vs. the State of Assam & Ors.) decided on

04.12.2018, and the respondent authorities were directed to determine the continuous length of service of the petitioners as Muster Roll Workers and if such service meets the bench marks of 20 (twenty) years then the benefit of pension should be made available to them without any deduction from the total period of service. This view was also upheld by a Division Bench of this Court by Judgment and Order dated 26.02.2021 passed in W.A. No.18/2021 (Binapani Das vs. the State of Assam & Ors.). The respondents do not dispute the position in law as has been laid down in Sanjita Roy (supra) and which was upheld in Binapani Das (supra). 4] The counsel for the parties have been heard. The pleadings available on Page No.# 4/6 record have been perused. 5] In Sanjita Roy (supra) a Coordinate Bench of this Court held that the deduction of 6 (six) years of initial service from the total services rendered by an incumbent while calculating the period of service towards eligibility of grant of pension of Muster Roll Workers have been held to be bad. The Coordinate Bench held that such deduction of initial period of 6 (six) years of service from the total period of services rendered is contrary to law. The judgment in Sanjita Roy (supra) was passed on 04.12.2018. In subsequent writ petitions filed, other Coordinate Benches held that the benefit of Sanjita Roy (supra) will be effective only from the date of the said Judgment, namely from 04.12.2018. One such order was brought to the Division Bench of this Court in W.A. No.18/2021 and the Division Bench of this Court in Binapani Das (supra) (W.A. No.18/2021) by Judgment and Order dated 26.02.2021 while upholding the proposition laid down in Sanjita Roy (supra), further held that once the benefit has been granted by way of a judgment, the same cannot be curtailed to deny the benefit of other similarly situated persons when the original judgment itself did not restrict such benefit. It was held that the orders of the Courts are always retrospective in nature unless it is specifically made prospective in the order itself. The relevant paragraph of the said Judgment and Order is extracted herein below: Page No.# 5/6 "9. An order of the court is always retrospective in nature, unless it is specifically made prospective in the order itself. This is because the courts do not legislate, they only interpret an existing law. This is unlike the laws made by the State Legislature and the Parliament, which are always prospective in nature, unless again, the law itself makes it retrospective. The original judgement (dated 04.12.2018), passed in WP(C) 1089/2015 (Sanjita Roy vs. State of Assam and Others), does not give benefit to the petitioners from a prospective date. Therefore, in our considered opinion, the order dated 04.12.2018 was retrospective in nature and it would include all similarly situated muster roll workers irrespective of their dates of retirement, provided they are covered by the benefits given to them earlier, and were already availing pension." 6] That apart, the Government of Assam by Office Memorandum dated

31.07.2010 provided that the part of their past Muster Roll services prior to regularisation have to be counted for the purpose of pension in terms of PPG Department's OM No.PPG(P)88/2009/2 dated 20.05.2009 on attaining the age of superannuation by the regularized Muster Roll Workers. 7] Considering the limited prayer before this Court and upon careful perusal of the writ petition including the judgments passed in Sanjita Roy (supra) and Binapani Das (supra), this Court is of the view that the issue raised in the writ petition is squarely covered by the Judgment and Order passed in Sanjita Roy (supra) which was upheld by the Division Bench of this Court in Binapani Das (supra). 8] In that view of the matter, the writ petition stands closed with a direction to the respondent authorities to examine the claim of the petitioner and if it is Page No.# 6/6 found to be correct then the deduction of 6 years of service of the petitioner shall be calculated as continuous period of service and the amount of pension, gratuity and all other retiral benefits, whichever is due to the petitioner, shall be paid to the petitioner without any further delay after making appropriate calculation and also taking into consideration of his entire period of service in view of the Judgment and Order passed in Sanjita Roy (supra) and Binapani Das (supra). The entire exercise shall be completed within a period of 60 (sixty) days from the date of receipt of a certified copy of this order. 9] In terms of the above, the writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010086562024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2440/2024o NARENoKALITAo S/OoLATEoBHAGORAMoKALITA,oPRESENToADDo-oSARKARIoCHAPASAL,oP.S.- CHANDMARI,oP.O.-CHANDMARI,oDIST-oKAMRUPo(METRO),oASSAM,oPIN- 781003,oPERMANENToADDo-oVILL-oADABARI,oP.O.oANDoP.S.-MUKALMUA,o DIST-oNALBARIo(ASSAM),oPIN-781126 VERSUSo THEoSTATEoOFoASSAMoANDo6oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,oIRRIGATIONoDEPARTMENT,oDISPUR,oGUWAHATI-6 2:THEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPENSIONoANDoGRIEVANCESoDEPARTMENT oDISPUR oGUWAHATI-6 3:THEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM oFINANCEoDEPARTMENT oDISPUR oGUWAHATI-6 4:THEoCHIEFoENGINEER oIRRIGATION oASSAM oGUWAHATI-3 5:THEoACCOUNTANToGENERALo(AoANDoE) oASSAM oMAIDAMGAON oBELTOLA oGUWAHATI-29 Page No.# 2/6 6:THE EXECUTIVE ENEGINNER BOROLIA DIVISION (IRRIGATION) TAMULPUR DIST- TAMULPUR (ASSAM) PIN-781367 7:THE TREASURY OFFICER MUSHALPUR TREASURY DIST- BAKSA ASSAM PIN-78137 Advocate for the Petitioner : MR. K R PATGIRI Advocate for the Respondent : SC, IRRIGATION BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA