Sarifuddin Ahmed v. The State of Assam and 5 Ors

ORDER 17-07-2023 Heard Mr. M. U. Mahmud, learned counsel for the petitioner and Mr. S. S. Roy, learned Government Advocate, Assam for the respondent Nos. 1 and 5. Also heard Mr. B. Choudhury, learned Standing Counsel, PWD for the respondent No.2; Mr. P. Nayak, learned Standing Counsel, BTC for the respondent Nos. 3, 4 and 7 as well as Mr. R. K. Talukdar, learned Standing Counsel, A G (A & E) for the respondent No.6. Petitioner herein has prayed for a direction to pay him pension and other service benefits like Gratuity, Group Insurance etc., who served as Work-Charged Chowkidar in the establishment of the Assistant Executive Engineer, PWD Kachugaon Rural Road Sub-Division, Kachugaon, District Kokrajhar under BTC. Mr. Choudhury, learned Standing Counsel, PWD as well as Mr. P. Nayak, learned Standing Counsel, BTC from the appointment order of the petitioner annexed to this petition as Annexure-I, placed before the Court that the petitioner was appointed as temporary Work-Charged Chowkidar but his temporary service was not regularized and as such, the petitioner is not entitled for any such pensionary benefits who was appointed temporarily as Work-Charged Chowkidar in the establishment of the Assistant Executive Engineer, PWD Kachugaon Rural Road Sub-Division, Kachugaon, District Kokrajhar. Mr. Nayak also placed a copy of the order dated 13.03.2023, passed by a Division Bench of Page No.# 3/3 this Court in Writ Appeal No.1/2022 (Ujala Narzary Vs. State of Assam and 4 others) arising out of WP(C) No.6193/2021 (Ujala Narzary Vs. State of Assam and 4 others) decided on 24.11.2021 whereby the Hon'ble Division Bench upheld the decision of the learned Single Judge dated

24.11.2021, passed in said WP(C) No. 6193/2021 in which the learned counsel for the petitioner Mr. M. U. Mahmud represented said Ujala Narzary came to the finding that the Assam Service Pension Rules, 1969 specified that the service of an officer does not qualified for pension unless it conforms to the three conditions, namely, the service must be under Government; the employment must be substantive and permanent and the servant must be paid by Government and further the law laid down in the case of State of Karnataka Vs. M. L. Kesari reported in

(2010) 9 SCC 247, the appellant there was not entitled for any such benefit. Since the service of the petitioner was not against any substantive post and his service was not permanent, the claim of the petitioner for payment of pensionary benefit to him cannot be considered in exercise of the powers under Article 226 of the Constitution of India in the present proceeding. For the reasons above, this writ petition being without any merit stands dismissed. JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010111702021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:ooWP(C)/5278/2021 SARIFUDDINoAHMED S/OoLT.oALIoHUSSAIN oR/OoVILL-oPADMABIL oP.O.oANDoP.S.-GOSSAIGAON oDIST-oKOKRAJHAR oBTADo(ASSAM) oPIN-783360 oVERSUS THEoSTATEoOFoASSAMoANDo5oORS REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM oPENSIONoANDoPUBLICoGRIEVANCEoDEPARTMENT oGUWAHATI-6 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPUBLICoWORKSoDEPARTMENT DISPUR oGHY-6 o3:THEoEXECUTIVEoENGINEER oPUBLICoWORKSoDEPARTMENT KOKRAJHARoRURALoROADoDIVISION oKOKRAJHAR oASSAM o4:THEoASSTT.oEXECUTIVEoENGINEER oPWDoRURALoROADoDIVISION KACHUGAON oDIST-oKOKRAJHAR oASSAM o5:THEoDIRECTORoOFoPENSION oASSAM Page No.# 2/3 DISPUR GHY-6 6:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GHY-29 ------------ Advocate for : MR. M U MAHMUD Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK