Jogeswar Bujarbaruah v. The State of Assam and 5 Ors

ORDER

03.05.2024 Heard Mr. C. Bhattacharyya, learned counsel for the petitioner. Also heard Mr. D. Bora, learned Government advocate, Assam, Mr. K.K. Medhi, learned Standing Counsel, Accountant General, Assam and Ms. D.D. Neog, learned Standing Counsel, Irrigation 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, Guwahati Mechanical Division (Irrigation), Guwahati-3. He was appointed on 15.05.1990 and he was regularized as a Helper with effect from 22.07.2005 by order dated 06.10.2005. He retired from his service with effect from 31.01.2021 on superannuation. When the pension papers were prepared the gross period of service was shown as 30 years 8 months and 17 days and the net qualifying service was shown as Page No.# 3/6 24 years 8 months and 17 days. The last pay of the petitioner was reflected as Rs.25,620/- (Rupees Twenty Five Thousand Six Hundred Twenty only) and accordingly, in the pension payment order, the pension of the petitioner was shown as Rs.12,560/- (Rupees Twelve Thousand Five Hundred Sixty only). According to the petitioner the amount of pension that he has received is less than the amount he is entitled to receive under the provisions of law. It is submitted that the respondent authorities have deducted his initial 6 (six) years from the total period of his service while calculating the amount of pension payable to the writ petitioner. 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.). 3] By earlier order dated 06.10.2023 notice was issued to the respondents and an observation was made that the pendency of the writ petition shall not be Page No.# 4/6 a bar for the respondents to re-calculate the admissible pension and admissible gratuity in respect of the petitioner. 4] The counsel for the parties have been heard. The pleadings available on record have been perused. 5] Learned counsel for the respondents does not dispute the position in law as has been laid down in Sanjita Roy (supra) and which was upheld in Binapani Das (supra). In Sanjita Roy (supra) the 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 benefits of Sanjita Roy (supra) will be effective only from the date of the said Judgment i.e.

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 Page No.# 5/6 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: "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 Page No.# 6/6 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 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 payable to the petitioner be revaluated and the appropriate amount payable to the petitioner taking into consideration his entire period of service in view of the Judgment and Order passed in Sanjita Roy (supra) and Binapani Das (supra) be released to him without any further delay. 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 GAHC010223862023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5869/2023o JOGESWARoBUJARBARUAHo S/OoLATEoUGRESWARoBUJARBARUAH,oR/OoVILL-JAYANTIPUR,oP.S.- RANGIA,oDIST-KAMRUP,oASSAM,oPIN-781354 VERSUSo THEoSTATEoOFoASSAMoANDo5oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM,o IRRIGATIONoDEPARTMENT,oDISPUR,oGUWAHATI-6 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo ASSAM oFINANCEoDEPARTMENT oDISPUR oGUWAHATI-6 3:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFo ASSAM oADMINISTRATIVEoREFORMSoTRAININGoANDoPENSIONoANDoPUBLICo GRIEVANCESoDEPARTMENT oDISPUR oGUWAHATI-6 4:THEoCHIEFoENGINEER oIRRIGATIONoASSAM oCHANDMARI oGUWAHATI-3 5:THEoEXECUTIVEoENGINEER oGUWAHATIoMECHANICALoDIVISIONo(IRRIGATION) oGUWAHATI-3 oDIST-oKAMRUPo(M) Page No.# 2/6 ASSAM 6:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-2 Advocate for the Petitioner : MR. C BHATTACHARYYA Advocate for the Respondent : SC, IRRIGATION BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA