Gauhati High Court
WP(C)/2517/2021 on 20 December, 2024
GAHC010065882021
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 2517/2021
Smt. Sandhyarani Das,
W/o Lt. Sachindra Kr. Das,
Resident of Vill-Bokajan Town, Ward No.3,
PO & PS-Bokajan, Dist.-Karbi Anglong, Assam.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Government of Assam, Education Elementary Department,
Dispur, Guwahati-6, Dist.-Kamrup(M), Assam.
2. The Director of Elementary Education, Assam,
Kahilipara, Guwahati-19,
Dist.-Kamrup(M), Assam.
3. Karbi Anglong Autonomous Council, Diphu,
Represented by its Principal Secretary.
4. Accountant General,
Maidamgaon, Beltola, Guwahati-29.
5. District Elementary Education Officer,
Diphu, Karbi Anglong.
6. The Treasury Officer,
Diphu, Hamren, Bokajan,
Dist.-Karbi Anglong, Assam.
7. Headmaster,
Bibekananda L.P. School, Bokajan,
Dist.-Karbi Anglong, PO-Bokajan, Pin-782480.
......Respondents.
WP(C) 2517/2021 Page 1 of 9
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. H. Das. ……Advocate.
For the Respondents : Mr. J. Chutia, SC, KAAC,
Mr. B. Kaushik, SC, Ele. Edu.
......Advocates.
Dates of Hearing : 07.11.2024 & 12.11.2024
Date of Judgment : 20.12.2024.
JUDGMENT AND ORDER
Heard Mr. H. Das, learned counsel for the petitioner. Also heard
Mr. J. Chutia, learned standing counsel, Karbi Anglong Autonomous
Council (KAAC), appearing for the respondent Nos.3, 5 and 7 and Mr. B.
Kaushik, learned standing counsel, Education (Elementary) Department,
appearing for respondent Nos.1 and 2.
2. In this petition under Article 226 of the Constitution of India, the
petitioner Smt. Sandhyarani Das has prayed for issuing direction to the
respondent authorities for releasing family pension to her w.e.f.
13.07.1992.
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3. The background facts leading to filing of the present petition, is
briefly stated as under:-
“Late Sachindra Kr. Das was working as Head Pandit of
Bibekananda L.P. School, Bokajan, Karbi Anglong. During the
period of his service, he expired on 12.07.1992. After his death, his
wife, the present petitioner, has approached the respondent
authorities for granting her family pension, but the same has been
denied and being aggrieved she approached this Court by filing the
present petition seeking the relief as aforesaid.”
4. The respondent No.5, the District Elementary Education Officer,
Karbi Anglong, Diphu, has filed affidavit-in-opposition, wherein it is stated
that the Karbi Anglong Autonomous Council (KAAC) has been given the
authority to make law, applicable within the district of Karbi Anglong, in
respect of Primary and Secondary Education as per paragraph 3A(1)(d) of
the 6th Schedule of the Constitution of India and that the Assam
Elementary Education (Provincialisation) Act, 1974 was enacted by the
Government of Assam for provincialisation of the services of the teachers
and employees of Elementary Schools and Section 1(2) of the Act
provides that the Act is extended to the whole Assam except the
Autonomous District, provided that the Governor may, with the consent
of District Council concern, extend all or any of the provisions of the Act
to all or any of the Autonomous District on such day or dates as may be
notified in this behalf. Thereafter, in exercise of power conferred by
Section 1(2) of the Act, the Governor of Assam after consultation and
with consent of Karbi Anglong Autonomous Council, extend all the
provisions of the Assam Elementary Education (Provincialisation) Act,
1974 to the Karbi Anglong Autonomous Council w.e.f. 01.08.2003 and
thereafter, pursuant to the Government notification dated 08.08.2003,
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the Governor of Assam provincialized 1411 nos. of L.P. Schools with 2859
nos. of L.P. School teachers w.e.f. 01.08.2003 and extended the benefit
of general provident fund accounts and other financial benefits. The said
notification also stipulates that in future the provincialisation of Assam
Elementary Education (Provincialisation) Act, 1974 will be applicable in
terms of Office Memorandum dated 31.12.1996 and thereafter, the
Secretary to the Government of Assam, Education (Elementary)
Department issued Notification No.AEE.384/2005/Pt/165 dated
06.10.2009, by which the services of 343 nos. of retired/expired L.P.
School teachers were provincialized, who had been working from
01.01.1995 to 31.07.2003 on the condition that the pension/family
pension is to be given and not for other pensionary benefits w.e.f.
01.08.2003 and the arrear salary from 01.01.1996 to 31.07.2005 are not
entitled by the retired/families of expired teachers, and since the husband
of the petitioner was appointed by the Secretary, Primary Education
Board, Karbi Anglong District Council, Diphu, by an order dated
24.01.1969 and he died on 12.07.1992, before provincialisation of the
services of the teachers of Bibekananda L.P. School, the pension papers
of the husband of the petitioner could not be processed from his office
and therefore, it is contended to dismiss the petition.
5. Mr. Das, learned counsel for the petitioner, submits that the
husband of the petitioner was appointed as an Assistant Teacher in the
Bibekananda L.P. School, Bokajan, Karbi Anglong, on 01.01.1969 and
while he was working as Head Pandit of Bibekananda L.P. School,
Bokajan, he died on 12.07.1992 and after the death of her husband, the
petitioner filed an application to the Headmaster of the school on
02.03.1996 seeking family pension. But, the same has been denied and
that her husband received pay scale w.e.f. 01.01.1969 till 31.12.1987 and
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the same has been duly recorded in his service book and the colleagues
of her late husband have been receiving regular pension and other
pensionary benefits, but when she approached the Headmaster of the
school, the same has been denied to her and as the husband of the
petitioner was in regular service, his family members are entitled to
receive family pension and therefore, Mr. Das has contended to allow this
petition by directing the respondent authorities to release the family
pension in favour of the petitioner. In support of his submission, Mr. Das
has referred to the decisions of this Court in Khagendra Chandra Dev
Sarma Vs State Of Assam And Ors. [WP(C) No.3267/2006,
decided on 19.07.2006] and in Mrs Purnima Tamuli Phukan Vs
State Of Assam And Ors. [WP(C) No.2319/2011, decided on
18.06.2013].
6. Per contra, Mr. Chutia, learned standing counsel, KAAC, appearing
for the respondent Nos.3, 5 and 7 submits that in the district of Karbi
Anglong, the Assam Elementary Education (Provincialisation) Act, 1974
was extended w.e.f. 01.08.2003 by a notification dated 08.08.2003 and
that the Governor of Assam, thereafter, provincialized 1411 nos. of L.P.
Schools with 2859 nos. of L.P. School teachers w.e.f. 01.08.2003 and
thereafter, vide notification dated 06.10.2009, 343 nos. of retired/expired
L.P. School teachers were provincialized, who had been working from
01.01.1995 to 31.07.2003 for giving pensionary benefits. But, the
husband of the present petitioner expired before 01.01.1995 and as the
school and the service of the husband of the petitioner was not
provincialized, so his pensionary benefit cannot be extended to him and
therefore, Mr. Chutia contended to dismiss the petition.
6.1. However, Mr. Chutia submits that there is a provision in the Assam
Services (Pension) Rules, 1969, i.e. Rule 67 which gives the power to the
WP(C) 2517/2021 Page 5 of 9
Governor to condon any deficiency of service, not exceeding 12 months
in respect of qualifying service of an officer and that similar relief was
granted by this court in WP(C)/3786/2021 (Sabita Sutradha vs.
State of Assam and 7 others).
7. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the petition and the documents
placed on record.
8. It is not in dispute that the husband of the petitioner was
appointed as Assistant Teacher w.e.f. 01.01.1969 in the Bibekananda L.P.
School, Bokajan. It is also not in dispute that her husband suffered
demise on 12.07.1992, while he was working as Head Pandit of
Bibekananda L.P. School, Bokajan. Further, it is also not in dispute that
the Assam Elementary Education (Provincialisation) Act, 1974 was
extended to the Karbi Anglong Autonomous Council w.e.f. 01.08.2003
and thereafter, the Governor of Assam had provincialized 1411 Nos. of
L.P. Schools with 2859 Nos. of L.P. School teachers w.e.f. 01.08.2003 and
thereafter, vide another Notification dated 06.10.2009 under
No.AEE.384/2005/Pt/165, 343 nos. of retired/expired L.P. School teachers
were provincialized, who had been working from 01.01.1995 to
31.07.2003. Admittedly, the name of the husband of the petitioner was
not there in the aforementioned list and as the husband of the petitioner
suffered demise prior to provincialisation of the school, in which he was
working. And since his name is not there in the list of 343 Nos. of
retired/expired L.P. School teachers, who had been working from
01.01.1995 to 31.07.2003, the family pension, as prayed for by the
petitioner could not be extended to her, as her husband suffered demise
before 01.01.1995. There is no provision in the said Act to extend such
the benefit to the petitioner.
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9. It is to be noted here that Rule 31 of the Assam Services (Pension)
Rules, 1969 provides as under:-
“31. Conditions to qualifying service.- The service of
an officer does not qualify for pension unless it
conforms to the following three conditions:
Firstly, the service must be under Government;
Secondly, the employment must be substantive and
permanent;
Thirdly, the servant must be paid by Government.
Provided that the Governor may, even though
either or both of conditions (1) and (2) above are not
fulfilled, –
(i) declare that any specified kind of service
rendered in a non-Gazetted capacity shall
qualify for pension, and
(ii) in individual cases and subject to such
conditions as he may think fit to impose in
each case allow service rendered by an
officer to count for pension.”
10. Rule 140 of the Assam Services (Pension) Rules 1969 provides as
under:-
“140.Except as otherwise provided in Rule 142 a family
pension not exceeding the rate mentioned in Rule 141
will be admissible in case of death of an officer
while in service or after 1st January, 1964, if at the
time of death the retired officer was in receipt of a
compensation, invalid, retiring or superannuation
pension. In case of death while in service, the
Government servant should have completed a minimum
period of one year of service.”
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11. Rule 67 of the Assam Services (Pension) Rules 1969 provides that
upon such conditions as he may think fit in each case to impose, the
Governor may condone a deficiency not exceeding twelve months in the
qualifying service of an officer.
12. In the case in hand, it is not in dispute that the husband of the
petitioner rendered service w.e.f. 01.01.1969, till his death on
12.07.1992, for a period of more than 20 years. But, as his service was
not under the Government and his employment was not permanent and
as the service was not paid by the Government, the requirement of Rule
31 could not be fulfilled so as to receive the pension/pensionary benefit.
13. I have carefully gone through the decisions, referred by Mr. Das,
the learned counsel for the petitioner in Khagendra Chandra Dev Sarma
(supra) and in Mrs. Purnima Tamuli Phukan (supra) and I find that
the ratio laid down therein are not application to the facts herein this
case as the facts in those cases are clearly distinguishable from the
present case.
14. Under such circumstances and also taking note of Rule 67 of the
1969 Rules, this Court is inclined to dispose of this petition by granting
liberty to the petitioner to approach the Director of Elementary Education
and to file a fresh representation addressing the Governor of the State,
for consideration of invocation of the power provides under Rule 67 and
for further consideration of condoning the deficiency of qualifying services
in respect of her late husband. It is further provided that on receipt of
such representation, the Director of Elementary Education shall ensure
that the application is forwarded to the Office of the Governor of the
State as per procedure and thereafter, the Secretariat of the Governor
shall do the needful for kind consideration of the Hon’ble Governor in
view of Rule 67 of the 1969 Rules.
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15. In terms of above, this writ petition stands disposed of. The parties
have to bear their own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
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