WRIT PETITION 1221/2010 on 7 October 2005

WP(C) 1221/2010BEFOREHON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Heard Mr. D Borah, learned counsel for the petitioners. Also heard Ms. B Bhuyan,learned counsel appearing for respondent Nos. 1 and 3, Mr. RK Talukdar, learnedcounsel appearing for respondent No. 5 as well as Mr. UK Nair, learned counsel appearing for respondent No. 2.The fact of the case is that the mother of the petitioners joined the service on01.07.1987 as a Muster Roll Labourer in the department of PWD (Roads), i.e. under the respondent No. 4. During the petitioners mother’s service, she was regularised by office order No. 32 and brought to regular cadre with a regular pay scale vide order dated 07.10.2005, which was in pursuance to the Government letter No. ADT/71/2005/133-A dated 30.09.2005.

The office order No. 32 dated 07.10.2005 also states that the petitioners’ mother regularisation was w.e.f. 22.07.2005. The petitioners’ mother thereafter, while in service expired on 05.09.2006 after completing more than 1 (one) year in service as a regularised employee.

The petitioners’ counsel has submitted that at the time of their mother’s death,the petitioners ages were 22, 20 and 18 years of age respectively. The petitioners’ counsel has stated that as per the OM No. PPG(F).83/89/1 dated 14.12.1989 issued by the respondent No. 2, the petitioners are entitled to receive pension and other pensionery benefits in respect of their late mother.He has also stated that despite request made to the authorities for payment of the pensionery benefits of the petitioners’ late mother, the same has not been given to them till date.

Ms. B Bhuyan, learned counsel appearing for respondent Nos. 1 and 3 has stated that in the affidavit-in-opposition filed on behalf respondent No. 3, the stand of the PWD (Roads) is that the pension papers were submitted to the Government on09.07.2010 vide T.O. No. 766 for onward submission to the Accountant General. However, the Accountant General raised an objection vide letter No. Pen-3/T-7/PWD/K-77203/10-11 dated 02.12.2010 stating that the present youngest son of the petitioners’ mother, i.e. Sri Putul Boro’s age was 21 years and as such no pensionery benefits could be paid as per Rules to the petitioners.After hearing the learned counsels, it is clear that the petitioners’ mother hadworked from 01.07.1987 till her death on 05.09.2006 i.e., for a period of 19 years, 2 months and 4 days. It is also not in dispute that the OM No. PPG(P)88/2009/2 dated 20.05.2009 issued by the respondent No. 2 has stipulated that for regularised Muster Roll workers, the services of the Muster Roll workers beyond the initial period of 6 (six) years of Muster Roll service shall qualify for the purpose of pension and the DCRG. Thus, applying the OM dated 20.05.2009, the qualifying service of the petitioners’ mother is 13 years and 2 months and as per the OM dated 06.09.2003 issued by the Secretary to the Government of Assam, a Government servant having 20 years of continuous service is eligible for payment of family pension. Rule 108 (b) of the Assam Services Pension Rules, 1969 states thatpension can be paid after service of not less than 10 years. However, in the present case the petitioners are not eligible for receiving family pension, in view of the fact that even the youngest petitioner was 18 years at the time of his mother’s death. Also the OM dated 14.12.1989 (Annexure-D) cannot be applied to the petitioners’ case as the OM is relatable only to Work Charged employees.Rule 143(ii)(b) states that pension will be admissible in the case of a minor son, until he attains the age of 18 years. Accordingly, no family pension can be paid to the petitioners in view of Rule 143(ii)(b).Rule 140 of the Assam Services Pension Rules, 1969 is as follows:- 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 whilein service or after retirement on or after 1st January, 1964, if at the time ofdeath the retired officer was in receipt of a compensation, invalid, retiring or superannuation. In case of death while in service, the Government servant should have completed a minimum period of one year of service. —

The above Rule is applicable in the case of the petitioners’ deceased mother. Inview of the fact that the petitioners’ deceased mother had completed a minimum period of 1 year of service as a regular Master Roll worker and as such the OM No. FMP.4/86/23 dated 26.05.1987 issued by the Finance (Audit & Fund) Department,Government of Assam is applicable in the present case.

Rule 135 of the Assam Services Pension Rules, 1969 also contemplates granting ofadditional gratuity for an officer who has completed 5 years of qualifying service which in the case of the petitioners’ mother is applicable.

In view of the above reasons, the petitioners are entitled to all terminal benefits.

Conclusion

As agreed to by all the parties it is hereby directed that the Commissioner and Special Secretary to the Government of Assam PWD (Roads) department shall look into the grievance of the petitioners and give all the gratuity, GIS, DCRG, leaveencashment, etc to which the petitioners are eligible as per law.

While considering the grievance of the petitioners, the observations made by this Court shall also be taken into consideration. The respondent No. 1 shall thereafter, on giving his decision in the matter as to all the entitlements applicable to the petitioners shall forward the same to the office of the Accountant General (A & E) Assam who shall thereafter, make payment to the petitioners. The Commissioner and Special Secretary to the Government of Assam PWD (Roads) department is to make his decision as to the entitlements of the petitioners within a period of 1 month from the date of receipt of a certified copy of this order and send the same to the Accountant General’s office within a period of 1 month from the date of receipt of copy of the order. The Accountant General’s office shall thereafter, make payment to the petitioners within a period of 1 (one) month thereafter.

Accordingly, this petition is disposed of as allowed.

A copy of this order be furnished to Ms. B Bhuyan, learned Standing Counsel, PWD(Roads) Department. (Roads) Department.