Decided on August 10,2018

Assam State Electricity Board And Ors. Respondents


L.S.JAMIR,J. - (1.) The petitioner's husband, Late Prafulla Ch. Sharma was appointed as a Muster Roll Worker on 01.02.1984 at Chaygaon Electrical Sub-division, Assam State Electricity Board (ASEB), Chaygaon. He worked regularly without any break in service and subsequently, by an order dated 07.11.2005, the petitioner's late husband was regularised as Sahayak in a regular vacancy at Chaygaon Electrical Sub-division, ASEB, Chaygaon w.e.f. 01.06.2005 in the Scale Pay of Rs. 2670 - 3990/- per month. A certificate was also issued by the Assistant Executive Engineer, Roads and Bridges Sub-division - III, Karbi Langpi on 04.11.1989 certifying that the petitioner's late husband was working under the respondents since 01.02.1984. The husband of the petitioner died in harness on 26.04.2010. After the death of her husband the petitioner approached the respondents for GPF, Leave Salary, Death-cum-Retirement Gratuity (DCRG), Group Insurance Scheme (GIS) and Family Pension. The petitioner received the GPF and Leave Salary in respect of her deceased husband, however, the respondents did not pay the DCRG and GIS and also the Family Pension. Being aggrieved, the petitioner made representations before the respondent No. 2 on 27.4.2011 and 19.3.2012. However, as the representations were not considered, the petitioner approached this Court by filing W.P.(C) No. 4302/2012 which was disposed of by an order dated 11.02.2015, directing the petitioner to file a fresh representation before the respondent No. 2 and thereafter, the respondent No. 2 was directed to consider and decide the petitioner's representation by a speaking order within a period of one month on receipt of the order of the Court. Thereafter, the petitioner submitted a representation dated 09.03.2015 which was disposed of by the respondent No. 2 by order dated 19.03.2015 rejecting the case of the petitioner on the ground that the petitioner's husband is not covered under the Central Civil Services (Pension) Rules, 1972 and accordingly, the question of Family Pension as claimed by the petitioner is not tenable as per the provisions of New Pension Scheme (NPS). Being aggrieved, the petitioner is before this Court challenging the Office Order dated 19.03.2015 with a further prayer for a direction to the respondents to make payment of the DCRG, GIS and also to provide Family Pension to the petitioner.
(2.) Heard Mr. I. H. Saikia, learned counsel for the petitioner and Mr. A. D. Choudhury, learned Standing Counsel, ASEB for the respondents.
(3.) Mr. I. H. Saikia, learned Counsel for the petitioner submits that after the petitioner's husband was appointed on 01.02.1984 as Muster Roll Worker, he had served the respondents without any break in service and was subsequently regularised by Order dated 07.11.2005 w.e.f. 01.06.2005. Thereafter, the petitioner's husband died on 26.04.2010 while serving as Sahayak in Chaygaon Electric Sub-division, ASEB, Chaygaon. The respondents thereafter, had paid the GPF and Leave Salary to the petitioner, however, the DCRG, GIS, Family Pension were refused to be paid on the ground that the petitioner is covered under the New Pension Scheme, which came into effect from 01.01.2004. He submits that the petitioner's late husband had entered service as early as 01.02.1984 and therefore, the respondents cannot deny the DCRG , GIS and Family Pension to the petitioner on the ground that as the petitioner's late husband was regularised w.e.f. 1.6.2005, his case comes within the purview of the NPS. He submits that the respondents had issued an O.M. dated 21.11.2007 wherein, NPS was adopted as mandatory in case of all the new entrants to the services of LAEDCL w.e.f. 01.01.2004. However, the said O.M. dated 21.11.2007 is not applicable to the case of the petitioner's late husband inasmuch as the petitioner had entered service w.e.f. 01.02.1984. As such, the petitioner's late husband cannot be treated as a new entrant appointed after 01.01.2004. It is also submitted that the right to receive pension is a Fundamental Right guaranteed under Article 31 of the Constitution of India and that pension is not a bounty to be paid at the sweet will and pleasure of the employee. Learned counsel for the petitioner has also placed reliance in the case of Harbans Lal Vs. State of Punjab and Ors. (CWP No. 2371/2010) which was decided by the High Court of Punjab and Haryana on 21.08.2010 wherein, it was held that the services of the petitioner therein from 1988 till the date of his regularisation is to be counted as qualifying service for the purpose of pension. It is also submitted that the respondents therein had also filed an SLP before the Hon'ble Supreme Court which was also dismissed and therefore the decision of the High Court of Punjab and Haryana in Harbans Lal case has attained finality. Learned counsel for the petitioner therefore, submits that as the petitioner's late husband had entered into service prior to coming into force of the O.M. dated 21.11.2007, the petitioner is entitled to receive Family Pension and that the respondents should be directed accordingly.;

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