Nilu Paul vs State Of Assam And 3 Ors

Heard Mr. B D Das, learned senior counsel for the petitioner. Also heard Mr. K Gogoi, learned counsel for the respondents no. 1 and 2 being the

authorities under the Higher Education Department, Government of Assam, Mr. A M I Uddin, learned counsel appearing for the respondent no. 3

being the Principal, Lumding College and Mr. S K Medhi, learned counsel for the respondent no. 4 being the Accountant General (A and E), Assam.

The petitioner who served as a Lecturer/Associate Professor in the Zoology department of Lumding College attained her superannuation on

31.01.2019 (according to the petitioner) or on 31.12.2018 (initially according to the respondent no. 3 being the Principal). The petitioner refers to the

High School Leaving Certificate issued by the Board of Secondary Education, Assam which shows the petitioner to be of aged 15 years 2 months and

‘X’ days as on 01.03.1974. The petitioner also refers to an office memorandum dated 31.10.2012 of the Commissioner and Secretary to the

Government of Assam, Finance (Estt-A) Department which clarifies that if the age of a candidate mentioned in the old HSLC/HSSLC passed

certificate/admit card as 15 years 10 months on 01.03.1999, his date of birth should be computed as 02.05.1983 and the government servant would

retire on superannuation on 31.05.2043.

Based on the said office memorandum dated 31.10.2012, the petitioner having being provided that she was 15 years 2 months and ‘X’ days

as on 01.03.1974, her date of birth would be 02.01.1959 and accordingly she would retire from service on superannuation on 31.01.2019. But the

respondent no. 3 being the Principal of the College by the communication dated 19.11.2019 had informed the petitioner that her date of retirement on

superannuation would be 31.12.2018.

The communication dated 19.11.2018 of the Principal has been disputed by the petitioner on the aforesaid premises by referring to the office

memorandum dated 31.10.2018. In the resultant process, the Joint Director of Higher Education, Assam by the communication dated 16.10.2019 had

sought for a clarification from the respondent no. 3 being the Principal as regards the premature retirement of the petitioner by one month.

The respondent no. 3, Principal by her communication dated 20.11.2019 had rectified the earlier mistake and informed the Director of Higher

Education, Assam that the date of retirement of the petitioner on superannuation would be 31.01.2019. In view of the aforesaid difference of views

between the petitioner and the respondents in the Higher Education Department on one hand and the Principal of the College on the other hand, the

petitioner is yet to receive her pensionary benefits. On the said grievance this writ petition is instituted.

It is an admitted position of all the respondents that the petitioner was in a pensionable service and therefore, she is entitled to pension under the

Assam Services (Pension) Rules, 1969 whether or not there was a dispute of one month regarding the date of her retirement. In view of the matter,

the petitioner is and was entitled to a pension from either of the two dates of retirement for which there was a difference of views between the

authorities.

Non-payment of the pensionary dues for such difference of views in our opinion would be a violation of the legal right of the petitioner, to receive

her pension. As the matter has already been clarified by the respondent no. 3 being the Principal of the College that the petitioner was to have retired

on superannuation from service on 31.01.2019, at least from the date of such clarification by the Principal, the respondents could have processed and

paid the pensionary benefits to the petitioner.

We have taken note of that the Principal of the College had given the clarification by the communication of 20.11.2019. Therefore, it has to be

understood that at least from 20.11.2019, there was no impediment in paying the pensionary benefits to the petitioner on the basis of the aforesaid

difference of views between the authorities as regards the date of retirement. If the petitioner was to have retired on 31.01.2019 and was prematurely

retired on 31.12.2018, she would be entitled to the salary and allowance for the month of January, 2019. From the month of February, 2019, the

petitioner would be entitled for her pensionary benefits.

Accordingly, a direction is issued conjointly to the respondent authorities to immediately bring the process of payment of pensionary benefits to its

logical conclusion and make payment of the pensionary benefits from the month of August, 2021, provided there is no any other legal impediment in

doing so.

Mr. B D Das, learned senior counsel refers to a decision of the Supreme Court rendered in (1987) 4 SCC 328, in the matter O.P. Gupta vs. Union

of India and others wherein in paragraph 24, it had been held as extracted:

“24. Normally, this Court, as a settled practice, has been making direction for payment of interest at 12 per cent on delayed payment of

pension. There is no reason for us to depart from that practice in the facts of the present case.â€​

A reading of the pronouncement of the Supreme Court would go to show that it is a settled practice to make a direction for payment of interest at

12% on delayed payment of pension and that there is no reason to depart from said practice. In the instant case, we have arrived at conclusion that at

least from 20.11.2019, there could have been no reason for the respondent authorities not to pay the pensionary benefits to the petitioner on the ground

of there being a difference of views between the departmental authorities and the principal of the college as regards the date of superannuation of the

petitioner.

Otherwise also, even if there was such difference of views on the date of retirement, the same could not have been a reason for not paying the

pensionary benefits at least by taking into account either of the dates of retirement and making the action subject to the final result of the difference of

views being sorted out between them.

In the circumstance by following the proposition laid down by the Supreme Court in O.P. Gupta (supra) the respondents to pay an interest at the

rate of 12% in the delayed payment of pensionary benefits to the petitioner for the period subsequent to 20.11.2019, if there was no other legal

impediment in not paying the pensionary benefits other than an impediment of there being difference of views between the departmental authorities

and the principal as regards the date of retirement of the petitioner.

The pensionary benefits be paid from the month of August, 2021 onwards and the arrear pensionary benefits including the interest be paid within a

period of three months from the date of receipt of the certified copy of this order.

Writ petition stands allowed in the above terms.