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Judgment
Suman Shyam, J
Heard Mr. B.M. Deka, learned counsel appearing for the writ petitioner. also heard Ms. M.M. Kotoky, learned Standing Counsel, Animal Husbandry and Veterinary Department, Assam, appearing for the respondent nos. 1 to 4; Mr. D. Bora, learned Government Advocate, Assam, appearing for the respondent no. 5 and Mr. R.K. Talukdar, learned Standing Counsel, Office of the AG (A&E), Assam, appearing for the respondent no. 7. None has appeared for the respondent no. 6 although the name of the learned Standing Counsel, Finance Department, Assam, is duly reflected in the cause list.
The writ petitioner herein is the widow of late Biren Deka, who was an employee under the Animal Husbandry and Veterinary Department. Biren Deka died on 03/02/2015. The grievance of the writ petitioner is that although her husband was entitled to receive pension, yet, no family pension has been sanctioned in favour after the death of her husband. It appears that the petitioner is also aggrieved on account of non-payment of arrear salary and other pensionary dues payable to her deceased husband under the Rules.
The facts of the case, in a nutshell, as appearing from the materials on record, are that the deceased husband of the petitioner late Biren Deka was initially appointed as a Peon against a (Grade-IV) leave vacancy in the establishment of Joint Director of Animal Husbandry and Veterinary Department, Guwahati, vide order No. 166 dated 25/08/1988 in the scale of pay of Rs. 370 – 490/-per month with effect from 01/07/1988. Pursuant to the order dated 25/08/1988, Biren Deka had joined service as Peon. While he was discharging his duties as above, by the order dated 09/03/1988, Biren Deka was temporarily appointed as a Peon in the vacant post of Peon, which had occurred due to the demise of late Aurobinda Kalita. While rendering his services as a temporary appointee, the service of late Biren Deka was regularized in the Grade-IV post with effect from 01/04/1990 in the scale of pay of Rs. 370 – 490/- per month plus other allowances, as admissible, under the Rules by issuing order No. 267 dated 08/06/1990.
Pursuant to his regularization in service, the husband of the petitioner continued to work in the Grade-IV post. However, it appears that due to some health issues, Biren Deka was irregular in attending his duties since 01/05/2004. On 05/06/2006, Biren Deka had submitted his resignation before the authorities as he was unable to attend duty\ies any further. However, no action was taken on such resignation submitted by the petitioner’s husband. Situated thus, on 21/07/2014, the deceased husband of the petitioner had addressed a communication to the Director of Animal Husbandry and Veterinary Department requesting the authority to take an early decision on the resignation submitted by him. It appears that even thereafter, no action was taken in the matter by the authorities. In the meantime, Biren Deka expired on 03/02/2015. It was only after the death of Biren Deka that on 26/11/2015, the authorities had issued a communication conveying the decision of the department to accept the resignation of the petitioner’s husband with retrospective effect from 06/06/2006. On 26/11/2015, it was also intimated that late Biren Deka has been granted (i) Earned Leave (EL) from 01/05/2004 to 08/01/2005 for 253 days on medical ground, (ii) Commuted leave from 09/01/2005 to 17/06/2005 for 160 days on medical ground and (iii) Extra-ordinary leave without pay from 18/06/2005 to 05/06/2006 for 353 days.
From the communication dated 26/11/2015, what appears on the face of the record is that the authorities had accepted the resignation of the petitioner but with retrospective effect from 05/06/2006. As regards his period of absence from duty during 01/05/2004 to 05/06/2006, such period has been regularized by adjusting the same against the leave admissible under the Rules. Notwithstanding the same, the request made by the writ petitioner for grant of family pension, has not been considered by the authorities. Hence, this writ petition.
Addressing arguments before this Court, Mr. B.M. Deka, learned counsel for the writ petitioner has vociferously contended that acceptance of resignation with retrospective effect, that too, after the demise of Biren Deka, was impermissible in the eyes of law. In support of his above arguments, Mr. Deka has place reliance on a decision of this Court rendered in the case of Assam State Transport Corporation Vs. Nalini Ranjan Aditya reported in (1992) 1 GLR 383 to submit that an order of retrospective acceptance of resignation is invalid in the eyes of law.
Responding to the said submission, Ms. M.M. Kotoky, learned Standing Counsel, Animal Husbandry and Veterinary Department, Assam, has argued that although there was some delay in communicating the acceptance of the resignation, yet, since the husband of the petitioner is no longer alive, such delay would be inconsequential in the facts and circumstances of the case.
After hearing the arguments of learned counsel for the parties, this Court is of the opinion that regardless of the retrospective acceptance of resignation submitted by late Biren Deka, that too, after his demise, the issue as to whether the acceptance of the resignation is valid or not in the eyes of law would be wholly inconsequential in the facts and circumstances of this case for the twin reasons viz. Biren Deka is not alive to face any other departmental proceeding for the absence from duty for the period from 06/06/2006 till the demise on 03/02/2015 and secondly, the relief prayed for by the writ petitioner is for grant of family pension and other pecuniary dues payable to her deceased husband under the Rules. The central issue that would, therefore, arise for consideration of this Court in the present proceeding is as to whether, the writ petitioner can maintain a claim for grant of family pension and other retirement dues on account of her husband by filing this writ petition. The answer to the said question, in the opinion of this Court, would have to be examined in the context of the relevant Pension Rules.
This Court has noticed that the husband of the writ petitioner, who was initially appointed as a Peon on 25/08/1988 against a leave vacancy, was in service till 05/06/2006. Therefore, Biren Deka had admittedly and evidently served under the Government of Assam, in a pensionable post, for a period spanning nearly 18 years. If that be so, there is nothing to indicate as to why, it should be held that the deceased Government servant as on 05/06/2006, was not entitled to the benefit of pension, as admissible under the Assam Services (Pension) Rules, 1969 (herein after referred to as the Rules of 1969). Rather, it prima facie appears from the various provisions of the Rules of 1969, more particularly, Rules 31 & 108 of the Rules, that the writ petitioner would be entitled to family pension and/or at-least proportionate family pension, for the period of services rendered by her deceased husband till 05/06/2006. There is no clarity in the affidavit filed by the department as to why, such prayer of the writ petitioner has not been considered by the authorities till date. If that be so, this Court is of the opinion that the present is a fit case where the respondents would be duty bound to consider the prayer made by the writ petitioner in accordance with law and pass a reasoned order in respect therein.
For the reasons stated above, this writ petition stands disposed of with a direction upon the respondents to consider the claim of the petitioner for release of family pension/arrear pension/ arrear salary etc. payable to her deceased husband, in the light of the observations made herein above.
Facilitating the above, the writ petitioner to submit a representation before the respondent no. 1, by enclosing a certified copy of this order, within 6 (six) weeks from today, ventilating her grievance in the matter.
If such representation is submitted within six weeks from today, the same shall be considered in accordance with law and shall be disposed of by a speaking order within 8 (eight) weeks thereafter.
Whatever be the outcome of the process, the same shall be intimated to the petitioner in writing.
If the petitioner continues to remain aggrieved even thereafter, it would be open for her to approach this Court once again by filing fresh writ petition.
Since a direction has been issued to the Department to consider the prayer of the petitioner in the light of the observations made herein above, at this stage, this Court is not inclined to make any observation on the question of payment of interest on the amount found due and payable to the writ petitioner with effect from 06/06/2006 and the said aspect of the matter is kept open to be considered at an appropriate stage, as and when the occasion arises.
Writ petition stands disposed of accordingly.
There would be no order as to costs.