Arup Patowary vs The State Of Assam & Ors.

Heard Mr. M. H. Ahmed learned counsel for the petitioner. Also heard Mr. P. K. Borah, learned Standing Counsel for the Elementary Education.

The writ petitioner herein is the widower of late Sangita Baruah, who died in harness on 26.01.2025 by leaving behind the writ petitioner/ husband Mr. Arup Patowary as her dependents. According to the writ petitioner, after the premature death of his wife, the petitioner was entitled to the benefit of compassionate family pension under the special scheme notified by the Government of Assam vide notification dated 14/09/2017. As such, the petitioner had submitted representation before the Block Elementary Education Officer, Rangia Education Block, Kamrup on 22.06.2025 seeking the benefit of Compassionate Family Pension. However, despite receipt of the said representation, no action whatsoever has been taken by the respondents till date.

The facts and circumstances of the case, briefly stated, are that the petitioner’s wife late Sangita Baruah was initially appointed as an Assistant Teacher under the Axom Sarba Siksha Abhiyan Mission, Assam vide appointment order dated 08.09.2017 and she duly submitted her joining report on 11.09.2017 before the District Mission Coordinator, SSA, Kamrup. While she was in continuous service as a Contractual Assistant Teacher under the Axom Sarba Siksha Abhiyan Mission, the Director of Elementary Education, Assam issued an Advertisement dated 05.08.2024, titled “Advertisement for Special Recruitment Drive” inviting online applications from eligible Contractual and State Pool Contractual Teachers working under Samagra Shiksha Assam for regular appointment as Assistant Teachers in Lower Primary and Upper Primary Schools. The said advertisement, inter alia, stipulated that the candidates, as on 31 July, 2024, must be working as Contractual and State Pool Contractual Teachers under SSA and must have completed 5 years of continuous service as on the said date. The petitioner’s wife having fulfilled the eligibility criteria, applied the same within the prescribed time and got selected. Consequently, her service was regularized vide appointment order dated 02.09.2024. Thereafter, after being declared medically fit, the petitioner’s late wife submitted her joining letter on 16.09.2024 before the Block Elementary Education Officer, Rangia and thereafter discharged her duties as a regular Assistant Teacher.

While the petitioner’s wife was working as Assistant Teacher, she unfortunately expired on 26.01.2025. The core question arising for adjudication by this Court in the present writ petition is as to whether, under the scheme of Compassionate Family Pension (CFP) notified by the Government of Assam on 14/09/2017, the writ petitioner would be entitled to receive CFP.

In the above context, it would be pertinent to mention herein that on 14/09/2017, the Government of Assam had notified the scheme for CFP in lieu of the scheme of Compassionate Appointment by laying down the terms and conditions for extending the benefit of Compassionate Family Pension. Apparently, by relying upon clause 5.3 of the CFP scheme, the respondent authority has rejected the prayer of the petitioner towards his claim for payment of CFP allegedly on the ground that the petitioner’s deceased wife had not completed the minimum period of 1(one) year of continuous service.

By referring to the documents available on record, Mr. M. H. Ahmed, learned counsel for the writ petitioner has argued that proviso to Clause 5.3 does requires the deceased Government servant to have completed 1(one) year of continuous service as a regular employee. The scheme requires is that she must be in employment under the Government continuously for a period more than 1 (one) year without any break so as to come within the purview of the CFP scheme. Considering the fact that the deceased wife of the petitioner was in continuous service since the year 2017 till the time of his death, hence, submits Mr. M. H. Ahmed, that she had evidently fulfilled the criteria laid down by proviso to Clause 5.3 so as to enable the writ petitioner to get the benefit of the CFP.

Mr. M. H. Ahmed, learned counsel for the petitioner further submits that the petitioner’s wife late Sangita Baruah was initially appointed as Contractual Assistant Teacher under the Axom Sarba Siksha Abhiyan Mission, Assam vide appointment order dated 08.09.2017 and she duly submitted her joining report on 11.09.2017 before the District Mission Coordinator, SSA, Kamrup. By referring to the advertisement notice dated 05.08.2024 as well as the order of appointment dated 02.09.2024, Mr. M. H. Ahmed submits that the said advertisement was issued inviting applications from eligible Contractual and State Pool Contractual Teachers working under the Samagra Shiksha Assam for regular appointment as Assistant Teachers in Lower Primary and Upper Primary Schools. It is also mentioned in the advertisement that the candidates, as on st 31 July, 2024, must be working as Contractual and State Pool Contractual Teachers under SSA and must have completed 5 years of continuous service as on the said date. The petitioners’ wife having fulfilled the eligibility criteria, applied for the same and was duly selected in the said process. In that view of the matter, Mr. M. H. Ahmed, learned counsel for the petitioner submits that wife of the petitioner, having served under the respondents continuously for more than 1 (one) year, the service rendered by the writ petitioner is entitled to be conferred the benefit under the scheme of compassionate family pension.

Mr. P. K. Borah, learned Standing Counsel appearing for the Education Department submits that the claim of the writ petitioner is not maintainable. The respondents have contested the case of the petitioner by filing their affidavit-in-opposition. Referring to the said affidavit, Mr. P. K. Borah, learned Standing Counsel submits that the wife of the petitioner, late Sangita Baruah had resigned from her earlier service as State Pool Teacher on 13.09.2024 and had joined as a regular teacher on 16.09.2024 in response to the DEE, Assam order dated 02.09.2024. Upon Joining in her services, she died in harness on 26.01.2025 as per the death certificate issued by the Rangia Block Health Center. As such, the length of service rendered by late Sangita Baruah as a regular teacher is for 4 (four) months and 10 (ten) days. Referring to the Office Memorandum dated 31.10.201, whereby the Assam Services (Pension) Amendment Rules, 2022 were brought in amending Rule 142-A (i), it is submitted that the provision for family pension is available to the legal heirs of the deceased government employee who died in harness on or after 01.04.2017. However, the provisions of the scheme are available only after the government servant completes minimum 1 (one) year of continuous service after continuous service as a regular government employee. It is submitted that the present writ petitioner’s wife, late Sangita Baruah, had only completed 4 (four) months & 10 (ten) days of regular service, therefore he is not entitled to claim the compassionate family pension in terms of the said provisions of the rules as his wife, late Sangita Baruah, did not complete 1 (one) year of regular service.

I have considered the arguments advanced at the Bar and have also carefully gone through the materials available on record.

A bare reading of the notification dated 14/09/2017 goes to show that the CFP scheme was introduced by the Government of Assam in the Finance Department, so as to replace the existing scheme of “compassionate appointment” for the family members of the deceased Government employee who had lost the sole bread earner. The objective of the said scheme was to provide immediate succour to the family members of the deceased Government servant which had lost the sole bread earner. It was felt that due to several operational reasons, the scheme for “compassionate appointment” had failed to serve its purpose, which was to provide immediate relief to the family members of the deceased employee. Taking note of such ground realities, the CFP scheme was introduced in the year 2017 with a view to give immediate relief to the family members of the deceased Government employee(s). The operative part of the scheme, as contained in para 5, which has 12 sub-paragraphs, are reproduced herein below for ready reference:-

In the above context, it will be pertinent to note herein that in paragraph 5.1 of the scheme, it has been mentioned that the definition of family of the employee who dies in harness will be the same as that given in the Assam Services (Pension) Rules, 1969. In para 5.2, it has been categorically laid down that the CFP scheme would not be applicable for voluntary retirement/resignation but in all other cases, the sole criteria would be that “an employee dies in harness”. Even the cause of death of the employee would not be of any relevance. Paragraph 5.3 lays down the rate at which family pension would be payable to the family of the deceased employee. However, the Government servant must complete 1 year of continuous service without break before death while in service. From paragraph 5.9, it is further clear that a Government employee coming under NPS category would also be covered under the scheme, meaning thereby that those employees who do not come within the purview of Assam Services (Pension) Rules, 1969, would also come within the ambit of the CFP scheme.

From a careful examination of the various clauses of the CFP scheme, it is thus apparent that the scheme has a benevolent object of providing immediate relief to the family members of the deceased employee who had lost the sole bread earner. Therefore, the question of eligibility to receive the benefit under the CFP scheme will have to be adjudicated strictly with reference to the criteria laid down in the scheme itself and not by relying upon any other Rules including the Pension Rules of 1969. There is no expressed provisions under the CFP scheme that claims thereunder will be payable only subject to the Rules of 1969. Nothing prevented the State to amend the said Rules or to make an expressed provision to such effect in the CFP scheme itself, which has evidently not been done in this case.

In the present case, there is no doubt or dispute about the fact that the deceased wife of the petitioner, viz. S. Baruah was selected and appointed for engagement against the State Pool under the scheme of strengthening elementary education in Assam for a period of 11 (eleven) months on a fixed pay of Rs. 20,000/- (Rupees Twenty Thousand) under the Assam Sarba Siksha Abhiyan Mission, Government of Assam on 08.09.2017. She had submitted her nd joining report on 11.09.2017. Subsequently, by order dated 2 of September, 2024, the petitioner’s wife, late Sangita Baruah was appointed as Assistant Teacher in Lower Primary on purely temporary basis in the Pay Band-2 at Rs. 14,000-70,000 plus Grade Pay and other allowances as admissible under the Assam Services (Revision of Pay) (Amendment) Rules, 2019 subject to final outcome of the writ petition, being WP(C) No. 4031/2024 and other writ petition. Her appointment was against the personal post which will get abolished as and when the person superannuates. Since then, she has been in continuous service under the Government of Assam without any break until the date of her unfortunate demise on 26.01.2025.

It appears that since after the initial appointment as a Contractual Assistant Teacher under the Government of Assam, the petitioner’s wife was not subjected to any further selection prior to her appointment as Assistant Teacher, therefore, it is evident that the appointment of late S. Baruah as Assistant Teacher was not only pursuant to the same selection process but it was also in continuation of her initial appointment as Contractual Assistant Teacher vide appointment order dated 08.09.2017. Though the appointment was Contractual Assistant Teacher, but the selection process so conducted by the authority was also meant for filling up vacant posts on regular basis. No separate selection process was undertaken prior to bringing her into the regular cadre.

There are several precedents laid by this Court as well as by the Apex Court where Courts have held that service(s) rendered prior to regularization can be counted towards grant of pensionary benefits.

In Kabiram Rajbangsi Vs. State of Assam & Others, reported in 1997 (1) GLT 589, the Co-ordinate bench of this Court held that services rendered prior to regularization can be taken into account for consideration of the pensionary benefits of the employee.

Similar view was rendered by another Co-ordinate Bench in Sh. Abdul Hannan Vs. State of Assam & Others in W.P(C) No. 2821/2009.

The Apex Court in Prem Singh Vs. State of Uttar Pradesh & Others, reported in (2019) 10 SCC 516 held that period of service of an employee prior to his regularization, was also to be counted as qualifying service for the purposes of pension.

Similar views have been held by the Apex Court in The State of Gujarat & Ors. Vs. Talsibhai Dhanjibhai Patel, reported in 2022 LiveLaw (SC) 187 as well as in Habib Ali Barbhuiya Vs. State of Assam & Ors passed by this Co-ordinate Bench of this Court in W.P.(C) No. 1777/2015.

The law laid down by the Apex Court as well as this Court is that services rendered by any employee prior to their regularization should be counted towards their pensionary benefits if there is any shortfall in their services rendered after being regularized. Under such circumstances, when there is no dispute that the petitioners have rendered services in ad-hoc capacity continuously against valid sanctioned posts without any break in service and they came to be subsequently regularized by the Government and at the time of their superannuation, the employee did not have qualifying services from the date of their regularization, then in the opinion of this Court and as has been held by several decisions as discussed above, the period of services rendered prior to regularization, if they are continuous and without any break till such services are regularized can also be counted for the purposes of satisfying the qualifying period of service prescribed for grant of pension under the relevant Rules.

After considering in detail the facts and circumstances of the case and the various provisions of the Act, and upon carefully perusal of the various clauses contained in the notification dated 14.09.2017, this Court holds that if there is any shortfall in qualifying service after being regularized, then the services rendered by any employee prior to their regularization can be counted towards their pensionary benefits.

Under such circumstances, applying the law expanded by this Court and the Apex Court as discussed above, when there is no dispute that the petitioner had rendered service continuously without any break in service and was subsequently regularized by the Government, therefore, she had evidently completed more than 1 year of service, this Court is of the considered view that the period of service rendered as a Contractual Teacher can be counted for the purpose of satisfying the qualifying period of service for claiming the benefits of Compassionate Family Pension (CFP) Scheme introduced by the notification dated 14.09.2017. Therefore, this Court directs the respondents to forthwith process the claim of the petitioner for grant of CFP and release the amount within a period of 45 (forty five) days from the date of receipt of certified copy of this order.

It is made clear that if the amount, as directed by this Court, along with arrear dues, if any, be released to the writ petitioner within 60 (Sixty) days from the date of receipt of a certified copy of this order.

Writ petition stands allowed to the extent indicated above.

There shall be no order as to costs.