Basanti Bala Rajbongshi vs The State Of Assam & Ors.

Heard Mr. H. Gupta, learned counsel for the petitioner. Also heard Mr. J. K. Goswami, learned Additional Senior Government Advocate for the respondent Nos. 1 to 6 and Mr. R. Boro, learned counsel for the respondent No. 6.

The present writ petition has been instituted by the petitioner seeking a direction to the respondent authorities to grant proportionate pension, arrear pension and family pension in respect of her deceased husband, Late Harinarayan Rajbongshi, who served as Sub-Inspector (Border) under the Assam Police Border Organization under the Prevention of Infiltration of Foreigners (P.I.F.) Scheme.

The case of the petitioner, in brief, is that her husband was appointed as a Sub-Inspector (Border) under the Additional P.I.F. Scheme in the year 1991 and continued to serve under the Assam Police Border Organization till he voluntarily resigned from service on 28.07.2009. It is stated that he rendered about 18 years of continuous service under the said organization and expired on 31.01.2019.

It is stated that the Border Organization was established under the P.I.F. Scheme introduced by the Government of India for detection and deportation of illegal foreign migrants and that the husband of the petitioner was appointed against a sanctioned post created under the Additional P.I.F. Scheme. The petitioner submits that the appointment was made after undergoing the prescribed selection process and that the husband of the petitioner served the department for several years.

The petitioner states that initially the services of ex-servicemen appointed under the Additional P.I.F. Scheme were treated as ad hoc appointments for a period of one year, requiring annual termination and re-engagement. However, the said procedure was challenged before the Hon’ble Supreme Court of India in Civil Appeal No. 7922/2002 arising out of W.A. No.154/1996, and by judgment and order dated 22.04.2009, the Hon’ble Supreme Court quashed the circular dated 17.03.1995 providing for annual termination and re-appointment.

Pursuant to the judgment of the Hon’ble Supreme Court, the Government of Assam issued an order dated 23.09.2011, whereby, it was directed that all ex-servicemen appointed under the Additional P.I.F. Scheme would be granted the benefit of time scale of pay from the date of their initial appointment and would also be entitled to pension against their services in civil employment subject to completion of qualifying service as per Rule 176 of the Assam Services (Pension) Rules, 1969.

The petitioner contends that subsequently, vide Office Memorandum dated 21.01.2019 issued by the Pension and Public Grievances Department, Government of Assam, the State Government allowed proportionate pension and other admissible pensionary benefits to ex-servicemen who had rendered more than 10 years but less than 20 years of service under the P.I.F. Scheme by relaxing Rule 31 of the Assam Services (Pension) Rules, 1969 under Rule 235 of the said Rules.

The petitioner contends that since her husband had rendered service from the year 1991 till 28.07.2009, completing more than 10 years of service, he was entitled to proportionate pension and other consequential pensionary benefits. However, despite entitlement, the petitioner has not been granted arrear pension payable to her husband till his demise and family pension thereafter.

Mr. H. Gupta, learned counsel for the petitioner, submits that the claim of the petitioner is squarely covered by the judgment and order dated 22.04.2009 passed by the Hon’ble Supreme Court of India in Civil Appeal No.7922/2002 and the subsequent order dated 23.09.2011 issued by the Governor of Assam. He submits that the services rendered by the husband of the petitioner cannot be treated as merely contractual, as the State Government itself has recognized the services of ex-servicemen appointed under the Additional P.I.F. Scheme and extended pensionary benefits to similarly situated employees.

Mr. J. K. Goswami, learned Additional Senior Government Advocate appearing for the respondent Nos. 1 to 6, submits that the matter has already been examined by the authorities and the process for grant of proportionate pension is under consideration. He submits that necessary formalities are required to be completed before release of arrears.

Mr. R. Boro, learned counsel appearing for the respondent No. 7, submits that as per the records available with the office of the Accountant General (A&E), Assam, the husband of the petitioner was engaged on contractual basis and had resigned from service. Therefore, relying upon Rule 31 and Rule 62(a) of the Assam Services (Pension) Rules, 1969, it is submitted that the petitioner is not entitled to family pension.

In reply to the submissions advanced on behalf of the respondent No. 7, Mr. Gupta, learned counsel for the petitioner, submits that the objection raised by the Accountant General regarding Rule 31 and Rule 62(a) of the Assam Services (Pension) Rules, 1969, is misconceived. According to him, the entitlement of the petitioner does not arise merely under the general provisions of Rule 31, but derives from the specific relaxation granted by the Government of Assam under Rule 235 of the Assam Services (Pension) Rules, 1969, pursuant to the judgment of the Hon’ble Supreme Court and the subsequent orders issued by the State Government.

I have considered the submissions made by the learned counsel for the parties and perused the materials available on record.

From the pleadings of the parties and the materials placed on record, it is evident that there is no dispute with regard to the fact that the husband of the petitioner, Late Harinarayan Rajbongshi, was appointed as Sub-Inspector (Border) under the Additional Prevention of Infiltration of Foreigners (P.I.F.) Scheme and rendered service under the Assam Police Border Organization from the year 1991 until his resignation on 28.07.2009. It is also an admitted fact that he had completed more than 10 years of service under the said Scheme.

The entitlement of the petitioner to proportionate pension, arrear pension and family pension in respect of the services rendered by her deceased husband under the Additional P.I.F. Scheme is required to be considered in the backdrop of the judgment and order dated 22.04.2009 passed by the Hon’ble Supreme Court of India, the consequential orders issued by the State Government and the relevant provisions of the Assam Services (Pension) Rules, 1969.

It is noticed that the services of ex-servicemen appointed under the Additional P.I.F. Scheme were initially treated as ad hoc appointments and were subjected to annual termination and re-appointment in terms of the Circular dated 17.03.1995 issued by the Inspector General of Police (Border), Assam. The said arrangement was challenged before the Hon’ble Supreme Court of India in Civil Appeal No. 7922/2002 arising out of W.A. No.154/1996. The Hon’ble Supreme Court, vide judgment and order dated 22.04.2009 passed in Md. Abdul Kadir & Another vs. Director General of Police, Assam & Others, held that the P.I.F. Scheme and Additional P.I.F. Scheme did not contemplate periodical termination and fresh appointment and that the artificial breaks introduced by the authorities were contrary to the scheme and principles of service jurisprudence. The Hon’ble Supreme Court further observed that the appointments made under the Scheme were to continue as long as the Scheme continued and that the ex-servicemen appointed after undergoing the selection process should not be subjected to the hardship and uncertainty of annual termination and re-engagement.

Pursuant to the aforesaid judgment, the Government of Assam issued the Order dated 23.09.2011. A perusal of the said order clearly reflects that the State Government, after obtaining views from the Judicial Department, Pension and Public Grievances Department and Finance Department, took a conscious decision regarding the service conditions and pensionary benefits of the ex-servicemen appointed under the Additional P.I.F. Scheme. Clause 5 of the said order specifically provides that the ex-servicemen would be entitled to pension against their services in civil employment, subject to completion of qualifying service as per Rule 176 of the Assam Services (Pension) Rules, 1969. The said order was issued in compliance of the judgment and order dated 22.04.2009 passed by the Hon’ble Supreme Court.

The objection raised by the respondent No. 7 is that the husband of the petitioner was engaged on contractual basis and therefore, in view of Rule 31 of the Assam Services (Pension) Rules, 1969, his service would not qualify for pension. The said submission, however, cannot be accepted in view of the subsequent developments and decisions taken by the State Government pursuant to the judgment of the Hon’ble Supreme Court.

Rule 31 of the Assam Services (Pension) Rules, 1969 provides that service of an officer shall not qualify for pension unless the service is under Government, the employment is substantive and permanent, and the service is paid by the Government. However, the proviso to Rule 31 empowers the Governor to declare any specified kind of service rendered in a non-gazetted capacity as qualifying service for pension and also permits relaxation in individual cases.

In the present case, the Government of Assam has already exercised such power by issuing the Order dated 23.09.2011 and subsequently issuing the Office Memorandum dated 21.01.2019. The said Office Memorandum specifically provides for grant of proportionate pension and other admissible pensionary benefits to ex-servicemen who had retired from the Assam Police Border Organization under the P.I.F. Scheme after rendering more than 10 years but less than 20 years of service, by relaxation of Rule 31 of the Assam Services (Pension) Rules, 1969 in exercise of power under Rule 235 of the said Rules.

The case of the petitioner’s husband squarely falls within the parameters prescribed in the Office Memorandum dated 21.01.2019. The records reveal that he was appointed prior to 01.02.2005 and had rendered more than 10 years but less than 20 years of service under the Additional P.I.F. Scheme. Therefore, the benefit granted under the said Office Memorandum cannot be denied to the petitioner.

The further objection regarding resignation from service and applicability of Rule 62(a) of the Assam Services (Pension) Rules, 1969 also does not merit acceptance. Rule 62(a) provides that resignation from public service entails forfeiture of past service. However, in the present case, the entitlement of the petitioner does not arise merely under the general provisions of the Pension Rules but arises from the specific policy decision taken by the State Government pursuant to the judgment of the Hon’ble Supreme Court and the subsequent relaxation granted under Rule 235 of the Assam Services (Pension) Rules, 1969.

It is also relevant to note that similarly situated ex-servicemen working under the Assam Police Border Organization have already been granted pensionary benefits pursuant to the order dated 23.09.2011 passed by the Governor of Assam. This Court in W.P.(C) No.1748/2012 and subsequently in W.A. No.289/2014 has also recognized the entitlement of similarly situated employees to proportionate pension after completion of the requisite qualifying service. The respondent authorities have also admitted that, as per the Government Office Memorandum dated 21.01.2019, the husband of the petitioner is eligible for proportionate pension with effect from 01.09.2015 and that the process for granting such pension is under progress.

In view of the above discussion, this Court is of the considered opinion that the petitioner is entitled to proportionate pension in respect of the services rendered by her deceased husband under the Additional P.I.F. Scheme. Consequently, the petitioner is also entitled to arrear pension payable to her husband till the date of his demise and thereafter, family pension in accordance with law.

Accordingly, the respondent authorities are directed to finalize the pension papers of Late Hari Narayan Rajbongshi and release the admissible proportionate pension along with arrears with effect from the date as permissible under the Office Memorandum dated 21.01.2019. The authorities shall also take necessary steps for release of family pension in favour of the petitioner after completion of all required formalities. The entire exercise shall be completed within a period of three months from today.

With the above observations and directions, the writ petition stands allowed.