Page No.# 1/8 GAHC010116622024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3034/2024 RUPA KALITA WIFE OF LATE THULAN KALITA, RESIDENT OF VILLAGE- DHULIAPARA, P.O.- DHULIAPARA, DIST.- SIVASAGAR, ASSAM, PIN- 785664. VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-06. 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR GUWAHATI-6. 3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. ASSAM DISPUR GUWAHATI-6. 4:THE CHIEF ENGINEER IRRIGATION DEPARTMENT 2ND BLOCK-B KRISHNA NAGAR CHANDMARI Page No.# 2/8 GUWAHATI-03. 5:THE ACCOUNTANT GENERAL ( A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-29. 6:THE EXECUTIVE ENGINEER IRRIGATION JORHAT MECHINICAL DIVISION JORHAT DIST.- JORHAT ASSAM PIN- 785001. 7:THE ASSTT. EXECUTIVE ENGINEER IRRIGATION SIVASAGAR MECHANICAL SUB-DIVISION SIVASAGAR DIST.- SIVASAGAR (ASSAM) PIN- 785640. 8:THE TREASURY OFFICER JORHAT TREASURY DIST.- JORHAT ASSAM PIN- 785001 Advocate for the Petitioner : MR. K R PATGIRI, MS. D. DEVI,MS K BARMAN,MS CHITRALEKHA DAS Advocate for the Respondent : SC, IRRIGATION, SC, AG,SC, FINANCE DEPTT.,GA, ASSAM Page No.# 3/8 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 13.03 .2026 Heard Mr. K. R. Patgiri, learned counsel for the petitioner, Mr. N. Upadhaya, learned counsel appearing for Respondent No. 1,2,6 and 7; Mr. B. Sarma, learned Standing Counsel for Accountant General, Ms. S. Baruah, learned CGC for Respondent No. 2. 2. The petitioner’s late husband was a muster roll worker under the Executive Engineer, Jorhat Mechanical Division, Irrigation, Jorhat with effect from 01.01.1986. He was regularized subsequently on 22.07.2005. His name was subsequently incorporated at Serial No. 107 in the list for regularization of Muster Roll workers under Jorhat Mechanical Division, Irrigation Department. While, he was rendering service, the petitioner’s late husband expired on 10.02.2006, leaving behind the petitioner and one unmarried daughter. 3. Pursuant thereto, the writ petitioner has been running from pillar to post seeking the family pension benefits payable to her for the services rendered by her husband. However, the respondents are not filed any counter affidavit. 4. On instructions, the learned counsel for the respondents Mr. N. Upadhaya submits that in terms of Rule 140 of the Assam Services (Pension) Rule, minimum period of 1 year after regularization of service is necessary for being granted the benefit of family pension to the legal heirs of the deceased Government employee. Since there was a shortfall of few months in completing the requisitie period of 1 year of service by the petitioner’s late husband, the pensionary benefits ought not to have been granted. 5. Mr. K. R. Patgiri, learned counsel for the petitioner on the other hand Page No.# 4/8 submits that this matter stands covered by the judgment of the Coordinate Bench in Sentamali Basumatary vs. The State of Assam and 6 ors, passed in WP(C) No. 4092 of 2024 and Sabitri Das vs. The State of Assam and 6 ors, passed in WP(C) No. 2583 of 2025. 6. The said judgments placed before the Court has been perused. What is noticed from the pleadings available on record is that in terms of Rule 140 of the Assam Services (Pension) Rules, family pension is payable through a Government servant after the completion of 1 year of service in respect of grant of regular pension in cases of muster roll workers who were regularized. The Government of Assam by Office Memorandum dated 20.05.2009, had taken a decision for counting of past services of the Muster Roll workers towards payment of pension/ DCRG. By the said notification, it was decided that after deduction of initial period of Muster Roll service, the balance period will be counted for grant of pension. Such Muster Roll period of service will be continuous and the incumbent was not employed for specific broken period, and the service was paid at monthly rates or daily rates and which has some relation to the pay for similar jobs in regular establishments. 7. By the said Office Memorandum, the Assam Services (Pension) Rules, 1969, Assam Financial Rules in the Assam PWD Code stood amended to the extent of the order contained therein. The relevant portion of the said circular is extracted below:- “Consequent up on the Govt. decision to regularise the service of Muster Roll Workers of different Government departments, Govt, have been considering for sometime part the question of counting of a portion of Muster Roll Period of Services forwards pension, gratuity etc. After careful consideration of all aspects, the Governor of Assam is Page No.# 5/8 pleased to order that after regularization of the services of the Muster Roll Workers the period of Muster Roll services beyond the initial period of 6 (six) years of Muster Roll service shall qualify for the purpose of pension and D.C.R.G. subject to fulfilment of the following conditions; 1) The period of Muster Roll Services of initial 6 (six) years will be deducted. 2) Such Muster Roll period of Services will be continuous and the incumbent was not employed for specific broker period. 3) The service was paid at monthly rates or daily rates and paid monthly at rates which has some relation to pay for similar jobs in regular establishments. The Assam Services(Pension) Rules, 1969, Assam Financial Rules and Assam PWD Code stand amended to the extent of the order contained herein. Formal amendments will be issued in due course. This issues with the concurrence of Finance (EC-II) Department vide their U/O No. FEC(II) 169/09 dated 11/2/09.” 8. This circular in so far as the deduction of initial 6 years came to be proceeds before the Court in the number of writ petitions. In a bunch of writ petitions where the writ case was WP(C) No. 1089/2015 (Sanjita Roy), a coordinate bench of this Court by judgment and order dated 04.12.2018 after consideration of the matter in entirety held that the deduction of period of 6 years from the services while calculating 20 years of continuous service of the muster roll workers does not appear to be reasonable and fair. Accordingly the coordinate bench concluded that once the requirements of 20 years of continuous service is specified by the concerned muster roll worker, then that period if required can be counted towards the benefit of pension without any Page No.# 6/8 deduction. 9. This judgment came to be appeal against by the State in Writ Appeal No. 18 of 2021 (Binapani Das). The appellate court by judgment and order dated 26.02.2021 upheld the judgment rendered in Sanjita Roy (Supra). Therefore, the judgment rendered in Sanjita Roy (Supra) has attained finality in so far as the interpretation of the O.M. dated 28.05.2009 is concerned. A careful reading of both the O.M. dated 28.05.2009 along with judgment rendered in Sanjita Roy (Supra) uphold in Binapani Das (Supra) leaves to the following conclusions:- (i) that passed services rendered in muster roll capacity prior to their regularization of muster roll workers will be counted towards pensionary benefit when the mandate under the pension rule is for 20 years of regular service. (ii) The deduction sought to be made in respect of the initial period of 6 years of service rendered by the muster roll worker which was sought to be deducted has been set aside to that extent. 10. Therefore, in the final conclusion, the O.M. dated 28.05.2009, will now have to be read to mean that the muster roll worker prior to their regularization will have to be counted towards the pensionary benefits without any deduction. 11. The family pension scheme is also a part of the Assam Services Pension Rule 1969. While the mandatory service required for a government servant for being eligible for pension is 20 years, the requirements for a government servant to be in service and the family of the said government servant to be eligible for family pension in the event of the death of the Government servant is one year as prescribed under Rule 140 of the Pension Rule. Therefore, where Page No.# 7/8 the government has issued the OM dated 28.05.2009 for counting of past services towards the pensionary benefits made available to muster roll workers prior to their regularization subject to the condition of continuous service, there is no occasion as to why this benefit of past services should not be made permissible to be counted for grant of family pension in respect of such muster roll workers who otherwise would have been benefitted in terms of the O.M. dated 28.05.2009. 12. As discussed above, the initial period of 6 years sought to be deducted by the O.M. dated 28.05.2009 has stood interfered by the judgment and order rendered in Sanjita Roy (Supra) uphold by Division bench in Binapani Das. Therefore, benefits which are already conferred by the O.M. dated 28.05.2009 read with the judgment and order Sanjita Ray, Binapani Das conferred a right on the muster roll workers to have their services rendered in muster roll capacity counted towards pensionary benefits after they sought to be regularised, if there is any shortfall in counting the services rendered after regularization in terms of the provision of the Assam Services Pension Rule, 1969, in the event if there is a shortfall for a period of 20 years of regular service of the petitioner, then the shortfall may be adjusted from the services rendered by the muster roll worker in its muster roll capacity prior to regularization. 13. 13. The court is of the considered view that where the benefit of counting of past services is available for grant of pensionary benefits for muster roll workers who are regularized and may otherwise entitled for pension, there is no reason to deprive the family members of such muster roll workers who would otherwise have been eligible for claiming the family pension benefits under the provision of the Assam Services pension rule 1969, but for the shortfall of few months or days as the case may be where the said Government servant after being Page No.# 8/8 regularised dies in harness. 14. Coming to the facts of the present case is that the petitioner’s husband after being regularized on 22.07.2005 die in harness on 10.02.2006. Consequently, there was a shortfall of little over six months in meeting the requirement of completion of 1 year of regular service as prescribed under Rule 140 of Assam Services Pension Rule, 1969. 15. Under such circumstances and the powers conferred under Article 226 of the Constitution of India, this Court directs the respondent authority to pass effective orders where the requirement for counting of past services in cases of regular muster roll workers, who expired after rendering regular service as a Helper without completing a period of 1 year, the service rendered in muster roll capacity, as required may be counted to meet up the shortfall and thereby release the family pension to the writ petitioner without any further delay. 16. Accordingly in terms of the orders, this writ petition stands disposed of. 17. Let this exercise be carried out as expeditiously as possible within a period of 4 months from the date of receipt of certified copy of this order. JUDGE Comparing Assistant