Page No.# 1/11 GAHC010131502022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4475/2022 KABITA BORA @ KABITA SAIKIA W/O- LATE BRAJEN SAIKIA, R/O NABANAGAR, P.O. BENGENAKHOWA, P.S. AND DIST.- GOLAGHAT, ASSAM, PIN- 785702. VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE PRINCIPAL SECRETARY, GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, BLOCK-C (GROUND FLOOR), ASSAM SECRETARIAT, GUWAHATI- 781006, DIST- KAMRUP(M), ASSAM. 2:DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 781019 DIST- KAMRUP(M) ASSAM. 3:AXOM SARVA SIKSHA ABHIYAN MISSION KAHILIPARA GUWAHATI- 781019 DIST- KAMRUP(M) ASSAM. 4:DISTRICT ELEMENTARY EDUCATION OFFICER DISTRICT- GOLAGHAT ASSAM PIN- 785621. 5:BLOCK ELEMENTARY EDUCATION OFFICER CUM BLOCK MISSION COORDINATOR Page No.# 2/11 AXOM SARVA SIKSHA ABHIYAN MISSION EAST EDUCATION BLOCK GOLAGHAT ASSAM PIN- 785621. 6:DIRECTOR OF PENSION HOUSE FED COMPLEX CENTRAL BLOCK 6TH FLOOR BELTOLA ROAD HOUSE FED GUWAHATI- 781006 Advocate for the Petitioner : MR. J BARMAN, MR N Z CHOUDHURY,MR N A MAZARBHUIYA,MR. A R BHUYAN Advocate for the Respondent : SC, ELEM. EDU, SC, SSA BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 12.02.2025 Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Ms. N. Phukan, learned Standing counsel for the respondent Nos. 1, 2 and 4; Mr. B. Choudhury, learned counsel for the respondent Nos. 3 and 5 and Mr. P. Saikia, learned Standing counsel for the respondent No. 6. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities to set aside and quash the letter No. GEB/SSA/MISC/1024, dated 07.06.2022, issued by the Block Elementary Education Officer & Block Mission Coordinator, Axom Sarva Siksha Abhiyan Mission, East Education Block, Golaghat and to release the family pension of the petitioner against her deceased husband with immediate effect. Page No.# 3/11 3. The background facts, leading to filing of the present petition, are briefly stated as under: “The husband of the petitioner, namely, Late Brajen Saikia, who was working as Head Teacher of Kanugaon L.P. School, under the Block Elementary Education Officer (BEEO), East Block, Golaghat, suffered demise on 12.01.2020. After his death, when the petitioner approached the Office of the BEEO, East Block, Golaghat for granting family pension, she came to know that her husband was suspended from his service and as advised by the officials, she submitted a petition on 30.01.2020, for withdrawing the suspension of her deceased husband and to release the family pension. Thereafter, the petitioner filed another petition on 23.12.2021, but both the petitions filed by her failed to yield any result. Thereafter, on 27.12.2021, the BEEO, East Block, Golaghat sent a letter to the District Elementary Education Officer (DEEO), Golaghat for doing the needful in that regard and the DEEO then informed the petitioner that her husband was suspended as he was arrested by police in a criminal case, vide C.R. (N.I.) Case No. 47/2017, and asked her to produce the status of the case. Thereafter, the petitioner had obtained a certified copy the last order of the said case, dated 06.10.2021, passed by the learned Additional Chief Judicial Magistrate, Golaghat and furnished a copy of the same to the DEEO, Golaghat. Thereafter, on 24.02.2022, the DEEO, Golaghat passed an order and reinstated her husband in his original place of posting and treated the period of his suspension as on duty. But, the respondent authorities did not release her family pension. Thereafter, on 07.06.2022, the BEEO, East Block, Golaghat had sent one letter to her, wherein it is stated that an amount of Rs. 2,45,487/- in School Management Committee Page No.# 4/11 account and Rs. 973/- in Mid Day Meal account have to be deposited, otherwise non-liability certificate cannot be issued from his office for drawal of the family pension. The petitioner became surprised to know about the abovementioned fact and became helpless as it is not possible on her part to manage the aforementioned amount and during the lifetime of her husband, she never heard about those liabilities. It is the pleaded case of the petitioner that she has a minor daughter and an old and ailing mother-in-law, and it is impossible for her to manage the family without pension of her husband and being aggrieved, she has approached this Court by filing the present petition to set aside and quash the impugned letter dated 07.06.2022, issued by the Block Elementary Education Officer & Block Mission Coordinator, Axom Sarva Siksha Abhiyan Mission, East Education Block, Golaghat.” 4. The respondent Nos. 4 and 5 have filed affidavit-in-opposition denying the averments made in the petition. The stand taken by them is that the deceased husband of the petitioner was the Head Teacher of Kanugaon L.P. School, under the BEEO, East Education Block, Golaghat and that at the time of his death, he was under suspension and he was placed under suspension in connection with C.R.(N.I.) Case No. 47/2017, and in view of dismissal of the said C.R.(N.I.) Case No. 47/2017, by the learned Additional Chief Judicial Magistrate, Golaghat on 06.10.2021, the DEEO, Golaghat, vide letter dated 24.02.2022, reinstated the deceased husband of the petitioner in his original place of posting and treated the period of his suspension as on duty. It is also stated that the deceased husband of the petitioner has a liability of Rs. 2,45,487/- to the School Management Committee account and Rs. 973/- towards Mid Day Meal account, the total amount being Rs. 2,46,460/-, for which non-liability certificate could Page No.# 5/11 not issued by the BEEO and the BEEO, vide his letter dated 07.06.2022, has intimated the petitioner that the aforementioned amount has to be deposited, otherwise non-liability certificate in respect of her deceased husband cannot be issued. It is further stated that the petitioner being a regular Teacher of Town New L.P. School, under the same Golaghat East Education Block, has not paid any heed to settle the liabilities of her deceased husband, and therefore, it is contended to dismiss the petition. 5. Mr. Bhuyan, learned counsel for the petitioner submits that the petitioner is a poor lady and she has the liability of maintaining her minor daughter and also her 80 years old and ailing mother-in-law, and that she is not in a position to pay the aforementioned amount to the respondent authorities. Mr. Bhuyan also submits that the amount, which the respondents have claimed to be the liability of her deceased husband, can be adjusted from the pensionary benefits of the deceased husband of the petitioner and in respect of the allegation of misappropriation of the said amount; the petitioner will take legal recourse to dislodge the same. Therefore, it is contended to allow the petition by directing the respondent authorities to adjust the aforementioned amount of Rs. 2,45,487/- from the pensionary benefits of her deceased husband. 6. On the other hand, Ms. Phukan, learned Standing counsel for the respondent Nos. 1, 2 and 4 and Mr. Choudhury, learned Standing counsel for the respondent Nos. 3 and 5 submit that unless the amount is paid by the petitioner, the non-liability certificate cannot be issued and therefore, it is contended to dismiss the petition. 7. Having heard the submissions of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned letter, dated 07.06.2022, issued by the BEEO to Page No.# 6/11 the petitioner. 8. That perusal of the impugned letter, dated 07.06.2022, indicates that an amount of Rs. 2,45,487/- in the School Management Committee account and Rs. 973/- in Mid Day Meal account was misappropriated by the husband of the petitioner and unless the said amounts are deposited, non-liability certificate cannot be issued from his office. The affidavit-in-opposition of the respondents’ No. 4 and 5 and the Audit Report annexed there with, also indicated that the husband of the petitioner had the liability of an amount of Rs. 2,45,487/- in School Management Committee account and Rs. 973/- in Mid Day Meal account. The Auditor’s Report at Annexure III of the Affidavits-in-opposition of respondents’ No. 4 and 5 also supported the stands taken by the said respondents. And the stands taken by the respondents No.4 and 5 and Auditor’s Report at Annexure III of their Affidavits-in-opposition is not seriously disputed by the petitioner although the learned counsel for the petitioner, in his submission, had denied the allegation of misappropriation and submits that the petitioner will take legal recourse to dislodge such allegation. 9. It is to be noted here that the issue of granting of pension and attachment of pension and pensionary benefits of employees has been dealt with by Hon’ble Supreme Court in a catena of decisions. Reference in this context can be made to the following decisions:- (i) D.S. Nakara v. Union of India, reported in (1983) 1 SCC 305; (ii) Nisha Priya Bhatia v. Union of India, reported in (2020) 13 SCC 56; (iii) Radhey Shyam Gupta v. Punjab National Bank, reported in (2009) 1 SCC 376. Page No.# 7/11 10. In the case of D.S. Nakara (supra), Hon’ble Supreme Court had the occasion to deal with this aspect in paragraph Nos. 19 and 20 as under:- “19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh. (1976) 2 SCC 1:” 11. Thus, it appears that pension is a right and the payment of it does not depend upon the discretion of the Government, but is governed by the rules and a government servant coming within those rules is entitled to claim pension and the grant of pension does not depend upon anyone's discretion. This view Page No.# 8/11 has been re-affirmed in the case of Nisha Priya Bhatia (supra), wherein Hon’ble Supreme Court has held as under:- “77. It is cardinal that pension is a valuable statutory right of an employee and is not controlled by the sweet will or pleasure of the Government. In the absence of express exceptions to the same, any provision resulting in denial thereof ought to be subjected to strict judicial scrutiny. This position of law has been succinctly exposited by this Court in D.S. Nakara v. Union of India (1983) 1 SCC 305, which reads thus: (SCC p. 320, para 20) “20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar reported in (1971) 2 SCC 330] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976) 2 SCC 1.” 12. In the case of Radhey Shyam Gupta (supra) Hon’ble Supreme Court has held that even after receipt of the retiral benefits by the employee, such as Page No.# 9/11 pension and gratuity, did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code, and would not be liable to attachment for satisfaction of a court decree in view of proviso (g) to Section 60(1) of the Code. 13. In the case in hand, it is not in dispute that on account of non-issuance of non-liability certificate by the respondent Nos. 4 and 5, the pensionary benefits of the deceased husband of the petitioner could not be released and the said certificate could not be issued as the deceased husband of the petitioner has a liability of Rs. 2,45,487/- to the School Management Committee account and Rs. 973/- to the Mid Day Meal account, and the relevant documents relating to the audit report has also been placed on record by the respondent authorities. The said amount has also not been disputed by the petitioner in her affidavit-in- reply. 14. Thus, drawing premises from the ratios laid down by Hon’ble Supreme Court in the cases discussed herein above, and also considering the facts and circumstances on the record, this Court is of the considered opinion that denial to issue non liability certificate to the petitioner amounts to violation of the right of the petitioner. Grant of pension does not depend upon the discretion respondent No.4, 5 and 6 as held by Hon’ble Supreme Court in the case of D.S. Nakara (supra), and Nisha Priya Bhatia (supra). The action of respondent No.4, 5 here in this case is therefore arbitrary and illegal. 15. In the result I find sufficient merit in this petition and accordingly the same stands allowed with the following directions:- (i) The petitioner shall submit an undertaking to the respondent No.4 and Page No.# 10/11 5 to the effect that immediately after receipt of the pensionary benefits of her late husband, she will deposit a sum of Rs. 2,45,487/- to the School Management Committee account and another sum of Rs. 973/- to the Mid Day Meal account, of the school of her late husband; (ii) On receipt of such undertaking from the petitioner, the respondents’ No. 4, 5 and 6 shall release all the pensionary benefits of the late husband of the petitioner; (iii) Liberty will remain with the respondent No. 4 and 5 to recover the amount due to the schools account and to proceed against the petitioner in accordance with law, in the event of failing to deposit the amount due to the school accounts. (iv) Liberty will remain with the petitioner to take appropriate legal recourse to dislodge the allegation of misappropriation of the fund by her late husband in the school, in which he served; (v) The respondents’ No.4, 5 and 6 shall complete the entire exercise of releasing all the pensionary benefits of the late husband of the petitioner within a period of three months from the date of receipt of certified copy of this order; (vi) The petitioner shall obtain a certified copy of this order and place the same before the respondent No. 4, 5 and 6 within a period of 10 days from today. In the event of failing to carry out the exercise the amount shall carry interest @ Rs. 9% per annum from the very next date of ending three months. Page No.# 11/11 (vii) The parties have to bear their own costs; JUDGE Comparing Assistant