Page No.# 1/10 GAHC010030192024 2025:GAU-AS:4954 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/806/2024 BIPUL KUMAR S/O- HARESWAR KUMAR, R/O- VILLAGE AND P.O- BALISATRA, DIST- KAMRUP, ASSAM, PIN-781350 VERSUS THE STATE OF ASSAM AND 4 ORS REP BY THE COMMISSIONER AND SECRETARY , GOVT. OF ASSAM, JUDICIAL DEPARTMENT 2:GAUHATI HIGH COURT REP. BY THE REGISTRAR GENERAL 3:CHIEF ADMINISTRATIVE OFFICER IN THE ESTABLISHMENT OF DISTRICT AND SESSIONS JUDGE BAJALI PATHSALA 4:COMMISSIONER AND SECRETARY FINANCE DEPARTMENT GOVT OF ASSAM DISPUR GUWAHATI 5:ACCOUNTANT GENERAL ( A AND E) MAIDAMGAON BELTOLA KAMRUP METRO ASSAM GUWAHATI - 781028 Page No.# 2/10 BEFORE HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the petitioner(s) : Mr K Sarma Advocate for the respondent(s) : Mr G Baishya, Mr R Borpujari, Mr T R Gogoi, Mr R K Talukdar. Date of Hearing and Judgment : 24.04.2025 JUDGMENT AND ORDER (ORAL) Heard Mr K Sarma, the learned counsel appearing on behalf of the petitioner. Mr T R Gogoi, learned counsel appears on behalf of the respondent No. 1, Mr G Baishya, learned Standing Counsel of the Gauhati High Court, appears on behalf of respondent Nos. 2 and 3, Mr R Borpujari, learned Standing Counsel, appears on behalf of the Finance Department and Mr R K Talukdar, the learned Standing Counsel of the Accountant General (A & E) Assam, for the respondent No. 5. 2. The present writ petition has been filed by the petitioner, challenging the written communications enclosed as Annexures- 8 and 9 to the writ petition, whereby the petitioner was informed that he cannot subscribe to the General Provident Fund and the petitioner would be refunded all such amounts deposited while subscribing to the said Fund with interest up to 31.12.2011 and thereupon, there shall be no interest on the said amount. Page No.# 3/10 3. The brief facts, which led to the filing of the instant writ petition are narrated infra: The petitioner herein, was initially appointed as a Mali in the office of the District and Sessions Judge, Barpeta. A perusal of Annexures-1 and 2 (colly), shows that the appointment of the petitioner was purely temporary and was personal to the officer, who happened to appoint him from time to time. For the first time, the petitioner was appointed against a substantive vacancy in the capacity of an Office Peon, vide an order dated 01.12.2005, as would appear from a perusal of Page-33 of the writ petition. Subsequently, on the recommendation of the Selection Committee, vide an order dated 28.06.2016, he was promoted to the post of Jarikarak in the office of the Munsiff No. 1, Barpeta. The petitioner was promoted, thereafter, to the post of LDA and at the time of filing the writ petition, he was working in the establishment of the District and Sessions Judge, Bajali, Pathsala. It is stated at the Bar that the petitioner presently, is working in the establishment of the District and Sessions Judge, Kamrup (Rural), Amingaon. 4. The dispute involved in the instant proceedings pertains to a communication issued by the Senior Accounts Officer of the respondent No. 5, to the District and Sessions Judge, Bajali, dated 16.11.2023, wherein it was informed that those persons, who have joined the Government Service, on or after 01.02.2005, they would not be eligible to join the General Provident Fund and any amount collected on account of General Provident Fund would be refunded to those persons with interest, however, after 31.12.2011, there shall be no interest admissible. On the basis of the said letter, the District and Sessions Page No.# 4/10 Judge, Bajali, had issued the order on 13.12.2023, asking the petitioner to submit the Final Withdrawal Application Form of GPF, for drawal of GPF accumulated contribution, as sought for, within 30 days from the date of receipt of the said order. The petitioner has assailed the communications dated 16.11.2023 (Annexure-8), as well as the order dated 13.12.2023 (Annexure-9), on the ground that the petitioner is entitled to subscribe to the General Provident Fund, having been initially appointed in the year 1998, and continuing thereafter, and it is under such circumstances, the present writ petition has been filed. 5. This Court has duly perused the materials on record, wherein it is seen that the petitioner though was appointed by the District and Sessions Judge, Kamrup, on 21.09.1998, as well as subsequently, but all these appointments were absolutely on temporary basis on fixed wages attached to the concerned officer, and the said appointments of the petitioner, appears to be more personal to the Officer, who was then holding the post of the District Judge, Kamrup. This aspect is apparent from the very perusal of Annexures-1 and 2 (colly), inasmuch, as when the Officer was transferred, the petitioner went along with him and he was freshly appointed in that establishment, that too, without any due process. Be that as it may, it was only on 01.12.2005, that the petitioner was appointed though temporarily against a vacant post. Taking into account, the scope and ambit of the present proceedings, this Court would not like to delve further into the legality of the appointment of the petitioner, but would for the purpose of the present dispute, construe that the petitioner was substantively appointed w.e.f. 01.12.2005, which is the admitted case of the Respondent Authorities also. Page No.# 5/10 6. It is very pertinent to mention that the General Provident Fund is a fund being created under the premises of the General Provident Fund (Assam Service) Rules, 1937 (hereinafter, referred to as “the Rules of 1937”. The said Rules of 1937 was amended and notified by the notification dated 14.07.2011 and given retrospective effect from 01.02.2005. The amendment so made was to insert a further proviso to Rule 4 after proviso 2, stipulating that a Government Servant appointed on or after 01.02.2005, to the services and posts in connection with the affairs of the State Government of Assam, which are borne on pensionable establishments, whether temporary or permanent, shall not be eligible to join the fund. The said notification being relevant is reproduced below- “GOVERNMENT OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR : : GUWAHATI : : 6 Order by the Governor NOTIFICATION Dated Dispur, the 14 July, 2011 No. PPG(P)88/20009/38 : In pursuance of the approval of Cabinet held on 05/07/2011 and in exercise of the powers conferred by the proviso to Article 309 of the Constitution of Indian, the Governor of Assam is pleased to make the following rules further to amend the General Provident Fund (Assam Services) Rules, 1937, hereinafter referred to as the principal Rules namely: Short title and commencement 1. (1) These rules may be called the General Provident Fund (Assam Services) (Amendment) Rules, 2011. (2) They shall be deemed to have come into force with effect from 01-02- 2005. 2. In the principal Rules, in rule 4, after proviso 2, the following new proviso shall be inserted, namely: — “Provided further more that the Government Servant appointed on or after 01.02.2005 to the services and posts in connection with the affairs of the State Government of Assam which are borne on pensionable establishment, whether temporary or permanent, shall not be eligible to join the Fund.” (Smti. G. Baruah, IAS), Commissioner & Secy. to the Govt. of Assam, Pension & Public Grievances Department.” 7. This amendment to the Rules of 1937, however, is not put to challenge, in Page No.# 6/10 the instant proceedings. 8. Considering the scope and ambit of the said amendment, whereby the third proviso was inserted to Rule 4 of the Rules of 1937, no Government Servant appointed on or after 01.02.2005, to the services and posts in connection with the affairs of the State Government of Assam, whether temporary or permanent, shall be eligible to join the fund. Accordingly, the petitioner having been appointed only on 01.12.2005, could not have joined the fund. 9. This Court further takes notice that immediately upon the amendment made to the Rules of 1937, which was notified on 14.07.2011, a communication was issued by the Director, Finance, (Budget) Department, to all the administrative Departments, as well as all the Head of Departments, informing about this amendment and further directing that the contributions so made till the issuance of the said communication to the General Provident Fund, be refunded with interest up to month preceding the month of issue of authorization of the Accountant General, Assam, within 31st of December, 2011. It was also mentioned that there shall be no claim for interest on GPF accumulated beyond 31.12.2011. 10. Under such circumstances, in view of the said communication, all Departments of the Government Assam, including the Judicial Department of the Government of Assam, were informed that no person would subscribe to the GPF, who were appointed after 01.02.2005, and further any amount, which was collected from those State Government Servants, who were appointed post- 01.02.2005, were to be refunded within 31.12.2011 and post-31.12.2011, there shall be no interest. Page No.# 7/10 11. Be that as it may, the District and Sessions Judge, Bajali, under whose establishment the petitioner was working, continued to deduct the amounts towards subscription of General Provident Fund from the petitioner and the same were duly deposited in the Treasury, and the Respondent No. 5 also issued statements, from time to time, acknowledging, inter alia, that deposits were received from the petitioner towards subscription to the General Provident Fund and that the deposits would be entitled to interest @ 7.1% per annum. 12. Taking into account that the petitioner was substantively appointed after 01.02.2005, the deduction so made by the establishment of the District and Sessions Judge, from the petitioner was not permissible and further retention of the said amount by the Accountant General (A & E), Assam, i.e., the respondent No. 5, and issuing statements to that effect that the petitioner would be entitled to interest @ 7.1% per annum, was also not permissible. 13. The said unlawful deduction though at the volition of the petitioner, continued till the District and Sessions Judge, Bajali, by the communication dated 30.08.2023, made an enquiry with the respondent No. 5, as to whether the petitioner was entitled to subscribe towards the GPF. In reply to the said communication, the Senior Accounts Officer of the respondent No. 5, informed the District and Sessions Judge, by a communication dated 16.11.2023, that the petitioner could not have subscribed to the GPF and any amount which accumulated till 31.12.2011, the petitioner would be entitled to interest and beyond that, there shall be no interest. Pursuant thereto, the District and Sessions Judge, Bajali, vide the order dated 13.12.2023, informed the petitioner to submit the final withdrawal application within 30 days from the date of receipt of the said order. The communication dated 16.11.2023 and the order Page No.# 8/10 13.12.2023, are challenged in the present writ petition. The records further show that there is no order staying the impugned communication as well as the order. However, after the writ petition was filed, the petitioner requested the District and Sessions Judge, Bajali, vide a representation dated 14.02.2024, to continue with the process of deduction till the disposal of the present writ petition. 14. During the course of hearing, this Court enquired with Mr G Baishya, the learned Standing Counsel of the Gauhati High Court, as to whether the concerned District and Sessions Judge is still deducting for subscription to the General Provident Fund from the salary of the petitioner. Mr G Baishya submitted that in view of the communication dated 14.02.2024, the District and Sessions Judge, Bajali, continued to deduct the amounts from the petitioner and deposited the same in the Treasury and the respondent No. 5, also continued to issue statements to that effect. 15. This Court duly heard the learned counsels for the parties and perused the materials on record. As discussed and analyzed above, the petitioner, having been substantively appointed after 01.02.2005, the petitioner could not have continued to subscribe to the General Provident Fund. The Amendment to the Rules of 1937, have not been challenged. Under such circumstances, the question of interfering with the impugned communication dated 16.11.2023, and the order dated 13.12.2023, in so far as the petitioner's entitlement to subscribe to the General Provident Fund, do not arise. 16. This Court, however, cannot turn a blind eye to the actions on the part of the establishment of the District and Sessions Judge, Bajali as well as the office Page No.# 9/10 of the respondent No. 5, in deducting the amounts towards subscription towards the General Provident Fund and the subsequent issuance of the statements by the respondent No. 5, acknowledging the receipt and issuance of statements that the petitioner would be entitled to interest @ 7.1%. This Court, further takes note of that the petitioner would be deemed to have knowledge that he was not entitled to subscribe w.e.f. 13.12.2023 and the subsequent deduction so made was on account of the volition of the petitioner by submitting the representation dated 14.02.2024. Consequently, the petitioner cannot be entitled to any interest with effect from 13.12.2023. 17. Accordingly, the instant petition stands disposed of with the following observations and directions: (i) The petitioner is not entitled to subscribe to the General Provident Fund in terms with the Rules of 1937, as the petitioner was substantively appointed only after 01/02/2005. (ii) The petitioner would be entitled to refund of the amounts deposited towards the subscription to the General Provident Fund. The petitioner would be entitled to interest at the rate stated in the statement(s) issued by the respondent No. 5 up to 13/12/2023. Subsequent thereto, the petitioner would not be entitled to interest on the subscribed amount. (iii) The petitioner shall within 30 days from today, submit the application seeking refund/ withdrawal of the amounts subscribed. Upon filing of such application, the District and Sessions Judge Kamrup (Rural), under whose establishment, the petitioner is presently working, shall take appropriate steps on such application. Page No.# 10/10 (iv) The respondent No. 5, in the meantime, on the basis of the instant judgment, compute the amount payable to the petitioner along with interest at the rate(s) up to 13.12.2023 and disburse the same to the District and Sessions Judge, Kamrup (Rural), for the latter, to take appropriate steps, as per the directions given in Clause-(iii) above. (v) There shall be no further deduction by the establishment of the District and Sessions Judge, wherein the petitioner is presently working. (vi) Mr G Baishya, the Standing Council of Gauhati High Court is directed to forthwith forward this Judgment to the District and Sessions Judge, under whose establishment, the petitioner is presently working. JUDGE Comparing Assistant