Right To Pension Must Be Established Within Limitation Period | Gauhati High Court Dismisses Retired Chief Engineer’s Claim | No Accrued Right Under Assam Services Pension Rules 1969
Isabella Mariam
The High Court of Gauhati Single Bench of Justice Suman Shyam dismissed a writ petition seeking pension benefits under the Assam Services (Pension) Rules, 1969. The Court held that the petitioner, who had retired as Chief Engineer from the Assam Urban Water Supply and Sewerage Board (AUWSSB), did not possess any accrued right to pension under the 1969 Rules at the time of his substantive absorption in the Board. Consequently, the court rejected the plea for extending pensionary benefits.
Justice Suman Shyam directed that the writ petition was devoid of merit and accordingly stood dismissed. The Court stated that no relief could be granted either under law or equity, given that the petitioner was ineligible under the statutory pension framework at the material time. The bench also observed that the petition was hit by delay and laches, noting the petitioner had not been vigilant in asserting his claim and had voluntarily accepted contributory provident fund (CPF) benefits throughout his service.
The petitioner, Azizur Rahman, was initially appointed as Assistant Engineer (Civil) under the Directorate of Municipal Administration (MAD), Assam, pursuant to a regular selection process conducted by the Assam Public Service Commission (APSC). His appointment was made temporarily by order dated 05/07/1988. The post carried the scale of Rs. 875-40-1075-EB-40-1275-EB-45-1500-50-1850/- per month along with admissible allowances.
While serving in the MAD, the petitioner was assigned part-time duties with the Assam Urban Water Supply and Sewerage Board (AUWSSB) under section 8 of the Assam Urban Water Supply and Sewerage Board Act, 1985, by notification dated 10/07/1989. This assignment lasted from 03/07/1989 to 09/04/1990, during which he continued to draw salary from the Directorate of Municipal Administration.
On 10/04/1990, the petitioner was sent on deputation to the AUWSSB, a period that lasted until 14/12/1995. During this deputation, he drew deputation allowance. On 17/11/1995, in the 18th Board of Directors’ meeting, the AUWSSB resolved to permanently absorb the petitioner. Pursuant to a government communication dated 25/07/1996, the Joint Secretary, Government of Assam, recommended substantive absorption under section 22(2)(ii) of the 1985 Act.
This communication stated that the service rendered under the Government should be treated as service under the Board, and the petitioner would enjoy rights and privileges, including pension, in the changed scenario. Following this, an office order dated 20/08/1996 was issued by the Board, substantively absorbing the petitioner with retrospective effect from 05/07/1988.
Subsequently, the petitioner served under the Board and was promoted up to the post of Chief Engineer, from which he retired on 31/01/2023. Post-retirement, he received his CPF dues and matching contributions from the Board.
Through the writ petition, the petitioner claimed entitlement to pension as applicable to government servants under the Assam Services (Pension) Rules, 1969, arguing that his initial appointment under the Government was on a sanctioned post through APSC selection and that absorption in the Board occurred under a statutory mechanism protecting his rights.
The respondents, including the State of Assam and AUWSSB, contended that the petitioner was only temporarily appointed in the MAD and that his service had never been regularised under the Government. Hence, he was not eligible for pension under the 1969 Rules. Further, they stated that after absorption, the petitioner was covered by the CPF scheme, which he had availed without protest.
The Court recorded that the case involved a core question: "whether the writ petitioner would be entitled to the benefits of pension payable under Assam Services (Pension) Rules, 1969 despite his permanent absorption... in the service of the Board... with effect from 25/07/1996?"
Justice Suman Shyam observed that although the petitioner was appointed pursuant to a regular APSC selection process, "there is nothing on record to show that the service of the petitioner was ever made permanent on any date prior to his substantive absorption in the service of the Board."
The Court noted that under Rule 31 of the Assam Services (Pension) Rules, 1969, three conditions must be met for a government servant to qualify for pension: "the service must be under Government; the employment must be substantive and permanent; and the service must be paid by Government."
The Court stated: "Since the employment of the petitioner under State Government was not made permanent prior to his absorption in the service of the Board, hence, he was not qualified under Rule 31 to receive pension." It further held that the Board was a non-pensionable establishment, and therefore "permanent absorption of the petitioner in the service under the Board, will also not count so as to bring his case within the ambit of the Pension Rules of 1969."
On the issue of delay, the Court observed: "It was only after his retirement from service and after the lapse of nearly 27 years since the date of his permanent absorption in the service of the Board, that the petitioner has approached this Court." The maxim "Vigilantibus non dormientibus jura subveniunt" was invoked, meaning the law assists those who are vigilant, not those who sleep over their rights.
Addressing the petitioner's argument on retrospective effect of absorption, the Court stated: "Even assuming that the petitioner had any right to receive pension... he was not at all vigilant about such right."
The bench also noted that receipt of CPF dues post-retirement without objection indicated acquiescence to the non-pensionable nature of the service.
The Court held that the petitioner had not acquired the right to receive pension under the Assam Services (Pension) Rules, 1969, and therefore the protection under section 22(2)(ii) of the 1985 Act did not apply. It recorded: "Since this Court is of the opinion that the right of the writ petitioner to receive pension under the Pension Rules of 1969 had never accrued, the question of protecting such right under section 22(2)(ii) of the Act of 1985 also does not arise in the eyes of law."
Further, the Court noted: " Under the circumstances, this Court is of the opinion that no relief can be granted to the petitioner either under the law or under equity.."
Concluding, Justice Suman Shyam stated: "This writ petition is held to be devoid of any merit. The same is accordingly, dismissed. There shall be no order as to costs."
Advocates Representing the Parties:
For the Petitioner: Mr. K.N. Choudhury, Senior Advocate; Ms. R. Choudhury, Advocate
For the Respondents: Ms. M. Bhattacharjee, Additional Senior Government Advocate; Mr. S.P. Choudhury, Standing Counsel, AUWSSB; Mr. D. Bhattacharjya, Standing Counsel, Office of the AG (A&E), Assam
Case Title: Azizur Rahman v. The State of Assam and Ors.
Neutral Citation: 2025: GAU-AS:8390
Case Number: WP(C)/4821/2023
Bench: Justice Suman Shyam
