Judgment · High Court · 2012

Apart from the above, the petitioner has also given the example of Shri 3. Budheswar Gogoi, Head Master (Retd) of Moran Public School ; Shri Janak Chandra Chutia, Head Master (Retd) of Tingrai Chariali High School and Shri Mohanlal Sh ah, Head Master (Retd) of Lahowal High School, Dibrugarh. According to the petit ioner, the said 3 (three) Head Masters had worked for the periods from 1.9.1974 to 1.2.1986 ; 1.10.77 to 1.2.1985 and 1.2.1964 to 1.2.1985 respectively before p rovincialisation of their respective Schools. It is the stand of the petitioner that after provincialisation of the said Schools, the services rendered by the s aid three Head Masters during the said period, had been taken into account towar ds pension. Thus, the petitioner also claims the same benefit.

#4. No counter affidavit has been filed by the respondents. I have heard Mr. P.D. Nair, learned counsel for the petitioner as well as Mr. J. Abedin, learned Standing Counsel, Education Department. While Mr. Nair, learned counsel for the petitioner has emphasized on counting the period in question towards pension, M r. Abedin, learned Standing Counsel, Education submits that the period during wh ich the petitioner was not holding any substantive post and the establishment wa s also not a permanent one, cannot count towards pension. Rule 13(7) of the Assam Secondary Education (Provincialised) Service R

#5. ules, 1982 reads as follows :- (cid:28)13(7) : attaining the age of 58 years and all Grade IV employees retiring on superannuat ion on attaining the age of 60 years, the entire period of service from the date of appointment shall be counted towards pension and gratuity notwithstanding an Pension. In case of all employees retiring on superannuation on ything contained in the Assam Service Pension Rules, 1969. (cid:29) Section 2(ii) of the Assam Secondary Education (Provincialisation) Act,

#6. 1977 defines (cid:28)Date of appointment (cid:29) as follows :- (cid:28)Date of appointment (cid:29) means, in relation to any employee, the date on which he j oined the service of a school imparting Secondary Education on and from the date of its coming under adhoc system of grants in aid. (cid:29) While Mr. Nair, learned counsel for the petitioner has put emphasis on 7. Rule 13(7) of the Rules of 1982, so as to contend that the entire period of serv ice from the date of appointment should be counted towards pension, notwithstand ing anything contained in the Assam Services Pension Rules, 1969, Mr. J. Abedin, learned Standing Counsel, Education, submits that the aforesaid definition of (cid:28) date of appointment (cid:29) makes the position clear, inasmuch as, the proviso to the s aid clause mandates that the date of appointment would mean the date of issuance of the notification provincialising the services of the employees of the respec tive Schools. Chapter-III of the Assam Services (Pension) Rules, 1969 deals with condi 8. tions of qualifying service. Rule-31 specifies the conditions towards qualifying services, which are :- (ii) The employment must be substantive and permanent ; and (i) The service must be under Govt. ; (iii) The servant must be paid by the Govt.

#9. Rule 32 of the said Rules provides that the service of an officer does n ot qualify unless he is he is appointed and his duties and pay are regulated by the Govt. or under conditions determined by the Govt. Rule 36 provides that ser vice does not qualify unless the officer holds a substantive office on a permane nt establishment. If we take into account the aforesaid provisions of the Pensio n Rules, then the petitioner is not entitled to count his service for the period when the School and for that matter the services of the petitioner was not prov incialised.

#10. The petitioner has heavily placed reliance on Rule 11(7) of the Rules of 1982, quoted above, so as to contend that notwithstanding anything contained in the Assam service Pension Rules, 1986, the entire period of service from the da te of appointment will have to be counted towards pension. The expression (cid:28)notwi thstanding anything contained in the Assam Services (pension) Rules, 1969 (cid:29) in th e context of the expression (cid:28)the entire period of service from the date of appoi ntment (cid:29) will have to be understood in the context of the substantive appointment made after provincialisation of the School. It is in this context, Mr. J. Abedi n, learned Standing Counsel, Education, has referred to the proviso to Clause 2( ii), which defines (cid:28)the date of appointment. (cid:29) As per the said proviso, ’the date of appointment’ means the ’the date of issuance of the notification provinciali sing the services of the employees of the respective Schools’ for the purpose of pay and allowances. Further, Section 2(v) defines ’employee’ a person in the em ployment of a School working against a regular sanctioned post and whose appoint ment has been approved by the School Authority, wherever such approval was neces sary. Similarly, Section 2(vi) defines existing employee as an employee who is on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority.

#11. The expression ’notwithstanding anything contained in the Assam Services (Pension) Rules, 1969’ appearing in Rule 13(7) of the 1982 Rules, in the contex t of the entire period of service from the date of appointment will have to be u nderstood from the date of substantive appointment after provincialisation of th e School. Otherwise an employee in employment of a venture School for a fairly l ong spell, with the provincialisation of his service thereafter and rendering hi s service in that capacity for few months or few years, may also claim pension, counting his entire length of service.

#12. Above apart, Section 2(k) of the aforesaid Rules of 1982, makes the posi tion clear by defining the expression ’service’ as the Assam Secondary Education (Provincialised) Service. That being the position, the prayer of the petitioner cannot be granted.

#13. As regard the examples of three Head Masters cited by the petitioner, in absence of any counter affidavit filed by the respondents, it is not discernibl e as to under what circumstances, the benefit of service prior to provincialisat ion was granted to them. It is the assertion of the petitioner. However, in abse nce of any material particulars, it is not possible for this Court to come to a definite finding. That apart, if any illegality was committed, the said illegali ty cannot be perpetuated by granted the same to the petitioner as well.

#14. Irrespective of this judgement, it will be open for the petitioner to ap proach the authority citing the above examples. In the event of making such appr oach, the authority shall deal with the matter appropriately taking note of the attending facts and circumstances and in accordance with law and also consistent ly with the observations made above.

#15. wever, any order as to costs. Writ petition stands disposed of with the above observations, without ho