Page No.# 1/13 GAHC010073722022 2025:GAU-AS:6396 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2736/2022 ON THE DEATH OF PRADIP KUMAR SARMA HIS LEGAL REPRESENTATIVES 1) REKHA MANI DEVI, W/O- LATE PRADIP KUMAR SARMA, R/O- VILL.- BARDIGHELI (BARDHARI), P.O. BARDIGHELI, DIST. NALBARI, ASSAM, PIN- 781334. 2: BISHAL SARMA S/O- LATE PRADIP KUMAR SARMA R/O- VILL.- BARDIGHELI (BARDHARI) P.O. BARDIGHELI DIST. NALBARI ASSAM PIN- 781334 VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 3:INSPECTOR OF SCHOOLS NALBARI DISTRICT CIRCLE P.O. AND DIST. NALBARI ASSAM PIN- 781335. 4:THE TREASURY OFFICER NALBARI TREASURY P.O. AND DIST. NALBARI Page No.# 2/13 ASSAM PIN- 781335. 5:THE PRINCIPAL P.B. DHIRDUTTA HIGHER SECONDARY SCHOOL VILL.- BARKHALA P.O. K.P. BARKHALA DIST. NALBARI ASSAM PIN- 781350. 6:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAM GAON BELTOLA GUWAHATI-781029 Advocate for the Petitioner : MR. K M HALOI, MR. B DAS Advocate for the Respondent : SC, SEC. EDU., MS. B D SARMAH (R5),MR. U K DAS (R5),SC, AG,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 21-05-2025 Heard Mr. KM Haloi, learned counsel for the petitioners. Also heard Ms. P Das, learned Standing Counsel, Secondary Education Department as well as Mr. H Thakuria, learned counsel appearing on behalf of Mr. UK Das, learned counsel for the respondent No. 5. 2. This case pertains to the prayer made by the petitioners for a direction to be issued to the effect that the petitioner No.1’s husband should be covered by the Assam Services (Pension) Rules, 1969 (hereinafter referred to as the “1969 Rules”) and there should not be any conversion of the pension payable to the petitioners from the 1969 Rules to the New Pension Scheme, inasmuch as, the Page No.# 3/13 petitioner No.1’s husband was appointed to Government service on regular basis, prior to the coming into force of the New Pension Scheme. Further, the respondents should be directed to open a GPF Account in the name of the petitioner No.1’s husband. 3. At the outset, it appears that the issue to be decided in the present writ petition has already been impliedly decided by the Division Bench of this Court, vide judgment and order dated 11.09.2017 passed in WA No. 190/2017, wherein the petitioner No.1’s husband had prayed for payment of his continued regular salary from January 2006. 4. This writ petition had originally been filed by Sri. Pradip Kumar Sarma, who had expired on 30.10.2024, i.e., prior to his retirement as an Assistant Teacher which was to be in the year 2028. The original writ petitioner, i.e. the husband of the petitioner No. 1 had filed the present writ petition, praying for a direction to direct the respondents, to stop deduction of the petitioner No.1’s husband’s salary towards the New Pension Scheme account and to place him under the 1969 Rules, inasmuch as, his appointment to the post of Assistant Teacher had been made, prior to the coming into force of the New Pension Scheme. The original writ petitioner, having expired during the pendency of the writ petition, he was substituted by his wife and son, Rekha Mani Devi and Bishal Sarma respectively, who were impleaded as petitioner Nos. 1 and 2 vide order dated 17.02.2025 passed in I.A.(Civil) 343/2025. 5. The case of the petitioner No.1’s husband Late Pradip Kumar Sarma was that he was appointed to the post of Assistant Teacher in P.B. Dhirdutta Higher Secondary School under the Inspector of Schools, Nalbari District Circle way Page No.# 4/13 back on 30.10.1998. The petitioner No.1’s husband’s regular salary which has been paid from the date of his joining was however stopped from January 2006. 6. The petitioner No. 1’s husband being aggrieved by the stoppage of his salary filed WP(C) 485/2011, praying for payment of his regular salary in the post of Assistant Teacher of P.B. Dhirdutta Higher Secondary School w.e.f. January 2006. The learned Single Bench, on considering the case of the petitioner No.1’s husband, held that the facts of the case were hardly in dispute, inasmuch as, the petitioner No.1’s husband was admittedly included in the select list dated 08.08.1998 prepared by the District Level Selection Board for the post of Assistant Teacher in respect of Nalbari District. The relevant portion of his appointment order dated 30.10.1998 issued by the In-charge Inspector of schools, NDC, Nalbari and the order dated 11.05.1999, allowing the petitioner No.1’s husband to draw his salary in the scale of pay of Rs.3580-8750 plus other allowances as admissible under the Rules, were also reproduced in the order dated 01.04.2016 passed in WP(C) 485/2011, which are as follows:- "ORDER 30.10.1998 On recommendation of District Level Selection Board and subject to discharge without notice and without assigning any reasons thereof, Sri/Smti Pradip Kr. Sarma, BA of Village Bandigheli is temporarily appointed as Asstt. Teacher, P.B. Dhidatta Higher S. School against the resultant vacancy against upgradation of principal. Sd/- A. Choudhury, i/c Inspector of Schools, NDC Page No.# 5/13 Nalbari." "ORDER 11.05.1999 Shri Pradip Kumar Sarma, who has been appointed as Asst. Teacher in P.B. Dhirdutta H.S. School vide this Office Memo No.APPTT/98700- 7 dtd. 30-10-98 against the resultant vacancy of Principal of the School is hereby allowed to draw his salaries in the scale of pay of Rs. 3580-8750/- P.M. plus other allowances as admissible under rules with effect from the date of his joining. The expenditure will be incurred from the balance amount of the salaries of Principal. Sd/-S.C. Sarma, Inspector of Schools, N.D.C., Nalbari." 7. The learned Single Bench dismissed the case of the petitioner No.1’s husband vide judgment and order dated 01.04.2016 passed in WP(C) 485/2011, on the ground that the petitioner No.1’s husband had not been appointed against any vacant post of Assistant Teacher and only against the resultant vacancy of Principal of the School. The learned Single Bench held that as the petitioner No.1’s husband had been appointed against the resultant vacancy of the post of Principal of the School, the petitioner No.1’s husband could not be accommodated any further, once the resultant vacancy of the post of Principal had been filled up by a regular appointee. The learned Single Judge thus held that the petitioner No.1’s husband had all along been appointed against a non- Page No.# 6/13 existent post after the expiry of the select list and as such, could not have been appointed against the post of Principal which was obviously a higher post, for which he was never selected or considered for appointment in the recruitment process. As such, the payment of salary to the petitioner No.1’s husband as Assistant Teacher would have to be stopped, in view of the post of Principal being filled up on a regular basis. Thus, the prayer of the petitioner No.1’s husband for continued payment of his regular salary from January 2006 was dismissed. 8. The judgment and order dated 01.04.2016 dismissing WP(C) 485/2011 was put to challenge before the Division Bench vide WA 190/2017. 9. The Division Bench, vide judgment and order dated 11.09.2017 passed in WA 190/2017, set aside the judgment and order dated 01.04.2016 passed by the learned Single Bench in WP(C) 485/2011, by holding that the petitioner No.1’s husband was appointed as Assistant Teacher vide order dated 30.10.1998, consequent upon the recommendation made by the District Level Selection Board, against the resultant vacancy upon upgradation of the Principal of the said School. The Division Bench also observed that the name of the petitioner No.1’s husband had appeared in the select list of High School Teachers dated 08.08.1998 under the Nalbari constituency and on 11,05.1999 another order was issued, allowing the petitioner No.1’s husband to draw salary in the scale of pay of Rs. 3580-8750/- per month, where he had continued to receive salary upto December 2005. By a subsequent order dated 11.07.2007, his appointment as Assistant Teacher was adjusted in the same School vice Shri Jogendra Nath Chakrabarty, Assistant Teacher who retired. The Division Bench further observed that the order dated 11.07.2007 recorded that the same had Page No.# 7/13 been issued in the light of the order dated 04.12.2003 passed in WP(C) 4963/1999. The Division Bench further observed that neither the petitioner’s initial appointment order nor the adjustment order had been rescinded or revoked by the authorities. The Division Bench further held that as the petitioner No.1’s husband had been appointed on the basis of his position in the select list of High School Teachers and on the recommendation of the District Level Selection Board, it was clear that the appointment was made within the validity period of the select list. It also held that the appointment of the petitioner No.1’s husband came through a regular basis of selection and was appointed against the resultant vacancy created against upgradation of the Principal of the School. 10. The Division Bench in its judgment and order dated 11.09.2017 passed in WA 190/2017 held that it could not be said, as held by the learned Single Judge, that he was appointed against a resultant vacancy of the post of Principal of the School. It also held that the appointment of the petitioner No.1’s husband was not against the provisions of the Service Rules in question and that his initial appointment order was to the post of Assistant Teacher of the School, with an order allowing him to draw salary. The Division Bench further held that if the appointment of the petitioner No.1’s husband was in fact illegal, the respondent authorities ought to have issued orders revoking the appointment order dated 30.10.1998, as well as the adjustment order dated 11.07.2007. It further held that the services of the petitioner No.1’s husband came to be adjusted vide order dated 11.07.2007, which was ignored from consideration by the Departmental authorities and was also not taken note of by the learned Single Judge. The Division Bench held that there was no order issued, revoking the appointment order dated 30.10.1998 as well as the adjustment order dated Page No.# 8/13 11.07.2007 and that the petitioner No.1’s husband had been allowed to discharge his duties as an Assistant Teacher in the School. The Division Bench thus set aside the impugned judgment and order dated 01.04.2016 passed in WP(C) 485/2011 and directed the State respondents to pay the salary of the petitioner No.1’s husband w.e.f. January 2006. 11. Ms. P Das, learned Standing Counsel, Secondary Education Department submits that the service of the petitioner No.1’s husband was regularised only on 11.07.2007 and therefore, he is to be governed by the New Pension Scheme. Moreover, Rule 31 of the 1969 Rules stipulates the eligibility criteria of a Government servant, who is to be governed by the 1969 Rules. Since the petitioner No.1’s husband has failed to come within the conditions provided in Rule 31 of the 1969 Rules, the petitioners cannot be said to be entitled to pensionary benefits under the 1969 Rules. 12. Ms. P Das, learned Standing Counsel, Secondary Education Department further submits that the petitioner No.1’s husband had been working as an Assistant Teacher against a resultant vacancy of Principal as per the office order dated 30.10.1998 and he has been allowed to draw his monthly salary in the scale of pay of Rs. 3580-8750/- vide order dated 11.05.1999. The service of the petitioner No.1’s husband having been adjusted vide Jogendra Nath Chakrabarty, Assistant Teacher with immediate effect vide office order dated 11.07.2007, the petitioner No.1’s husband cannot be said to be governed by the 1969 Rules. 13. Ms. P Das, learned Standing Counsel, Secondary Education Department further submits that as per the report of the Principal dated 05.02.2018, the Page No.# 9/13 monthly salary of the petitioner No.1’s husband had been stopped w.e.f. 01.01.2006 by the Treasury Officer, Nalbari due to non-availability of GPF number, due to which a proposal for opening a GPF Account had been submitted to the Director, Secondary Education Department, Assam vide office letter Memo No. Est.3/GPF/FOR/07/4042 dated 08.10.2007. She also submits that the arrear salary of the petitioner No.1’s husband from the period from 01.01.2006 to 28.02.2019 has already been drawn and disbursed to the petitioner No.1’s husband, vide Government letter Memo No. PMA(S).150/2018/32 dated 20.03.2019 and No.PMA(S).150/2018/47 dated 19.02.2020. Further, the petitioner No.1’s husband has been enrolled under the New Pension Scheme. 14. I have heard the learned counsels for the parties. 15. With regard to the stand of the counsel for the Secondary Education Department that the petitioner No.1’s husband does not fulfil the requirements of Rule 31 of the 1969 Rules, to be governed by the 1969 Rules, Rule 31 of the 1969 Rules will have to be reproduced for perusal, which is as follows:- “Conditions to qualifying service “31. The service of an officer does not qualify for pension unless it conforms to the following three conditions : Firstly, the service must be under Government ; Secondly, the employment must be substantive and permanent; Thirdly, the servant must be paid by Government : Page No.# 10/13 Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled,— (i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and (ii) in individual cases and subject to such conditions as he may think fit to impose in each case, allow service rendered by an officer to count for pension.” 16. The 3 (three) conditions required to be fulfilled to grant pension under the 1969 Rules requires that the service must be under the Government and the employment must be substantive and permanent. The salary must also be paid by the Government. 17. As can be seen from the decision of the learned Division Bench of this Court in its judgment and order dated 11.09.2017 passed in WA No. 190/2017, the petitioner No.1’s husband’s appointment to the post of Assistant Teacher of P.B. Dhirdutta Higher Secondary School, vide the order dated 30.10.1998 and the order dated 11.05.1999 allowing him to draw his salary in the pay scale of Rs. 3580-8750/-, has not been interfered with. There is nothing to show that just because the adjustment order dated 11.07.2007 had been issued, the appointment order dated 30.10.1998 was not against any permanent or substantive post. As the petitioner No.1’s husband’s appointment order as an Assistant Teacher on 30.10.1998 has been declared to be valid by the Division Bench, besides the petitioner No.1’s husband being paid by the Government, the petitioner No.1’s husband’s appointment on 30.10.1998 would have to be Page No.# 11/13 considered to be against a substantive and permanent post. This is further fortified when the decision of the Division Bench has in fact impliedly held that the appointment of the petitioner as Assistant Teacher was not illegal. Thus the husband of the petitioner No. 1 would have to be said to be governed by the 1969 Rules, inasmuch as, the New Pension Scheme only came into effect from a much later date. On the other hand, at the time of appointment of the petitioner No. 1’s husband to the post of Assistant Teacher, the 1969 Rules were in force. As such, the vested right of the petitioner No.1’s husband could not have been taken away by the New Pension Scheme, when he was already governed by the 1969 Rules. 18. Though the counsel for the Secondary Education Department has taken a stand that the petitioner No.1’s husband had been working as Assistant Teacher against the resultant vacancy of Principal, the same flies in the face of the Division Bench judgment in WA 190/2017, wherein it has been held in paragraph 5 as follows “the appointment of the appellant came through a regular process of selection and was appointed against the resultant vacancy created against upgradation of the Principal of the School. It cannot be said, as held by the learned Single Judge, that he was appointed against the resultant vacancy of the post of Principal of the School. The initial appointment order describes his appointment as being made to the post of Assistant Teacher of the school. So also the order allowing him to draw his salaries as well as the order of his adjustment................Rather, the appellant has been allowed and is discharging duties as Assistant Teacher in the School in question.” As such, this Court is of the view that the petitioner No.1’s husband’s appointment as Assistant Teacher would have to be considered on a substantive and permanent basis w.e.f. 30.10.1998, which has not been revoked/cancelled by the Page No.# 12/13 respondents at any point of time. 19. The affidavit of the respondent No. 2 also reflects at paragraph 8 that it was only due to non-availability of GPF Account Number that the salary of the petitioner No.1’s husband had been stopped from 01.01.2006 and that a proposal for opening a GPF Account Number had been submitted to the Director of Secondary Education, vide office letter Memo No. Est.3/GPF/FOR/07/4042dated 08.10.2007. The above also makes it clear that the respondents were of the view that the petitioner No.1’s husband was entitled to the benefit of the 1969 Rules as GPF account number is relatable only to the 1969 Rules and not the New Pension Scheme. 20. In view of the reasons stated above, this Court is of the view that the petitioner No.1’s husband and his family members, i.e., the present petitioners, would have to be governed by the provisions of the 1969 Rules. Consequently, the service of the petitioner No.1’s husband would have to be considered in pursuance to the appointment order dated 30.10.1998 and pension/family pension, as payable to the petitioner No.1’s husband and family members of the deceased Government servant, should be made in terms of the 1969 Rules. The State respondents are accordingly directed to process the payment of family pension payable to the petitioner No. 1 and make payment of the same within a period of 4 (four) months from the date of receipt of a certified copy of this order. 21. In view of the above reasons, the deduction of the pay of the petitioner No.1’s husband towards the NPS Account of the petitioner No.1’s husband, should be adjusted against the pension/family pension payable to the petitioners Page No.# 13/13 in terms of the 1969 Rules. 22. The writ petition is accordingly allowed and disposed of. JUDGE Comparing Assistant