Page No.# 1/15 GAHC010262022025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6892/2025 NIRMALI MEDHI W/O. KRISHNA KANTA KALITA, RESIDENT OF VILL., P.O. AND P.S. MILANPUR, DIST. NALBARI, ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY, DEPARTMENT OF SCHOOL EDUCATION, ASSAM, DISPUR, GHY-06. 2:THE COMMISSIONER AND SECRETARY FINANCE DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI-06. 3:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-06. 4:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 5:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-06. Page No.# 2/15 6:THE INSPECTOR OF SCHOOLS NALBARI DISTRICT CIRCLE NALBARI ASSAM PIN- 781337 7:THE HEADMASTER OF KATARA HIGH SCHOOL NALBARI P.O. CHENGNOI DIST. NALBARI ASSAM PIN- 781337 Advocate for the Petitioner : MR. M KHAN, MR A K DAS,MS J AKTAR Advocate for the Respondent : GA, ASSAM, MR. S K MEDHI(SC,AG (A AND E)),SC, AG,SC, FINANCE,SC, SEC. EDU. BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT · Date on which Judgment was reserved : Open Court Dictation · Date of Pronouncement of Judgment : 11.08.2026 · Whether the pronouncement is of the Operative Part of the Judgment : No · Whether the full Judgment has been Pronounced : Yes JUDGMENT AND ORDER Heard Mr. M Khan, leaned counsel for the petitioner. Also heard Ms. M Das, learned counsel appearing on behalf of Mr. SK Medhi, learned counsel for the respondent no.3, Ms. RM Barooah, learned counsel for the respondent no.2 and Page No.# 3/15 Ms. D Mushahary, learned counsel for the respondents no. 1, 4 & 6. 2. This writ petition is filed by the petitioner, seeking a direction to the respondents for release of the monthly pension of the petitioner with effect from 01-05-2022 and other retirement benefits, after regularising her service period from 08-04-1998 to 11-12-2005 or taking into account the service period prior to the regularisation of her services for the purposes of pension within a particular time frame. Further prayer is made for release of her arrear salary for the period February 2005 to 11-12-2005 with appropriate rate of interest. 3. The petitioner was appointed temporarily as an Assistant Teacher to graduate post on ad-hoc basis in Baithalangso High Secondary School in Karbi Anglong district for a period of 4 (four) months with graduate scale of pay against a valid sanction post created by the Government by the letter No.ESS.7/78/2/1-A dated 26-02-1978. Accordingly, she joined in her service with effect from 08-04-1988 and has received a monthly pay and allowances as admissible in law. It is contended on behalf of the petitioner that although she was temporarily appointed for a period of 4 (four) months, she was allowed to continue in her services in the same vacant post. 4. Thereafter, by an order dated 27-01-2005 issued by the Director of Secondary Education, the petitioner was transferred and posted at Katara High Page No.# 4/15 School, Katara in the district of Nalbari. There, the petitioner submitted her joining report to the Headmaster of the said school on 04-02-2005 after her release from the earlier place of posting, namely, Baithalangso High Secondary School in Karbi Anglong. However, the Headmaster did not permit her to join in the said school and consequently, did not accept the joining letter submitted by the petitioner. 5. The petitioner thereafter submitted application before the Director of Secondary Education on 07-03-2005 seeking intervention in the said matter. The Director of Secondary Education, by communication dated 02-05-2005 to the Inspector of Schools, NDC, Nalbari, issued instructions to take steps to implement the transfer order dated 27-01-2005. 6. In spite of such instructions being issued to the Headmaster of Katara High School, Katara, the petitioner was not allowed to join. Being thus situated, the petitioner approached this Court by filing WP(C) No. 7188/ 2005. This writ petition came to be disposed of on 18-11-2005, providing that the petitioner be allowed to sign in the attendance register, take her classes and perform her normal duties and also be paid her salary. 7. Before disposal of WP(C) No. 7188/ 2005 by the order dated 18-11-2005, the petitioner's joining report submitted on 04-02-2005 was accepted on 01-11- Page No.# 5/15 2005 by the Headmaster of Katara High School, Nalbari. Thereafter, the petitioner was transferred at Rajkadamtol, Balika Vidyapith High School by order dated 08-12-2005. The petitioner joined in the said school on 12-12-2005 and received her salary from 12-12-2005 to 28-02-2007. However, she did not receive her salary from February, 2005 to 11-12-2005. The petitioner thereafter was again attached to the Nalbari Girls High School by order dated 24-10-2007 under the orders passed by the Inspector of Schools, Nalbari. She accordingly joined in the said school on 26-10-2007. However, she was not paid her salary from the date of joining in the school. It is the grievance of the petitioner that she did not receive her salary from 01-02-2005 to 12-12-2005 and from 01-03- 2007 to 31-12-2010, i.e. the period of her service in Nalbari Girls High School. 8. Thereafter, the petitioner due to her medical illness availed medical leave from 01-01-2011 to 30-05-2011 after submitting her prayer dated 31-12-2010 to the Headmaster of Nalbari Girls High School and as also to the Inspector of Schools. Thereafter, when the petitioner came back to rejoin in her place of posting, after the expiry of her medical leave, the Headmaster of Nalbari Girls High School did not permit her to sign the attendance register. 9. After approaching various authorities and no relief being granted to the petitioner, she approached this Court again by filing WP(C) No.6477 of 2016 Page No.# 6/15 seeking a direction from the Court for regularisation of her services and to pay her regular salary as well as arrear salary. This Court thereafter disposed off the writ petition by the order dated 25-11-2019, with the following directions: “…… 5. The plea that the petitioner had not been allowed to sign the attendance register, cannot be said to be mere pretence for not attending class in the school, which fact, this Court had taken cognizance of, as reflected in the above order. In this regard, this Court has also noted the process initiated by the State authorities as indicated in the letter dated 05.02.2009 issued by the Under Secretary to the Government of Assam to the Director of Secondary Education seeking clarification on various issues as mentioned in the said letter regarding adjustment of the service of the petitioner. From the above what transpires is that the petitioner was appointed, though may be under a transfer vacancy, but she had rendered a long period of service and the Government had already initiated certain process for considering adjustment of her service. 6. Accordingly, this Court is of the view that it would be appropriate that the exercise for regularization/ adjustment of the petitioner’s service already initiated in the year 2009 in terms of the communication dated 05.02.2009 be concluded and appropriate decision be taken as regards the regularization of the service of the petitioner as a Graduate Teacher considering the long service rendered by her since the year 1988. It will be unfair on the part of the State Authorities at this period of time to deny regularisation/adjustment of the petitioner’s service on the ground of lack of proper appointment at the initial stage. If the petitioner had been allowed to work for such a long period of time since 1988, which is also borne by records, the authorities can sympathetically consider the case of the petitioner and pass appropriate order for regularization/ adjustment of her service against a regular vacancy in terms of the process already initiated, keeping also in mind the judgment of the Hon’ble Supreme Court in Uma Devi (Supra). The aforesaid exercise will be undertaken as expeditiously as possible preferably within a period of 3 (three) months from the date of receipt of a certified copy of this order and if the Page No.# 7/15 service of the petitioner is regularized/adjusted, consequential benefits along with senior scale of pay also be given to her as per law. 7. With the above observations and directions, the writ petition stands disposed of.” 10. Pursuant to the disposal, several communications were exchanged between the various authorities in the Government and the matter was duly examined. 11. On a report submitted by the Director of Secondary Education, by the order dated 18.06.2024 issued by the Inspector of Schools, NDC, Nalbari, the service of the petitioner was finally regularised with effect from 12-12-2005 to 31-12-2010 against the post created vide Govt. No.ESS.172/77/164 dated 17.10.1977 and permanently retained vide No.GMSC.28/84/345 dated 20.02.1992 of the Katara High School and the earlier incumbent having been promoted on 20-08-2002. The said order clearly indicated that this order of regularisation was issued in compliance to the order dated 25/11/2019 passed in WP(C) No. 6477 of 2016. 12. It is the claim of the petitioner that her past services have not been counted towards the grant of pension as the petitioner was regularised with effect from 12-12-2005. It is contended on behalf of the petitioner that the respondents have not taken any steps for release of her pension pursuant to the petitioner superannuating on 30-04-2022. Page No.# 8/15 13. Learned counsel for the petitioner in support of his contention has placed reliance on the following judgments: (i) Dharam Singh & Ors vs. State of UP & Anr. reported in 2025 INSC 998 (ii) Prem Singh vs. State of UP and Others. reported in (2019) 10 SCC 516 (iii) Rajkaran singh & Ors. vs. Union of India and Ors reported in 2024 INSC 621 14. Pressing these judgments into service learned counsel for the petitioner submitted before the court that the services rendered by the petitioner either temporary or ad-hoc basis is required to be counted towards her pensionary benefits. Referring to the judgement rendered by this Court in WP(C) No. 1517 of 2023 it is submitted that the Judgment and Order dated 13.05.2024 passed in this writ petition squarely covers the case of the writ petitioner and a similar order is required to be issued whereby, the respondents therein were directed to consider the period of services of the petitioner therein rendered on an ad-hoc basis towards payment of pension. 15. The respondents have contested the matter by filing their affidavit-in- opposition. 16. The respondents in their affidavit stated that since the petitioner was regularised on 18-06-2024 with effect from 12-12-2005 to 31-12-2010, she is Page No.# 9/15 not entitled for pension under the Assam Services (Pension) Rules, 1969. However, she is entitled to the new defined contributory pension scheme, which is applicable to all new entrants joining the government service on or after 01- 02-2005. 17. Learned Counsel for the parties have been heard and pleadings on record have been carefully perused. 18. The petitioner prayer in the present writ petition is directed against the respondents for release of monthly pension with effect from 01.05.2022 and other retirement benefits after regularizing her service period from 08.04.1988 to 11.12.2005. Although it does not appear from the averment made in the writ petition, however, during the submissions made by the learned counsel for the petitioner it is clear that the primary grievance of the writ petitioner is non-grant of pensionary benefits to the petitioner under the Assam Services (Pension) Rules, 1969. There is no wrangle at the Bar that the petitioner was regularized vide the order dated 18.06.2024 with effect from with effect from 12-12-2005 to 31-12-2010 against the vacant post created and retained in the Katara High School, Nalbari. This order has been accepted by the petitioner. No challenge is made by the petitioner in the earlier proceedings before the Court or in the present proceedings. The effect of this order is that the petitioner was Page No.# 10/15 regularized with the effect from the period mentioned i.e. 12-12-2005 to 31-12- 2010. The petitioner, therefore, was regularized after the enforcement of the new contributory pension scheme which came to be implemented with effect from 01.02.2005. As per the new pension scheme, all new employees appointed or regularized after the enforcement of the new defined contributory pension scheme are governed by the said pension scheme and not by the erstwhile Assam (Services) Pension Rules, 1969. Therefore, when the petitioner is accepted her regularization order dated 18-06-2024 and the period of services was regularised with effect from 12-12-2005 to 31-12-2010 which is admittedly after the New Defined Contribution Pension Rules, 2005, the petitioner be entitled to payment under the said New Pension Scheme of 2005. The attempt made by the learned counsel for the petitioner to interfere with the order dated 25.11.2019 passed by the Coordinate Bench in WP(C) NO.6477/2016 that the regularization of the writ petitioner was pursuant to the direction being issued in the said matter and therefore, the services rendered by her ad-hoc capacity was required to be considered towards payment of pension and therefore, that period of pension ought to have been calculated from the period that the petitioner had rendered her services from 08-04-1998 to 11-12-2005 and if that be so then she would be covered under the Assam Services (Pension) Rules, 1969. This submission appears to be fallicious, inasmuch as, a careful reading of Page No.# 11/15 the order dated 25.11.2019 in WP(C) No.6477/2016 reveals that the Coordinate Bench had directed to sympathetically consider the case of the petitioner for regularization or adjustment of her services. There was no finding by the Coordinate Bench that the petitioner ought to have been regularized with effect from the date she had rendered her services. There was no finding by the Coordinate Bench that the petitioner ought to have been regularized with effect from the date she had rendered her services. 19. Under such circumstances, it cannot be said that there was specific direction by the Coordinate Bench against the respondents requiring the petitioner to be regularized with effect from the date she had rendered her ad- hoc services. Be that as it may, finally the service of the petitioner was regularized by the order date 18.06.2024 with effect from 12-12-2005 to 31-12- 2010 and this order was not under challenge in any proceedings and the petitioner has accepted this order. Therefore, the petitioner services having been rendered in the ad-hoc capacity prior to the period which was regularized cannot be a ground for the respondents to grant her pension under the Assam Services (Pension) Rules, 1969. The petitioner having been regularized subsequent to the introduction of the New Defined Contribution Pension Scheme, 2005 which was brought into effect from 01.02.2005 and the period of service rendered by the petitioner with effect from 12-12-2005 to 31-12-2010, Page No.# 12/15 under such circumstances, the petitioner cannot stake her claim for being granted the pension under the Assam Services (Pension) Rules, 1969. The judgments pressed into service by the learned counsel for the petitioner relate to counting of services rendered for long years on ad-hoc basis or contract basis which must be taken into account for regularizing the services of an employee. The judgment of this Court rendered in WP(C) No.1517/2023 by order dated 13.05.2024 is entirely on different facts and circumstances. From the recital of the order it appears that the petitioner therein was considered for grant of pension presumably under the old pension rules and notwithstanding his regularisation under the New Pension Rules, however, his pension was not granted because of short fall of the mandatory period of service required under Rule 31 of the Assam Services (Pension) Rules, 1969. It was under these circumstances that the services rendered by the petitioner under the ad-hoc or temporary capacity to be considered to cover up the short fall of the services required for grant of pension which is 10 years pursuant to regularization. Under these circumstances, the respondents were directed to consider the services rendered by the petitioner therein in ad-hoc capacity, so that, the pension proposal can be processed and his claims need not be rejected on account of short fall of the services required. The facts as discussed in the present writ petition are different from the facts and circumstances which were urged before Page No.# 13/15 the Court in WP(C) No.1517/2023. 20. Accordingly, the decision as pressed into service as rendered in WP(C) No.1517/2023 by order dated 13-05-2024 is not applicable in the facts and circumstances of the present proceedings. 21. There was acquiescence on the part of the petitioner as she had accepted the regularisation order regularizing her services with effect from 12-12-2005 to 31-12-2010. In this regard, reference may be made to the judgment rendered by the Apex Court in Union of India vs. N Murugesan reported in (2022) 2 SCC 25, the relevant paragraphs of which are extracted herein below: 25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. 20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could Page No.# 14/15 identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court. 21. The word “laches” is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy. 22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy. 22. The ratio of this judgment will be applicable in the present case. The petitioner had sufficient opportunity to assail the order of regularisation, at least to the extent that the said order did not reckon the entire period of service rendered by her in an ad hoc capacity for the purpose of regularisation. No explanation has been put forward by the petitioner as to why the petitioner did not assail or challenge the inaction of the respondents in not taking into account Page No.# 15/15 the temporary services rendered by the petitioner for regularization. 23. In view of the discussion above, there is no merit in the writ petition. Accordingly, the writ petition stands dismissed. No order as to cost. Interim order, if any, stands vacated. Pending Interlocutory Application, if any, also stands dismissed. JUDGE Comparing Assistant