Page No.# 1/11 GAHC010005272018 2026:GAU-AS:12163 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/438/2018 KANAKLATA DAS W/O SRI RAJU DAS R/O TETELIA, NURSERY, P.O. GOTANAGAR, P.S. JALUKBARI, GUWAHATI- 33, DIST. KAMRUP (M), ASSAM VERSUS THE STATE OF ASSAM REP. BY COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE SECRETARY TO THE GOVT OF ASSAM FINANCE (BUDGET) DEPARTMENT DISPUR GUWAHATI-6 3:THE DIRECTOR OF ELEMENTARY EDUCATION KAHILIPARA GUWAHATI-19 ASSAM 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER KAMRUP CHATRIBARI GUWAHAT Advocate for the Petitioner : MR. D K SARMAH, MS. A TALUKDAR,MR H BORAH Page No.# 2/11 Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE(R-2) BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 25.08.2026 Heard Mr. U.K. Goswami, learned counsel for the petitioner. Also heard Ms. S. Chutia, learned standing counsel, Elementary Education Department, for the respondent Nos. 1, 3 and 4. 2. The petitioner by way of instituting the present writ petition has assailed the conditions attached to an order dated 11.08.2005, by which the services of the petitioner was regularized against vacant post. 3. As projected in the writ petition, the petitioner was initially appointed as an Assistant Teacher at Garai M.K.M.E. School, vide an order dated 19.10.1993 and her appointment was affected for a period of four months. The petitioner projects that she was thereafter continued in her service. Thereafter, the respondents considering the petitioner to be an excess Teacher, in pursuance of a decision arrived at in this connection by the Cabinet, proceeded vide an order dated 11.08.2005, to regularize the services of the petitioner, herein, with prospective effect. On such regularization of the services of the petitioner, the petitioner was held to be eligible for receiving regular salaries with prospective effect, and further that she would be covered by the New Pension Scheme. The petitioner in acceptance of the conditions as set out in the order dated 11.08.2005, joined the post against which her services was regularized. Thereafter, the petitioner approached the Assam Administrative Tribunal by instituting an appeal, being Appeal Case No. 36 ATA/2009 and the learned Page No.# 3/11 Tribunal vide judgment and order dated 04.12.2010, disposed of the said appeal, by directing the respondent authorities to examine the claim of the petitioner for releasing her arrear salaries for the period prior to regularization of her service. The arrear salaries of the petitioner not being released, the petitioner has instituted the present writ petition. 4. Mr. Goswami, learned counsel for the petitioner, by reiterating the facts noticed, herein above, has submitted that the petitioner’s services being continuous since the date of her initial appointment, which was so effected, vide order dated 19.10.1993, the petitioner would be entitled to reckon her services w.e.f. 19.10.1993, along with regularized services rendered by her after issuance of the order dated 11.08.2005, for the purpose of pension and pensionary benefits. Accordingly, Mr. Goswami submits that the petitioner having service prior to 01.02.2005, her case would be covered by the provisions of the Assam Services (Pension) Rules, 1969 and not the New Pension Scheme coming w.e.f. 01.02.2005. Mr. Goswami further submits that the petitioner being in continuous service w.e.f. 19.10.1993 and only in view of her such continuous service, the petitioner being regularized in her services vide order dated 11.08.2005, the petitioner would be entitled to draw her salaries in arrears prior to 11.08.2005. 5. Per contra, Ms. Chutia, learned standing counsel, Elementary Education Department, for the respondent Nos. 1, 3 and 4 has submitted that the issue arising in the present writ petition is covered by the decision of Co-ordinate Bench of this Court in the case of Purnima Hore and Anr. vs. The State of Assam and Ors., vide judgment and order dated 31.03.2023, in WP(C) No. 6403/2021 and other connected writ petitions. Accordingly, she submits that the present claim made by the petitioner in the present writ Page No.# 4/11 petition would not mandate an acceptance from this Court. 6. I have heard the learned counsel for the parties and perused the materials available on record. 7. It is an admitted position that the petitioner was initially appointed vide order dated 19.10.1993, for a period of four months against the post of Assistant Teacher, however, the petitioner was thereafter, continued in service. The petitioner being an excess Teacher, the case of the petitioner was placed before the Cabinet and in terms of the decision of the Cabinet arrived at the matter, the services of the petitioner were regularized vide order dated 11.08.2005. The regularization of the services of the petitioner effected vide order dated 11.08.2025, was subject to the condition that the petitioner would be entitled to her regular salaries only from the date of joining her services, in pursuance of the order dated 11.08.2005. Further, it was stipulated in the said order that the petitioner would be covered by the New Pension Scheme and not by the provisions of Assam Services (Pension) Rules, 1969. The petitioner in terms of the said order dated 11.08.2025, joined her services without any objection, whatsoever. Accordingly, the petitioner is found to have accepted the conditions attached to the regularization of her services, vide the order dated 11.08.2005. Thereafter, the petitioner approached the Assam Administrative Tribunal, after a lapse of four years, and the learned Tribunal had remanded the matter back to the respondent authorities for examination of the claim of the petitioner, herein. However, the same having not been done, the petitioner has instituted the present writ petition. 8. The issue arising in the present writ petition had also arisen for consideration in the case of Purnima Hore (supra), wherein a Co-ordinate Page No.# 5/11 Bench of this Court after examining the matter in details with regard to the rights of the excess Teachers to claim salaries for the period prior to regularization of their services and also for reckoning the services so rendered by them prior to regularization of their services for the purpose of including them within the Old Pension Scheme, had drawn the following conclusions: "102. The writ petitions in the excess category group are WP(C) No.225/2020; WP(C) No.6970/2022; WP(C) No.6955/2022; WP(C) No.5640/2021; WP(C) No.1067/2021; WP(C) No.4973/2021; WP(C) No.6949/2022; WP(C) No.6403/2021; WP(C) No.7463/2017; WP(C) No.6969/2022; WP(C) No.6951/2022; WP(C) No.6954/2022; WP(C) No.6961/2022; WP(C) No.336/2018; WP(C) No.6953/2022; WP(C) No.6942/2022; WP(C) No.6575/2021; WP(C) No.6812/2022 and WP(C) No.6849/2022. The details as regards the petitioners are given in the following charts:- Details of Excess Teachers Case No. Name of Petitioners Date of regularisation order WP(C) No.225/2020 Burhan Uddin Laskar 18th August, 2005 WP(C) No.6970/2022 Labanya Bala Nath 11th August, 2005 WP(C) No.6955/2022 Dipak Ch. Pathak 11th August WP(C) No.5640/2021 Dilip Kr. Kalita 11th August, 2005 WP(C) No.1067/2021 Shibu Roy 18th August, 2005 WP(C) No.4973/2021 Padumi Thakuria 11th August, 2005 WP(C) No.6949/2022 Himanta Goswami 11th August, 2005 WP(C) No.6403/2021 Purnima Hore 16th August, 2005 WP(C) No.7463/2017 Dwijen Chadra Kalita 11th August, 2005 WP(C) No.6969/2022 Abha Rani Bhattacharyya 11th August, 2005 WP(C) No.6951/2022 Bimala Kalita Deka 11th August, 2005 WP(C) No.6954/2022 Amrit Chandra Mali 11th August, 2005 WP(C) No.6961/2022 Bijoy Lakshmi Dutta 11th August, 2005 WP(C) No.336/2018 Anwar Uddin Mazarbhuiya 18th August, 2005 WP(C) No.6953/2022 Mano Ranjan Das 11th August, 2005 WP(C) No.6942/2022 Haren Chndra Das 11th August, 2005 WP(C) No.6575/2021 Paulami Chakraborty & 4 Ors. 18th August, 2005 WP(C) No.6812/2022 Sunu Moni Kalita 11th August, 2005 Page No.# 6/11 WP(C) No.6849/2022 Naba Kumar Sarma 11th August, 2005 103. These writ petitioners were appointed by the Deputy Inspector of Schools and they received their salary and allowances from the date of initial appointment up to the year 1996 and thereafter they were not paid. At that relevant point of time, certain irregularities in the appointments were detected in the Education Department and the Education Department was unable to determine as to which of the appointments were illegal, irregular or regular. In view of the above, an Enquiry Committee was constituted headed by Sri S. Manoharan, IAS which in common parlance called the Manoharan Committee. The cases of various teachers were subjected to scrutiny by the Manoharan Committee. It is an admitted position that the Manoharan Committee had categorized the appointments of teachers who were subjected to scrutiny into three categories. The first category being such teachers whose entry into the service was found to be illegal; the second category being such teachers whose entry to the services were found to be irregular and the third category being such teachers whose entry in the service were considered to be legitimate. While making the scrutiny, it was found that there were various appointments which were made in excess of the vacant posts and such teachers who were appointed in excess of the vacant posts are commonly termed as Excess Teachers. It is an admitted position that in respect to the second category of cases, whose entry into the service was considered to be irregular, two Cabinet decisions were taken being dated 20.01.2000 and 24.02.2005. In the first Cabinet decision dated 20.01.2000, a decision was taken to regularly induct into services 3511 number of teachers. In the second Cabinet decision which was taken on 24.02.2005, a decision was taken to induct further 2776 number of teachers. It is an admitted fact that in respect to the petitioners before this Court, their services were regularized after 01.02.2005 on the dates so mentioned in the chart hereinabove. They had given an undertaking at the time of submitting the joining report that they would come within the ambit of New Pension Scheme. One very important aspect of the matter is that these petitioners, pursuant to their regularization in the year 2005 itself, have accepted their appointment order without any demurrer and now have approached this Court in the year 2020, 2021, 2022, Page No.# 7/11 i.e. almost after around 15 years. 104. This Court while dealing with the category of teachers belonging to the OBB Scheme has dealt with the concept of regularization as observed by the Supreme Court in the case District Bar Association, Bandipora (supra). In doing so, this Court has also opined that as regularization is not a source of recruitment but is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies, the State would be within its power to formulate a Scheme within the exception curved out in paragraph No.53 of the judgment of the Supreme Court in the case of Umadevi (3) (supra). The Manoharan Committee and the Cabinet decisions have categorically observed that appointments of those teachers which were irregular were to be regularized by virtue of the Cabinet decision. In a recent judgment passed by the Coordinate Bench of this Court in the case of Abani Baruah & Others vs. State of Assam & Others, reported in MANU/GH/0368/2022, the Coordinate Bench dealt with the question as to whether those teachers who were appointed in excess of the sanctioned posts as in the instant case, would be governed by the Rules of 1969. The Coordinate Bench of this Court after taking into account Rule 31 of the Rules of 1969 held that the petitioners therein, having been appointed in excess of the available sanctioned vacant posts, their entry into the Government services prior to 01.02.2005 were not legitimate under law and the petitioners therein have to be accepted that they have not entered the Government service in a manner so as to be given the entitlement to the aforesaid period to be included as a part of the Government service that they have rendered. The Coordinate Bench of this Court further held that there was no infirmity in the order of regularization dated 22.08.2005 which categorically provided that the petitioners therein would be governed by the NDCPS. Paragraph No.17 to 21 of the said judgment, being relevant, is quoted herein under:- “17. On a conjoint reading of the aforesaid pronouncements laid down by the Supreme Court, it would be discernible that in order to be in a substantive employment the conditions to be fulfilled, amongst others, would be that the person holds the post for indefinite period, i.e., for a long duration in Page No.# 8/11 contradistinction to a person who holds it for a definite or a temporary period, the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant, although it may be immaterial as to in what manner the post is designated in officialese. If all the three conditions are simultaneously satisfied it could be understood that the person concerned was in a substantive employment. 18. Having taken note of the requirements to accept an employment to be a substantive employment, we have to understand that the second condition in Rule 31 of the Pension Rules of 1969 requires that the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant i.e. a sanctioned vacant post. 19. In the aforesaid context, in the instant case, it is an admitted position that the writ petitioners were appointed in the year 1993, may be, by following some process, but it was in excess of the available sanctioned vacant posts. If it is accepted that the petitioners were in employment from the year 1993 and the same may have been for a long duration, but as regards the other conditions that the appointment to the post is to be made by a proper authority after the person concerned passes the prescribed test and that the post to which the appointment was made is a sanctioned vacant post, would not be satisfied in the facts and circumstances of the present case, more so, in view of the conclusion that had already been arrived that the petitioners were appointed in excess of the available sanctioned vacant posts. Having been appointed in excess of the available sanctioned vacant posts, not only the condition that the post is required to be a vacant sanctioned post would not be satisfied, even the requirement that the person concerned would have to pass the prescribed test may also be not satisfied as the selection or the prescribed test was done only in respect of the available sanctioned vacant posts for which the selection process was undertaken and, therefore, even if the petitioners may have participated in some selection process, it cannot be said that they have passed the prescribed test which is a Page No.# 9/11 requirement to be in a substantive employment. 20. 20. In the absence of the satisfaction of two of the conditions precedent that the petitioners ought to have been appointed on regular basis and against sanctioned vacant posts, prior to 01.02.2005, which is the cutoff date for the applicability of the NDCPS, it has to be understood that the present writ petitioners have not joined the Government services on a substantive and permanent employment prior to 01.02.2005, although they may have been appointed or continued in service in some other manner. Further, as the petitioners were not in an employment which was substantive and permanent, they have not satisfied the requirement of the condition of qualifying service provided in Rule 31 of the Pension Rules of 1969 that the employment must be substantive and permanent. If the entry into Government service of the present writ petitioners in the year 1993 were not legitimate under the law, it has to be accepted that they have not entered the Government service in a legitimate manner, so as to be given an entitlement to the aforesaid period of service to be also included as a part of the Government services they had rendered. 21. When we look into the order dated 22.08.2005 by which the petitioners were regularized in service w.e.f. the date of joining against the vacant posts, it is discernible that the petitioners had joined the Government services on a regular basis against sanctioned vacant posts subsequent to 01.02.2005. From such point of view, we do not find any infirmity in the order dated 22.08.2005 which provides that the petitioners would be governed by the NDCPS.” 105. In the instant cases, as the facts are similar to the facts in the case of Abani Baruah (supra), this Court has no reasons to differ with the observation so made in the above quoted paragraphs. 106. This Court further may add, in view of the submissions made by the learned counsels appearing on behalf of the petitioners, that the petitioners are entitled to the similar treatment in view of the order dated 12.05.2015 in WP(C) No.4169/2009 as well as the order dated 04.08.2015 in WP(C) No.5705/2011. It is also the categorical Page No.# 10/11 submission that pursuant to the order dated 04.08.2015 passed in WP(C) No.5705/2011, the petitioners therein have already been granted the relief by the Director of Education thereby counting the past services for the purpose of computation of pensionary benefits as per the provisions of the Rules of 1969. 107. This Court while dealing with the category of Dropped Teachers by following the law laid down by the Supreme Court in the case of Col. (Retd.) B. J. Akkara (supra) as well as Dr. O.P. Nijhawan (supra) held that the principle of res judicata or estoppel shall not bar the State from resisting the instant writ petitions in respect to the similarly situated persons though the order passed by this Court had already been implemented upon. At this stage, it is relevant to mention that the order dated 12.05.2015 in WP(C) No.4169/2009, this Court had already held that the said order shall not be a precedent in view of the fact that the said order was passed ignoring the insertion of Rule 2A by the Amending Rules with effect from 01.02.2005 as well as Rule 31 of the Rules of 1969. Apart from the above, the said order dated 12.05.2015 in WP(C) No.4169/2009 was passed in the case of Dropped Teachers and this Court is baffled with the submissions made by the learned counsel for the petitioners that the said order should be applied to the facts of the instant case which is in the category of Excess Teachers. As regards the order dated 04.08.2015 passed in WP(C) No.5705/2011, this Court with due respect is constrained to observe that it seems the attention of the Coordinate Bench of this Court was not drawn that there is a major difference between teachers who fall in the category of Dropped Teachers and those teachers who have been found to be irregular on account of being appointed against non-sanctioned vacancies and thereby termed as Excess Teachers. If the said aspect would have brought to the notice of the Coordinate Bench of this Court, the Coordinate Bench would not have applied the judgment of the Coordinate Bench of this Court dated 12.05.2015 passed in WP(C) No.4169/2009 to the case of Excess Teachers. 108. Under such circumstances, this Court is further of the opinion that the claim of the writ petitioners to be granted the benefit under the Old Pension Scheme thereby treating the period of service rendered earlier prior to being regularized for the purpose Page No.# 11/11 of pension is totally misconceived. Besides, the petitioners having accepted the order of regularization passed in the year 2005 and thereupon having waited for a period of almost 15 years, this Court is of the opinion that the petitioners are not entitled to relief as claimed for. Taking into account the orders of Regularization, the petitioners in the instant category of cases cannot claim rights under the Rules of 1969. They shall be regulated under the NDCPS, 2009.” 9. This Court on perusal of the conclusions drawn by a Co-ordinate Bench of this Court in the aforesaid decision, is in respectful agreement with the same. Accordingly, this Court is of the considered view that the said conclusions would squarely apply to the facts and circumstances arising in the present writ petition. 10. In view of the above conclusion, the claim made by the petitioner in the present writ petition does not mandate an acceptance and accordingly, the same stands rejected in the light of the decision of a Co-ordinate Bench of this Court in the case of Purnima Hore (supra). 11. Accordingly, this writ petition is held to be devoid of any merit and the same stands dismissed. However, there would be no order as to cost. JUDGE Comparing Assistant