1. The petitioner, who has since retired from service as Head Master of Rangechangi Sowmarpith High School in the district of Dibrugarh, filed this writ petition on 18.3.2004, for counting the period of service before provincialisation. The said period is from 12.8.1974 to 01.01.1984. The School in which the petitioner had been serving was provincialised w.e.f. 1.1.1984. After provincialisation of his service, he continued upto 31.12.1998, on which date he retired from service on attaining the age of superannuation.
2. Referring to the provisions of the Assam Secondary Education (Provincialised) Service Rules, 1982 and the Assam Secondary Education (Provincialisation) Act, 1977, it is the case of the petitioner that his entire period of service from 12.8.1974 to 01.01.1984 is required to be counted towards pension. The School in which the petitioner had worked received adhoc grants from the Government from 1.4.1973 and the petitioner was appointed thereafter on 12.8.1974 as the Head Master.
3. Apart from the above, the petitioner has also given the example of Shri Budheswar Gogoi, Head Master (Retd) of Moran Public School; Shri Janak Chandra Chutia, Head Master (Retd) of Tingrai Chariali High School and Shri Mohanlal Shah, Head Master (Retd) of Lahowal High School, Dibrugarh. According to the petitioner, 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 provincialisation of their respective Schools. It is the stand of the petitioner that after provincialisation of the said Schools, the services rendered by the said three Head Masters during the said period, had been taken into account towards 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, Mr. Abedin, learned Standing Counsel, Education submits that the period during which the petitioner was not holding any substantive post and the establishment was also not a permanent one, cannot count towards pension.
5. Rule 13(7) of the Assam Secondary Education (Provincialised) Service Rules, 1982 reads as follows :
�13(7) : Pension. In case of all employees retiring on superannuation on attaining the age of 58 years and all Grade IV employees retiring on superannuation 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 anything contained in the Assam Service Pension Rules, 1969.�
6. Section 2(ii) of the Assam Secondary Education (Provincialisation) Act, 1977 defines �Date of appointment� as follows :
�Date of appointment� means, in relation to any employee, the date on which he joined the service of a school imparting Secondary Education on and from the date of its coming under adhoc system of grants in aid.�
7. While Mr. Nair, learned counsel for the petitioner has put emphasis on Rule 13(7) of the Rules of 1982, so as to contend that the entire period of service from the date of appointment should be counted towards pension, notwithstanding anything contained in the Assam Services Pension Rules, 1969, Mr. J. Abedin, learned Standing Counsel, Education, submits that the aforesaid definition of �date of appointment� makes the position clear, inasmuch as, the proviso to the said clause mandates that the date of appointment would mean the date of issuance of the notification provincialising the services of the employees of the respective Schools.
8. ChapterIII of the Assam Services (Pension) Rules, 1969 deals with conditions of qualifying service. Rule31 specifies the conditions towards qualifying services, which are :
(i) The service must be under Govt. ;
(ii) The employment must be substantive and permanent; and
(iii) The servant must be paid by the Govt.
9. Rule 32 of the said Rules provides that the service of an officer does not 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 service does not qualify unless the officer holds a substantive office on a permanent establishment. If we take into account the aforesaid provisions of the Pension 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 provincialised.
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 date of appointment will have to be counted towards pension. The expression �notwithstanding anything contained in the Assam Services (pension) Rules, 1969� in the context of the expression �the entire period of service from the date of appointment� 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. Abedin, learned Standing Counsel, Education, has referred to the proviso to Clause 2(ii), which defines �the date of appointment.� As per the said proviso, ''the date of appointment'' means the ''the date of issuance of the notification provincialising 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 employment of a School working against a regular sanctioned post and whose appointment has been approved by the School Authority, wherever such approval was necessary. 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 context of the entire period of service from the date of appointment will have to be understood from the date of substantive appointment after provincialisation of the School. Otherwise an employee in employment of a venture School for a fairly long spell, with the provincialisation of his service thereafter and rendering his 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 position 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 discernible as to under what circumstances, the benefit of service prior to provincialisation was granted to them. It is the assertion of the petitioner. However, in absence 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 illegality 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 approach the authority citing the above examples. In the event of making such approach, the authority shall deal with the matter appropriately taking note of the attending facts and circumstances and in accordance with law and also consistently with the observations made above.
15. Writ petition stands disposed of with the above observations, without however, any order as to costs.
