Gauhati High Court
Khanindra Kalita vs The State Of Assam And 8 Ors on 24 March, 2023
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GAHC010080652019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/343/2021
KHANINDRA KALITA
S/O- SHRI NARAYAN KALITA, R/O- VILL.- SAGARKUCHI, P.O.
KHATIKUCHI, P.S. GHARGRAPAR, DIST.- NALBARI, ASSAM, PIN- 781035.
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (SECONDARY) DEPARTMENT, DISPUR, GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019.
4:THE UNDER SECRETARY TO THE GOVERNMENT OF ASSAM
EDUCATION (SECONDARY) DEPARTMENT
DISPUR
GUWAHATI- 781006.
5:THE PRINCIPAL SECRETARY
BODOLAND TERRITORIAL AUTONOMOUS COUNCIL
KOKRAJHAR
DIST.- KOKRAJHAR
ASSAM.
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6:THE SECRETARY
BODOLAND TERRITORIAL AUTONOMOUS COUNCIL
NALBARI
ASSAM.
7:THE INSPECTOR OF SCHOOLS
NALBARI DISTRICT CIRCLE
NALBARI
ASSAM.
8:THE TREASURY OFFICER
NALBARI
ASSAM.
9:THE PRINCIPAL
PASCHIM BANBHAG HIGHER SECONDARY SCHOOL
P.O. KHATIKUCHI
DIST.- NALBARI
ASSAM
Advocate for the Petitioner : MR. R C SAIKIA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE KARDAK ETE
JUDGEMENT AND ORDER(CAV)
Date : 24-03-2023
(Kardak Ete, J)
We have heard Mr. R.C. Saikia, learned counsel for the writ appellant.
We have also heard Mr. N.J. Khataniar, learned Standing Counsel representing
the Education (Secondary) Department as well as Ms. R.B. Bora, learned
Standing Counsel representing the BTC.
2. This writ appeal is preferred against the judgment and order dated 06-
03-2019, passed by the learned Single Judge, in WP(C) No. 4462 of 2015,
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whereby the writ petition filed by the appellant has been dismissed.
3. The issue involved in this writ appeal is as to whether the service of the
appellant would be governed by the Old Pension Rules or the New Pension
Scheme.
4. The case of the appellant is that he was initially appointed as Assistant
Teacher on honorary basis by the Principal of the Paschim Banbhag L.P.
School, Khatikuchi, on 28-01-1991 and he was working as such till 03-01-
2003. In the year 1992, an advertisement was issued for the post of
Additional Science Graduate Teacher. The appellant applied for the post and
appeared in the interview conducted by the District Level Selection Committee
and was selected. His name appeared at Sl. No. 125 of the Select List.
Although his name appeared at Sl. No. 125, some of the selected candidates,
whose names were below the appellant, have been appointed by the
respondent authorities. When the representation for appointment submitted
by the appellant has fetched no response, the appellant approached this
Hon'ble Court by way of WP(C) No. 5394/1999 and vide order dated 25-03-
2002 the writ petition was disposed of with a direction to consider the
appointment of the appellant against the 10% quota reserved for
appointment of sons, daughters or near relative of retired school teachers, as
per the policy of the State Government. Several correspondences were made
to the authorities of the State Government for consideration of the appellant's
case in terms of the Hon'ble High Court's direction in WP(C) No. 5394/1999
and associated writ petitions, but to no avail. Thereafter, vide order dated 25-
02-2003, the appellant was allowed to draw monthly salary against the retired
vacancy, with effect from 01-02-2003. The appellant has drawn monthly
salary till 01-01-2006 regularly and has been attending duties without any
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break.
5. Vide the order dated 07-06-2004, service of the appellant was adjusted
against a post fallen vacant due to retirement of one Anil Kumar Sarma.
Pursuant to the letter dated 29-07-2006 issued by the Joint Director of
Secondary Education, Assam, the Assistant Accounts Officer (EDP), by his
order No. GPF/EDP/Cell/Allot/2365, dated 12-10-2006, allotted the appellant
the GPF Account No. FPD/29/4314 and entry to this effect was made in the
Service Book of the appellant. It is noted that the appellant has been
pursuing the matter for regularisation of his service or for appointment in
terms of the selection process held in 1992, but all in vain.
6. While the appellant was serving after being adjusted against the post as
indicated supra, suddenly the payment of monthly salary of the appellant was
stopped since 01-01-2006. Aggrieved, the appellant filed another writ
petition, i.e., WP(C) No. 1573/2007 which was disposed of on 03-08-2007
with a direction that the case of the appellant shall be taken up as per the
common judgment delivered in WP(C) No. 2147/1999.
7. An Expert Committee was constituted by the State Government.
Accordingly, vide Report dated 18-09-2008, the claim of the appellant was
rejected. The appellant approached this Hon'ble Court by filing the WP(C) No.
5532/2010. This Court, vide order dated 24-02-2012 disposed of the said writ
petition by setting aside the Expert Committee Report and directed the State
to pay salary to the petitioner from March, 2006 onwards. Thereafter, vide
letter dated 14-03-2012, the Director of School Education, Assam, has
directed for adjustment of the appellant's service against the vacant post of
Assistant Teacher, Science Graduate in Paschim Banbhag Higher Secondary
School. Pursuant to that, the respondent No. 3, vide order dated 04-04-2012,
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had issued an order adjusting the appellant on the post of Science Graduate
Teacher with effect from 01-01-2006 in the scale of pay of Rs. 3580/- to
8750/- per month (Pre-Revised) plus other allowances as admissible under
rules against the vacant post of Science Graduate Teacher. The order dated
04-04-2012 (Annexure-23 to this appeal) is reproduced hereinbelow:
"GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION, ASSAM
KAHILIPARA, GUWAHATI-781019
NO. GB-EST/DSE/CC/60/2012/151 Dated Kahilipara the 4th April/2012
ORDER
In compliance of the Hon'ble High Court's order dtd. 24-02-2012 passed in
WP(C) No. 5532/2010 and in pursuance of the Govt. Letter No. ELC/WP(C)
5532/2010/722/131, dtd. 30-03-2012 Sri Khanindra Kalita, B. Sc., the petitioner of the
above mentioned High Court Case who originally adjusted in Nehru Milan High School,
Kharuajan and attached in Paschim Banbhag Higher Secondary School, Khatikuchi by
the Inspector of Schools, NDC, Nalbari vide his order issued under Memo No. EST-
4/Misc/03/1322-26, dtd. 07-06-2004 is hereby adjusted in Paschim Bahbhar Higher
Secondary School, Khatikuchi with effect from 01-01-2006 in the Scale of Pay of Rs.
3580/- to Rs. 8750/- per Month (Pre-Revised) plus other allowances as admissible
under rules against the vacant post of Science graduate vice Late Lakshidhar Talukdar,
B. Sc., Assistant Teacher expired and his original appointment is hereby regularised.
The post was originally created vide Govt. Letter No. EPG.567/91/113, dtd. 16-
11-1991 and retained the same permanently vide Govt. Letter No. PMA.93/2002/Pt-
II/200, dtd. 29-04-2003.
This has the approval of Finance (SIU) Department vide this approval No.
EST.207/12, dtd. 29-03-2012 as indicated vide Govt. Letter referred to above.
Sd/- B.L. Sarma, ACS,
Director of Secondary Education, Assam,
Kahilipara, Guwahati-781019."
8. On perusal of the order dated 04-04-2012, it can be concluded that the
original appointment of the appellant was regularized.
9. The respondent authorities, by its letter No. GB-
EST/DSE/CC/60/2012/151-A dated 10-05-2012 by the Deputy Director of
Secondary Education, Assam, addressed to the Inspector of Schools, NDC,
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Nalbari, Guwahati, in response to the appellant's application dated 10-04-
2012 informed that the service of the appellant was adjusted with effect from
01-01-2006, hence, he will be covered by the New Pension Rules.
10. Being aggrieved by the impugned letter dated 10-05-2012, the
appellant filed the writ petition being WP(C) No. 4462/2015 on the ground
that the appellant's service has been from 01-02-2003 as a regular Science
Graduate Teacher till date and he has been allowed to draw first and second
financial upgradation of Assured Career Progression Scheme (ACP) with effect
from 01-01-2011 and the date of joining and regular service of the appellant
is 01-02-2003. The order dated 15-07-2013 is reproduced hereinbelow:
"GOVT OF ASSAM
OFFICE OF THE INSPECTOR OF SCHOOLS, NALBARI DISTRICT CIRCLE,
NALBARI
ORDER
In pursuance of the Finance (PRU) Department's Notification No.
FPC.10/2010/4, dated 25.05.2011 and Finance (Estt-A) Department's Notification No.
FEG.28/2011/12 dated 19.06.2012. The following teaching and non-teaching staff of
Paschim Bonbhag H.S. School/High School/High Madrasa is allowed to draw 1 st and 2nd
Financial Up-gradation under Assured Career Progression Scheme (A.C.P.S) with effect
from 01.02.2013
Incumbent wise Basic Pay Fixed as shown below:
Sl. Name of Date of Date of Date of regular Pay after 1st Pay after
No. Incumbents joining regular existing basic pay Financial up- Financial up-
with service as on 01.01.2011 gradation as on gradation as
designation gradation as on on 01.01.2011.
01.01.2011
Pay Grade Pay Grade Pay Grade
Band Pay Band Pay Band Pay
1. Khanindra 01.01.0 01.01.03 8770 3300 w.e.f. 31.02.1
Kalita A/T 3 9910 3
2. Narnarayan 01.02.8 01.02.89 10090 2900 1009 2900 w.e.f 1.2.
Sarma UDA 9 0 10090 300
.
Sd/- N.C. Bora,
Inspector of Schools, N.D.C.,
Nalbari
Memo No. EST.3/NDC/Pt-I/Es.712/1988-92 Dated, Nalbari the 15/7/13."
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11. The learned Single Judge considered the matter and vide order dated
06-03-2019, came to the conclusion that merely because in the service book
there is an entry of date of joining as 01-02-2003, the said entry can only be
related to the purely temporary appointment which was held by the appellant,
who is found to be actually regularized w.e.f. 01.01.2006 by virtue of order
dated 04.04.2012. The entries of date of joining as 01.02.2003 in the GPF
account allotted to the petitioner is also not a conclusive proof of the regular
appointment of the petitioner from that date. Such entries came to be
recorded on 12.10.2006, when the new pension had come into force w.e.f.
01.02.2005 and same cannot be allowed to defeat the requirement of New
Defined Contribution Pension Scheme as per the O.M. dated 06.10.2009,
which mandates as follows: "this scheme would be applicable to all new
entrance joining State Government services regular basis against vacant
sanctioned posts on or after 01.02.2005. Accordingly, the learned Single
Judge concluded as under:
"14. In view of the discussion above, this Court is of the view that as the impugned
Memo No. GB-EST/DSE/CC/60/2012/159 dated 10.05.2012 (Annexure-31) is an order
consequential to the Memo No. GB-EST/DSE/CC/60/2012/151 dated 04.04.2012
(Annexure-23) by which the appointment of the petitioner was regularized w.e.f.
01.01.2006. Without any challenge to the said order dated 04.04.2012, which had
attained finality, the challenge against the consequential order dated 10.05.2012 is
not sustainable because as mentioned hereinbefore, the O.M. dated 06.10.2009
(Annexure-13) contains clear mandate that the New Defined Contribution Pension
Scheme would be applicable to all new entrants joining State Government services on
regular basis against vacant sanctioned post on/or after 01.02.2005 and the
petitioner after being appointed on regular basis w.e.f. 01.01.2006, would stand
covered by the new pension scheme and not by the previous pension scheme and
GPF scheme in force in the State prior to 01.02.2005."
12. Assailing the judgment and order dated 06-03-2009, passed by the
learned Single Judge, the learned counsel for the appellant submits that since
the appellant was allowed to continue in his service without break since 1991
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and subsequently regularized the service of the appellant with monthly salary
and other entitlements, the New Pension Scheme, i.e., O.M. dated 06-01-2009
would not govern the service of the appellant, but by the Old Pension Rules.
13. The learned counsel for the appellant submits that the order dated 04-
04-2012 wherein it is stated that the post was originally created vide the
Government letter No. EPG.567/91/113 dated 16-11-1991 and retained the
same permanently vide Government Letter No. PMA.93/2002/Pt-II/200 dated
29-04-2003 by which it is shown that the service of the petitioner/appellant is
regularized against the said post of Assistant Teacher. It is further submitted
that the order dated 15-07-2013, clearly establishes the date of joining and
regular service of the appellant as 01-02-2003 and also that the appellant has
been granted financial upgradation, i.e, ACP from time to time, and hence,
the service of the appellant cannot be regulated by the New Pension Scheme.
He contended that the impugned letter dated 10-05-2012 is not sustainable in
facts and in law and is liable to be set aside. Consequently, the impugned
judgment and order dated 06-03-2019, passed by the learned Single Judge is
not sustainable.
14. Countering the submission of the learned counsel for the appellant, Mr.
Khataniar, learned standing counsel for the Secondary Education Department
submits that since the appellant was adjusted in the service only from 01-01-
2006 and his original appointment was regularised with effect from 04-04-
2012, he can only be deemed to be an entrant who had joined State
Government service on regular basis against a sanctioned vacant post after
01-02-2005 and, therefore, he would be governed by the provisions of the
New Defined Contributory Pension Scheme. It is, therefore, submitted that
the present appeal is devoid of merit and prayed for dismissal of the same.
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15. We have considered the rival submissions of the parties and also
perused the relevant documents placed on record. We have also carefully
perused the judgment and order dated 06-03-2019, passed by the learned
Single Judge.
16. The case of the appellant has its own chequered history. On
consideration, we find that the appellant has been allowed to serve initially on
honorary basis since 1991 and he continued in service, albeit by way of sheer
adjustment, with regular salary and other entitlements. The appellant filed
series of writ petitions seeking a direction for appointment as per the Select
List of 1992 and also for payment of salary but no fruitful consideration has
been made by the respondent authorities except for payment of salary and
other emoluments. The service of the appellant has been regularized by the
order dated 04.04.2012 which clearly indicates that Shri. Khanindra Kalita, the
appellant was originally adjusted in Nehru Milan High School, Kharuajan and
has been attached in Paschim Bahbhar Higher Secondary School, Khatikuchi
with effect from 01.01.2006 against the vacant post and his original
appointment is regularized. On careful reading of the order dated 04.04.0212,
it is found that the service of the appellant has been adjusted in another
school with effect from 01.01.2006 by regularizing his original appointment.
17. There is another order dated 15.07.2013, wherein the date of regular
service of the appellant is clearly reflected as 01.01.2003. During his
continuous service, the appellant has been allowed to draw regular salary,
GPF account being FDP/29/4314 has also been allotted and the appellant has
been granted financial upgradation (ACPS) from time to time with other
similarly situated persons.
18. On careful consideration of the order dated 04.04.2012 and order dated
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15.07.2013, coupled with the appellant's drawing of regular salary and
granting of financial upgradation to him, we have no hesitation in holding that
the service of the appellant would be governed by the old pension rules. The
conclusion of the Learned Single Judge that without challenge being laid to
the order dated 04.04.2012, the challenge against the consequential order
dated 10.05.2012, was not sustainable and that the service of the appellant is
covered by the new pension scheme, is not based on an apropos
consideration of admitted factual matrix. As a consequence, the order dated
10.05.2012, not being sustainable is set aside.
19. In the result, the judgment and order dated 06.03.2019 passed by the
learned Single Judge in writ petition No. 4462 of 2015, is reversed. We hold
that the service of the petitioner was regularized well before coming into force
of the New Pension Scheme and that he is entitled to the benefits of the old
pension rules.
20. The writ appeal is allowed accordingly.
JUDGE CHIEF JUSTICE
Comparing Assistant
