Gauhati High Court

Bina Chetia Phukan vs The State Of Assam And 4 Ors on 25 March, 2025

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GAHC010139892024




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/3635/2024

         BINA CHETIA PHUKAN
         W/O- PRADIP KUMAR SAIKIA,
         RESIDENT OF VILLAGE- BORDOLOI NAGAR,
         P.O. AND P.S.- TINSUKIA,
         DISTRICT- TINSUKIA, ASSAM,
         PIN- 786125,
         RETIRED ASSISTANT TEACHER OF MONIDEEP L.P. SCHOOL, HIJUGURI,
         TINSUKIA.

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
         DEPARTMENT OF SCHOOL EDUCATION,
         DISPUR, GUWAHATI-6.

         2:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-19
          DISTRICT- KAMRUP(M)
         ASSAM.

         3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
         TINSUKIA
          DISTRICT- TINSUKIA
         ASSAM.

         4:THE DEPUTY INSPECTOR OF SCHOOLS
         TINSUKIA
          DISTRICT- TINSUKIA
         ASSAM.

         5:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
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             FINANCE DEPARTMENT
             DISPUR
             GUWAHATI-6

Advocate for the Petitioner   : MR. N BORAH, MR M.J. BHARALI

Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE DEPTT.,MR. R BORPUJARI,SC,
FINANCE


                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN
                                   ORDER

25.03.2025

Heard Mr. N. Borah, learned counsel for the petitioner; Mr. P.N. Sarma, learned standing counsel for the Elementary Education Department, respondent Nos. 1 - 4; and Mr. R. Borpujari, learned standing counsel for the Finance Department, respondent No. 5.

2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities to give effect of the date of regularization of her service w.e.f. the date of completion of Junior Basic Training Courses in the year 2003; to release the arrear regular time scale of pay, due to her, from the date of completion of her Junior Basic Training Course till the date of regularization, i.e. 11.04.2018; also to direct the respondent authorities to allow her to be covered under the Assam Services (Pension) Rules, 1969, since she has completed Junior Basic Training Course prior to implementation of New Pension Scheme.

3. The background facts leading to filing of this petition are adumbrated herein below:-

"The petitioner was initially appointed on 28.12.1999, as a stipendiary

teacher, pursuant to an Advertisement dated 28.12.1996 and as per terms Page No.# 3/13

and conditions she will get a monthly stipend of Rs. 900/- and subsequently, she will be deputed to undergo Junior Basic Training Course for one year and after successful completion of her training, she will be given regular time scale of pay as prescribed in the ROP Rules, 1990 and other allowances as admissible under Rules.

Accordingly, she completed the course in the year 2002 - 2003. But, in spite of completion of the course she had not been provided scale of pay w.e.f. 2003. But, similarly situated stipendiary teachers had been given the benefits.

Thereafter, she along with 5 other stipendiary teachers approached this court by filling a writ petition, being W.P.(C) No. 3054/2003, for payment of stipend and this court, vide interim order dated 29.04.2003, directed the respondent authorities to pay stipend on regular basis and also directed that the persons appointed between 1991 - 1995 by the Inspector of Schools, Tinsukia in excess of 87 vacancies, as mentioned in the letter dated

04.04.2003, shall not be regularized without leave of this court.

Thereafter, the Director of Elementary Education Department, vide Order No. EE/(Plan)153/2004/529-A, dated 06.07.2009, regularized the service of 49 numbers of stipendiary teacher of Tinsukia Sub-Division by way of adjustment against existing Non-Plan retirement/death vacancies as shown in the said order, in regular time scale of pay @ 3130/- - 6600/- per month plus other allowances admissible under Rules w.e.f. the date of passing of Junior Basic Training Examination. In the said order it has also been mentioned that the teacher concerned will have to furnish an undertaking, as prescribed in the Government letter issued by the Finance (Budget) Department Letter dated 25.01.2005, regarding introduction of Page No.# 4/13

New Pensions Scheme, along with joining report in the new adjusted school.

In the said order dated 06.07.2009, the service of the petitioner Nos. 1, 2, 5, 22, 24 & 25 of W.P.(C) No. 6387/2002, Khagen Hazarika, Kartik Sonowal, Jitul Sonowal, Nanda Chutia, Pinky Gogoi and Sushila Minj, respectively had been regularized along with 48 numbers of stipendiary teachers of L.P. Schools under Tinsukia Sub-Division. But, other petitioners of W.P.(C) No. 6387/2002 had not been regularized including the service of the present petitioner, even though she is similarly situated to Khagen Hazarika, Kartik Sonowal, Jitul Sonowal, Nanda Chutia, Pinky Gogoi and Sushila Minj, who were also appointed as stipendiary teachers.

Thereafter, the Director of Elementary Education Department, vide order dated 15.03.2010, had regularized the service of 48 numbers of stipendiary teachers at fixed pay of L.P. School teachers in Tinsukia Sub- Division, by way of an adjustment against existing Non-Plan retirement/death vacancies as shown in the said order in regular time scale of pay @ 3130/- - 6600/- per month, plus other allowances admissible under Rules w.e.f. the date of passing of Junior Basic Training Examination. In the said order it has also been mentioned that the teachers mentioned in the order, who passed Junior Basic Training Examination before 25.01.2005, would not come under New Pension Scheme.

The pleaded case of the petitioner is that W.P.(C) No. 3054/2003 was finally disposed of, vide order dated 06.06.2009, by observing that the prayer made in the petition virtually stood granted by the interim order dated 29.04.2003, and more than 6 years had elapsed and the respondent authorities have not filed any counter affidavit and therefore, the averments made in the petition go un-refuted and thereafter, the writ petition was Page No.# 5/13

disposed of and the interim order was vacated.

Even then, the respondent authorities have not regularized the service of the petitioner, though she had completed Junior Basic Training Examination in the year 2002 - 2003 and in the meantime, the Director of Elementary Education had issued another advertisement inviting application for scrutiny by the screening committee from the Assistant Teachers of L.P. Schools, who were appointed in between 1991 - 2001, but have not received their monthly salaries. And since the petitioner had not received her salary from January, 2003, she had applied for the aforesaid post pursuant to said advertisement.

Thereafter, the District Elementary Education Officer cum Member of Screening Committee, Tinsukia asked the petitioner to appear before the Screening Committee and to submit her all the relevant documents relating to her service and the screening committee, after verifying the documents found the case of petitioner as regular and thereafter, vide order dated 11.04.2018, the service of the petitioner along with others, who are recommended by the Screening Committee, as Assistant Teacher in L.P. Schools in Pay Band - 2 @ Rs. 14,000 - 49,000/- + Grade Pay as admissible as per ROP, 2017 per month plus other allowances as admissible under Rules and posted at the schools as shown in the said order against each of the candidates. In the said order it is also stated that the appointees have to furnish an undertaking along with joining report for New Pension Rules.

Thereafter, the petitioner had submitted her undertaking as required for new Pension Rules and joined the post, pursuant to order dated 11.04.2018. But, she has not received her due monthly stipend since January, 2003.

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The further pleaded case of the petitioner is that though she was covered under the New Pension Scheme pursuant to order dated 11.04.2018, she had completed the Junior Basic Training Course in the year 2002 - 2003, prior to implementation of the New Pension Scheme, 2005. Moreover, similarly situated teacher, whose service has been regularized along with her, vide order dated 11.04.2018, approached this court by filing a writ petition, being W.P.(C) No. 7831/2019 and the said petition was disposed of, vide order dated 30.10.2019, by holding that the issue has been considered by the court in the case of Khagen Hazarika and Others vs. State of Assam and Others, in W.P.(C) No. 6387/2002 and since the petitioners had completed Junior Basic Training Course, in the year 2002 - 2003, before 25.01.2005, they shall not be covered under the New Pension Scheme and thereafter, allowed the petition.

The respondent authorities have failed to comply with the order dated 30.10.2019, for which, one contempt case, being Cont.(C) No. 351/2020, was filed and during the pendency of the said contempt case, the Joint Secretary to the Government of Assam, Elementary Education Department had communicated to the Director of Elementary Education, Assam, vide letter dated 30.11.2021, stating that since the benefits claimed by the petitioner had already been extended to the similarly situated teachers, the order dated 30.10.2019, passed in W.P.(C) No. 7831/2019, needs to be complied with, by allowing the petitioners w.e.f. the date of their passing of Junior Basic Training, along with the arrear, till the order of regularization dated 11.04.2018.

The further pleaded case of the petitioner is that present petitioner is also entitled to similar benefits as she has completed Junior Basic Training Page No.# 7/13

Course in the year 2002 - 2003 and also entitled to be covered under the Assam Services (Pension) Rules, 1969."

4. It is to be noted here that the respondent authorities have not filed any affidavit-in-oppositions.

5. Mr. Borah, learned counsel for the petitioner submits that the petitioner had completed the Junior Basic Training Course in the year 2002 - 2003 and at the relevant point of time Old Pension Scheme of the Assam Services (Pension) Rules, 1969 was in force and that the New Pension Scheme came into force from the year 2005. Mr. Borah further submits that since the petitioners in W.P.(C) No. 7831/2019, were granted the benefit of regularization from the date when they have passed the Junior Basic Training Examination and since the present petition is also stands in the same footing, she is also entitled to the same benefits of regularization from the date of completion of her Basic Training Course and also she shall be covered by the Assam Services (Pension) Rules, 1969.

5.1. In support of his submission, Mr. Borah has referred following decisions:-

(i) State of Karnataka and Others vs. C. Lalitha, reported in (2006) 2 SCC 747;

(ii) Krishna Kanta Das vs. State of Assam and Others, in W.P. (C) No. 6993/2024;

(iii) Jibon Mahanta and 8 Others vs. State of Assam and 5 Others, in W.P.(C) 7831/2019; and

(iv) Purnima Hore and Another vs. State of Assam and 3 Others, in W.P.(C) 6403/2021.

6. Mr. Sarma, learned standing counsel for the Elementary Education Page No.# 8/13

Department, respondent Nos. 1 - 4; and Mr. Borpujari, learned standing counsel for the Finance Department, respondent No. 5 submit that, prima-facie, present case of the petitioner appears to be covered by the judgment and order dated 31.03.2023, passed in Purnima Hore (Supra) and order dated 30.10.2019, passed Jibon Mahanta (Supra). They also submit that the writ petition may be disposed of by directing the respondent authorities to conduct verification of the service particulars of the petitioner before extending the benefits of the judgment and orders mentioned herein above.

7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the judgment and orders, so referred by Mr. Borah, learned counsel for the petitioner.

8. It is to be noted here that in the case of C. Lalitha (Supra), Hon'ble Supreme Court has held as under:-

"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."

9. In the case of Purnima Hore (Supra), this court has held as under:-

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"118. In the backdrop of the above, this Court, therefore, disposes of the instant batch of writ petitions with the following observations and directions:-

(i) The writ petitioners who come within the fold of Stipendiary Teachers are entitled to the benefits under the Rules of 1969 and they are not covered under the NDCPS, 2009. The said petitioners are also entitled to subscribe to the GPF. The said petitioners would also be entitled to all other pensionary benefits to which a Government servant of corresponding rank is entitled to.

(ii) The writ petitioners who come within the fold of Dropped Teachers are not entitled to pension in terms with the Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

(iii) The teachers coming within the fold of Teachers Appointed under the Operation Black Board, and more particularly, those teachers who were appointed pursuant to the creation of 7066 posts on 08.03.2021, would not be entitled to pension in terms with Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. They shall be governed by the New Pension Scheme applicable to State Government employees of corresponding rank.

(iv) The writ petitioners who come within the fold of Excess Teachers would not be entitled to the pension in terms with the Rules of 1969 as well as also shall not entitled to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but Page No.# 10/13

they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

(v) The writ petitioners who come within the category of Teachers appointed on Ad-hoc Grant Basis would not be entitled to pension in terms with the Rules of 1969, but shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. They would also not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937.

(vi) The Teachers who have been brought within the fold of the State Sector Employees by regularization of their services by the Dima Hasao Autonomous District Council on or after 01.02.2005 would not get the benefit in terms with the Rules of 1969, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.

(vii) The teachers coming within the category of Dropped Teachers, Operation Black Board, Excess, Ad-hoc Grant as well as Dima Hasao as mentioned in Sub-Paragraph Nos.(ii), (iii), (iv) (v) & (vi) herein above as they come within the ambit of the New Defined Contribution Pension Scheme, 2009 shall be eligible for the benefit of retirement gratuity and death gratuity on the same terms and conditions as are applicable to the employees covered by the Rules of 1969 in view of the Office Memorandum dated 01.02.2021.

(viii)The communication dated 23.02.2010 issued by the Director, Finance (Budget) Department to the Deputy Accountant General (P&A) is set aside and quashed

(ix) It is observed that the instant judgment will come into effect prospectively. The State Government shall not be entitled to claim refund of any pension or pensionary Page No.# 11/13

benefits already granted to an employee on the basis of the directions passed by the various orders of this Court earlier. This direction has been given specifically for the fact that the State Government had allowed such orders so passed by the Coordinate Bench as well as the Division Bench of this Court to attain finality and have granted benefit to them. These persons shall continue to be entitled to the pension under the Rules of 1969 as per the directions of this Court earlier. The above directions is based upon the judgment of the Supreme Court in the case of Umadevi (3) (supra) wherein the Supreme Court at paragraph No.53 had categorically observed that those regularizations, if any, already made but not sub-

judiced need not be reopened based on the observations made in the said judgment.

(x) Court further is of the opinion that the persons similarly situated to that of the writ petitioners coming within the category of Stipendiary Teachers, but who have not been able to approach this Court on account of various reasons, need not be deprived of the benefits of pension in terms with the Rules of 1969 as well as to subscribe to the fund in terms with the General Provident Fund Page No.# 8/8 (Assam Service) Rules, 1937. This Court, therefore, directs the respondent authorities to grant the benefits of pension in terms with the Rules of 1969 as well as to allow such persons to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937 after completing the necessary verification in that regard. The same may be done within a period of 6 (six) months from the date of the instant judgment."

10. In the case of Krishna Kanta Das (Supra), this court has held as under:-

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"7. Though it prima facie appears that the petitioners' case is covered by the above judgments and orders, this Court is of the view that by way of abundant caution, the State respondents should be given the liberty to verify the particulars of the petitioners. Accordingly, the respondents shall verify the petitioners particulars and if it is found that the petitioners are entitled to the benefits provided in para 118 of the judgment & order dated 31.03.2023 passed in WP(C) 6403/2021, the same should be provided to the petitioners. The entire exercise should be concluded by the State respondents within a period of 3 (three) months, from the date of receipt of a certified copy of this order along with the copies of the writ petitions."

11. A careful perusal of the orders, dated 31.03.2023, passed in W.P.(C) 6403/2021; the order dated 30.10.2019, passed in W.P.(C) 7831/2019; and the order dated 20.02.2025, passed in W.P.(C) No. 6993/2024, it appears that the case of the present petitioner is prima-facie appears to be covered by the aforesaid judgments and orders. And on such count, the present petitioner is also entitled to similar benefits, like the petitioners in those cases. It is well settled in the case of C.Lalitha (supra) that all persons similarly situated should be treated similarly. Further, it is well settled that only because one person has approached the court that would not mean that persons similarly situated should be treated differently.

12. Under the given facts and circumstances and also taking note of submissions of learned counsel for both the parties, this court is inclined to dispose of this petition by directing the respondent authorities to verify the service particulars of the petitioner and if it is found that the case of the present petitioner is covered by the aforementioned judgments and orders, then the benefits granted to the petitioners of the aforementioned writ petitions shall also be extended to the present petitioner also.

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13. This exercise has to be completed within a period of 3 (three) months from the date of receipt of the certified copy of this order.

14. The petitioner shall obtain a certified copy of this order and shall place before the respondent authorities within a period of 1 (one) week from today.

15. In terms of above, this writ petition stands disposed of.

16. The parties have to bear their own costs.

JUDGE Comparing Assistant