Page No.# 1/19 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 7719 Gua

Gauhati High Court

Page No.# 1/19 vs The State Of Assam And 4 Ors on 13 October, 2025

                                                                Page No.# 1/19

GAHC010108772023




                                                           2025:GAU-AS:13614

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

                        Case No. : WP(C)/2882/2023

         BINOD CH BORA
         S/O LATE JOGEN CH. BORA, R/O VILL-HEMARBORI, P.O.-BHELEGURI VIA
         SAMAGURI, DIST-NAGAON, ASSAM, PIN-782140

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, EDUCATION ELEMENTARY DEPARTMENT,
         DISPUR, GUWAHATI-06

         2:THE DIRECTOR OF STATE COUNCIL OF EDUCATIONAL RESEARCH AND
         TRAINING (SCERT) ASSAM
          KAHILIPARA
          GUWAHATI-19

         3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-06

         4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI-06

         5:THE PRINCIPAL
          DISTRICT INSTITUTE OF EDUCATION AND TRIANING
          NAGAON
          SAMAGURI
         ASSAM
          PIN-78214
                                                                             Page No.# 2/19

Advocate for the Petitioner   : MR H TALUKDAR, MRS. M DEKA

Advocate for the Respondent : SC, ELEM. EDU, SC, SCERT, MR. S. BORA (R-2, R-5),GA,
ASSAM,SC, FINANCE



                               BEFORE
                  HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                      JUDGMENT

13.10.2025

Heard Mr. H. Talukdar, learned counsel for the petitioner; Mr. P.N. Sarma, learned standing counsel for the Elementary Education Department, being respondent No. 1; Mr. S. Bora, learned standing counsel for the SCERT, being respondent No. 2; Ms. R. Barooah, learned standing counsel for the Finance Department, respondent No. 3; and Ms. D.D. Barman, learned Additional Senior Government Advocate for the respondent Nos. 4 & 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 cancel/recall or otherwise of the order dated 04.09.2013, by which his service was regularized w.e.f. 27.09.2007 and brought him under the purview of New Pension Rules and also to modify the regularization order by showing the date of effect as his initial date of appointment and also for bringing him under the purview of Old Pension Rules, i.e. Assam Services Pension Rules, 1969.

Background Facts:-

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

"The petitioner was initially appointed as Laboratory Assistant on ad-hoc

basis in DIET, Samuguri, vide order dated 25.10.1991. The said Page No.# 3/19

appointment was extended time to time by way of office orders and regularized vide order dated 18.06.1994.

Thereafter, the petitioner was again temporarily appointed as LDA cum Typist under the same establishment, vide order dated 30.01.1996 and his appointment was extended till his regularization vide order dated 10.08.2004. Thereafter, the service of the petitioner along with 33 others were regularized vide order dated 04.09.2013, w.e.f. 27.03.2007, and brought them under the purview of New Pension Rules, 2005.

Then, being aggrieved, a group of writ petitioner had preferred a writ petition, being W.P.(C) No. 476/2013 and this Court vide judgment and order dated 29.05.2017, remanded the matter back to the Director of SCERT (respondent No. 2) for passing an appropriate order as regard the date of effect of regularization and entitlement of pension.

Though the said judgment and order is in Ram, but, till date no common order has been passed by the respondent authorities although individual orders have been issued to similarly situated persons for granting individual relief.

Thereafter, the petitioner had preferred one representation, dated 12.12.2022, before the respondent authorities. But, the same failed to evoke any response from the respondent authorities."

3.1. Being aggrieved, the petitioner has preferred this writ petition by seeking the reliefs as stated above.

4. The respondent No. 2, Director of SCERT, had filed an affidavit-in- opposition, wherein a stand has been taken that the petitioner was appointed on ad-hoc basis in DIET, Samuguri, vide order dated 25.10.1991, and the said Page No.# 4/19

appointment was extended time to time. But, the petitioner is not similarly situated or covered under the judgment and order dated 29.05.2017, passed in W.P.(C) No. 476/2013 and other connected matters.

4.1. Further, the order dated 04.09.2013, was issued by the Director of SCERT, which covers altogether 34 numbers of employee including the present petitioner, w.e.f. 27.09.2007, under New Pension Rule and the names of Mukunda Deka, Homeswar Kalita, Bhargabh Borthakur and Nirutpal Bora also figure in the order dated 04.09.2013, getting similar treatment of regularization w.e.f. 27.09.2007 under the New Pension Rule, 2005 and that their regularization order under Old Pension Rule, 1969 is misconceived.

4.2. Another stand of the respondent No. 2 is that the petitioner was appointed on ad-hoc basis without any selection process and that the New Pension Scheme has come into effect from 01.02.2005 and the order dated 04.09.2013, is pursuant to Government letters dated 27.09.2007 and 17.05.2010, subsequent to coming into effect of New Pension Scheme. Under such circumstances, this petition is not maintainable and therefore, the same is liable to be dismissed.

5. The petitioner had filed affidavit-in-reply, denying the statements and averments made by the respondent Nos. 2 and it is stated that the selection process was followed by notification dated 21.07.1992 and he was selected by a duly constituted selection committee, vide order dated 14.02.1994 and his name figured in the selection list, at serial No. 51, which is annexed with the affidavit- in-reply as Annexure - A3.

5.1. It is also stated that the services of Mukunda Deka and Homeswar Kalita were brought under Old Pension Rule, vide order dated 02.08.2022, which is Page No.# 5/19

annexed with the affidavit-in-reply as Annexure - A4.

6. Thereafter, on 07.08.2025, the respondent No. 2, The Director of SCERT had filed one additional affidavit, wherein a stand has been taken that in view of the common order dated 29.05.2017, passed in W.P.(C) No. 476/2013; W.P.(C) No. 6262/2013; and W.P.(C) No. 63/2013, the Director of SCERT, vide order dated 28.03.2019, had constituted one committee comprising three members to make an inquiry about ad-hoc appointments of 34 numbers of Non-Gazetted employees during the period of 1991 - 1997 in different institutions under the Directorate of SCERT, whose services have been subsequently been regularized w.e.f. 27.09.2007, vide order dated 04.09.2013.

6.1. Thereafter, the said committee had submitted its report wherein it is mentioned that 34 numbers of Non-Gazetted employees, including the present petitioner, were appointed on ad-hoc basis for a period of four months only without following the procedure of advertisement and selection and that the services were extended from time to time and their services were regularized w.e.f. 27.09.2007, under New Pension Rule. As such, it is contended to dismiss the petition.

Submissions:-

7. Mr. Talukdar, learned counsel for the petitioner submits that the petitioner has been rendering service w.e.f. 25.10.1991 till 31.03.2024, continuously without any break and he was allowed to cross his efficiency bar during his service period. Mr. Talukdar further submits that his service was regularized on two different occasions, i.e. 18.06.1994 and 04.09.2013, w.e.f. 27.03.2007 and he has been claiming the same relief granted to similarly situated persons, like Mukunda Deka and Homeswar Kalita, vide order dated 02.08.2022, in view of Page No.# 6/19

the order passed by this Court in W.P.(C) No. 476/2013.

7.1. Referring to a decision of Hon'ble Supreme Court in the case of State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others, reported in (2015) 1 SCC 347, Mr. Talukdar submits that the present petitioner is also entitled to similar relief.

7.2. Mr. Talukdar has also referred to a decision of this Court in the case of Kabiram Rajbangshi vs. State of Assam and Others, reported in 1997 (1) GLT 589, wherein considering the service rendered by the petitioner for more than 32 years continuously, it has been held that benefit of the 1969 Scheme should be given to the petitioner. He also submits that in the instant case, the petition was regularized on 18.06.1994. Under such circumstances, Mr. Talukdar submits that the petitioner is entitled to pension under Old Pension Scheme as the advertisement for regularization was issued on 29.07.1992 and the Selection Committee was constituted on 14.02.1994.

7.3. Mr. Talukdar has also referred to a decision of Hon'ble Supreme Court in the case of State of Gujarat and Others vs. Talsibhai Dhanjibhai Patel, reported in 2022 0 Supreme(SC) 344, to contend that the respondent authorities themselves committed the wrong and now they cannot take the benefit of their own wrong. Therefore, Mr. Talukdar has contended to allow this petition.

8. Per-contra, Mr. Bora, learned standing counsel for the SCERT, respondent No. 2 submits that the service of the petitioner was regularized w.e.f. 27.03.2007, vide order dated 04.09.2013, and that since the New Pension Scheme came into force w.e.f. 01.02.2005, the benefit of Old Pension Scheme cannot be extended to the petitioner.

Page No.# 7/19

8.1. Further submission of Mr. Bora is that the petitioner along with 33 other employees, under the Directorate of SCERT, were appointed without following due process of law and without making any advertisement and their services were ad-hoc services and that for entitlement of pension under Old Pension Scheme, the petitioner has to satisfy the requirement of Rule 31, which provides the conditions for qualifying service, wherein it is mentioned that the service of an officer does not qualify for pension unless it is confirmed to the conditions that firstly, the service must be under Government; secondly, the employment must be substantive and permanent; and thirdly, the servant must be paid by Government and that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled - (1) declare that nay specified kind of service, rendered in a non-gazetted capacity shall qualify for pension and (2) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension. Under the given facts and circumstances, Mr. Bora has contended to dismiss this petition.

Finding of this Court:-

9. 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 order dated 29.05.2017, passed in W.P.(C) No. 476/2013 (Annexure - L).

10. The basic facts of this case are not in dispute. The petitioner was initially appointed on ad-hoc basis for a period of four months vide order dated 25.10.1991, in DIET, Samuguri and it was extended from time to time and his service was regularized as Laboratory Assistant, vide order dated 18.06.1994 (Annexure - D). Thereafter, vide order dated 30.01.1996, again the petitioner Page No.# 8/19

was appointed temporary as LDA cum Typist in the same establishment and accordingly, the petitioner joined as LDA and his service was extended till his regularization, vide order dated 10.08.2004. Thereafter, vide order dated 04.09.2013, the service of the petitioner along with 33 others were regularized and brought them under the purview of New Pension Scheme.

10.1. From a perusal of Annexure - M & N, it appears that one Bhargabh Borthakur and Nirutpal Bora, whose names were shown in serial Nos. 17 & 10, respectively, in the list of employees whose services were regularized along with the petitioners, are extended the benefit under the Old Pension Scheme, vide orders dated 02.08.2022 and 27.12.2021, in view of the order being passed by this Court, in W.P.(C) No. 434/2013 and W.P.(C) No. 63/2013. But, the present petitioner, though filed one representation, he has not been given the aforementioned benefit. It is well settled proposition of law that when a particular set of employees is given relief by the court, the same relief has to granted to all similarly situated employees, otherwise it would amount to discrimination and it would violate their right guaranteed under Article 14 of the Constitution of India.

11. It is to be mentioned here that in the case of Arvind Kumar Srivastava (Supra), Hon'ble Supreme Court, in paragraph No. 22, has held as under:-

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1. The normal rule is that when a particular set of employees is given relief by the Page No.# 9/19

court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this court from time to time postulates that all similarly situated persons should be treated similarly.

Therefore, the normal rule would be that merely because other similarly situated persons did not approach the court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be Page No.# 10/19

extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is case upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (K.C. Sharma v. Union Of India, reported in (1997) 6 SCC 721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that Page No.# 11/19

their petition does not suffer from either laches and delays or acquiescence."

12. It is not in dispute that this Court, vide order dated 29.05.2017, passed in W.P.(C) No. 476/2013, this Court had remanded the matter back to the Commissioner and Secretary to the Government of Assam in the Elementary Education Department for passing an appropriate order as regards the entitlement of pension. And thereafter, the respondent authorities vide Annexure - M & N, has extended the benefit to one Bhargabh Borthakur and Nirutpal Bora. The present petitioner being similarly situated is also entitled to the same benefit like the petitioners in W.P.(C) No. 434/2013 and W.P.(C) No. 63/2013, as the said judgment is a 'judgment in rem' not 'judgment in personam'.

13. It is also not in dispute that the petitioner was appointed vide order, dated 25.10.1991, and his service was regularized as Laboratory Assistant in DIET, Samuguri vide order dated 18.06.1994 (Annexure - D) and thereafter, again he was temporary appointed on ad-hoc basis as LDA vide order dated 30.01.1996 and since then, his service along with 33 others were extended from time to time and thereafter, a group of writ petitioners preferred one writ petition, being W.P.(C) No. 476/2013 for non-regularization of their services and in view of the interim order passed by this Court, the respondent authorities vide its order dated 04.09.2013, regularized 34 numbers of ad-hoc employees working under the SCERT w.e.f. 27.03.2007.

14. Further, while the petitioner was serving as LDA, pursuant to order dated 30.01.1996, the reason of his regularization w.e.f. 27.03.2007, remained unexplained in the affidavit-in-opposition filed by the respondent No. 2, and till Page No.# 12/19

September, 2013, the petitioner had contributed his subscription in his GPF Account and the service rendered by him w.e.f. 21.03.1992, till his regularization on 18.06.1994, till he being appointed as LDA, vide order dated 30.01.1996, w.e.f. 27.03.2007, cannot be ignored and obliterated. The petitioner cannot be denied the benefit of his service rendered for the aforesaid period. He cannot be made responsible for the same, rather it appears to be the lapse of the respondent authorities.

15. The respondents herein are themselves responsible for non-regularization of service of the petitioner and now they cannot allowed to contend that because of the Rule 31 of the Assam Pension Rule 1969, prohibits granting pension who are working on ad-hoc basis, in view of the following decisions:-

15.1. A Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, reported in (1988) 94 (2) PLR 223, while dealing with the issue of counting of past service as work charge employees, held in para-3 of the judgment as under:

"3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of view taken by this Court in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013. A Full Bench of Page No.# 13/19

Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, also dealt with an identical issue where Rule 3.17 (ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court."

15.2. Hon'ble Supreme Court in the case of Habib Khan vs. the State of Uttarakhand, reported in (2019) 10 SCC 542, while dealing with same issue, has passed following order on 23.8.2017:-

"6. The pari materia provision contained in Rule 3.17(ii) of the Punjab Civil Services Rules had been struck down by a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab and ors. (supra). The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived by this Court.

The matter came up for consideration before this Court, once again, in the case of Punjab State Page No.# 14/19

Electricity Board and anr. Vs. Narata Singh and anr., reported in (2010) 4 SCC 317. While dealing with the said question this Court in paragraph 25 of the report held that the Full Bench decision of the Punjab and Haryana High Court was perfectly justified in striking down Rule 3.17(ii) of the Punjab Civil Services Rules resulting in obliteration of the distinction made in the said Rules between 'temporary and officiating service' and 'work-charged service'. On the said basis, this Court took the view that the period of work-charged service should be reckoned for purposes of computation of 'qualifying service' for grant of pension.

7. As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, 'we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of 'qualifying service' for grant of pension. The pari materia provisions of Rule 3.17 (ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh (supra) we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-

Page No.# 15/19

charged service for purposes of computation of 'qualifying service' for grant of pension. We order accordingly; allow these appeals and set aside the impugned orders passed by the High Court.

8. All necessary and consequential benefit in terms of the present order will be paid and granted by the State to the appellants forthwith and without any delay."

15.3. Again in the case of Prem Singh vs. State of U.P., reported in (2019) 10 SCC 516, a three Judges Bench of Hon'ble Supreme Court has held as under:-

"30. We are not impressed by the aforesaid submissions. The

appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work-charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to Page No.# 16/19

another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of U.P. [CA No. ______2019 arising out of SLP (C) No. 5775 of 2018] the appellants were allowed to cross efficiency bar, after '8' years of continuous service, even during the period of work- charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak with effect from 15-9-1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularised time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation.

31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on Page No.# 17/19

the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.

32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work-charged, contingencies or non-pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work- charged service can be counted as qualifying service for pension in the aforesaid exigencies."

15.4. It is also to be noted here that in the case of Talsibhai Dhanjibhai Patel (Supra), Hon'ble Supreme Court has held as under:-

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"It is unfortunate that the State continued to take the

services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand."

16. Under the given facts and circumstances on the record, and drawing premises from the ratio laid down in the cases discussed herein above, and further considering the submissions of learned counsel for both the parties, this Court finds sufficient merit in this petition. And accordingly, the same stands allowed. By a mandamus of this Court, the respondent authorities are directed to bring the petitioner under the purview of Old Pension Scheme by modifying the order dated 04.09.2013, giving effect of the same from the date of appointment of the petitioner as Laboratory Assistant in the DIET, Samuguri as he rendered service as Laboratory Assistant since 1991, and subsequently, regularized vide order dated 18.06.1994, and thereafter, he rendered service in the same establishment till he being appointed on ad-hoc basis as LDA, and the service rendered for the aforesaid period cannot be ignored and obliterated.

17. Let the aforementioned exercise be carried out within a period of 3 (three) months from the date of receipt of a certified copy of this order.

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

JUDGE Comparing Assistant