Gauhati High Court: In a writ petition filed by an ad-hoc music teacher against the rejection of her regularisation request or alternatively, seeking grant of voluntary/compulsory retirement along with payment of her pension and pensionary benefits, the Single Judge Bench of Robin Phukan, J., allowed the petition, holding that though the petitioner’s prayer for regularization of her service or voluntary retirement and pensionary benefits could not be granted under the existing law, her case could be considered by the Governor under Rules 31 and 235 of the Assam Service (Pension) Rules, 1969 (‘the Rules’). Accordingly, the petitioner was granted liberty to approach the Director of Secondary Education, Assam (‘DSE’) to file a representation addressing the Governor.
Background
In 1994, the petitioner was appointed as a Music Teacher by the DSE at Bani Kanta Memorial H.S. School, Rehabari, Guwahati (‘the School’).
According to the petitioner, the State initiated the regularisation process in 1996 and conducted her interview. However, the process could not be concluded. Thereafter, in 2012, the DSE stopped the petitioner’s salary without conducting any hearing. She was not terminated from service, no departmental proceeding was conducted against her, and no show-cause notice was issued to her.
Aggrieved, the petitioner filed a writ petition, wherein the Court directed the State to pay the petitioner’s salary. Accordingly, salary was paid to the petitioner. Regarding her termination not being as per procedure, the petitioner submitted a representation to the DSE to allow her to resume the duty. The DSE informed her that she had been terminated from service. Aggrieved yet again, she filed another representation seeking permission to resume duty for the grant of her voluntary retirement benefits along with pensionary benefits, but her request was not considered.
Hence, she filed the present petition.
Analysis
The Court noted that, admittedly, the petitioner was temporarily appointed as a Music Teacher initially for three months, and she continued in the said post till 2012. She was not appointed to a regular post. While she was serving as a temporary Music Teacher, the Government instructed that Music Teachers appointed on an ad-hoc basis, without following the rules, had no right to claim the post at all if there were vacancies. Thus, she was not entitled to regularization and payment of salary.
Thereafter, in the writ petition filed by the petitioner, the Court directed the State to ascertain whether she was included in the list of 22 Music Teachers issued by the Deputy DSE. If she was, then she had to be given an opportunity to participate in the regular selection process by condoning her age and further by giving weightage to her past service. The State was also to pay her salary for the period of service rendered by her. Accordingly, her salary was paid. However, he Court further noted that, admittedly, the petitioner had not been in service since 2012.
Thus, the Court stated that it was apparent that the prayer for her regularization had already been adjudicated by the Court, but the same prayer was being made again in the present petition. In this regard, the Court referred to the rule of res-judicata as applicable in writ petitions, as laid down by the Supreme Court in Daryao v. State of U.P. 1961 SCC OnLine SC 21.
Considering the factual and legal position, the Court held that the issue of the petitioner’s regularization was directly and substantially in issue in the previous writ proceeding. Therefore, the issue of regularization could not be re-opened now in the present proceeding. Moreover, the Court remarked that the alleged termination of the petitioner, though said to be illegal and arbitrary, was not challenged either in the present or previous writ proceeding.
With regards to the second prayer for the grant of retirement and other dues, the Court referred to Chapter III of the Rules, which provides for conditions of qualifying service. Rule 31 of the Rules provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:
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The service must be under the Government.
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The employment must be substantive and permanent.
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The service must be paid by the Government.
Referring to the aforesaid, the Court noted that the petitioner did not fulfill the second condition, though she fulfilled the other two. Further, in order to receive the benefit of voluntary retirement, the petitioner had to render regular and continuous service for a period of 20 years and then take voluntary retirement according to the policy decision by the State titled “Pension and Other Retirement Benefits” in the Resolution on the Report of the Assam Pay Commission 2008.
However, the Court noted that the petitioner rendered her service for only 18 years as an ad-hoc/temporary employee. Her service was not regularized. Having not been regularized in her service, she was not entitled to take voluntary retirement and to receive pensionary benefits such as General Provident Fund (‘GPF’), leave salary, gratuity, commutation of pension, Modified Assured Career Progression Scheme (‘MACPS’), etc. Thus, the Court held that the petitioner’s prayer for regularization of her service or in an alternative to grant her voluntary retirement and pensionary benefits could not be granted under the existing legal framework due to the non-fulfillment of the requisite criteria to avail such benefits.
The Court further referred to Rule 235 of the Rules, which provides that the Governor of Assam may dispense with or relax the requirements to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. Further, Proviso of Rule 31 proves that the Governor may, even though either or both of the conditions are not fulfilled, allow service rendered by an officer to count for pension in individual cases and subject to certain conditions.
Accordingly, the Court held that in view of the aforesaid rules and the facts and circumstances, it was inclined to grant liberty to the petitioner to approach the DSE to file a representation addressing the Governor for consideration of invocation of the power provided under Rule 31 and Rule 235 of the Rules. It was further directed that on receipt of such representation, the DSE shall ensure that the application is forwarded to the Governor as per procedure, and thereafter, the Secretariat of the Governor shall do the needful.
Hence, the petition was disposed of.
[Juri Bauruah v. State of Assam, WP(C) No. 7474 of 2023, decided on 23-05-2025]
Advocates who appeared in this case :
For the petitioner: A K Dutta and B Purkayastha
For the respondent: N.J. Khataniar, M. Barman, Government Advocate for Assam D.D. Barman, and S K Medhi (SC, AG), SC, SEC. EDU., SC, AG