"Service Must Be Substantive and Permanent": Gauhati High Court Rejects Pension Claim for Temporary Tenure in Assam Education Project
Sanchayita Lahkar
The Gauhati High Court, Single Bench of Justice Kaushik Goswami dismissed a writ petition challenging the denial of pensionary benefits for service rendered in a temporary capacity. The petitioner had requested that his tenure as Supervisor under the National Adult Education Project be included in the calculation of qualifying service for pension. The Court reiterated that only substantive and permanent government employment qualifies under Rule 31 of the Assam Services (Pension) Rules, 1969.
The petitioner, Jyotish Pathak, was first appointed as a Supervisor under the National Adult Education Project by an order issued on 26 November 1981. The appointment was temporary and carried a fixed remuneration of Rs. 500 per month. The order specified that the employment would be valid only until 31 December 1981. He assumed the role on 5 December 1981 and continued to serve in the position without break.
On 6 December 1990, the petitioner’s remuneration was revised to Rs. 875 per month, with an additional fixed traveling allowance of Rs. 150. Despite the continued service, no confirmation order was issued for the post of Supervisor during this period.
Later, the petitioner responded to a formal advertisement for the position of Project Officer under the same project. Upon selection by the Assam Public Service Commission, he was appointed on a temporary basis through an order dated 18 March 1991. He was formally released from his prior duties and joined the post of Project Officer on 22 March 1991. The confirmation of this post was granted on 27 July 2012, with retrospective effect from 27 February 2011.
Upon superannuation on 28 February 2011, the petitioner’s pensionary benefits were computed from 22 March 1991. The petitioner, through this writ petition filed under Article 226 of the Constitution of India, sought judicial intervention for recognition of his earlier service as Supervisor for the purpose of pension eligibility.
In his submissions, Mr. H Talukdar, learned counsel for the petitioner, argued that the petitioner had rendered continuous service from 1981 until retirement in 2011, and thus, his entire tenure should be considered for pensionary benefits. He maintained that the continuity of service and lack of interruption constituted a qualifying period under relevant pension regulations.
Appearing for respondent Nos. 1, 3, 4, and 5, Ms. H Terangpi contended that the initial tenure as Supervisor was purely temporary, fixed-pay, and not supported by a substantive post. She submitted that as per the Assam Services (Pension) Rules, such temporary appointments did not constitute qualifying service.
Mr. A Chaliha, representing respondent No. 2, echoed similar arguments. He pointed out that the petitioner had not completed ten years in the post of Supervisor and that there was no confirmation for this period. He also referenced the affidavit-in-opposition submitted by the Education Department, which detailed the nature of the petitioner's initial appointment.
The Education Department’s affidavit stated: "The appointment of the petitioner as the supervisor was on the basis of fixed pay and on purely temporary basis, therefore the post of Supervisor cannot be considered as substantive post." It further clarified that the National Adult Education Project was a Centrally Sponsored Scheme intended for specific objectives, and field-level appointments like that of Supervisors were temporary in nature.
The affidavit also stated that the Project Officer post was a substantive appointment. The petitioner’s service was confirmed only for this post, effective from 27 February 2011. Reference was made to a similar case involving Sri Dilip Kr. Sarma, who also served temporarily as a supervisor. In that case, pensionary benefits were not granted for the initial temporary period either. A communication from the Pension and Public Grievances Department, dated 14 September 2017, was cited to reinforce this policy stance.
Justice Kaushik Goswami examined the submissions and relevant provisions of the Assam Services (Pension) Rules, 1969. Particular reference was made to Rule 31, which prescribes the conditions under which service qualifies for pension. The Rule stipulates:
"The service of an officer does not qualify for pension unless it conforms to the following three conditions: Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent; Thirdly, the servant must be paid by Government."
The proviso to the Rule states:
"Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled, (i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and (ii) 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."
Upon examining the facts, the Court noted: "The initial appointment of the petitioner to the post of Supervisor cannot by any stretch of imagination be considered to be substantive and permanent."
The judgment further recorded: "The employment of the petitioner became substantive and permanent from the date of appointment to the post of Project Officer."
According to the Court, the decision of the respondent authorities to calculate pensionary benefits from the date of substantive appointment was consistent with Rule 31. The Court cited the departmental affidavit, which recorded that the petitioner’s confirmed service duration as a permanent employee was 19 years, 11 months, and 10 days, from 22 March 1991 to 28 February 2011. The corresponding pension sanction was granted under PPO No. 927201030984.
The Court also acknowledged the previous departmental policy and similar case precedents, observing:
"In a similarly situated matter like Sri Dilip Kr. Sarma who claimed that his past service should be counted from 01.04.1981 to 26.05.1991 on the ground that he was engaged as a Supervisor on fixed pay, his appointment was purely temporary and non-pensionable."
"In the instant case also, his service was qualified for the pension and pensioner benefit with effect from 27.05.1991 only."
This Court is of the unhesitant view that the writ petitioner has failed to make out any case in support of the relief prayed in this writ petition. The initial appointment of the petitioner to the post of Supervisor cannot by any stretch of imagination be considered to be substantive and permanent. Therefore, the claim for pensionary and retirement benefits for the period served in that position does not meet the qualifying criteria under Rule 31 of the Assam Services (Pension) Rules, 1969.
Accordingly, the writ petition stands dismissed. No cost.
Advocates Representing the Parties
Advocate for the Petitioner: Mr. H Talukdar
Advocate for Respondents: Ms. H Terangpi
Case Title: Jyotish Pathak vs The State of Assam and 5 Ors.
Neutral Citation: GAHC010106812020
Case Number: WP(C)/3146/2020
Bench: Justice Kaushik Goswami
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