WP(C) 8049/2004 BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. MH Rajbarbhuiyan, learned counsel appearing for the petitioner. Mr. SK Das, learned standing counsel for the Education Department appears for the resp ondent Nos.1, 2 and 4. Mr. UK Nair, learned counsel appears for the Director of Pension, Assam (respondent No.3). 2. The petitioner, who superannuated on 31st May, 2003 as a teacher of the Barbhuiya Gram LP School of Hailakandi District challenges order dated 21st Apri l, 2004 (Annexure-8) of the Finance & Accounts Officer in the Directorate of Pen sion, Assam, whereby it is declared that the period of service rendered by the p etitioner is not pensionable and accordingly order is made for recovery of the p ensionary benefit granted to the petitioner. 3. From the case materials it can be gathered that the petitioner joined se rvice on 2nd January, 1992 as a stipendiary teacher and his service was regulari zed w.e.f. 14th March, 1996 when he qualified in the Basic Teachers Training exa mination. Thus from the year of regularization i.e. 1996 till his retirement on 31st May, 2003, the petitioner had rendered less than 10 years of regular servic e. 4. However it is pointed out by Mr. Rajbarbhuiyan that if the period of ser vice rendered by the petitioner as a stipendiary teacher is taken into account, the service rendered by the petitioner would be more than 10 years and according ly he would satisfy the qualifying service prescribed under the Assam Services ( Pension) Rules, 1969 (hereinafter referred to as ’the Pension Rules’). Rule 31 of the Pension Rules which lays down the conditions of qualifyin g pensionable service, reads as under: 31. Condition of qualifying service. 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; 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 ca pacity shall qualify for pension, and (ii) in individual cases and subject to such conditions as he may think fit t o impose in each case allow service rendered by an officer to count for pension. 5. A reading of the above Rule shows that the Government has the discretion to declare any specified service to qualify for pension and the petitioner reli es upon the decision rendered by this Court in Kabiram Rajbongshi vs. State of A ssam reported in 1997 (1) GLT 589, which was followed in several subsequent deci sions of this Court such as in Kalicharan Rabidas vs. State of Assam reported in 2000 (3) GLT 206 to contend that, direction be given to the Government to make a declaration for counting the petitioner’s pre-regularization service, as was d one in the cases of Master Roll workers, to enable him to receive the pension be nefit. 6. The Apex Court in Deoki Nandan Prasad vs. State of Bihar reported in AIR 1971 SC 1409 has declared that pension is not a bounty and is a right of a Gove rnment servant and it does not depend upon the whims and caprices of the employe r. Having regard to this Supreme Court decision and the direction given by this Court in Kabiram Rajbongshi (Supra) and Kalicharan Rabidas (Supra), I am of the view that the petitioner can’t be deprived of the pensionary benefits by not tak ing into account the stipendiary service rendered by him, before his service was regularized. 7. It must also be borne in mind that it is the employer who decides as to when a stipendiary teacher should be sent for basic teachers training and the pe titioner had no hand in the timing of his training. Only after successfully comp leting the basic training after he was deputed, order was passed for regularizat ion of his service. 8. In view of the above facts, I am of the considered opinion that this is a fit case where the Government should make a declaration under the proviso to R ule 31 of the Pension Rules to count the service rendered by the petitioner as a stipendiary teacher, to make his service qualify for pension. Accordingly the d epartmental authorities are directed to make the necessary declaration as the pe titioner served the Government for more than 10 years with effect from 2nd Janua ry, 1992 till 31st May, 2003. 9. Consequently the impugned order dated 21st April, 2004 of the Director o f Pension is set aside and quashed. After the necessary declaration is made by t he Administrative Department, the papers of the petitioner be processed and be f orwarded to the Pension Directorate, which will then take the necessary steps, t o enable the petitioner to receive pension. 10. The case stands disposed of with the above direction.