WP(C) 6170/2010 BEFORE HON’BLE MR JUSTICE H. BARUAH. Heard learned counsel for the parties. In this instant writ petition the following order passed by Principal Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, dated 31-08-2009 u nder Memo No. AHE.232/2009/31 is the subject matter of challenge. Government of Assam Education (Higher) Department Dispur No. AHE.232/2009/31 dated Dispur, the 31st August, 2009. OEDER Purused the Hon’ble High Court’s order dated 1-6-2009 passed in W.P(c) No. 1679 of 2009 in the matter of Smti. Hemalata Choudhury-vs-State of Assam & Others. Also, perused the prayer petition dated 27-6-2009 of Smti. Hemalata Choudhury, wife of Late Nareswar Choudhury, Ex Graduate teacher (Arts) of Jogeswari Darsha n Vidyalaya of Nalbari District. The Sanskrit & Pali tols of Stte of Assam was p rovincialised vide Govt. order No. B(2) H. 463/95/157 dated 21-3-2001 with effe ct from 1-4-2001. The incumbent late Nareswar Choudhury worked as a graduate tea cher (Arts) in Jogeswari Darshan Vidyalaya in the District of Nalbari and expire d on 10-3-1997 while in service prior to the provincialisation of the Sanskrit I nstitution, Hence, it is clear that the petitioner in W.P(c) No. 1679 of 2009 is not entitled to get the fmily pension. After examining all aspect Govt. in Education Higher Department have finally com e to a decision that the prayer Govt. order dated 21-3-01 and as such the claim of the petitioner is rejected. Sd/- H. M. Cairae, Principal Secretary to the Govt. of Assam, Education(Higher) Department. Dispur. By virtue of this order as indicated above, prayer of the petitioner to provide family pension on account of death of her husband Late Nareswar Choudhury, a gr aduate teacher in Arts stream of Jogeswari Darshan Vidyalaya of Nalbari District has been rejected. Being aggrieved thereby this instant petition is filed under Article 226 of the Constitution of India. Petitioner herein is the wife of Late Nareswar Choudhury, who was appointed as a graduate teacher on 1-10-1970. On 21-04-1971 his services were regularised agai nst a vacant post. Her husband Nareswar Choudhury expired on 10-03-1997 while in service. After his death the petitioner’s son submitted several applications to respondent No. 4 to appoint him on compassionate ground under the scheme Die-in -harness. It is to be noted that petitioner’s husband had drawn graduate scale f rom 1971 and he rendered more than 25 years of continuous service until his deat h. The petitioner being his wife is, therefore, entitled to have pension and oth er pensionery benefit. After the death of the petitioner’s husband to have all t he pensionery benefits the petitioner filed several applications before the resp ondent authority but her claim was turned down. Finding no other alternative, th e petitioner has approached this court by filing WP(C) No. 1679 of 2009 which wa s disposed of on 1-6-2009 by this court directing the respondent authority to ta ke a decision in the matter expeditiously. Thereafter the respondent authority i ssued impugned order as indicated above holding that Jogeswari Darshan Vidyalaya of Nalbari District was provincialised on 21-03-2001 and the petitioner’s husba nd died on 10-3-1997 and hence he is not entitled to family pension. It is contended that under Section 4(2)(a) and (b) of the Assam Classical Instit utions (Sanskrit and Pali-Prakrit) (Provincialisation) Act, 1996 employees who j oined in the institutions which received grant under ad-hoc system of grant-in- aid, his services shall be counted on his regular appointment in the institution receiving grant under ad-hoc system of grant-in-aid or from the date of joining in the service and on regular scale. It is also contended that persons similarl y situated have given benefit by this court while disposing the writ petition No . 5039 of 2001. It is contended that petitioner being similarly situated with th at of the petitioners in W.P(C) No. 5039 of 2001 is also entitled to family pens ion. The petitioner, therefore, prays this court to set aside the impugned order and to issue direction(s) to the respondent authority to grant family pension a s per Rule. There is no dispute that late Nareswar Choudhury was not a graduate teacher of J ogeswari Darshan Vidyalaya of Nalbari District and the school was not receiving the grants-in-aid. Said Nareswar Choudhury was appointed as a graduate teacher in the year 1970 and his services were regularised on and from 21-4-1971. It is noticed from the paragraph-6 of the writ petition that late Nareswar Choudhury , the husband of the petitioner was in continuous service till 10-3-1997. The As sam Classical Institutions (Sanskrit and Pali-Prakrit) (Provincialisation) Act, 1996 came into force on and from 26-3-1996, the date of the publication of the s ame in the Assam Gazette Extraordinary and it extends to the whole Assam by whic h the Sanskrit and Pali-prakrit Tols, Nalbari Sanskrit College, Assam Sanskrit B oard covered by deficit scheme of grants-in-aid have been provincialised. By vir tue of Section 3 of the Act all employees of the upgraded Sanskrit and Pali-prak rit Tols, Nalbri Sanskrit College or Assam Sanskrit Board covered by deficit sch eme of grants-in-aid under the Government of Assam shall be deemed to have beco me the employees of the Government on and from the appointed day on the followin g terms and conditions: (a) all rules including service rules and rules of conduct and discipline, w hich are applicable to the Government servants of corresponding grade, similarly placed, shall be applicable to all employees of the Classical Institutions and Assam Sanskrit Board; (b) All employees shall be entitled to such emoluments as salary and allowan ces, etc., as admissible to them; Provided that, no employee shall get as emoluments any amount which is less than the amount he was lawfully getting immediately before the appointed day; (C) services of all employees shall be encadred in appropriate cadres in acc ordance with the rules as may be prescribed by the Government for this purpose; (d) the inter-se-seniority of the employees of a cadre or class shall be det ermined on the basis of the rules as may be prescribed by the Government. In Section 2 definition appointed day has been defined as under: appointed day in relation to the provisions of section 3 means the date on whi ch the Assam Classical Institutions (Sanskrit and Pali-prakrit) (Provincialisati on) Ordinance, 1995 came into force and in relation to section 7, the date from which the service of the employees of an eligible institution are provincialised under the provisions of this Act Section 7 of the Act says as under : 7. The Government may, by notification in the Official Gazette, provinciali se on the same terms and conditions as provided in sections 3 and 4 of this Act the services of the employees of the Classical Institution, which may be recogni zed after this Act has come into force. Admittedly, the Act came into force on the date of publication in the Official G azette i.e. on 26-3-1996, but the Jogeswari Darshan Vidyalaya of Nalbari Distric t, the Sanskrit and Pali Tols of which, the petitioner’s husband was a teacher w as provincialised vide Government order No. B(2)H.463/95/157 dated 21-3-2001 wit h effect from 1-4-2001. Therefore, the services of the petitioner’s late husban d could not be taken over as a Government employee on account of his death on 10 -3-1997 by virtue of Section 3 of the Act. Unless the services of a particular teacher of such institution is take n over per provision of Section 3 of the Act after provincialisation or on the date of provincialisation the teacher cannot be considered as a teacher of the p rovincialised school although he might have served in the institutions while it was receiving grants-in-aid. There is no dispute as to the provincialisation of the Jogeswari Darshan Vidyala ya of Nalbari District by Government of Assam Order No. B(2)H.463/95/157 dated 2 1-3-2001 with effect from 1-4-2001. The said institution was provincialised admi ttedly after the death of the petitioner’s husband. Unless his service is taken over after the provincialisation he cannot be a Government Servant, even if serv ed a longer period which is necessary for grant of pensionery benefit, his servi ces cannot be considered under Section 4 of the Act. The petitioner’s husband wa s not longer a teacher of the Jogeswari Darshan Vidyalaya of Nalbari District af ter provincialisation. Sub-Section 2 of Section 4 says that all employees eligible to go on superannua tion under Sub-Section 1 shall be eligible to pension or gratuity or both in acc ordance with the pension rules applicable to the Government servant of equivalen t rank subject, however, to the condition that for the pensionery benefits of th e employees whose services are provincialised under the provision of the Act, th e services of any such employees shall be counted : (a) in case such employee has joined the Institution subsequent to the date of this Institution receiving the grant under ad-hoc system of grants-in-aid, fr om the date of his joining the service on regular appointment in the Institution receiving grants under ad-hoc system of grants-in-aid; or (b) in case such employee had joined the institution on regular appointment prior to the institution receiving grant under the ad-hoc system of grants-in-ai d, from the date of this institution receiving grant under ad-hoc system of gran ts-in-aid. Petitioner’s late husband as indicated herein before was not a teacher of the af oresaid institution after provincialisation. He died while institution was recei ving grants-in-aid. Therefore, the decision rendered by this court in WP(C) No. 5039 of 2001 would not be applicable. Apparently, the petitioner husband served the institutions for a period of 25 years before provincialisation. The Act is s ilent in respect of providing family pension of the institutions which were rece iving grants-in-aid. The petitioner’s husband having been died 10-3-1997 while s erving in the institution receiving grants-in-aid, on his death no formal pensio n can be granted. The impugned order which is assailed herein, therefore, means to have been passed within the frame work of the Act. This writ petition does not carry merit and it is accordingly dismissed. No cost.