B.K.Sharma, J. - (1.)THE petitioner, who has since retired from service as Head Master of Rangechangi Sowmarpith High School in the district of Dibrugarh, filed this writ petition on 18.3.2004, for counting the period of service before provincialisation. THE said period is from 12.8.1974 to 01.01.1984. THE School in which the petitioner had been serving was provincialised w.e.f.1.1.1984. After provin-cialisation of his service, he continued upto 31.12.1998, on which date he retired from service on attaining the age of superannuation.
(2.)REFERRING to the provisions of the Assam Secondary Education (Provincialised) Service Rules,1982 and the Assam Secondary Education (Provincialisation) Act, 1977, it is the case of the petitioner that his entire period of service from 12.8.1974 to 01.01.1984 is required to be counted towards pension. The School in which the petitioner had worked received adhoc grants from the Government from 1.4.1973 and the petitioner was appointed thereafter on 12.8.1974 as the Head Master.
Apart from the above, the petitioner has also given the example of Shri Budheswar Gogoi, Head Master (Retd) of Moran Public School ; Shri Janak Chandra Chutia, Head Master (Retd) of Tingrai Chariali High School and Shri Mohanlal Shah, Head Master (Retd) of Lahowal High School, Dibrugarh. According to the petitioner, the said 3 (three) Head Masters had worked for the periods from 1.9.1974 to 1.2.1986 ; 1.10.77 to 1.2.1985 and 1.2.1964 to 1.2.1985 respectively before provincialisation of their respective Schools. It is the stand of the petitioner that after provincialisation of the said Schools, the services rendered by the said three Head Masters during the said period, had been taken into account towards pension. Thus, the petitioner also claims the same benefit.

No counter affidavit has been filed by the respondents. I have heard Mr. P.D. Nair, learned counsel for the petitioner as well as Mr. J. Abedin, learned Standing Counsel, Education Department. While Mr. Nair, learned counsel for the petitioner has emphasized on counting the period in question towards pension, Mr. Abedin, learned Standing Counsel, Education submits that the period during which the petitioner was not holding any substantive post and the establishment was also not a permanent one, cannot count towards pension.

(3.)RULE 13(7) of the Assam Secondary Education (Provincialised) Service RULEs, 1982 reads as follows :-
"13(7): Pension. In case of all employees retiring on superannuation on attaining the age of 58 years and all Grade IV employees retiring on superannuation on attaining the age of 60 years, the entire period of service from the date of appointment shall be counted towards pension and gratuity notwithstanding anything contained in the Assam Service Pension RULEs, 1969."

Section 2(ii) of the Assam Secondary Education (Provincialisation) Act, 1977 defines "Date of appointment" as follows :-

"Date of appointment" means, in relation to any employee, the date on which he joined the service of a school imparting Secondary Education on and from the date of its coming under adhoc system of grants in aid."