1. Heard Mr. D.K. Sarma, learned counsel for the petitioner. Also heard Mr. C. Bhattacharyya, learned standing counsel, Education (Secondary) Department, appearing for the respondents.

2. The petitioner was appointed temporarily as Subject Teacher (Chemistry) by letter dated 17.07.1984 in R.B. Higher Secondary and M.P. School, Mirza.

3. Subsequently, his service was regularized vide order dated 01.09.1986 as per recommendation of the State Selection Board, Assam. His service was confirmed by order dated 13.02.2004.

4. In connection with Palasbari P.S. Case No.150/2004 under Sections 120A/122/387 IPC read with Section 10 and 13 of the Unlawful Activities (Prevention) Act, 1967, he was arrested on 25.10.2005. Subsequently, he was released on bail on 30.11.2005. He was placed under suspension by the Director of Secondary Education by an order dated 02.01.2006 pending drawal of departmental proceeding with effect from 25.10.2005, i.e. the date of arrest of the petitioner.

5. The petitioner had put to challenge the aforesaid order of suspension by filing a writ application registered as WP(C) No.3132/2010. This Court by an order dated 24.3.2011 set aside and quashed the order of suspension dated 02.01.2006 and directed the respondents to re-instate the petitioner forthwith. The respondent No.3 was directed to pay the arrear pay and allowances to the petitioner as per his entitlement in accordance with the relevant rules.

6. Perusal of the aforesaid judgment goes to show that till the date of passing of the judgment, departmental proceeding was not initiated and that even charge-sheet was not filed in the police case. Although the direction was for re-instatement of the petitioner forthwith, the petitioner was not re-instated immediately and only after a lapse of 4(four) years, the petitioner was re-instated by an order dated 26.05.2015.

7. In the said order dated 26.05.2015, it is also observed that departmental proceeding is to be concluded at the earliest. It is, however, to be noted that no departmental proceeding had been initiated till the passing of the order dated 26.05.2015. Only thereafter, 6(six) months down the line, the respondent No.2 issued a show cause notice under the Assam Services (Discipline and Appeal) Rules, 1964, (for short, “1964 Rules”), dated 21.12.2015, on the allegation that while the petitioner was serving as Subject Teacher (Chemistry), he was arrested in connection with Palasbari P.S. Case No.150/2004 and was in custody. The petitioner was charged with involvement of criminal activity. The petitioner submitted show cause and thereafter, an order dated 08.04.2016 was passed holding that the petitioner is not entitled to arrear pay and allowances for the period he remained under suspension. However, by the said order, while concluding the departmental proceeding, no penalty was imposed upon the petitioner under Rule 7 of the 1964 Rules.

8. An affidavit was filed by the respondent No.2 supporting the stand taken in the order dated 08.04.2016, which is under challenge in this writ petition.

9. A perusal of the order dated 08.04.2016 goes to show that the police case that was registered, in which the petitioner was arrested, had ended in Finale Report. It also appears that the Chief Judicial Magistrate, Kamrup vide order dated 08.09.2006, had discharged all the accused persons due to want of sufficient evidence.

10. In the order dated 08.04.2016, it was observed as follows:

“Considering his discharge, I do not want to inflict any penalty as contemplated under Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. But, I cannot treat the period he spent on suspension as on duty for all purposes. Hence, under FR 54 (b) 7 the period spent on suspension by the delinquent government servant will be treated as on duty only for the purpose of counting his qualifying service for pensionery purpose. He shall not get any pay and allowances for the period except the subsistence allowances he has alr