BAHARUL ISLAM Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. A. R. Bhuyan, the learned counsel appearing on behalf of the petitioners and Mr. P. N. Sharma, the learned Standing counsel appearing on behalf of the respondent Nos. 1, 3, 4 and 5. I have also heard Mr. R. Borpujari, the learned Standing counsel appearing on behalf of the respondent No.2.

(2.) The case of the petitioners herein is that the petitioners are entitled to the Old Pension Scheme in terms with the Assam Services (Pension) Rules, 1969 (for short 'the Rules of 1969') and not the New Defined Contributory Pension Scheme, 2009 which was brought into effect vide the notification dtd. 6/10/2009. It appears from a perusal of the petition and more particularly to the order of regularization of the petitioners dtd. 17/8/2005 that the petitioners herein were initially appointed in excess of the posts during the period from 1/3/1991 to 30/11/1996 and upon being enquired into by the one man enquiry Committee headed by Shri S. Monoharan, I.A.S. and subsequently by the Task Force/District Level Screening Committee, the services of the petitioners along with the others were regularized w.e.f. their joining against the vacant posts. In fact, the issue involved herein had already been dealt with by this Court by a detail judgment in the case of Purnima Hore and Another Vs. State of Assam and Others reported in (2023) SCC Online Gau 1165. Paragraph No.105 to Paragraph No.111 of the said judgment categorically dealt with the case of excess teachers and their entitlements and thereby declaring that the excess teachers like the petitioners would be entitled to the New Defined Contributory Pension Scheme, 2009 and not to the Old Pension Scheme in terms with the Rules of 1969. It was categorically held by this Court that the petitioners therein who were appointed in the category of excess teachers would not be entitled to the Old Pension Scheme inasmuch as their period of service rendered earlier prior to being regularized cannot be taken into consideration for the purpose of pension.

(3.) At this stage, this Court also finds it relevant to take note of the submission of Mr. A. R. Bhuyan, the learned counsel appearing on behalf of the petitioners that a Coordinate Bench of this Court in WP(C) No.8694/2018 with another writ petition vide an order dtd. 12/8/2021 had held that the petitioners therein would be governed by the Assam Services (Pension) Rules, 1969 and not by the NPS. A deeper analysis of the order dtd. 12/8/2021 would reveal that the Coordinate Bench of this Court was not informed prior to applying the order passed in WP(C) No.3662/2009 as well as also the order passed in Review Petition No.16/2019 which were matters pertaining to dropped teachers whose claims for pension under the Old Pension Scheme was completely different. It is relevant herein to take note of that in a similar circumstances, the Coordinate Bench of this Court had also passed an order dtd. 4/8/2015 in WP(C) No.5705/2011 on the basis of the order passed on 12/5/2015 in WP(C) No.4169/2009, which was a case of dropped teachers. This Court in its judgment and order dtd. 31/3/2023 in the case of Purnima Hore and Another (supra) has also dealt with the said aspect of the matter at Paragraph Nos. 109 and 110.