JUGAL KISHOR CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. B.D. Das, learned Senior counsel assisted by Mr. J. Lotha, learned counsel for the petitioners. Also heard Mr. R. Borpujari, learned standing counsel, Finance Department, appearing for respondent No.3 and Mr. N.J. Khataniar, learned standing counsel, Secondary Education Department, appearing for respondent Nos.1, 2 and 4.

(2.) The grievance of the petitioners, being sought to be addressed in this petition under Article 226 of the Constitution of India, is that pursuant to an advertisement dt. 28/12/1996, issued by the Director of Secondary Education, Assam, respondent No.2 herein, for filling up of 1000 vacant posts of Graduate Teacher in High Schools and High Madrassa Schools of different districts of Assam, the petitioners being qualified for the same, applied in the district of Morigaon. Thereafter, the respondent No.2 had constituted a District Level Advisory Board for Morigaon district on 18/6/1999, for conducting interview/selection test in the district of Morigaon. The petitioners had participated in the aforementioned interview and thereafter, except the district of Morigaon, appointment of selected candidates was made in the year 1998-1999. But no select list was published in the district of Morigaon. Thereafter, the petitioners herein have preferred two writ petitions, being WP (C) Nos.4693/2001 and 7999/2001 and by an order dtd. 4/10/2002, passed in the aforementioned writ petitions, the respondent authorities were directed to pass appropriate order for approval of the select list, which was prepared in the month March, 2001 for the district of Morigaon. But, by an order dtd. 29/5/2004, the respondent Education Department had held that the select list in respect of Morigaon district has already expired on 31/3/2001. The petitioners then approached this Court again by filing WP(C) No.5079/2004 and vide order dtd. 26/10/2009, this Court was pleased to set aside the aforementioned order and directed to implement the earlier order dt.04/10/2002. Thereafter, the petitioners were appointed vide order dtd. 15/2/2011, as Graduate Teachers in different High Schools/Higher Secondary Schools in Morigaon district. But they were denied the benefit of pension under the Assam Service (Pension) Rules, 1969, as in the meantime, New Pension Scheme came into force w.e.f. 1/2/2005. Thereafter, the petitioners again approached this Court by filing a writ petition, being WP(C) No.5817/2021. Then hearing the parties, this Court, vide order, dtd. 3/11/2021, directed the Principal Secretary to the Govt. of Assam, Education Department to pass a reasoned order on the petitioners' representation dtd. 23/12/2020, within a period of 4(four) months. Thereafter, the respondent No.1 passed an order on 27/7/2023 and thereby denied the claim of the petitioners, the benefit of Old Pension Scheme. Being aggrieved, the petitioners approached this Court with a prayer for issuing direction to the respondent authorities to extend the benefit of Old Pension scheme as per Assam Services (Pension) Rules, 1969 and to set aside the impugned order No.271545/281, dtd. 27/7/2023.

(3.) The respondent Nos.2 and 3 have filed their affidavit-in-opposition. The stand taken by the respondents is that the Government of Assam has introduced New Pension Scheme by making it mandatory that all fresh recruitees joining the service of the State Government on or after 1/2/2005 shall have to furnish an undertaking along with the joining report stating that he/she shall not be governed by the existing Assam Services (Pension) Rules, 1969 and will be governed by New Pension Scheme and thereafter, New Defined Contributory Pension Scheme was introduced making the same applicable to all the new entrants joining State Government services on regular basis against vacant sanctioned posts on or after 1/2/2005 and the earlier Assam Services (Pension) Rules, 1969 was amended by inserting a new Rule i.e. Rule 2A, in the same and since the petitioners were appointed on 15/2/2011 and as they have given an undertaking that they will be governed by the New Pension Scheme, they are not entitled to be governed by the Old Pension Scheme, 1969.