Page No.# 1/9 vs The State Of Assam And 4 Ors
2021 Latest Caselaw 1372 Gua

                                                                   Page No.# 1/9

GAHC010166892020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5469/2020

         NASHIR UDDIN AHMED AND 30 ORS
         S/O. SAHAB UDDIN AHMED, VILL. BHIMAPARA, P.O. HATSINGIMARI, P.S.
         SOUTH SALMARA, DIST. SOUTH SALMARA MANKACHAR, ASSAM, PIN-
         783135, HEAD TEACHER CHAR SELLAKANDI L.P. SCHOOL.

         2: AMINUL ISLAM MONDAL

          S/O. SIRAZUL HOQUE MONDAL
          VILL. KHALISHAMARI
          P.O. PIAZBARI
          P.S. SUKCHAR
          DIST. SOUTH SALMARA MANKACHAR
          ASSAM
          PIN-783128 ASSTT. TEACHAR OF PIAZBARI B.M HIGH SCHOOL
         (AMALGAMATED)

         3: RINKU DAS
          D/O. LT. BHABANI CH. DAS
         VILL. BARMAN PARA
          P.O. AND P.S. MANKACHAR
          DIST. SOUTH SALMARA MANKACHAR
         ASSAM
          PIN-783131
         A.T. 139 MOISHAL DANGA WEST A.P.

         4: SUDHIR HAJONG
          S/O. SUKESH HAJONG
         VILL. PANKATA
          P.O. KALAPANI
          P.S. MANKACHAR
          DIST. SOUTH SALMARA MANKACHAR
         ASSAM
          PIN-783131
          HEAD TEACHER 1932 NO. DOLBARI L.P. SCHOOL.
                                                 Page No.# 2/9


5: MD. ABDUL ZOLIL
 S/O. LT. MD. ANSAR ALI
VILL. BHATI JHAGRARCHAR
 P.O. KAKRIPARA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 PIN-783131
 HEAD TEACHER SODURTILA B.L.P. SCHOOL.

6: AZIZUL HOQUE

S/O. LT. MOYEZUDDIN SK
VILL. KUCHNIMARA
P.O. AND P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-783131 A.T. DUMORTOLA M.E. SCHOOL.

7: GONDHARAJ HAJONG

S/O. LT. GOYANATH HAJONG
VILL. NARIVITA
P.O. KALAPANI
P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-783131 A.T. CHOMRASALI M.E. SCHOOL.

8: ABU MOFIAL SHEIKH
 S/O. MEDU SHEIKH
VILL. FOKIRPARA
 P.O. SUKCHAR
 P.S. SUKCHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 PIN-783128
 HEAD TEACHER 1289 NO. FOKIRPARA L.P. SCHOOL.

9: REAZUL ISLAM
 S/O. GOLAM SARWAR MONDAL
VILL. FEKAMARI
 P.O. FEKAMARI
 P.S. SOUTH SALMARA
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 PIN-783135
                                                  Page No.# 3/9

A.T. FULERCHAR M.E. SCHOOL.

10: NIGAMANANDA HAJONG

S/O. NITTANAND HAJONG
VILL. BHANGRABIL
P.O. KALAPANI
P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-783131 A.T. 1336 NO. BARMATIA L.P. SCHOOL.

11: UMME KULSUM
W/O. BAHARUL ISLAM
VILL. BEPARIPARA
 P.O. AND P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 PIN-783131
A.T. 2227 NO. A.A LOTIF GIRLS L.P. SCHOOL.

12: MOFIDUL ISLAM
 S/O. LT. ABDUL MOHASIN
VILL. SADURTILA
 P.O. KAKRIPARA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 PIN-783131
 HEAD TEACHER 1924 NO. BORAIKANDI L.P. SCHOOL.

13: EYAM UDDIN AHMED

S/O. LT. EBRAHIM MUNSHI
VILL. FEKAMARI
P.O. FEKAMARI
P.S. SOUTH SALMARA
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-783131
A.T. 2 NO. KANAIMARA G.B SCHOOL.

14: BISWAJIT GHOSH
 S/O. LT. NURAYAN CH. GHOSH
VILL. KACHARIPARA
 P.O. AND P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
                                                Page No.# 4/9

A.T. GOUR HARI VIDYA MANDIR M.E. SCHOOL
BORKONA.

15: MD. ABDUR MALEK SK

S/O. MD. NOSHER UDDIN
VILL. AND P.O. KANAIMARA
P.S. SOUTH SALMARA
DIST. SOUTH SALMARA MANKACHAR
A.T. 2266 NO. CHANGUR CHAR L.P. SCHOOL.

16: SAMSUL ALOM
 S/O. LT. ABDUS SAMAD
VILL. CHORER GAON
 P.O. RACHAMADHAB BAT
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
 PIN-783131
 HEAD TEACHER 1930 NO. GARAMARI L.P. SCHOOL.

17: NAZIFA BEGUM
W/O. NUR NOBI MIAH
VILL. SHIALTARI
 P.O. AND P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. 367 NO. THAKURANBARI GIRLS L.P. SCHOOL.

18: DILIP KUMAR GHOSH

S/O. LT. DABENDRA CHANDRA GHOSH
VILL. CHOWK BAZAR
P.O. AND P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM
A.T. 39 NO. KALORCHAR L.P. SCHOOL.

19: RIBADUL HOQUE
 S/O. LT. ABDUL ZALIL SK
VILL. DAKER GAON
 P.O. KAKRIPARA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
 HEAD TEACHER DAKER GAON L.P. SCHOOL.

20: NONI MIAH
 S/O. LT. ABDUL ROSHID SARKAR
VILL. SHIALTARI
                                                     Page No.# 5/9

P.O. AND P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
A.T. 498 NO. SHADURTILA GIRLS L.P. SCHOOL.

21: ABDUL JAFOR ALI SK

S/O. LT. SHUKUR ALI SK
VILL. SANTIPUR
P.O. HATSINGIMARI
P.S. SOUTH SALMARA
DIST. SOUTH SALMARA MANKACHAR
HEAD TEACHER 2125 NO. NEWAJESPUR BARMANPARA L.P. SCHOOL.

22: MONIRUZZAMAN
 SARKAR
 S/O. BASHUR UDDIN SARKAR
VILL. DAKUAMARI
 P.O. AND P.S. SUKCHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. GOTABARI M.E.M.

23: NUR ZAMAN
 S/O. MD. HIKMOT ALI
VILL. FEKAMARI PT.I
 P.O. KANALMARA
 P.S. SOUTH SALMARA
 DIST. SOUTH SALMARA MANKACHAR
ASSAM
A.T. KANAIMARA HIGH SCHOOL (AMALGAMATED)

24: LUTFOR RAHMAN
 S/O. LT. MD. MOZZAMMEL HOQUE
VILL. JHAODANGA (ARATGAON)
 P.O. JHAODANGA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. JHOWDANGA M.E. MADRASSA.

25: DILWAR HOSSAIN SHEIKH
 S/O. MD. WOKUL UDDIN SHEIKH
VILL. MANULLAPARA
 P.O. MANULLAPARA
 P.S. SOUTH SALMARA
 DIST. SOUTH SALMARA MANKACHAR
A.T. MANULLAPARA M.E. SCHOOL.

26: SAFIUL ALOM
 S/O. LT. ABDUS SHAHEED
                                                     Page No.# 6/9

VILL. EAST G.P. 1 NO. PUBERGAON
P.O. AND P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
A.T. A.A. LOTIF GIRLS INSTITUTION M.E. MANKACHAR.

27: SAHIDUL ALOM
 S/O. LT. MOHIR UDDIN
VILL. SUNARAPARA
 P.O. AND P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. THAKURANBARI NAMADAS PARA M.E. SCHOOL.

28: MD. ZULFIKAR ALI
 S/O. MOHUBAR RAHMAN
VILL. KAKRIPARA PT. II
 P.O. KAKRIPARA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. DIARA M.E. SCHOOL.

29: HAFIZUR RAHMAN SHEIKH
 S/O. LT. ASRAB ALI SHEIKH
VILL. BARAIR ALGA
 P.O. KOKRADANGA
 P.S. SUKCHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. TEACHER SEWRAGURI M.V. SCHOOL.

30: SHAHAZAMAL AKAND
 S/O. ABDUL MOZID
VILL. NAYA GAON
 P.O. JHOWDANGA
 P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
A.T. JHOWDANGA M.E. MADRASSA.

31: NURIMA BEGUM
 D/O. LT. NAZRUL ISLAM
VILL. ISLAMPUR
 HATSINGIMARI/BHIMAPARA
 P.O. HATSINGIMARI
 P.S. SOUTH SALMARA
 DIST. SOUTH SALMARA MANKACHAR
A.T. 1924 NO. BORAIKANDI L.P. SCHOOL

VERSUS

THE STATE OF ASSAM AND 4 ORS
                                                                                            Page No.# 7/9

             REP. BY THE COMM. AND SECY., TO THE GOVT. OF ASSAM, EDUCATION
             (ELEMENTARY) DEPTT., DISPUR, GUWAHATI-781006.

             2:THE DIRECTOR OF ELEMENTARY EDUCATION

              ASSAM KAHILIPARA
              GUWAHATI-19.

             3:THE ADDL. CHIEF SECRETARY
             TO THE GOVT. OF ASSAM
              FINANCE DEPTT.
              DISPUR
              GUWAHATI-06.

             4:THE COMMISSIONER AND SECY.
             TO THE GOVT. OF ASSAM
              FINANCE DEPTT.
              DISPUR
              GUWAHATI-06.

             5:THE DISTRICT ELEMENTARY EDUCATION OFFICER

              SOUTH SALMARA
              DIST. SOUTH SALMARA MANKACHAR
              ASSAM
              PIN

Advocate for the Petitioner     : MR. L R MAZUMDER

Advocate for the Respondent : SC, ELEM. EDU




                                  BEFORE
             HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                                ORDER

Date : 08-04-2021

Heard Mr. A.Z Ahmed, learned counsel for the petitioners, Mr. PN Sharma, learned counsel for the Elementary Education Department of the Government of Assam and Mr. P Nayak, learned counsel for the Finance Department of Government of Assam.

2. Without adverting to the detail facts pertaining to the writ petitioners, for the purpose of these writ petitions we deem it appropriate that taking note of the following facts would be sufficient for passing Page No.# 8/9

appropriate order in the writ petitions.

3. All the writ petitioners were initially appointed under the OBB-7066 Scheme. Earlier an issue had arisen as to whether the teachers who are appointed under the OBB-7066 scheme are entitled to regularization at a subsequent stage of their career.

4. There are judicial pronouncements in favour of such teachers providing that they are entitled for such regularization. Pursuant to such adjudications, the petitioners were regularized in service. The process of regularizing the teachers appointed under the OBB-7066 scheme started from sometime in the year 2001. As a big number of teachers were involved in the process, it took a long time for the orders of regularization to be passed. In the process, the present writ petitioners were regularized in service sometime in the year 2010.

5. The Finance Department of Government of Assam by the Office Memorandum dated 06.10.2009 introduced a New Defined Contribution Pension Scheme. The Memorandum itself provides that the New Defined Contribution Pension Scheme would be effective for all the new entrants joining the State Government service on a regular basis against vacant sanctioned post(s) on or after 01.02.2005.

6. A reading of the adoption of the New Defined Contribution Pension Scheme makes it discernable that all such persons who had entered the State Government Service either by way of a fresh recruitment or by regularization after 01.02.2005 would be covered by the New Defined Contribution Pension Scheme and those who entered the State Government service prior to 01.02.2005 would be covered by the Assam Service (Pension) Rule, 1969.

7. The teachers who were appointed by the OBB-7066 scheme, whose process for regularization started from the year 2001 but in fact were regularized after 01.02.2005 had raised a grievance before this Court that as their regularization was delayed because of the enormity of the process and had it been otherwise, they would have been regularized prior to 01.02.2005 and therefore, they would be covered by the Assam Service (Pension) Rules, 1969 and not by the New Defined Contribution Pension Scheme which came into effect from 01.02.2005.

8. The said issue was given a consideration by this Court in its judgment dated 12.04.2018 in WP(C) No. 5073/2014 and other related writ petitions. This Court by the said judgment of 12.04.2018 took Page No.# 9/9

note of the fact that as it was a continuous process of regularization which started from the year 2001 and it depended upon a chance as to who would be regularized early and who would be regularized later resulting in a situation where some of the teachers were regularized subsequent to 01.02.2005, it was not appropriate to form a different class from other teachers of the OBB-7066 scheme who were regularized prior to 01.02.2005. Consequent thereof, the Finance Department was directed to take a decision as to whether this class of employees would be covered by the Assam Service (Pension) Rules, 1969 or they would be covered by the New Defined Contribution Pension Scheme which came into effect from 01.02.2005. As these petitioners are similarly situated with those of the writ petitioners in WP(C) No. 5073/2014 and other writ petitions, we accordingly dispose of this writ petition by providing that the judgment dated 12.04.2018 in WP(C) No. 5073/2014 would also cover the case of the present writ petitioners. In the event, any decision is taken by the Finance Department pursuant to the judgment dated 12.04.2018 in WP(C) No. 5073/2014 and other writ petitions, such decision shall also cover the present writ petitioners and depending on the decision to be taken, the present writ petitioners would be placed under the Assam Service (Pension) Rule, 1969 or the New Defined Contribution Pension Scheme, as the case may be.

9. Writ petitions stand disposed of in the above terms.

JUDGE

Comparing Assistant