Page No.# 1/4 vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1373 Gua

                                                                Page No.# 1/4

GAHC010061102021




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

                            Case No. : WP(C)/2526/2021

         RANJIT BORDOLOI AND 6 ORS
         S/O- LT. BHABA KANTA BORDOLI, VILL- GARUBANDHA MIKIR GAON, P.O.
         RENGBENG (KATHIATALI), DIST.- NAGAON, ASSAM, PIN- 782427

         2: TAPAN KUMAR DUTTA
          S/O- LT. NIRANJAN DUTTA
         VILL- NIZKATHIATALI
          P.O. JUMARMUR
          DIST.- NAGAON (ASSAM)
          PIN- 782427

         3: BHUBAN MEDHI
          S/O- LT. KALIRAM MEDHI
          R/O- VILL- BALIRAM GAON
          P.O. JAMUNAMUKH
          DIST.- HOJAI (ASSAM)
          PIN- 782428

         4: NAZIR UDDIN MAZUMDER
          S/O- ABDUR REZAQUE MAZUMDER
          R/O- BALIRAM GAON
          P.O. JAMUNAMUKH
          P.S. JAMUNAMUKH
          DIST.- HOJAI (ASSAM)
          PIN- 782428

         5: KISHAN BORDOLOI
          S/O- LT. RAHAN BORDOLOI
         VILL- UPARBOR LALUNG GAON
          P.O. KATHIATOLI
          DIST.- NAGAON (ASSAM)
          PIN- 782427

         6: DILIP BARAH
                                                                    Page No.# 2/4

             S/O- LT. SARUPAI BARAH
             VILL- TETILISARA
             P.O. TETILISARA
             DIST.- NAGAON (ASSAM)
             PIN- 782426

            7: TINJU MONI BORA
             D/O- LT. MITHARAN BORA
            VILL- KATH KATIA GAON
             DIST.- NAHGAON (ASSAM

            VERSUS

            THE STATE OF ASSAM AND 5 ORS
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION,
            (ELEMENTARY) DEPTT., DISPUR, GHY-6

            2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
             FINANCE DEPTT.
             DISPUR
            GHY-06

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

            4:THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             GHY
             KAHILIPARA-19

            5:THE INSPECTOR OF SCHOOLS
             NAGAON DISTRICT CIRCLE
             DIST.- NAGAON (ASSAM)
             PIN- 782001

            6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
             NAGAON
             DIST.- NAGAON (ASSAM)
             PIN- 78200

Advocate for the Petitioner   : G UDDIN

Advocate for the Respondent : SC, ELEM. EDU
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                                   BEFORE
              HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                                 ORDER

Date : 08-04-2021

Heard Mr. G. Uddin, learned counsel for the petitioners. Also heard Mr. B. Kaushik, learned counsel for the respondents No. 1, 4, 5 and 6 being the authorities under the Elementary Education Department and Mr. R. Borpujari, learned counsel for the respondents No. 2 and 3 being the authorities under the Finance Department.

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 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 longtime 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 afresh 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 Page No.# 4/4

this Court that as their regularization was delayed because of the enormity of the process andhad 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 12.04.2018took 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 to01.02.2005, 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 these writ petitions 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. As submitted by Mr. R. Borpujari, learned counsel for the Finance Department, the Education Department may do the needful by sending the required materials to the Finance Department in order to enable the Finance Department to take their decision.

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

JUDGE

Comparing Assistant