Page No.# 1/6 vs State Of Assam And 4 Ors
2022 Latest Caselaw 1527 Gua

                                                                Page No.# 1/6

GAHC010111222021




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

                        Case No. : WP(C)/3920/2021

         SAMUDRA HALOI AND 2 ORS
         S/O LT. KONAK HALOI, ASSTT. TEACHER, RAJKADAMTAL SANDHA HIGH
         SCHOOL, NDC, NALBARI, P.O. SANDHA, DIST. NALBARI, ASSAM, PIN
         781337
         PRESENTLY R/O BIJOY NAGAR, BARSAR KUCHI, P.O. MILANPUR, DIST.
         NALBARI, ASSAM, PIN 781337

         2: KISHOR SARMA

          ASSTT. TEACHER
          P.S. LAHKARPARA
          HIGH SCHOOL
          NALBARI
          P.O. LAHKARPARA
          DIST. NALBARI
          ASSAM
          PIN 781348

         3: JITENDRA NATH SARMA

          ASSTT. TEACHER
          P.B. DHIRDUTTA HIGH SCHOOL
          P.O. K.P. BARKHALA
          DIST. NALBARI
          ASSAM
          PIN 78134

         VERSUS

         STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION, DISPUR, GUWAHATI 6

         2:COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
                                                                                Page No.# 2/6


             FINANCE DEPTT.
             DISPUR
             GUWAHATI 6

            3:THE DIRECTOR

             SECONDARY EDUCATION
             ASSAM
             KAHILIPARA
             GUWAHATI 19

            4:INSPECTOR OF SCHOOL

             NDC
             NALBARI
             DIST. NALBARI
             ASSAM
             PIN 781335

            5:THE ACCOUNTANT GENERAL

             OFFICE OF THE ACCOUNTANT GENERAL
             ASSAM
             BELTOLA
             MAIDAMGAON
             DISPUR
             GUWAHATI

Advocate for the Petitioner   : MR. S K GOSWAMI

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 10-05-2022

Heard Mr. S K Goswami, learned counsel for the petitioners. Also heard Mr. R Mazumdar, learned counsel for the respondents no. 1, 3 and 4 being the authorities under the Secondary Education Department, Government of Assam, Mr. A Chaliha, learned counsel for Page No.# 3/6

the respondent no. 2 being the Finance Department and Mr. A Hassan, learned counsel for the respondent no. 5 being the Accountant General, Assam.

2. The petitioners herein participated in a selection process pursuant to an advertisement issued in the local daily the Assam Tribune dated 03.09.1991. The said advertisement pertained to 200 posts of Assistant Teacher and 100 posts of Language Teacher for various High Schools in the State of Assam. In the resultant selection process, the District Level Selection Board published the select list dated 04.01.1995 constituency wise wherein the names of the petitioners were included as selected candidates for the posts of Assistant Teacher. Although some of the persons whose names were included in the said select list, were appointed, certain persons from outside the select list, were also given the appointments and thereby violated the merit position in the select list.

3. Being aggrieved, the petitioners instituted Civil Rule 3056/1997 assailing the action on the part of the respondents and also seeking for a direction to appoint them as Assistant Teachers as per merit position in the select list. The said writ petition was given a final consideration by the common judgment and order dated 25.08.1997 wherein it was provided as extracted:

"9. For the reasons stated above, I dispose of this batch of writ petitions with a direction that the Commissioner & Secretary to the Government of Assam, Education Department, and the Director of Secondary Education, Assam, shall within two months from today give effect to the orders dated 18th, 19th and 20th November, 1996, (Annexure 'F' & 'G' to the affidavit-in-opposition and Annexure -'K', 'L' & 'M' to the further affidavit) relating to Dharmapur, Nalbari, Barama, Barkhetri and Patacharkuchi constituencies of Nalbari District, cancelling the appointments of persons outside the select lists as well as the appointments of those person who were not entitled to appointment on the basis of their position of merit in the select lists and as per the provisions of law for reservation, and in their place offer appointment to the candidates who were entitled to appointment as per their position of merit in the select lists and as per the provisions of law for reservation."

4. A reading of the conclusion arrived at by this Court in its judgment dated 25.08.1997 makes it discernable that the persons who were appointed from outside the select list or beyond the merit position are to be terminated and in their place, the appointments be officered to the candidates whose names were included in the select list in order of merit.

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5. It is the claim of the petitioners that as per their position in the merit wise select list, they were entitled for an offer to be appointed, but thereafter, the Government by the notification dated 03.12.2003 had declared that all the existing select lists of candidates in the Elementary Education Department and Secondary Education Department which were issued prior to 01.04.2001 had completed its validity and therefore, would become infructuous.

6. The notification dated 03.12.2003 was assailed by the petitioners and others in WP(C)/8159/2004 which was given a final consideration by the judgment dated 25.09.2013. By the said judgment in WP(C)/8159/2004, the notification dated 03.12.2003 was set aside and a direction was issued to the respondent authorities to appoint the persons from, amongst others, select list dated 04.01.1995 after the police verification and if necessary by creating supernumerary posts within a period of three months thereof. In such manner, the petitioners were ultimately appointed as Assistant Teachers as per the order dated 16.09.2014 of the Inspector of Schools, Nalbari and accordingly, are working as such.

7. In this writ petition, the issue raised is whether in the circumstances, the petitioners would be governed by the Assam Services (Pension) Rules, 1969 as per its provisions as it stood prior to the New Defined Contribution Pension Scheme, or they would be covered by the New Defined Contribution Pension Scheme.

8. Admittedly, New Defined Contribution Pension Scheme became effective in respect of all such new entrants joining the State Government Services on regular basis against vacant sanctioned posts on or after 01.02.2005.

9. Going by the provisions of the New Defined Contribution Pension Scheme, the petitioners having been appointed on 16.09.2014, would be covered by the New Defined Contribution Pension Scheme but again at the same time, when we take note of the preceding circumstances under which the petitioners were appointed i.e. they were selected by select list dated 04.01.1995 in order of merit and as no appointments were forthcoming and people from outside the select list were appointed, there is the judgment dated 25.08.1997 in Civil Rule 3056/1997 in their favour containing a direction to the respondent authorities to appoint the petitioners and again without complying the directions of this Court Page No.# 5/6

in the said judgment, the select list itself was cancelled by the notification dated 03.12.2003 which was set aside by this Court by its judgment dated 25.09.2013 in WP(C)/8159/2004, we have to accept that in the facts and circumstances of the present case as well as under the law and more particularly in view of the directions of this Court in the judgment dated 25.08.1997 in Civil Rule 3056/1997, a legal right had crystallized in favour of the petitioners to have been appointed, if not at least on or from 25.08.1997.

10. These attending facts and circumstances in respect of the petitioners would place the present petitioners in a classification different from the class of appointees taken into consideration in the New Defined Contribution Pension Scheme. It being so, if the provisions of New Defined Contribution Pension Scheme as such is made applicable to the petitioners when there is clearly a reasonable classification with an intelligible differentia with the object at hand, the provisions of Article 14 of the Constitution of India would be violated.

11. In view of such conclusion, we are of the view that in the peculiar facts and circumstances of the present case as well as with reference to the law as indicated above, the petitioners have a legal right to be covered by the Assam Services (Pension) Rules, 1969 as it stood prior to the introduction of New Defined Contribution Pension Scheme. It is accordingly declared and the respondents are directed to make it a part of the services conditions of the present petitioners by bringing them within the purview of the Assam Services (Pension) Rules, 1969 as it stood prior to the introduction of the New Defined Contribution Pension Scheme.

12. We further make it clear that the decision arrived at in this judgment is confined to the facts and circumstances as well as the law applicable to the present case alone and therefore, it shall not be construed to be a general precedent for the purpose of applicability of the New Defined Contribution Pension Scheme.

13. We also take note that in the appointment order itself which is available at page-49 of this writ petition, there is a clear indication that the petitioners were appointed pursuant to a select list of the year 1995.

14. Writ petition stands allowed in the above terms.

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JUDGE

Comparing Assistant