Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Ors on 21 April, 2023
Page No.# 1/7
GAHC010002852011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6/2011
SRI DILIP KUMAR SINHA and ANR.
JUNIOR ENGINEER CIVIL SILCHAR RURAL ROAD DIVISION PWD,
SILCHAR-1.
2: SHRI SATYAJIT SINHA
JUNIOR ENGINEER CIVIL KARIMGANJ STATE ROAD DIVISION
PWD
KARIMGANJ-1
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE SECRETARY, PUBLIC WORKS DEPARTMENTS, GOVT. OF
ASSAM, DISPUR, GUWAHATI-6.
2:PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI - 6.
3:THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF
ASSAM
PWD DEPARTMENT
DISPUR
GUWAHATI-6.
4:UNDER SECRETARY TO THE GOVT. OF ASSAM
PWD ESTT.B BRANCH
DISPUR
GUAHATI-6.
Page No.# 2/7
5:THE CHIEF ENGINEER
PWD ROADS/BUILDINGS
ASSAM
GUWAHATI-3.
6:ASSAM PUBLIC SERVICE COMMISSION
REP. BY THE SECRETARY
JAWAHARNAGAR
KHANAPARA-22
Advocate for the Petitioner : MRS.U DUTTA
Advocate for the Respondent : MR.C BORUAH
Linked Case : WP(C)/6700/2010
JOYDEEP NATH and 9 ORS
S/O LT. J.C NATH LASKAR
JUNIOR ENGINEER
PWD
SILCHAR RURAL ROAD DIVN
SILCHAR-1
2: SANJIB KANOO
JR. ENGINEER
PWD SILCHAR RURAL ROAD DIVN
SILCHAR-1
3: MD. FAKRUL ALAM BARBHUIYA
JR ENGINEER
PWD RURAL ROAD DIVN
SILCHAR-1
4: MD. ZAHIRUL ISLAM CHOUDHURY
JR.ENGINEER
PWD RURAL ROAD DIVN
SILCHAR-1
Page No.# 3/7
5: RAJU PAUL
JR.ENGINEER
PWD RURAL ROAD DIVN
SILCHAR-1
6: AVIJIT PAUL
JR. ENGINEER
PWD RURAL ROAD DIVN
SILCHAR-1
7: BANIBRATA CHAKRABORTY
JR. ENGINEER
KARIMGANJ STATE ROAD DIVN
PWD
KARIMGANJ-1
8: MD. AMIR HUSSAIN CHOUDHURY
JR. ENGINEER
PWD RURAL ROAD DIVN
HAILAKANDI
9: HRISHIKESH DAS
JR.ENGINEER CIVIL KARIMGANJ STATE ROAD DIVN
PWD
KARIMGANJ-1
10: ABDUL HASSAN CHOUDHURY
JR.ENGINEER MECHANICAL OFFICE OF THE ASSTT. EXECUTIVE
ENGINEER
PWD MECHANICAL SUB DIVN
SILCHAR.
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE SECY.
PUBLIC WORKS DEPTT
GOVT OF ASSAM
DISPUR
GHY-6
2:PRINCIPAL SECY
TO THE GOVT. OF ASSAM
Page No.# 4/7
FINANCE DEPTT
DISPUR
GHY-6
3:THE COMMISSIONER AND SPECIAL SECY
TO THE GOVT. OF ASSAM
PWD DEPTT
DISPUR
GHY-6
4:UNDER SECY. TO THE GOVT. OF ASSAM
PWD ESTT.B BRANCH
DISPUR
GHY-6
5:THE CHIEF ENGINEER
PWD ROADS/BUILDINGS ASSAM
GHY-3
6:ASSAM PUBLIC SERVICE COMMISSION
REP.BY THE SECY. JAWAHAR NAGAR
KHANAPARA-22
------------
Advocate for : MR.B C DAS
Advocate for : SC
APSC appearing for THE STATE OF ASSAM AND ORS
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
21.04.2023
Heard Mr. B. C. Das, the learned senior counsel assisted by Mr. S.
Nath, the learned counsel for the petitioners and Mr. P. Nayak, the learned
counsel appearing on behalf of the Public Works Department as well as Mr.
P. P. Dutta, the learned counsel appearing on behalf of the APSC.
2. The case of the petitioners herein is that on 05.06.2002, an
advertisement was issued by the Assam Public Service Commission (APSC)
Page No.# 5/7
for filling up of vacancies of various posts in various Departments including
100 posts in the Department under PWD(R&B) Department, Government
of Assam. The petitioners pursuant to the said advertisement duly
participated in the selection process and their names were included in the
select list. Although there were 100 posts which were advertised but by a
notification dated 30.10.2004 issued by the Governor of Assam, 108
persons who were in the select list were given appointment. Subsequent
thereto, it reveals that further requisition was made by the Government of
Assam in the PWD(R&B) Department for another 84 and 46 posts.
However, the APSC did not initiate any fresh selection proceedings, but
made recommendation on the basis of the earlier select list wherein the
petitioners in both the writ petitions figured. Thereupon on 09.02.2005
and on a subsequent date, the petitioners were duly appointed. In these
appointment orders, i.e. notifications so appointing the petitioners herein,
it was categorically mentioned that the petitioners would come within the
ambit of the New Pension Scheme which would be formulated in terms
with the Contributory Pension Scheme announced by the Government of
India.
3. The grievance of the petitioners is that as the advertisement was
issued prior to 01.02.2005 which was the cutoff date for the New Pension
Scheme their case is covered by the judgment of the Division Bench of
this Court in the case of Sanjay Kumar vs. Union of India, reported in 2022
SCC OnLine Gau 214 as well as the judgment of the Delhi High Court in the
case of Shyam Kumar Choudhary & Others vs. Union of India & Others ,
reported in 2019 SCC OnLine Del 11891. It is, however, relevant to take
note of one important aspect of the matter that in both the writ petitions
Page No.# 6/7
there was a challenge to the insertion of Rule 2A to the Assam Services
(Pension) Rules, 1969 (for short, 'the Rules of 1969') vide the amending
Rules as notified by the notification dated 14.07.2011 as well as the New
Defined Contributory Pension Scheme, 2009 as was issued by the Office
Memorandum dated 06.10.2009.
4. Taking into account that there was a challenge to a statutory Rule,
the matter was before the Division Bench of this Court. However, as
recorded in the order dated 10.11.2021 by the Division Bench wherein the
learned counsel for the petitioners had given up the challenge to the
Amending Rules and as such the matter has been placed before this
Court.
5. The learned counsel appearing on behalf of the PWD, however, has
submitted that the right to pension would depend upon the fulfillment of
conditions as stipulated in the Rules of 1969 and as the petitioners'
appointment happened after 01.02.2005 and as the amendment to the
Rules of 1969 was brought into effect retrospectively w.e.f 01.02.2005,
the petitioners cannot claim to be entitled to the Old Pension Scheme in
terms with the Rules of 1969 but would only be entitled to the New
Pension Scheme.
6. Mr. P. Nayak, the learned counsel appearing on behalf of the Public
Works Department further submitted that the judgment in the case of
Shyam Kumar Choudhary (supra) as well as Sanjay Kumar (supra) would
not apply to the facts of the instant case in as much as if the petitioner's
appointments were made within the 100 posts which were advertised on
05.06.2002, then only the judgment in the case of Sanjay Kumar (supra)
would have been applicable. However, the petitioners herein were
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appointed against subsequent requisition being made which was not a
part of the advertisement, and as such, the judgment in the case of
Shyam Kumar Choudhary (supra) as well as Sanjay Kumar (supra) would
not be applicable.
7. This Court further made a query upon Mr. P. P. Dutta, the learned
counsel appearing on behalf of the APSC as to when was the requisition
so made by the PWD. The learned counsel, however, submitted that he
would require to take instructions in that regard.
8. Taking into account that the matter has been heard at length, let the
matter be again listed on 02.05.2023 on which date the learned counsel
appearing on behalf of the APSC shall apprise this Court as to when the
requisition was so made by the PWD and also for further consideration.
JUDGE
Comparing Assistant
