Gauhati High Court
Rajen Borah And 9 Ors vs The State Of Assam And 3 Ors on 13 March, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/6
GAHC010059932020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1929/2020
1:RAJEN BORAH AND 9 ORS.
S/O- LT. BHOGAI BORAH, R/O- VILL. KHONGIA GAON, P.O. NAHATIA, P.S.
AND DIST- JORHAT, ASSAM, PIN- (WORKING AS ASSTT. TEACHER OF NAM
DEURI HIGHER SECONDARY SCHOOL.)
2: MOHINI KUMAR DOLEY
S/O- GUNARAM DOLEY
R/O- VILL. KALBARI
P.O. CHARIGHORIA
P.S. PULIBOR
DIST- JORHAT, ASSAM
PIN- (WORKING AS ASSTT. TEACHER OF NAM DEURI HIGHER
SECONDARY SCHOOL.)
3: RANJAN BORAH
S/O- LT. BASURAM BORAH
R/O- VILL. ALENGMORA GAON
P.O. ALENGMORA
P.S. PULIBOR
DIST- JORHAT, ASSAM
PIN- (WORKING AS ASSTT. TEACHER OF NAM DEURI HIGHER
SECONDARY SCHOOL.)
4: SUKLA GOGOI
S/O- INDRESWAR GOGOI
R/O- VILL. 1 NO. SONARI GAON
P.O. ALENGMORA
P.S. PULIBOR
DIST- JORHAT, ASSAM
PIN- (WORKING AS CRAFT TEACHER OF NAM DEURI HIGHER
SECONDARY SCHOOL.)
5: NIBEDITA DUTTA
D/O- BHARAT CH. DAS
Page No.# 2/6
R/O- VILL. DHEKIAKHOWA GAON
P.O. DHEKIAKHOWA
P.S. TEOK
DIST- JORHAT
ASSAM
PIN- (WORKING AS ASSTT. TEACHER OF KOKAJAN GIRLS HIGH
SCHOOL.)
6: KANAK CH. BORAH
S/O- LT. SATAI BORAH
R/O- VILL. KHANGIA GAON
P.O. NAHATA
P.S. PULIBOR
DIST- JORHAT
ASSAM
PIN- (WORKING AS CRAFT TEACHER OF BAHONA BOYS HIGH SCHOOL.)
7: KANAK CH. NEOG
S/O- KHARGESWAR NEOG
R/O- VILL. KHANGIA GAON
P.O. NAHATA
P.S. JORHAT
DIST- JORHAT
ASSAM
PIN- (WORKING AS GRADE IV OF CHOWKHAT HIGH SCHOOL.)
8: AJIT BORA
S/O- LT. CHINARAM BORA
R/O- TINIKURIA
P.O. KAKOJAN
P.S. TEOK, DIST- JORHAT
ASSAM
PIN- ( WORKING AS GRADE IV EMPLOYEE IN TITABAR RANGAJAN GIRLS
HIGH SCHOOL.)
9: AJIT CH. BORAH
S/O- LT. SADARAM BORAH
R/O VILL. BALICHAPORI DEKA GAON
P.O. HATIGARH BALICHAPORI
P.S. AND DIST- JORHAT
ASSAM
PIN- ( WORKING AS ASSTT. TEACHER OF JAYMATI GIRLS HIGH SCHOOL.)
10: LAKHIMAI PEGU
D/O- UDESWAR PEGU
R/O- VILL. THENGAPARIA
P.O. MOWAMARI
P.S. DISTRICT- JORHAT, ASSAM
Page No.# 3/6
PIN- ( WORKING AS CRAFT TEACHER OF PURANIGUDAM RKB H.S.
SCHOOL
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(SECONDARY) DEPTT., DISPUR, GHY.-06.
2:THE SECY. TO THE GOVT. OF ASSAM
FINANCE (BUDGET) DEPTT.
DISPUR
GHY.-06.
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA, GHY.-19.
4:THE INSPECTOR OF SCHOOLS
JORHAT DISTRICT CIRCLE
DIST- JORHAT, ASSAM
Advocate for the Petitioner : MRS. K DEVI
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
13.03.2020 Heard Ms. K. Devi, learned counsel for the petitioners. Also heard Mr. S.M.T. Chistie, learned standing counsel, Secondary Education Department and Mr. A. Chaliha, learned standing counsel, Finance.
2. It has been submitted at the bar by the learned counsel for both the parties that the present case is covered by the decision rendered by this Court in WP(C) No.6283/2019 Page No.# 4/6 disposed of on 19.12.2019, which reads as follows:-
"Heard Ms. K. Devi, learned counsel appearing for the petitioners. Also heard Ms. N. Phukan, learned Standing counsel, Secondary Education Department, as well as Mr. R. Borpujari, learned Standing counsel, Finance Department, appearing for the respondents.
2. All the petitioners were categorised as 'dropped teachers' at the time of provincialisation of their venture schools and of the services of the teaching and non-teaching employees of the schools. The provincialisation proceeded without provincialising the services of the petitioners as because the State authorities could not provide the requisite number of posts covering the petitioners. Nevertheless, the petitioners continued in their services in the respective schools without any break during which time the respondent authorities proceeded to regularise the services of the dropped teachers from time to time, which exercise was alleged to have been done without adhering to any set norms and by resorting to pick and choose method. This gave rise a slew of litigations with the filing of a number of writ petitions, the lead case being, Civil Rule No.1571/1998 (Jiban Chandra Deka-Vs-State of Assam & ors), where prayer was made for regularising the services of the petitioners therein who were dropped teachers. Subsequent to the institution of the writ petitions, the State respondents framed a policy on 13.01.2003 for the purpose of streamlining the process of regularisation of the services of teachers similarly situated, as in the case of the petitioners herein. Having regard to the said policy dated 13.01.2003, the aforesaid bunch of writ petitions was disposed of with direction to the respondent authorities to consider the cases of the persons so covered by the policy. Further direction was made to the effect that all appointments would be prospective but would carry the benefits of past services for the purpose of computation of pensionary benefits. Although another hurdle had appeared when an advertisement dated 06.12.2005 came to be issued inviting applications for filling up the vacant posts of Assistant Teachers in Lower Primary, ME and HS Schools, the same was overcome with WP(C) No. 3976/2005 (Tapan Kr. Das-Vs-State of Assam & ors) being instituted, which was disposed of by directing implementation of the decision to regularise the services of persons found to be suitable for regularisation.
3. Eventually, the writ petitioners in the present case were found to be eligible for regularisation and, accordingly, came to be appointed on various dates but after 1 st of February, 2005, which date assumes significance. In the respective appointment letters a condition was Page No.# 5/6 prescribed that the case of the writ petitioners would not be covered under the provisions of the Assam Services (Pension) Rules, 1969 and they were made to furnish an undertaking, which in effect sought their consent to the condition that they will not have the privilege of receiving pensionary benefits. Although the Commissioner and Secretary to the Government of Assam in the Education (Secondary) Department was approached for redressal of the grievances of the petitioners, the same remained unanswered.
4. The issue in the present writ petition is as to whether the provisions of the Assam Services (Pension) Rules, 1969 or the new Defined Contribution Pension Scheme, 2009 would govern the case of the petitioners. It is pertinent to say that the present writ petition is not the first in its kind to address the aforesaid point for determination. On similar facts this Court had decided by judgment and order dated 28.04.2015 in WP(C) No.3662/2009 (Dilip Kumar Medhi- Vs-State of Assam & ors) followed in WP(C) No.4169/2009 (Anil Barman-Vs-State of Assam & ors) and in another bunch of writ petitions, the lead case being WP(C) No.3730/2011 (Swapna Talukdar-vs-State of Assam & ors) to hold that the service of the petitioners therein are to be counted as per the provisions under the Assam Services (Pension) Rules, 1969 and the benefit of their past services should be counted for the purpose of computation of pensionary benefits as per the said Rules, 1969. While rendering the decisions, this Court took into consideration the judgment and order dated 01.09.2003 passed in the very first bunch of writ petitions, the lead case being Civil Rule No.1571/1998, which attained finality. In the said judgment and order dated 01.09.2003, and at paragraph 4 thereof, this Court had recorded the stand of the State Government in the following words -"Furthermore, in the affidavit filed, the State while stating that the regularisations when made would be prospective, has agreed to give the benefit of previous service rendered for the purpose of pension and retirement dues."
5. As the issue for determination had already received due consideration of this Court,the present writ petition does not require reiteration of the same issue, save and except to hold that in consonance with judicial discipline similar order is required to be passed in favour of the writ petitioners herein. Accordingly, the writ petition stands allowed by directing the State respondents to desist from acting on the undertaking given by the writ petitioners and to count the benefits of past services of all the petitioners for the purpose of pensionary benefits as per the provisions under the Assam Services (Pension) Rules, 1969.
6. Before parting with the present matter, this Court would record a submission made by Page No.# 6/6 Ms. N. Phukan to the effect that decision in the present bunch of cases be deferred as the State respondents have filed a review petition being, Review Petition No.16/2019 seeking modification/review of the order dated 28.04.2015 passed in WP(C) No.3662/2009, which was the first case deciding the issue as to whether the Assam Services (Pension) Rules, 1969 or the new Defined Contribution Pension Scheme, 2009 would govern the condition of employment of the petitioners towards entitlement to pension and pensionary benefits. It is also stated that as on date the said review petition is yet to come up for consideration before the appropriate Court. In the opinion of this Court, mere filing of a review petition cannot stall adjudication of the present writ petition. Needless to say, order passed in the review petition would have its natural consequences on the various orders passed by this Court, which had been decided following the decision in the said WP(C) No. 3662/2009.
7. There is yet another issue which has been brought to notice of this Court by the writ petitioners, in that, on the entitlement of pensionary benefits under the provisions of the Assam Services (Pension) Rules, 1969 to persons similarly situated, the Government of Assam in the Education (Elementary) Department have passed an order deciding not to insist upon such undertaking mentioned in the appointment and regularisation order that their case would not be considered under the provisions of the Assam Service (Pension) Rules, 1969. This and similar orders furnished by learned counsel for the petitioners reflects compliance of earlier orders passed by this Court to grant benefits of past services to persons similarly situated under the provisions Assam Services (Pension) Rules, 1969. Be that as it may, since this Court has already ruled on the inapplicability of such a condition, such a submission has merely been noted.
8. The petition is accordingly allowed as above."
3. Accordingly, the present petition is also disposed of with similar direction to the respondent authorities to grant the petitioners the benefit of past service towards the computation of pension under the Assam Services (Pension) Rules, 1969.
Sd/- N. Kotiswar Singh JUDGE Comparing Assistant