Gauhati High Court
Page No.# 1/14 vs The State Of Assam And 5 Ors on 5 January, 2026
Page No.# 1/14
GAHC010223992017
2026:GAU-AS:89
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7511/2017
RABIN TALUKDAR and 23 ORS.
S/O LT. KESHAB CH. TALUKDAR O/O CHIEF ENGINEER, PWD, ROADS ,
ASSAM CHANDMARI, GUWAHATI-3.
2: MD. AMANUL HAQUE CHOUDHARY
S/O LT. ASWAD ALI O/O THE EXECUTIVE ENGINEER
PWD MUSHALPUR R and B DIVISION
MUSHALPUR
ASSAM
3: SRI GOBINDA CH. DAS
S/OLT. PRANPATI DAS O/O THE EXECUTIVE ENGIENER
PWD
GUWAHATI ROAD DIVISION
GUWAHATI -1
ASSAM
4: SRI KULEN DEKA
S/O LT. DHATU RAM DEKA O/O THE EXECUTIVE ENGINEER
PWD
NALBARI RURAL ROAD DIVISION
NALBARI
ASSAM
5: SRI BALANDRA BARMAN
S/O LT. RAJENDRA NATH BARMAN O/O THE EXECUTIVE ENGINEER
PWD
NALBARI RURAL ROAD
DIVISION
NALBARI.
6: MD. TAFZALAR RAHMAN
S/O MD. AHMED ALI O/O THE EXECUTIVE ENGINEER
PWD
Page No.# 2/14
GUWAHATI ROAD DIVISION
GUWAHATI -1
ASSAM
7: SRI BIDYUT TALUKDAR
S/O LT. KIRAN CH. DAS ASSAM ROAD RESEARCH and TRAINING
INSTITUTE
FATASIL AMBARI
GUWAHATI -25
ASSAM
8: SRI JITU SAIKIA
S/O LT. KESHAB SAIKIA O/O THE EXECUTIVE ENGINEER
PWD
CITY-I DIVISION
CHANDMARI
GUWAHATI -3
ASSAM
9: SRI NRIPENDRA NATH SARMA
S/OLT. LOPESWAR SARMA O/O THE EXECUTIVE ENGINEER
PWD
NALBARI RURAL ROAD DIVISION
NALBARI
ASSAM
10: MD. INAMUL HAQUE
S/O MD. MANJUR ALI O/O CHIEF ENGINEER
PWD ROADS
ASSAM
CHANDMARI
GUWAHATI -3
ASSAM
11: SRI KAMALJIT BAISHYA
S/O LT. MANO MOHAN BAISHYA O/O CHIEF ENGINEER
PWD ROADS
ASSAM
CHANDMARI
GUWAHATI -3
ASSAM
12: SRI BALENDRA NATH BHARALI
S/OLT DHIRENDRA NATH BHARALI O/O THE EXECUTIVE ENGINEER
PWD
GUWAHATI ROAD DIVISION
GUWAHATI -1
ASSAM
Page No.# 3/14
13: DIL MAHAMAD ALI
S/O MD. IDRISH ALI O/O THE EXECUTIVE ENGINEER
PWD MANGALDAI RURAL ROAD DIVISION
MANGALDAI
ASSAM
14: SRI DIGANTA GOSWAMI
S/O SRI JOGEN GOSWAMI O/O CHIEF ENGINEER
PWD ROADS
ASSAM
CHANDMARI
GUWAHATI -3
ASSAM
15: SRI MANOJ BHARALI
S/O LT. KIRAN CH. DAS O/O THE EXECUTIVE ENGINEER
PWD GUWAHATI ROAD DIVISION
GUWAHATI-1
ASSAM
16: SRI MONOJ KR. TAMULI
S/O LT. MOHAN CH. TAMULI O/O CHIEF ENGINEER PWD ROADS
ASSAM CHANDMARI
GUWAHATI-3
ASSAM
17: SRI BHABESH NATH
S/OLT. KAMALESWAR NATH
O/O THE EXECUTIVE ENGINEER
PWD NALBARI BUILDING DIVISION
NALBARI
ASSAM
18: SRI NRIPEN RAJBANGSHI OBC
S/OLT. KHARGESWAR RAJBANGSHI
O/O THE EXECUTIVE ENGINEER
PWD NORTH GUWAHATI STATE ROAD DIVISON
AMINGAON
GUWAHATI-31
ASSAM
19: SRI RAJENDRA DEKA
OBC
S/O LT. PRIYA NATH DEKA O/O THE EXECUTIVE ENGINEER
PWD
MANGALDAI RURAL ROAD
DIVISION
Page No.# 4/14
MANGALDAI
ASSAM
20: SRI BIKASH MAZUMDAR
SC
S/OLT. NIBARAN CH. MAZUMDAR O/O SUPERINTENDING ENGINEER
PWD
NALBARI NH CIRCLE
NALBARI
ASSAM
21: SRI PRANAB JYOTI DAS
SC
S/O SRI ACHYUT CH. DAS O/O THE EXECUTIVE ENGINEER
PWD NAGAON RURAL ROAD DIVISION
NAGAON
ASSAM
22: SRI JITU DAS
SC
S/O LT. RABINDRA CH. DAS O/O THE EXECUTIVE ENGINEER
PWD GUWAHATI ROAD DIVISION
GUWAHATI -1
ASSAM
23: SRI BRAJEN MEDHI
SC
S/O PARASHURAM MEDHI
O/O CHIEF ENGINEER
PWD ROADS
ASSAM
CHANDMARI
GUWAHATI-3
ASSAM
24: SRI DEEP CHANDRA BORO
STP S/O LT. SARAT CHANDRA BORO O/O CHIEF ENGINEER
PWD ROADS
ASSAM
CHANDMARI
GUWAHATI-3
ASSA
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE SECRETARY, PUBLIC WORKS DEPARTMENTS, GOVT.OF
ASSAM, DISPUR, GUWAHATI-6.
Page No.# 5/14
2:PRINCIPAL SECETARY
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
GUWAHATI-6.
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 : MR.S CHOUDHURY, MR.H DAS,MR.M CHANDA
Advocate for the Respondent : GA, ASSAMR1,3-5, MR R DHAR, SC, PWD,SC, F.DEPTT.(R2),SC,
APSC(R6)
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 05-01-2026 Heard Mr. S. Choudhury, learned counsel for the petitioners. Also heard Mr. R. Dhar, learned standing counsel, PWD appearing for the respondent Nos. 1, 3, 4, & 5, Mr. A. Page No.# 6/14 Chaliha, learned standing counsel, Finance Department, Assam appearing for the respondent No. 2 and Mr. T.J. Mahanta, learned Sr. counsel assisted by Ms. P. Sharma, learned standing counsel, APSC appearing for the respondent No. 6.
2. The issue raised by the petitioners in the present writ petition is as to whether they would be entitled to be covered under the Old Pension Scheme (OPS) as governed by the Assam Services (Pension) Rules, 1969 (in short "the Rules of 1969") or by the New Pension Scheme (NPS) which was made applicable in respect of the Government servants joining service of the Government on or after 01-02-2005.
3. The petitioners, herein, in pursuance to an advertisement bearing No. 4/02 dated 10-07-2002 issued by the Assam Service Public Commission (APSC) for recruitment against the post of Junior Engineer in the Public Works Department (PWD) had submitted their respective applications. In the said advertisement 100 (one hundred) vacancies consisting of 80 (eighty) vacancies in the PWD (Roads Wing) and 20 (twenty) vacancies in the PWD (Building Wing) of Junior Engineers (Civil) [ in short "JE(C)"] was put up for recruitment. In pursuance to issuance of the said advertisement the PWD authorities further issued a requisition to the APSC vide communication dated 09-09-2003 for initiating a recruitment process for selection against further vacant posts of Junior Engineer. The APSC authorities on completion of the selection process made its recommendation vide three communications dated 13-01-2004, 19-01-2004 and 21-01- 2004. Basing on the said recommendation, the PWD authorities proceeded to appoint 103 numbers of JE(C) and 05 JE(Mechanical) vide order of appointment dated 30-10-2004. The petitioners, herein, were appointed vide notification dated 09-02-2005. On their such Page No.# 7/14 appointments, the petitioners were posted in different divisions in the State of Assam under the PWD.
4. In the notification dated 09-02-2005 issued towards appointing the petitioners, it was stipulated that the Government servants joining in the service of State Government on or after 01-02-2005 shall not be governed by the existing Rules of 1969 and orders issued thereunder from time to time and their cases would be governed by the new set of pension rules which was being formulated in the line with the contributory pension scheme announced by the Govt. of India.
5. The Govt. of Assam, Finance (Budget) Department vide OM dated 06-10-2009 notified the "New Defined Contributory Pension Scheme" and therein it was stipulated that the said scheme would be applicable to all new entrants joining State Government services on regular basis against vacant sanctioned post(s) on or after 01-02-2005. The said OM was so issued basing on a cabinet decision dated 04-09-2009. The petitioners being aggrieved by denying to them coverage under the Rules of 1969 and also the condition incorporated in the appointment order dated 09-02-2005 in this connection had instituted the present proceeding.
6. Mr. Choudhury, learned counsel for the petitioners has submitted that the process of recruitment in respect of the petitioners was completed prior to 01-02-2005. However, their orders of appointment came to be issued after 01-02-2005 for reasons known to the respondent authorities. The learned counsel for the petitioners submits that on conclusion of the selection process, the select list that was so prepared having contained the names of the petitioners and the select list being published prior to 01-02-2005, the petitioners Page No.# 8/14 would be covered by the provisions of the Rules of 1969 and not by the NPS which had come into effect w.e.f. 01-02-2005. The learned counsel for the petitioners in support of his submissions has placed reliance on a decision of the Division Bench of this Court in the case of Sanjay Kumar & Anr. Vs. UoI & Ors. reported in (2022) SCC OnLine Gau 214 as well as the judgment of the Delhi High Court rendered in the case of Shyam Kr. Choudhury & Ors. Vs. UoI & Ors. reported in (2019) SCC OnLine Del 11891.
7. Mr. T.J. Mahanta, learned Sr. counsel as well as Mr. R. Dhar, learned Addl. Sr. Govt. Advocate, Assam appearing for the respondents have submitted that the issue arising in the present writ petition is covered by the decision of the Coordinate Bench of this Court in the case of Dilip Kr. Sinha & Anr. Vs. State of Assam & Ors. [judgment and order dated 02-05-2023 in W.P.(C) No. 06/2011] . They submit that the said decision also involved persons selected in pursuance to the advertisement dated 05-06- 2002 issued by the APSC for recruitment against the post of Junior Engineers in the PWD. It is further submitted that the petitioners in the said writ petition were also appointed along with the petitioners in the present writ petition on 09-02-2005 and also vide order dated 29-09-2005. It is submitted that the Coordinate Bench of this Court after considering the issues arising in the matter including the decision of the Division Bench of this Court in the case of the Sanjay Kumar (Supra) as well as the decision of the Delhi High Court in the case of Shyam Kr. Choudhury (Supra) had proceeded to dismiss the said writ petition.
8. I have heard the learned counsel for the parties and also perused the materials available on record.
Page No.# 9/14
9. The facts noticed, hereinabove, are not in dispute. The petitioners in pursuance to the advertisement dated 10-07-2002 were appointed vide order dated 09-02-2005 against the post of JE(C) in the PWD. The order of appointment of the petitioners contained a stipulation to the following effect:
"Government servants joining the service of the State Government on or after 1st February 2005 shall not be governed by the existing Assam Services (Pension) Rules 1969 and orders issued thereunder from time to time. So far as their pension and other retirement benefits are concerned, they will be governed by a new sat of Pension Rules, which are being formulated in line with the contributory Pension Scheme announced by Government of India recently."
10. Raising grievances similar to the one as raised in the present proceeding, persons recruited in the same selection process had approached this Court by way of instituting a writ petition being W.P.(C) No. 06/2011. A Coordinate Bench of this Court vide judgment and order dated 02-05-2023, on appreciating the contentions raised before it proceeded to draw the following conclusions in the matter:
14. Now, after giving up the challenge to the Amending Rules of 2011, the issue therefore arises for consideration before this Court is only as to whether the petitioners having been selected pursuant to an advertisement dated 29.05.2002 and they being included in the said select list prior to 01.02.2005, would they be entitled to the pension in terms with Rules of 1969 or the pension in terms with the NDCPS, 2009. The grievances of the petitioners herein is that as the advertisement was issued prior to 01.02.2005 which was the cut off 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 and Another Vs. Union of India and Others reported in (2022) SCC Online Gau 214 as well as the judgment of the Delhi High Court in the case of Shyam Kumar Choudhary and Others Vs. Union of India and Others reported in (2019) SCC Online Del 11891.
15. To appreciate the said contention so made by the learned Senior counsel for the petitioners, it is relevant to take note of the advertisement dated 05.06.2002. It clearly transpires that the said advertisement was limited to only 100 posts i.e. 80 posts of Junior Engineer (Civil) under the PWD, Roadwing and 20 posts of Junior Engineer (Civil) under the PWD, Building Wing. It further appears from the affidavit-in-opposition filed by the respondent Nos. 1, 3, 4 and 5 that the further requisition was made on 09.09.2003 for selection of another 8 Nos. of Junior Engineer (Civil) under the PWD, Roadwing along with another 80 Nos. of Junior Engineer (Civil) posts under the Roadwing. The select list or the recommendations so made by the APSC is however not before this Court as already stated supra but be that as it may, it appears from the notifications dated 30.10.2004, 09.02.2005 and 29.09.2005 that the APSC submitted 3 (three) recommendations vide letter No.24PSC/CON/Exam-2/J.E.(C)/2002-2003 dated 19.01.2004, letter No.27PSC/CON/Exam-02/J.E.(C)/2002-2003 dated 21.01.2004 and letter Page No.# 10/14 No.15PSC/CON/E-3/J.E.(M)/2002-2003 dated 13.01.2004 on the basis of which the three notifications dated 30.10.2004, 09.02.2005 and 29.09.2005 were issued.
16. It is also relevant to take note of that in the notification dated 30.10.2004, 108 persons were given appointments thereby exhausting the posts which were advertised in pursuance to the advertisement dated 05.06.2002. The notification dated 09.02.2005 as well as 29.09.2005 by which 84 and 46 persons were appointed were not a part of the advertisement dated 05.06.2002. But the State Government appointed these persons on the basis of the recommendations so made by the APSC vide letters dated 19.01.2004 and 21.01.2004 referred to hereinabove. Therefore, it would be seen that the appointments so made vide notifications dated 09.02.2005 and 29.09.2005 were not on the basis of the advertisement dated 05.06.2002.
17. Now, the question therefore arises as to what are the rights of the petitioners on the basis of which their names being included in the select list or for that matter, the recommendations so made by the APSC on 19.01.2004 and 21.01.2004. It is no longer res-integra that being included in the select list does not confer any vested right for appointment. Inclusion in a select list only gives a right to be considered for appointment. Therefore, it was only upon the issuance of the notifications dated 09.02.2005 and 29.09.2005 that the rights of the petitioners crystallized as vested rights in respect to the post where they were appointed. In this regard, this Court finds it relevant to draw reference to the judgment of the Supreme Court in the case of State of A.P. & Others Vs. D. Dastagiri & Others reported in (2003) 5 SCC 373 and more particularly to paragraph No.4 which is reproduced below:
"4. In the counter-affidavit filed on behalf of the respondents in Civil Appeal No. 915 of 2000, in para 16 it is stated that the process of selection was cancelled at the last stage i.e. before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibition and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In para 16 of the counter-affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondents that there was any mala fides on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have."
Page No.# 11/14
18. In the above backdrop, a further question arises as to whether the petitioners could be considered that they have entered into service in the affairs of the State of Assam on the basis of they being included in the select list so as to be entitled to in terms with the Old Pension Scheme regulated under the Rules of 1969. For that purpose, it would be relevant to take note of the Rule 31 of the Rules of 1969 which stipulates as to when the services of an employee would qualify for pension. Rule 31 of the Rules of 1969 being relevant is extracted hereinbelow:
"31. The service of an officer does not qualify for pension unless in conforms to the following three conditions:-
Firstly, the service must be under Government;
Secondly, the employment must be substantive and permanent; Thirdly, the service must be paid by Government:
Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled,-
(i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and
(ii) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension."
A perusal of Rule 31 would show that three conditions have to be satisfied for the purpose of the service of an Officer to be qualified for pension. Firstly, the services of the officer must be under the Government. Secondly, the employment must be substantive and permanent and thirdly, the service must be paid by the Government. There is a proviso to Rule 31 of the Rules of 1969 which stipulates that the Governor may make declarations that any specified kind of service rendered in the non- gazetted capacity shall qualify for pension and in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension by doing away with the conditions that the service must be under the Government and that the employment must be substantive and permanent. However, the third condition that the services must be paid by the Government cannot be done away with by way of any declaration.
19. In the instant case, it would be seen that the petitioners herein were not in the service of the Government; their employment were neither substantive nor permanent and their services were not paid by the Government prior to their appointments so made vide notifications dated 09.02.2005 and 29.09.2005 and as such, the question of the petitioners' being entitled to pension under the Rules of 1969 on the basis that they were included in the select list would be contrary to Rule 31 of the Rules of 1969.
20. At this stage, it may be relevant to take note of the submissions of the petitioners as regards the applicability of the law declared by the Division Bench of this Court in the case of Sanjay Kumar (supra) as well as the Delhi High Court judgment in the case of Shyam Kumar Choudhary (supra) wherein it was held that the selection proceedings having been initiated when the Old Pension Scheme was holding the field but on account of delay in issuance of the appointment letters for a period which resulted in the appointment orders being issued, pursuant to the coming into effect of the New Pension Scheme; the petitioners therein before the Delhi High Court as well as the Division Bench of this Court were held to be entitled to the benefits of the Old Pension Scheme.
Page No.# 12/14
21. The facts of the instant case however as have been narrated hereinabove is different from the case in the case of Sanjay Kumar (supra) as well as Shyam Kumar Choudhary (supra) inasmuch as in the instant writ petitions before this Court, the posts in respect to which the advertisement was issued were already filled up vide the notification dated 30.10.2004 and therefore the advertisement lost its force pursuant to the said notification dated 30.10.2004. The Government in its wisdom instead of going ahead with the fresh selection proceedings appointed the petitioners herein in respect to other vacancies which admittedly arose prior to 01.02.2005. At this stage, this Court finds it relevant to refer to the judgment of the Supreme Court in the case of Regional Manager Vs. Pawan Kumar Dubey & Another reported in (1976) 3 SCC 334 wherein it was observed at paragraph No.7 that one additional or different fact can make a world of a difference between conclusions in two cases even when the same principles are applied in each case to similar facts. Paragraph No. 7 of the said judgment is quoted hereinbelow:
"7. We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh case it should no longer be possible to urge that Sughar Singh case could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."
In the instant case, the fact that the petitioners were appointed to the posts which were outside the scope of the advertisement dated 05.06.2002 completely changes the complexion so far as the applicability of the ratio laid down in the case of Sanjay Kumar (supra) and Shyam Kumar Choudhary (supra) for which it is the opinion of this Court that the ratio in the said judgments cannot be made applicable to the instant case.
22. It is also relevant to take note of another aspect of the matter which pertains to the submissions that as the vacancies arose at the time when the Old Pension Scheme was holding the field so the petitioners would be entitled to the Old Pension Scheme. In a recent judgment of the Supreme Court in the case of State of Uttar Pradesh and Others Vs. Rachna Hills and Others reported in (2023) SCC Online SC 506, the Supreme Court while dealing with an issue as to whether the Rules and Regulations that existed when the vacancies arose would be applicable or the amended regulations would be applicable; by relying upon the judgment in the case of State of Himachal Pradesh Vs. Raj Kumar and Others reported in (2022) SCC Online SC 680 held that the vacancies are to be filled up on the basis of the Rules existing as on the date in force and not on the basis of the Rules at the time when the vacancies arose. Paragraph Nos. 32 and 33 of the judgment in Rachna Hills (supra) are quoted hereinbelow.
"32. In a recent decision, in State of Himachal Pradesh v. Raj Kumar, after reviewing a number of decisions on the same subject, this Court formulated the following principles:
Page No.# 13/14 "70. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:
1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.
2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases." (emphasis supplied)
33. In view of the clear enunciation of the law, we have no hesitation in rejecting the submission made by the learned counsels for the Respondents, that the vacancies that existed prior to the amendment of Regulation 17 of Chapter II, must be governed by unamended rules."
23. In that view of the matter, the fact that the vacancies arose prior to the coming into effect of the NDCPS, 2009 would have no bearing and the petitioners having been appointed after the NDCPS, 2009 had come into force in view of the Amending Rules of 2011, would be regulated by the NDCPS, 2009 and not by the Old Pension Scheme.
11. Basing on the said conclusion the Coordinate Bench of this Court dismissed the writ petition. This Court has perused the conclusions drawn by the Coordinate Bench of this Court in the case of Dilip Kr. Sinha (Supra) and on perusal of the same this Court is in complete agreement with the conclusions so drawn by the Coordinate Bench of this Court. The petitioners, herein, in the present proceeding also being similarly situated like Page No.# 14/14 the petitioners in the case of Dilip Kr. Sinha (Supra), this Court is of the considered view that the decision of the Coordinate Bench of this Court in the case of Dilip Kr. Sinha (Supra), would squarely apply to the facts of the present case.
12. Accordingly, in view of the decision of the Coordinate Bench of this Court in the case of Dilip Kr. Sinha (Supra), the claim in the present writ petition would not mandate acceptance. The petitioners having been appointed after coming into force the New Pension Scheme, their pension and pensionary benefits would be regulated by the New Pension Scheme and not by the Old Pension Scheme as prevalent under the Rules of 1969.
13. In view of the above discussions, the present writ petition is held to be devoid of any merit and the same accordingly stands dismissed. However, there would be no order as to cost.
JUDGE Comparing Assistant