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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 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."