Page No.# 1/8 GAHC010128212020 2025:GAU-AS:2020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4500/2020 GAUTAM THAKURIA S/O- LT. BHANDHURAM THAKURIA, VILL.- NIZ-NAMTI, P.O.- TIHU, DIST.- NALBARI, ASSAM. VERSUS THE STATE OF ASSAM AND 6 ORS. REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPTT., DISPUR, GHY- 6. 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY- 19. 3:THE DIRECTOR OF EDUCATION BODOLAND TERRITORIAL COUNCIL KOKRAJHAR BTAD ASSAM. 4:THE INSPECTOR OF SCHOOLS NALBARI DIST. CIRCLE NALBARI ASSAM. 5:THE INSPECTOR OF SCHOOLS BAKSA DIST. CIRLCE MUSALPUR ASSAM. 6:THE HEADMASTER NAMATI MAUZA HIGH SCHOOL P.O.- NIZ NAMATI Page No.# 2/8 DIST.- BAKSA BTAD ASSAM. 7:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GHY- 7. 8:THE SECRETARY TO THE GOVT. OF ASSAM FINANCE (BUDGET) DEPARTMENT DISPUR GUWAHATI- Advocate for the Petitioner : MRS. K DEVI, MS R BARUAH Advocate for the Respondent : SC, SEC. EDU., MR. S.R. RABHA, SC, BTC,SC, BTADC,MR A CHALIHA, SC, FINANCE DEPTT.,SC, AG BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR ORDER Date : 25.02.2025 Heard Mrs. K. Devi, learned counsel for the petitioner. Also heard Mr. N. J. Khataniar, learned Standing counsel, Secondary Education Department, for the respondent Nos. 1 to 6, Mr. B. Sharma, learned Standing Counsel, Accountant General (A&E), Assam for the respondent No. 7 and Mr. R. Borpujari, learned Standing Counsel, Finance Department, for the respondent No. 8. 2. Pursuant to an advertisement, which was published in the Assam Tribune on 03.09.1991, issued by the Office of the Public Relations for filling up about 300 posts of Assistant Teachers in different Secondary Schools in Assam, the petitioner submitted his application and participated in the recruitment process. However, despite completion of the recruitment process no select list was Page No.# 3/8 published and therefore one Sri Prasanta Barman filed Civil Rule No. 2934/94 which was disposed of on 03.05.19994, directing the Director, Secondary Education to take steps for publication of the selected candidates immediately and not later than one month from the date of the Order. Thereafter, the Chairman, District Level Selection Board, Nalbari, published the Select List on 04.01.1995 and the name of the petitioner appeared at the Serial No. 17 under the Barama Constituency. 3. The case of the petitioner is that the respondents adopted the method of pick and choose and instead appointed the persons at Serial Nos. 19 & 25 under the Barama Constituency ahead of the petitioner. 4. Being aggrieved, the petitioner approached this Court by filing WP(C) No. 4036 of 2023, which was disposed of on 16.09.2023 directing the petitioner to make a representation in writing to the Director of Secondary Education, Assam, within a period of 1 (one) month from the date of the Order. It was further directed that if the representation is made by the petitioner, the Director of Secondary Education, Government of Assam, shall consider and dispose of the same by making a Speaking Order within a period of three months from the date of receipt of the representation. 5. Thereafter, the In-Charge Inspector of Schools, NDC, Nalbari, issued an Order dated 24.12.2005 appointing the petitioner temporarily to act as Assistant Teacher in Bhojkuchi High School, vice Sri Tarulata Deka, Assistant Teacher transferred. However, as the said Sri Tarulata Deka did not proceed to his transferred post the petitioner could not join in the said Bhojkuchi High School. Accordingly, the In-Charge Inspector of Schools, NDC, Nalbari issued another Order on 30.01.2006 attaching the petitioner at Namati Mouza High School with immediate effect from 24.12.2005. The Inspector of Schools, In-Charge BDC, Page No.# 4/8 Mushalpur, thereafter, wrote to the Director of Education, BTC, Kokrajhar on 09.03.2008 forwarding an application of the petitioner for allotting GPF account number. However, despite the Communication dated 09.03.2008, no steps were taken and therefore the petitioner made several representations, however, the GPF account number was not given to the petitioner and in the meantime the petitioner retired on 31.03.2022. Being aggrieved the petitioner filed the present writ petition with the following prayers:- “In the premises aforesaid, it is prayed that your Lordship may be pleased to admit this petition, call for the records and issue a Rule calling upon the Respondents to show cause as to why a writ in the nature of Mandamus shall not be issued directing/commanding the Respondents to forthwith count the service of the petitioner under the Assam Services (Pension) Rules, 1969 for the purpose of grant of pension and pensionary benefits; and/or (ii) to declare the action of the Respondents as illegal, arbitrary and unconstitutional and on cause or causes that may be shown and upon hearing the parties may be pleased to make the Rule absolute and/or pass such further or other orders as your Lordships may deem fit and proper.” 6. Mrs. K. Devi, learned counsel for the petitioner, submits that after the Select List was published, wherein, the name of the petitioner appeared at Serial No. 17 under the Barama Constituency, the respondents instead of giving appointment in terms of the Merit List, proceeded to give appointments applying the Pick and Choose policy, whereby the persons at Serial Nos. 19 & 25 who were below the petitioner were given appointments ahead of the petitioner. It was only after the petitioner approached this Court that the appointment Order dated 24.12.2005 was issued by the respondents. She submits that if the respondents had proceeded in terms of the merit List, the petitioner would have Page No.# 5/8 been appointed prior to 24.12.2005 and accordingly, the petitioner would have enjoyed the benefits under the Assam Services (Pension) Rules, 1969 (in short Rules of 1969). However, due to the mistake of the respondents, the petitioner has been deprived of enjoying the benefits under the Rules of 1969. She, therefore submits that a direction be issued to the respondents to provide the pensionary benefits under the Rules of 1969 to the petitioner. She also places reliance in the case of Sanjay Kumar & Anr. Vs. Union of India & Ors reported in 2023 (3) GLT 358. 8. Mr. N. J. Khataniar, learned Standing Counsel, Secondary Education Department, on the other hand submits that as the petitioner was appointed after 01.02.2005 i.e. when the New Defined Contributory Pension Scheme came in force, the petitioner is not entitled for any benefits under the Rules of 1969. 9. Mr. R. Borpujari, learned Standing Counsel, Finance Department, while endorsing the submissions made by the learned Standing Counsel, Secondary Education Department, further, submits that Rules of 1969 was amended by a Notification dated 14th July, 2011 by inserting a new Rule 2A which provides that the provisions of the 1969 Rules shall not apply to Government Servants appointed on or after 01.02.2005 to the services and post in connection with the affairs of the State Government of Assam, which are borne on Pensionable Establishment, whether temporary or permanent and such employees shall be governed by the New Defined Contribution Pension Scheme, 2009, newly introduced by the Government of Assam. Therefore, when the Statute provides that the petitioner would not be entitled to pensionary benefits under the Rules of 1969 the respondents had rightly declined the claim of the petitioner. He further submits that the amendment of the Rules of 1969 is not under challenge and therefore no right of the petitioner exists to claim for pension benefits Page No.# 6/8 under the Rules of 1969. 10. This Court has considered the submissions made by the learned counsel for the parties. 11. The authorities in the Secondary Education Department as well as the Finance Department have filed their respective affidavits. In the said affidavits the only ground taken is that the petitioner is not entitled to pensionary benefits under the Rules of 1969, inasmuch as the petitioner was appointed after 01.02.2005, when the New Pension Scheme came into force. 12. The petitioner has made a specific allegation at Paragraph – 2 (F) in the writ petition, which reads as under:- “F. That, in the said select list dated 04-01-1995, the name of your petitioner appears at Sl. No.17 against Barama Legislative Assembly Constituency. However, superseding the position of your petitioner in the merit list, the persons at Sl. No. 19 and 25 were appointed by the respondent authorities.” The aforesaid allegation made by the petitioner is not rebutted by any of the respondents in their respective affidavits-in-opposition. 13. The respondent No. 2, i.e. The Director of Secondary Education, Assam, on the directions passed by this Court on 08.01.2025 has filed an additional affidavit on 21.01.2025, annexing the list of candidates with regard to the Barkhetri Constituency and the Barama and Nalbari Constituency. In the said list with regard to the Barama Constituency, the name of the petitioner appears at Serial No. 17. The person at Serial No. 19, namely, Latika Devi, is shown to have been appointed on 08th October, 1998 to which posts she joined on 26th October, 1998 and she comes under the Old Pension Scheme. The person at Serial No. 25, namely, Ajit Deka, is also shown to have been given appointment Page No.# 7/8 on 18th May, 1994 to which post he joined on 11th June, 1994 and he also comes under the Old Pension Scheme. 14. No reasons has been given in the respective affidavits of the respondents as to why after the Select List dated 04.01.1995 was published, the petitioner was given appointment only on 24.12.2005 and the persons at Serial Nos. 19 & 25 were appointed ahead of the petitioner. The allegations made by the petitioner in Paragraph- 2 (F) of the writ petition stands substantiated by the list of candidates with regard to the Barama Constituency which is annexed to the additional affidavit filed by the respondent No. 2. Under the circumstances, this Court has no hesitation to come to the conclusion that the respondents had proceeded in making appointment by applying the policy of pick and choose and thereby, discriminating the petitioner for getting appointment on time. 15. It is already a separate position of law that merely because a candidate’s name appears in the Select List would not entitle such candidates to claim for appointment. However, when the respondents starts acting on the Select List they are required to follow the merit list without any deviation. In the instant case this has not been done and the respondents by applying the policy of pick and choose appointed the present at Serial Nos. 19 & 25 whose names are much below the petitioner and they have been allowed to enjoy the benefits under the Rules of 1969. Had the respondents proceeded in terms of the merit list, the petitioner would have been appointment much ahead of the persons at Serial Nos. 19 & 25 and the petitioner would have been entitled to enjoy the benefits under the Rules of 1969. 16. Under the circumstances, this Court has no hesitation to come to the conclusion that the petitioner is entitled to enjoy the pensionary benefits under the Rules of 1969. Page No.# 8/8 17. The respondents are accordingly, directed to forthwith process the case of the petitioner for giving pensionary benefits under the Rules of 1969. Let such steps be taken and completed within a period of 6 (six) months from the date of the receipt of a certified copy of this Court’s Order. 18. Writ petition is accordingly allowed. 19. No cost. JUDGE Comparing Assistant