JUDGMENT : SHAMIMA JAHAN, J. Heard Mr D Das, learned Senior Counsel, assisted by Mr S Das, for the petitioners and Mr D Mazumdar, learned Senior State Counsel, assisted by Ms. S. Nath learned counsel for the State Respondents. 2. By filing this application under Article 226 of the Constitution of India, the petitioner has prayed for allowing them to get the benefits under theAssam Service (Pension) Rules, 1969, and not under the New Pension Rules. FACTS: 3. It is the case of the petitioners that an advertisement was issued on 18.09.1998, calling for applications from the intending candidates, who had passed the Assam Survey Training Examination, for filling up the post of Mandals, lying vacant in the amalgamated establishment of the office of the Deputy Commissioner, Darrang. In pursuance to the said advertisement, the selection process started and the select list of 38 candidates was prepared on 19.06.1999, wherein the petitioners appeared at Serial No. 29, 31 to 35. It is stated by the learned counsels that the candidates appearing at Serial No. 32 as well as 35 had expired, however, pursuant to the said select list, 23 candidates were appointed and the petitioners were not appointed in the said post. Aggrieved thereby, the petitioners filed a writ petition being WP(C) No. 9294 of 2004 and the said case was disposed of in the motion stage itself on the consent of the learned counsel vide order dated 17.12.2004 for all the parties. Dring the proceeding the learned counsel for the State submitted that the petitioners could not be appointed due to a ban imposed for appointments and that they will be appointed once the ban is over and on the said submission, this Court gave a direction to the Commissioner and Secretary to the Government of Assam, Revenue Department, to appoint the petitioners in accordance with law and the said writ petition was disposed of. 4. Against the said order dated 17.12.2004, a review application was filed by the petitioner, praying therein that the appointing authority is not the Commissioner and Secretary to the Government of Asam, Revenue Department, but the direction is required to be made to the Deputy Commissioner, Darrang, Mangaldoi, to appoint the petitioners in the vacant post of Mandal. The petitioners filed a review application, since they came to know about the said fact after the aforesaid writ petition was disposed of. The petitioners filed a review application, since they came to know about the said fact after the aforesaid writ petition was disposed of. In view of the said submissions, this Court had reviewed the order and directed the Deputy Commissioner, Darrang District, to appoint the petitioners in the vacant post of Mandal, after getting approval from the Government and also immediately after the ban of appointment gets lifted. The said review application was disposed of on 31.05.2005. 5. Pursuant to the said order, an office order was issued by the Deputy Commissioner, Darrang, Mangaldoi, on 21st of December, 2005, by which the petitioners were appointed. It was stipulated in the said order that the petitioners Nos. 1, 3, 4, 5 and 6 were appointed against the existing vacancy and the petitioner No. 2 was appointed in place of an employee, who had retired. The said order also reflects that appointments were made in pursuance to the approval of the Governor of Assam dated 09.12.2005, with further stipulation that the petitioners were appointed as they appeared in the select list prepared in the year 1999. 6. In the meantime, i.e., on 25th of January, 2005, the Commissioner and Secretary to the Government of Assam, Finance Department, by a communication to the Additional Chief Secretary to the Government of Assam, and other authorities had informed that a new Pension Scheme has been formulated by introducing a Contributory Pension Scheme applicable to the future State Government Employees, who will be in the service of the State Government on or after 1st of February, 2005, and that henceforth, a New Pension Rule will be mentioned both in the advertisement as well as in the appointment letters and also that the Government Servants, who are appointed on or after 1st of February, 2005, have to give an undertaking that they will be governed by the New Pension Scheme. 7. Pursuant thereto, the petitioner had filed a writ petition being WP(C) No. 5072 of 2007, praying for a direction that although they were appointed after the New Pension Scheme came into force, but they having been selected in view of the select list of 1999, they should be given the benefit of the Old Pension Scheme, i.e., Assam Service (Pension) Rules, 1969. During the proceeding of the writ petition, i.e., WP(C) No. 5072/2007, this Court, vide order dated 21.07.2014, disposed of the writ petition, and passed an order that 23 candidates were appointed from the select list of 1999 and the rest of them, i.e., the petitioners were not appointed, despite there being vacancies. It was also observed in the said order that the Deputy Commissioner had written a letter to the Commissioner to appoint the rest of the persons of the select list, but since the same was not done, a writ petition, as stated above, was filed and the appointments were finally made on 21.12.2005. This Court, while passing the said order, had relied on a decision of the Hon’ble Supreme Court in State of Bihar -Vs- Mithilesh Kumar , reported in (2010) 13 SCC 467 , wherein it was held that norms or rules which existed on the date when the selection process started would apply to the entire selection process, unless an amended rule or norms provides for its retrospective operation. This Court, therefore, held that since New Pension Rule had come into effect from 1st of February, 2005, and the select list was published on 19.06.1999, the petitioner would be covered by the Old Pension Scheme, more so, their appointments were simply delayed, but were given from the same select list. 8. Thereafter, the petitioners made representations before the Deputy Commissioner, Darrang, Mangaldoi, bringing into the notice of the said authority about the said judgment. Thereafter, on 22nd of May, 2016, the Deputy Commissioner, Darrang, Mangaldoi, by a communication to the Commissioner and Secretary to the Government of Assam, had written that since the appointment of the petitioners was from the same select list of 1999 and also due to the fact that this Court had given relief to the petitioners, the said Deputy Commissioner requested the Commissioner and Secretary to the Government of Assam, to communicate instructions so that the representations of the petitioners can be disposed of at the earliest. Thereafter, a number of communications went on between the authorities concerned and finally, a comprehensive note was put up by the Additional Deputy Commissioner, Darrang, Mangaldoi, stating the same facts and further asked for the views of Pension and Public Grievance (P & PG) Department, for awarding pension to the petitioners under the Old Pension Scheme. Thereafter, a number of communications went on between the authorities concerned and finally, a comprehensive note was put up by the Additional Deputy Commissioner, Darrang, Mangaldoi, stating the same facts and further asked for the views of Pension and Public Grievance (P & PG) Department, for awarding pension to the petitioners under the Old Pension Scheme. Thereafter, a committee was constituted to look into the grievances and in the meantime, the petitioners were busy with their work assigned to them. 9. Mr. D. Das, learned Senior Counsel submitted that since the selection process had started with the advertisement, i.e., 18.09.1998, and on publication of the select list which was dated 19.06.1999, showing the petitioners as selected candidates, the erstwhile Assam Service (Pension) Rules, 1969, will be applicable. He further submitted that the stand of the State while passing the order dated 21.07.2014 was that the petitioners could not be appointed due to the ban on appointment and it was the further stand of the State that the petitioners would be appointed immediately on lifting of the said ban and as such, the petitioners were appointed, but not giving them the benefits of the erstwhile pension rules, is an illegality committed by the State and as such, on challenge made to the same, this Court passed the order dated 27.01.2014, by which he relied on the judgment passed by the Hon’ble Division Bench of this Court in WP(C) No. 7369 of 2021 (Sanjay Kumar -Vs- Union of India), disposed of on 04.02.2022, wherein this Court had stated that when the advertisement was issued in the year 2003, and the selection process has commenced, the Old Pension Scheme was in force and any delay in the appointment of the petitioners, the cause which is not attributable to the petitioners, cannot disentitle the petitioners from the benefits of Old Pension Scheme, and as such, a mandamus was issued to the respondents to treat the petitioners as members of the Old Pension Scheme. He also relied on the judgment of Mithilesh Kumar (supra), wherein it is held that the norms of appointment as applicable on the date when the candidates are selected for appointment would be applicable and not the amended Rules. 10. He also relied on the judgment of Mithilesh Kumar (supra), wherein it is held that the norms of appointment as applicable on the date when the candidates are selected for appointment would be applicable and not the amended Rules. 10. The learned Senior State Counsel, Mr Mazumdar submitted that the appointment of the petitioners was not given due to non-availability of vacancies and he relied upon a letter dated 9th of March, 2005, which was written by the Deputy Commissioner, Darrang, to the Commissioner and Secretary to the Government of Assam, Revenue Department, Dispur, in which it was stated that although 38 candidates were selected for appointment to the post of Mandals as per the select list of 1999, only 23 candidates were appointed and the other selected candidates could not be appointed by that time due to non-availability of adequate number of vacancies and also due to expiry of the select list. It was further stated that presently, i.e., on 9th of March, 2005, there are 61 numbers of post of Mandal, lying vacant in the amalgamated establishment of the Deputy Commissioner, Darrang, Mangaldoi, and further, a prayer was made that due to work pressure, Government approval was sought for appointment of the petitioners in the vacant posts of Mandal in compliance with the review order dated 31.01.2005, passed by this Court. The learned counsel for the State of Assam, as such, submits that since the appointment could not be made due to non-availability of vacancies and the appointments were made after the New Pension Rules have come into force, the petitioners would be covered by the New Pension Rules. He further stated that by virtue of the New Pension Scheme, an undertaking was sought for from the new incumbents and the same was required to be given by the said incumbents as per the new Pension Scheme. He further stated that by virtue of the New Pension Scheme, an undertaking was sought for from the new incumbents and the same was required to be given by the said incumbents as per the new Pension Scheme. He further stated that this Court in the order dated 21.07.2014, had referred to a decision of Mithilesh Kumar (supra), which according to the learned counsel is inapplicable in the present facts and circumstances, inasmuch, as, he stated that the norms and rules relatable to the recruitment of the candidates will remain the same throughout the selection process and any change in the recruitment rules may not affect the selection process, which was undertaken and completed, but in this case, he stated that it is not the case of recruitment rules, but entitlement of the pension of the petitioner, which is a different subject matter. He further submitted that in the said decision of Mithilesh Kumar (supra), another case, i.e., YV Rangaiah -Vs- G Srinivasa Rao , reported in (1983) 3 SCC 284 , and that the said decision was overruled by a subsequent decision, i.e., State of Himachal Pradesh -Vs- Raj Kumar and Others’; reported in (2023) 3 SCC 773 , decided on 20th of May, 2022, by which it was observed that the Rangaiah ‘s case (supra) does not reflect the correct proposition of law governing services under the Union and States under Part-XIV of the Constitution of India and the said judgment was overruled. He submitted a list of dates in connection with the instant case, wherein he had stated that the letter dated 09.03.2005 of the Deputy Commissioner to the Commissioner was not brought to the notice of the Court, while the Court passed the order dated 21.07.2014. 11. Mr Mazumdar, learned counsel for the State, however made a distinction of the judgment rendered by this Court in WP(C) No. 7369 of 2021, by submitting that in the facts of the said decision, the vacancy position was clear and although there is delay in the appointment, the Old Pension Scheme was said to be applicable, whereas in the instant case, according to the learned counsel there were no vacancies for appointment of the petitioners. Further, the argument of Mr Mazumdar that the case referred in the Mithilesh Kumar (supra), i.e., Rangaiah’s case (supra) , was overruled later by the Hon’ble Supreme Court. Further, the argument of Mr Mazumdar that the case referred in the Mithilesh Kumar (supra), i.e., Rangaiah’s case (supra) , was overruled later by the Hon’ble Supreme Court. It be stated here that the Hon’ble Supreme Court observed in the said decision, i.e., State of Himachal Pradesh (supra), that 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 it arose and that Rangaiah’s case (supra) , must be understood in the context of rules inferred therein. 12. It is seen that in WP(C) No. 5072 of 2007, this Court by order dated 21.07.2014, had disposed of the said writ petition and had held that merely because the appointment orders were issued on a later date, the petitioners cannot be denied of the benefit of pension. However, after the order was passed, the petitioners had submitted representation before the concerned authority and the Under Secretary to the Government of Assam, Revenue Department, had called for a detailed report from the Deputy Commissioner, Darrang, Mangaldoi, and the Deputy Commissioner, Darrang had given a detailed report on 23.05.2015, wherein he stated that the petitioners were selected in the year 1999 and were appointed in 2005 and that they could not be appointed due to ban on appointments. However, by the said report, the view of Pension and Public Grievance Department was called for. Further, in the affidavit filed by the respondent No. 6 in the instant writ proceedings, it was stated that the petitioners had not made any verbal request for providing them with the benefits of pension under the Assam Service (Pension) Rules, 1969. It be stated here that the petitioners had made representations, as stated above, to the Deputy Commissioner, Darrang, Mangaldoi, on several dates. 13. In view of the same, it is hereby directed that the concerned authority in the Government, would pass necessary order in the light of the judgment dated 21.07.2014, passed in WP(C) No. 5072/2007 as well as the representations filed by the petitioners, and would dispose of the matter. The said exercise be done within a period of 1 (one) month from the date of receipt of this order. 14. Petition is disposed of. 15. No order as to cost(s). 16. The aforesaid findings and conclusions are given in the peculiar facts and circumstances of the instant case.