Page No.# 1/9 GAHC010212072024 2026:GAU-AS:1836 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5439/2024 NURUL ISLAM AHMED S/O- LATE MAHAMMAD ALI, R/O- VILLAGE- DHANBANDHA, P.O- SONKUCHI, P.S- BARPETA, DIST- BARPETA, ASSAM, PIN-781314 VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, ASSAM, DISPUR, GUWAHATI- 781006. 2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT ASSAM DISPUR GUWAHATI- 781006. 3:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT ASSAM DISPUR GUWAHATI- 781006. 4:THE COMMISSIONER TO THE GOVT. OF ASSAM COMMISSIONERATE OF PANCHAYAT AND RURAL DEVELOPMENT Page No.# 2/9 ASSAM PANJABARI GUWAHATI- 781037 5:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX GUWAHATI-06 6:THE CHIEF EXECUTIVE OFFICER BARPETA ZILLA PARISHAD BARPETA ASSAM PIN- 781301 7:THE TREASURY OFFICER BARPETA TREASURY DIST-BARPETA ASSAM PIN- 78130 Advocate for the Petitioner : MR. K R PATGIRI, MS. D. DEVI,MS K BARMAN,MS CHITRALEKHA DAS Advocate for the Respondent : SC, P AND R.D., GA, ASSAM,SC, FINANCE Page No.# 3/9 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 09.02.2026 Heard Mr. K. P. Patgiri, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned Standing Counsel, P&RD, appearing for the respondent nos.1, 4 and 6 as well as Ms. U. Sarma, learned Government Advocate, appearing for the State Respondents. 2. The petitioner, by way of instituting the present proceeding, has prayed for a direction upon the respondent authorities to authorize to him his pension and pensionary benefits in terms of the provisions of the Assam Services (Pension) Rules, 1969. 3. The petitioner, herein, was initially engaged on Muster Roll basis as a Gaon Panchayat Secretary and was placed under the control of the Barpeta Mahkuma Parishad vide an order dated 15-10-1993. The services of the petitioner was, thereafter, regularized vide an order dated 30-05- 2003. The order of regularization of the services was to be effective w.e.f. the date of issuance of consequential orders by the jurisdictional Chief Executive Officer, Zilla Parishad. The petitioner on regularization of the services was to be treated as an employee of a Panchayati Raj Institution and was to receive his salaries from the Panchayati Raj Institution to which he was attached and the Government of Assam would subsequently reimburse the entire expenditure involved. The said regularization of the petitioner was also noticed by the Finance Commission in its report published in the month of August, 2003. Page No.# 4/9 Thereafter, vide a communication dated 04-02-2006, the services of the petitioner was again regularized, however, with prospective effect. Accordingly, the services of the petitioner now being regularized w.e.f. 04- 02-2006, the petitioner was deemed to be covered by the provisions of the new defined Contributory Pension Scheme, 2005, and not under the provisions of the Assam Services (Pension) Rules, 1969. Thereafter, vide a communication dated 28-03-2018, ex-post-facto approval was granted by the competent authority for creation of 1272 nos. of posts of Gaon Panchayat Secretary under the Panchayat & Rural Development Department w.e.f. 30-05-2003 to 03-02-2006. It was stipulated in the said communication dated 28-03-2018 that the ex-post-facto sanction for creation of posts is accorded in order to treat the services of the 1272 nos. of Gaon Panchayat Secretaries as regular service against sanctioned posts for the period w.e.f. 30-05-2003 to 03-02-2006, however, the creation of the said posts would not be treated to have the effect of enabling the person concerned to receive pension and pensionary benefits. The stipulation as made in the communication dated 28-03-2018 to the effect denying the Gaon Panchayat Secretaries Pension and Pensionary Benefits, was assailed by similarly situated Gaon Panchayat Secretaries before this Court by way of instituting writ petition being WP(C).No.4397/2022. 4. A co-ordinate Bench of this Court vide Judgment And Order dated 05-08-2022 proceeded to allow the said petition and directed the State Respondents to pass necessary order on the entitlement of the petitioner therein, for pension by taking note of the law laid down by a Division Bench of this Court vide order dated 24-03-2010 passed in Writ Appeal No.145/2009 (The State of Assam Vs. Syed Md. Fazlay Rabbi). The State Respondents assailed the said Judgment and Order dated 05-08- Page No.# 5/9 2022 passed by the co-ordinate Bench of this Court in WP(C).No.4397/2022 by way of instituting a writ appeal being Writ Appeal No.133/2023. The said writ appeal was given a final consideration vide Judgment and Order dated 05-08-2023. The Division Bench of this Court vide the said judgment proceeded to uphold the decision of the learned Single Judge and held that the stipulation as contained in the communication dated 28-03-2018 to the effect “ the ex-post-facto creation of posts shall not be treated for the purpose of enabling the person concerned to receive pension and other retiral benefits” to be perverse and not legally sustainable and proceeded to strike down the same. Accordingly, the writ appeal was dismissed as being devoid of any merit. 5. Following the said decision by the Division Bench in W.A.No. 133/2023, the All Assam Gaon Panchayat Secretaries Association had approached this Court by way of instituting a writ petiton being WP(C).No.4506/2018. The said writ petition was given a final consideration by a co-ordinate Bench of this Court vide an order dated 11- 08-2023. The co-ordinate Bench following the decision of the Division Bench in W.A.No.133/2023 proceeded to allow the writ petition by interfering with the offending portion as existing in the communication dated 28-03-2018 with a further direction to the respondent authorities to pass appropriate orders on the entitlement of the Panchayat Secretaries to pension under the Assam Services (Pension) Rules 1969, by taking note of their respective date of regularization of service. 6. It is in the above background that the petitioner has approached this Court by contending that his case is also covered by the decision of the Division Bench of this Court in W.A.No.133/2023 as well as the Page No.# 6/9 decision of the co-ordinate Bench in WP(C)No.4506/2018. 7. I have heard the learned counsel for the parties and perused the materials available on record. 8. The learned counsel for the parties have reiterated the facts as noticed hereinabove. The Division Bench of this Court in W.A. No.133/2023 vide Judgment and Order dated 05-08-2023 on consideration of a issue similar to the one involved in the present proceedings had drawn the following conclusions. “K. In view of the above determination, this Court has no hesitation in holding that the entry in the service of the petitioner (respondent herein) as Gaon Panchayat Secretary under Government in PRI required to be treated with effect from the date of issuance of consequential orders by the CEOs in terms of the order dated 30.05.2005.” ………………………………………………………………………….. …………………………………………………………………………. VI. New Defined Pension Scheme: A. The New Defined Contribution Pension Scheme is made applicable to all new entrants joining the Government services on regular basis against vacant sanctioned posts on or after 01.02.2005. B. In the case in hand, in no unambiguous terms in the communication dated 30.05.2003, it was made clear by the Government that the employees will be treated as regular employees of the Panchayati Raj Institution. The communication dated 28.03.2018 also in no unambiguous term discloses that 1272 numbers of posts were created with effect from 30.05.2003 to 03.02.2006 and the ex-post-facto creation of such posts was accorded to treat the GP Secretaries in regular service against sanctioned posts for the period with effect from 30.05.2003 to 03.02.2006. In view of such decision of the Government and resultant ex-post-facto appointment with effect from 30.05.2003, the communication dated 04.02.2006 automatically loses its prospective nature as discussed hereinabove. Nothing is discernible from the records why the second order of regularization dated 04.02.2006 was Page No.# 7/9 necessary when the services in question stood regularized by virtue of communication dated 30.05.2005. Therefore, the writ petitioner cannot be treated as a "new entrant" joining State Government services subsequent to introduction of New Pension Scheme. Resultantly, the petitioner cannot be brought under New Defined Contribution Pension Scheme. C. The ratio laid down in the judgments relied on by Mr. Konwar, learned Additional Advocate General, in the considered opinion of this court, is not applicable in the facts and circumstances of the present case inasmuch as the legality and validity of the engagement of the petitioner cannot be and is not a subject matter of adjudication more particularly it is an unambiguous stand of the appellant that service of the petitioner was regularized though the dispute has been raised regarding the date of giving effect to such regularization.” 9. Basing on the said directions, the Division Bench proceeded to dismiss the said appeal. The decision of the Division Bench was again applied in case of Gaon Panchayat Secretaries similarly situated like the petitioner, herein, by a co-ordinate Bench of this Court vide an order dated 11-08-2023 passed in WP(C).No.4506/2018, wherein the entitlement of the Gaon Panchayat Secretaries to receive pension under the Assam Services (Pension) Rules 1969 was upheld and the same was required to be authorized to the Gaon Panchayat Secretaries by taking note of the respective dates of their regularization. 10. This Court has perused the decisions as noticed, herein, above and is of the considered view that the same applies with full force in respect of the case of the petitioner in the present proceedings. Accordingly, the petitioner’s services being regularized w.e.f. 30-05-2003 and vide an order dated 04-06-2006, posts having also been created w.e.f. 30-05-2003 to 03- 02-2006, and the petitioner being authorized a scale of pay for the said period of time, the contention of the respondent authorities that the Page No.# 8/9 services of the petitioner should be deemed to have been regularized only w.e.f. 04-02-2006, does not mandate acceptance from this Court. 11. The service of the petitioner to be regularized is deemed w.e.f. the date he was so regularized in his services in pursuance to the communication dated 30-05-2003. The communication dated 28-03-2018 having already been clarified by the Division Bench of this Court and the offending stipulation as contained, therein, having already been interfered with, the present petitioner is required to be authorized his pension and pensionary benefits in accordance with the provisions of the Assam Services (Pension) Rules, 1969 and not in accordance with the provisions of the New Contributory Defined Pension Scheme, 2005. 12. In view of the above discussion, the respondent authorities are directed to process the pension proposal of the petitioner, herein, by considering the date of his regularization in pursuance to the communication dated 30-05-2003 and, thereafter, to prepare a pension proposal and submit the same to the Office of the Director of Pension, Assam, within a period of 2(two) months from the date of receipt of a certified copy. 13. The Director of Pension, Assam, on receipt of the pension proposal in respect of the petitioner, herein, shall process the same and issue Pension Payment Order (PPO) authorizing to the petitioner his pension and pensionary benefits within a further period of 1(one) month from the date of receipt of a proposal from the administrative Department. 14. It is further clarified that the pensionary benefits which are now required to be released by the Panchayat and Rural Development Page No.# 9/9 Department to the petitioner shall be so processed and released to the petitioner within a period of 3 (three) months w.e.f. the date of receipt of a certified copy of this order. 15. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant