Bhupen Ch Nath and 26 Ors v. The State of Assam and 2 Ors

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oP/R/oVILL-JORSIMALU oP.O.-JORSIMALU oP.S.-CHHAYGAON oDIST-KAMRUPo(ASSAM) oAPPOINTEDoSCHOOLo-oJORSIMALUoL.P.oSCHOOL PageoNo.#o4/9 18:oAZMOLoHAQUEoCHOUDHURY oS/OoHATEMoCHOUDHURY oP/RoVILL-GOROIMARI oP.O.-GOROIMARI oP.S.-CHHAYGAON oDIST-KAMRUPo(ASSAM) oAPPOINTEDoSCHOOLo-oMAJGUMIoL.P.oSCHOOL 19:oHASINAoBHANU oW/OoABDUSoSALAM oP/R/oVILL-o2oNO.oKALAPANI oP.O.-BANIAPARA oP.S.-PALASHBARI oDIST-KAMRUPo(ASSAM) oAPPOINTEDoSCHOOLo-oMOLLAHTARIoL.P.oSCHOOL 20:oUDHABoROY oS/OoLAKSHIMoROY oP/R/oVILL-JARABARI oP.O.-BANIAPARA oP.S.-PALASHBARI oDIST-KAMRUPo(ASSAM) oAPPOINTEDoSCHOOLo-oBANIAPARAoM.V. oPRESENToSCHOOLo-oBAMUNIGAONoHIGHoSCHOOL 21:oBIRENoTHAKURIA oS/OoLATEoJANIoRAMoTHAKURIA oP/RoVILL-DEOCHAR oP.O.-PANERI oP.S.-BOKO oDIST-KAMRUPo(ASSAM) 22:oHARENoCHANDRAoMEDHI oS/OoPRABHAToMEDHI oP/R/oVILL-DHARBAM oP.O.-DHUPGURI oP.S.-KHETRI oDIST-KAMRUPo(METRO) oASSAM oAPPOINTEDoSCHOOLo-oMALAYEBARIoM.E.S. oPRESENToSCHOOLo-oDURUNGoADARSHAoHIGHERoSECONDARYoSCHOOL 23:oLALIToCH.oDAS oS/OoGOPALoDAS oP/R/oVILL-TETALIGURI oP.O.-GANDHIoNAGAR oP.S.-SONAPUR PageoNo.#o5/9 oDIST-KAMRUPo(METRO) oASSAM oAPPOINTEDoSCHOOLo-oDURUNGoM.E.oSCHOOL oPRESENToSCHOOLo-oDURUNGoADARSHAoHIGHERoSECONDARYoSCHOOL 24:oJAYANTAoORANG oS/OoDHUNDAoORANG oP/R/oVILL-CHAKURA oP.O.oANDoP.S.-KHETRI oDIST-KAMRUPo(M) oASSAM oAPPOINTEDoSCHOOLo-oKHETRIoM.E.oSCHOOL oPRESENToSCHOOLo-oDURUNGoADARSHAoHIGHERoSECONDARYoSCHOOL 25:oKANDARPAoMEDHI oS/OoANANDAoMEDHI oP/R/oVILL-CHAKURA oP.O.-GANDHIoNAGAR oP.S.-KHETRI oDIST-KAMRUPo(M) oASSAM oAPPOINTEDoSCHOOLo-oGUMORIAoL.P.oSCHOOL 26:oGAGANoSALOI oS/OoLATEoPRABHAToCH.oSALOI oP/RoVILL-ALEGJARI oP.O.-CHAYGAON oDIST-KAMRUP oASSAM oAPPOINTEDoSCHOOLo-oMILANPURoL.P.oSCHOOL oPRESENToSCHOOLo-oBALASIDDHIoMAJPARAoL.P.oSCHOOL 27:oKAMALESWARoMEDHI oS/OoLATEoDHARUNAoRAMoBAISHYA oP/RoVILL-PACHARIA oP.O.-PACHARIA oP.S.-HAJO oDIST-KAMRUPo(R) oASSAM oAPPOINTEDoSCHOOLo-oBAPUJIoL.P.oSCHOOLo(PACHARIA) oPRESENToSCHOOLo-oPACHIMoBAGTAoL.P.oSCHOOLo(BAGTAo VERSUSo THEoSTATEoOFoASSAMoANDo2oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oEDUCATIONo(ELEMENTARY)oDEPARTMENT,o DISPUR,oGUWAHATI-781006 Page No.# 6/9 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-78100 Advocate for the Petitioner : MR H DAS Advocate for the Respondent : SC, ELEM. EDU

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

03.04.2023

Heard Mr. H. Das, the learned counsel for the petitioners and Mr. N. J. Khataniar, the learned counsel appearing on behalf of the Elementary Education Department. None appears on behalf of the Finance Department. The case of the petitioners herein is that they were appointed against the newly created 7066 Operation Black Board (for short, 'OBB') posts pursuant to the order dated 08.03.2021 by the Government of Assam. Their appointments were for a period up to 31.03.2002. The petitioners, thereupon prior to the period ending, had filed writ petition seeking a direction for regularization of their services against the vacant sanctioned posts of the Assistant Teachers of Lower Primary/Middle Schools of Assam and for a direction not to terminate their services at the Page No.# 7/9 end of March, 2002 pending regularization of their services. The Coordinate Bench of this Court in the case of Nirmali Borah & Others and others vs. State of Assam & Others, reported in 2002 (1) GLT 462 vide the judgment and order dated 08.04.2002 directed the Government of Assam to regularize the services of the writ petitioners who were appointed as teachers against the posts created under the OBB Scheme by adjusting/absorbing them in regularly sanctioned posts/ vacancies of Assistant Teachers of Lower Primary/Middle Schools of Assam in a phase manner and not to terminate their services pending such regularization thereby allowing them to continue in service beyond

31.03.2002 by sanctioning retention of these temporary posts created under the OBB Scheme till completion of the process of such regularization. The State, being aggrieved by the judgment and order dated

08.04.2021 (Nirmali Bora) (supra), preferred an appeal before the Division Bench of this Court which was registered and numbered as WA No.376/2002. At the time of admission of the appeal, there was no stay to the directions so passed in the judgment and order dated 08.04.2002 (Nirmali Borah) (supra). The Division Bench of this Court vide the judgment and order dated 01.07.2008 dismissed the said writ appeal and directed implementation of the judgment and order dated

08.04.2021(Nirmali Borah) (supra) as expeditiously as possible preferably within a period of 6 (six) months. Thereupon, vide various orders, the petitioners were brought within the fold of Government service after

01.02.2005. The case of the petitioners herein is that they are entitled to pension Page No.# 8/9 in terms with the Assam Services (Pension) Rules, 1969 (for short, 'the Rules of 1969') and are not covered by the New Defined Contributory Pension Scheme, 2009. Mr. N. J. Khataniar, the learned counsel appearing on behalf of the Elementary Education Department has drawn the attention of this Court to the judgment dated 31.03.2023 passed in Purnima Hore & Another vs. The State of Assam & Others wherein this Court had categorically held that the teachers coming with the fold of teachers appointed under the OBB and more particularly those teachers who were appointed pursuant to the creation of 7066 posts on 08.03.2021 would not be entitled to pension in terms with the Rules of 1969 as well also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. It was also categorically held by this Court that these teachers would be governed by the New Pension Scheme applicable to the State Government employees of corresponding rank. It was further observed in the said judgment that the teachers coming within the category of teachers appointed under OBB Scheme and more particularly those teachers who were appointed pursuant to the creation of 7066 posts on

08.03.2021 would be entitled to the benefit of retirement gratuity and death gratuity on the same terms and conditions as are applicable to the employees covered by the Rules of 1969 in view of the Office Memorandum dated 01.02.2021. Taking into account the said judgment dated 31.03.2023, this Court is of the opinion that the said judgment duly applies to the facts of the instant case, and consequently, this Court, therefore, disposes of the writ petition holding inter-alia that the petitioners herein would not be entitled Page No.# 9/9 to pension in terms with the Rules of 1969 as well as also would not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. The petitioners herein would be governed by the New Pension Scheme applicable to the State Government employees of corresponding rank. Further to that, the petitioners herein would also be entitled to the benefit of retirement gratuity and death gratuity on the same terms and conditions as are applicable to the employees covered by the Rules of 1969 in view of the Office Memorandum dated 01.02.2021. Accordingly, the instant petition stands disposed of.

JUDGE Comparing Assistant