Dismissed

Sukumar Sarkar and 7 Ors. v. the State of Assam and 8 Ors.

Gauhati HC12 Aug 2021WP(C)/8694/2018

Case brief

AI extract

What is this about?

This single-judge order disposed of two writ petitions by Assistant Teachers challenging mandatory subscription to the New Pension Scheme. The court held that since the petitioners were regularized under the 1969 Rules before the NPS amendment, they are governed by the 1969 Rules, relying on a prior 2015 judgment.

What did the court decide?

Both writ petitions were disposed of by holding that petitioners are governed by the Assam Services (Pension) Rules, 1969, not the New Pension Scheme.

Sukumar Sarkar and 7 Ors. Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010259122018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/8694/2018

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SUKUMAR SARKAR AND 7 ORS. S/O- LATE HARAN SARKAR, P.O- MALIBARI, BAZAR, P.S- BOKO, DISTKAMRUP, ASSAM, PIN- 781136

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2: ABU BAKKAR SIDDIQUE S/O LT. MAYANUDDIN VILL- BADLAPATHAR TIAPARA P.O. BADLA P.S. NAGARBERA DIST. KAMRUP ASSAM PIN - 781136 3: JAGANNATH DAS S/O LT. BANESWAR DAS VILL- PAHARPARA P.O. AND P.S. NAGARBERA DIST. KAMRUP ASSAM PIN - 781127. 4: SAMIDUL ISLAM S/O AMIR ALI VILL- DALAGAON P.O. HEKRA P.S. BOKO DIST. KAMRUP ASSAM PIN - 781127. 5: RATAN KR. MANDAL S/O LT. RANGLAL MANDAL VILL- SALMARA P.O. MALIBARIBAZAR P.S. BOKO DIST. KAMRUP ASSAM PIN - 781136.

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6: SARBAT ALI AHMED S/OLT. BASIRUDDIN AHMED VILL- RANGESWARI P.O. TUPARMARI P.S. NAGERBERA DIST. KAMRUP ASSAM PIN - 781127. 7: MANSER ALI AHMED S/O LT. SUKUR ALI AHMED VILL- KALYANPUR P.O. AND P.S. NAGARBERA DIST. KAMRUP ASSAM PIN - 781127 8: HALIMA KHATUN W/O FAZLUR RAHMAN VILL- MAHTOLI P.O. AND P.S. BOKO DIST. KAMRUP ASSAM PIN - 78113

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VERSUS

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THE STATE OF ASSAM AND 8 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, EDUCATION DEPTT (ELEMENTARY AND SECONDARY) DISPUR, GHY- 06

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2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER KAMRUP CHATRIBARI GUWAHATI - 781008. 4:THE DEPUTY INSPECTOR OF SCHOOLS GUWAHATI.

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5:THE BLOCK ELEMENTARY EDUCATION OFFICER BOKO/SAMARIA BLOCK DIST. KAMRUP ASSAM

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6:THE TREASURY OFFICER AMINGAON, GUWAHATI -35.

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7:THE DIRECTOR OF PENSION ASSAM DISPUR GUWAHATI-781006. 8:INSPECTOR OF SCHOOLS KAMRUP DISTRICT CIRCLE AMINGAON GUWAHATI -35. 9:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI - 781029

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Advocate for the Petitioner : MR. R M CHOUDHURY Advocate for the Respondent : MR J ABEDIN (SC, ELEMENTARY EDU. DEPT.)

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Linked Case : WP(C)/7873/2015

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NOMAL CH. BORDOLOI and 38 ORS. S/O. LT. DHANBAR BORDOLOI VILL. PUKHURI PAR P.O. BEBEJIA DIST. NAGAON.

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2: GIRIMAI DEVI D/O LATE MINARAM SARMA VILL- TOWN LOWKHOWA ROAD P.O. HAIBARGAON DIST- NAGAON

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3: SISURAM DAS S/O LATE JUGAI DAS VILL AND P.O. BATADRAVA DIST- NAGAON 4: MD. FIZNOR AHMED S/O ILIAS ALI MUNCHI VILL- CHOTA RUPAHI P.O. HERAPOTI DIST- NAGAON 5: MRS. SABITRI KAKATI D/O LATE SARUMAN KAKATI VILL AND P.O. SENCHOWA DIST- NAGAON

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6: MD. JAHIRUL ISLAM S/O LATE MOHIUDDIN AHMED VILL- HATIMURIA P.O. MOIRABARI DIST- NAGAON.

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7: MD. KHAIRUL ISLAM S/O MUNSOR ALI VILL- BAGARI P.O. JURIA DIST- NAGAON

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8: ABDUL SABIR AHMED S/O ABDUL BARIK VILL- BARGHAT P.O. RUPAHI DIST- NAGAON

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9: ABDUL JOBBER S/O JOYNAL ABDIN VILL- BARGHAT P.O. RUPAHI DIST- NAGAON 10: MD. SAMSUDDIN S/O LATE ABDUL HAKIM VILL- KADAMONI PATHAR P.O. JURIA DIST- NAGAON.

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11: MRS. MOFIDA BEGUM D/O LATE ISMAIL HUSSAIN VILL- PATIA PATAHAR P.O. PATIA CHAPORI DIST- NAGAON.

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12: SRI LOKNATH BORDOLOI S/O- SRI THULUK BORDOLOI VILL AND P.O. SUTIR PAR DIST- NAGAON

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13: MD. NURUL AMIN KABIR S/O LATE JAHID ALI VILLAND P.O. DHANIA BHETI DIST-NAGAON

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14: MD. AKKASH ALI S/O WAHID ALI VILL- HAI DUBI P.O. BATAMARI DIST- NAGAON

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15: MD. ASRAF ALI S/O LATE JAHED ALI VILLAND P.O. DHANIABHETI DIST- NAGAON 16: MD. ABDUR ROUF S/O GOLAMUR RAHMAN VILL- SONAIBERA P.O. BATAMARI DIST- NAGAON 17: DIGEN BARUAH S/O LATE DINA BARUAH VILL- JAJONI GAYAN GAON DIST- NAGAON 18: MD. SAMSUL HOQUE KHAN S/O ABDUL MAZID KHAN VILL- SALMARABORI P.O. BECHAMARI DIST- NAGAON

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19: HABIBUR RAHMAN S/O ABDUL MANNAN VILL- PANBARI P.O. SALKATI DIST- NAGAON 20: SAMSUDDIN S/O LATE ABDUL ALI VILL- BHAKAT GAON P.O. SHILANGANI DIST- NAGAON 21: NIJUBALA BORA S/O LATE MOHAMMAD ALI VILL- MORIKALANG P.O. NAGAON DIST- NAGAON 22: MOZIBUR RAHMAN S/O MOHAMMAD ALI VILL- AND P.O. MOIRABARI DIST- NAGAON 23: GHANA KANTA BORA S/O LATE PADRAM BORA VILL- AND P.O. CHAMUA GAON DIST- NAGAON

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24: FAZAL ALI MULLAH S/O LATE ABDUL MANNAN MULLAH

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VILL- KADAMANI GAON P.O. KADAMANI DIST- NAGAON 25: MD. REAZUDDIN AHMED S/O LATE HUSSAIN ALI VILL- NO. 1 GAYAN GAON P.O. GAYAN GAON DIST- NAGAON 26: DURLABH BORAH C/O SRI GOLUK CH. BORA VILL- AND P.O. DAGAON DIST- NAGAON 27: ABDUL HOQUE ABBASI C/O TAFIZUDDIN VILL- BHERBERI P.O. DHUPAGURI DIST- NAGAON 28: MINA SAIKIA W/O MAHENDRA MOHAN BORUAH VILL- TOWN DIMMUGURI (BALI BHUIN) P.O. ITACHALI DIST- NAGAON 29: SAFIQUL ISLAM S/O LATE MOFIZUR RAHMAN VILL- BAGARIGURI P.O. JURIA DIST- NAGAON 30: TARUN SAIKIA S/O LATE BHAGIRATH SAIKIA VILL- KUJARBORI P.O. JAMUGURI DIST- NAGAON 31: ZAKIR HUSSAIN C/O KASHEM ALI VILL AND P.O. HATIJUZUA DIST- NAGAON 32: DILIP KR. DEY S/O LATE MUNINDRA CH. DEY VILL- AND P.O. CHAMUAGAON DIST- NAGAON 33: ABDUL JALIL C/O SABJE ALI VILL- RAMPUR SATRA

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P.O. KADAMANI DIST- NAGAON

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34: MONOWARA KHATUN W/O ABDUL HYE VILL- BHERBERI P.O. DHUPAGURI DIST- NAGAON 35: PADMA JYOTI BORA C/O SOMESWAR BORA VILL- HEMARBARI P.O. JAJARI DIST- NAGAON 36: BABUL CH. KALITA S/O LATE KONPAI KALITA VILL- AND P.O. BATADRABA DIST- NAGAON 37: ANJU PROVA BORA W/O LATE DIMBESWAR TAMULI VILL- TELIA BEBEJIA P.O. JURIA DIST- NAGAON 38: BHARATI BORAH D/O- LATE ANIRAM BORAH VILL- BATADRABA, BATADRABA. DIST- NAGAON ASSAM 39: MUMTAZ BEGUM W/O- JAYNAL ABADIN VILL- URAL KATA P.O- SUBURIA GOAN DIST- MORIGAON

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REP. BY THE COMM. and SECY. EDUCATION ELEMENTARY GHY. DISPUR-06.

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-----------Advocate for : MR.P J DUTTA Advocate for : appearing for THE STATE OF ASSAM AND 5 ORS

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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Date : 12-08-2021

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Heard Shri PK Goswami, learned counsel for the petitioners in WP(C)/7873/2015, Shri RM Choudhury, learned counsel for the petitioners in WP(C)/8694/2018. Also heard Shri PK Bora, learned Standing Counsel, Elementary Education Department, Assam, Shri U Sharma, learned Standing Counsel, Secondary Education Department, Assam and Shri R Borpujari, learned Standing Counsel, Finance Department, Assam.

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This Court, while taking up these two matters on the last occasion, viz, 09.08.2021, was informed that the subject matter of dispute involved in these two writ petitions has already been answered by this Court on an earlier round of litigation, namely, WP(C) No. 3662/2009, vide judgment and order dated 28.04.2015 and the said judgment was also reiterated by rejecting a review petition, being Rev. Pet. No. 16/2019 filed against the same judgment.

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Accordingly, both the writ petitions are taken up for disposal. However, it would be necessary to state the brief facts of the two cases individually.

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WP(C)/7837/2015 has been instituted by 39 numbers of Assistant Teachers working in various Schools in the district of Nagaon. It is the claim of the petitioners that though they were initially appointed on honourary basis, pursuant to a decision of the Government to regularize their services, their services were regularized from the year 1993 onwards. Subsequently, a One-man Committee was constituted by the Government to enquire into the appointments of the petitioners and similarly situated persons which culminated in a report published in the year 2001. The appointments of the petitioners were found to be in accordance with law and in the year 2005, the Director of Elementary Education issued an order of reaffirmation of the regularization of their services. The order of the Director had divided the group of teachers in two groups, one group consisting of 277 teachers appointed against excess posts and another group of 117 teachers appointed against the vacant posts. The petitioners claim that they belong to the group of 117 numbers of teacher, who were appointed against the vacant posts in the district of Nagaon. However, as a pre-condition for regularization, the petitioners were directed to give an undertaking that they would be covered by the New Pension Scheme, which had come into force in the year 2005 and they would not fall under the

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old Pension Rules under which they were regularized. The petitioners being aggrieved by such action, are before this Court.

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The petitioners in WP(C) No.8694/2018 are the Assistant Teachers in different Schools in the district of Kamrup and are similarly situated as the petitioners in WP(C)/7873. It is the claim of the petitioners that subscription under the GPF, GIS etc. were deducted regularly in accordance with the Assam Services (Pension) Rules, 1969 (1969 Rules). However, the petitioners were being deprived of the benefits under the 1969 Rules and rather, they were sought to be brought under the New Pension Scheme (NPS).

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As indicated above, the issue involved has already been decided by this Court vide a judgment dated 28.04.2015 passed in WP(C) No. 3662/2009. It has been held that the NPS would not be applicable to the petitioners whose services were regularized prior to the amendment of the 1969 Rules. It may be mentioned that the judgment order dated 28.04.2015 passed in the aforesaid writ petition was the subject matter of review in Rev. Pet./16/2019 and this Court, vide an order dated 11.02.2021 had dismissed the prayer for review in the following manner:

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“9. In the present case, the petitioners’ services having been regularized on 04.06.2008, the petitioners became regular Government servants on 04.06.2008 and as the 1969 Rules was in force at that relevant point of time, the executive instructions issued could not have overriden the statutory law. As such, this Court had accordingly directed that the petitioners would be governed by the 1969 Rules and not by the New Defined Contribution Pension Scheme, which came into force only by way of amendment of the 1969 Rules in the year 2011. In the case of Dilip Kumar Ghosh v. Chairman, reported in 2005 7 SCC 567, the Apex Court has held that Circulars, notifications, administrative/executive instructions, orders etc. cannot over-ride statutory rules.”

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It is, accordingly, submitted at the Bar that the aforesaid judgment 28.04.2015 has not been challenged in any higher forum and has attained finality.

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In view of the above, this Court is of the view that the present two writ petitions can be disposed of in the same line of the order dated 28.04.2015 passed in WP(C) No.3662/2009 by holding

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that the petitioners would be governed by the Assam Services (Pension) Rules, 1969 and not by the NPS.

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With the aforesaid directions, both the writ petitions stand disposed of.

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JUDGE

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Comparing Assistant

Sukumar Sarkar and 7 Ors. v. the State of Assam and 8 Ors.

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Sukumar Sarkar and 7 Ors. v. the State of Assam and 8 Ors.

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