JUDGMENT AND ORDER : 1. Heard Mr. M. Nath, the learned Counsel appearing for the petitioner. The respondents are represented by Mr. N. Sarma, the learned Standing Counsel for the Department of Elementary Education. 2. The petitioner was appointed as an Assistant Teacher in the Chamuakhat M.E. School in Darrang district on 2.11.1999 (Annexure-1). However he was discharged from service on 1.6.2004 (Annexure-2) and in his post, one Firoz Negar Begum was appointed in the same school located outside the BTC jurisdiction. The discharge was attributed to the order dated 4.6.2001 (Annexure-3) in the WP(C) No.3011/2000, where this Court directed consideration of appointment claim of Firoz Negar Begum, as an Assistant Teacher in a M.E. School of Darrang District. 3. The discharge order was challenged by the petitioner in the WP(C) No.4780/2004 and after assessing the circumstances, the Writ Court formulated the question to be considered as under – “……………………….. The basic question which arises for consideration is as to whether the petitioner was selected for a non-B.T.C. area, as has been contended for by him and as to whether the selection of the petitioner Smt. Firoz Negar Begum involved in WP(C) No.3011/2000 pertained to B.T.C. area. The question raised is also as to whether the petitioner was a selected candidate and he was duly appointed as M.E. School teacher in the school. “………………………… 4. The WP(C) No.4780/2004 was disposed of on 22.5.2009 (Annexure-7) with direction to the Secretary to the Government of Assam of the Elementary Education Department to verify whether, the termination of the petitioner was justified, for accommodating Firoz Negar Begum, who was selected for appointment in a B.T.C. jurisdiction school. 5. The Commissioner & Secretary to the Government of Assam called for the reports of the DEEO, Darrang and also examined the departmental records relating to the petitioner’s appointment. The officer found that the appointment of the petitioner was approved by the Chairman of the Sub-Divisional Selection Board, Darrang and on that basis, he was appointed in the M.E. School. The report of the DEEO furnished on 1.7.2009 reflected that the Chamuakhat M.E. School is outside of the B.T.C. jurisdiction and therefore, the Sub-Divisional Selection Board, Darrang had no authority to select anyone for vacancies in the school in Kalaigaon block, outside of the BTAD area. The report of the DEEO furnished on 1.7.2009 reflected that the Chamuakhat M.E. School is outside of the B.T.C. jurisdiction and therefore, the Sub-Divisional Selection Board, Darrang had no authority to select anyone for vacancies in the school in Kalaigaon block, outside of the BTAD area. On the basis of such findings, the discharge of the petitioner to accommodate Firoz Negar Begum, who was selected for appointment in a BTAD jurisdiction school, was declared to be unjustified. Thus, direction was issued to restore the petitioner’s appointment, under the order dated 13.12.2010 (Annexure-8). 6. However, instead of restoring the appointment, the DEE, Assam on 24.2.2011 (Annexure-9) passed a fresh appointment order whereby, the petitioner was appointed as an Assistant Teacher in the Fakirpara ME Madrassa. But this was not considered to be a continuous appointment and the de-novo appointment order reflected that the petitioner will be covered under the New Pension Rules and consequently, lost the right of pension as an earlier appointee, under the Assam Service (Pension) Rules, 1969 7. In the WP(C) No.3011/2000 filed by Firoz Negar Begum, the present petitioner was arrayed as the respondent No.5 but significantly, the notice of that proceeding was never received by him and that is how, the case could not be contested by the present petitioner. That apart, the High Court never issued any direction in the WP(C) No.3011/2000 to terminate the service of anyone to accommodate the writ petitioner Firoz Negar Begum. The only thing the Court said is that no person from outside the select list, should be appointed and the petitioner’s appointment should be considered in accordance with her merit position in the select list. The liberty was available to terminate the service of an outsider, if the same is considered necessary, to accommodate the writ petitioner Firoz Negar Begum. 8.1 The learned Counsel Mr. M. Nath submits that Firoz Negar Begum was claiming appointment on the basis of select list applicable for schools within the BTAD jurisdiction, whereas, the present petitioner was selected for appointment in a non-BTAD area school. Thus, it is argued that for accommodating the litigant in the WP(C) No.3011/2000, there was no necessity for discharging the present petitioner, who was appointed in the non-BTAD area ME schools. 8.2 Referring to the speaking order passed by the Commissioner on 13.12.2010 (Annexure-8), Mr. Thus, it is argued that for accommodating the litigant in the WP(C) No.3011/2000, there was no necessity for discharging the present petitioner, who was appointed in the non-BTAD area ME schools. 8.2 Referring to the speaking order passed by the Commissioner on 13.12.2010 (Annexure-8), Mr. Nath submits that a clear finding was given in petitioner’s favour that he was a selected candidate and was duly appointed in a ME School outside of the BTAD jurisdiction, whereas Firoz Negar Begum was selected for a BTAD area school. Thus there could not have been clash of interest between the petitioner and Firoz Negar Begum as they were selected for different schools and were not contenders for the same vacancy. On the basis of such finding, the Commissioner ordered for restoration of appointment of the petitioner and the learned Counsel highlights that direction was not for fresh appointment, but for restoration of appointment. 9.1 On the other hand, Mr. N. Sarma, the learned Standing Counsel submits that the select list in which the petitioner’s name figured, may not have been published and therefore, the petitioner had to be appointed afresh with the concurrence of the Finance (SIU) Department. Since this was a de-novo appointment and not continuation of the earlier appointment made on 2.11.1999 (Annexure-1), Mr Sarma argues that the coverage of the petitioner, under the New Pension Rules, is justified. 9.2 As the petitioner was discharged on 1.6.2004 and was re-appointed on 24.2.2011, the respondents argue that the petitioner is not entitled to any salary for the gap period and his service should be counted only from the new date of appointment i.e. 24.2.2011. 10. The Chamuakhat M.E. School in Kalaigaon LAC falls outside the BTAD jurisdiction and therefore, a person selected for appointment in a BTAD school, cannot be posted in the Chamuakhat M.E. School. That apart, the High Court permitted action only against those who are not in the select list. The petitioner however was a selected candidate and his appointment was approved by the Chairman of the Sub-Divisional Selection Board, Darrang. Therefore it is apparent that he was unfairly targeted to accommodate Firoz Negar Begum, in purported compliance of the Court’s direction in the WP(C) No.3011/2000. 11. The appointment of Firoz Negar Begum was approved by the BTAD authority and obviously such approval can give rise a claim for appointment in a BTAD jurisdiction school only. Therefore it is apparent that he was unfairly targeted to accommodate Firoz Negar Begum, in purported compliance of the Court’s direction in the WP(C) No.3011/2000. 11. The appointment of Firoz Negar Begum was approved by the BTAD authority and obviously such approval can give rise a claim for appointment in a BTAD jurisdiction school only. But mis-interpreting the Court’s direction, the BTAD approved candidate was appointed in a non-BTAD ME school, by unjustly discharging the petitioner, who was duly appointed on 2.11.1999 in the Chamuakhat M.E. School. 12. The above anomalous circumstances was realized in the WP(C) No.4780/2004 and that is why the Court directed verification on whether the petitioner Md. Mainuddin Ahmed was selected for the outside of the BTC jurisdiction school and whether, Firoz Negar Begum was selected for a BTC area school. The key issue was then examined and the Commissioner after verifying the selection and appointment of the status of the petitioner, unequivocally ordered for restoration of his appointment on 13.12.2010 (Annexure-8). 13. When appointment is to be restored, it must relate back to the date of the original appointment and a de-novo appointment cannot be construed as restoration, of the original appointment. Only if the petitioner’s service is considered to be continuous since 2.11.1999, he becomes entitled for the service benefits from the date of appointment and without this, the fresh appointment cannot said to be restoration of the original status for the petitioner. It is however apparent that the petitioner was victimized for no fault and hence justice must be done to him. 14. But at the same time, the Court cannot ignore the fact that no service was received from the petitioner from the date of discharge on 1.6.2004 till he was re-appointed on 24.2.2011. Therefore to allow him salary for the gap period, may not be justified. Nevertheless, when the petitioner was victimized for no reason, all permissible relief must be restored to the victim. Therefore, the gap period in my view, should be taken into account for allowing seniority and other service benefits like pension etc. 15. Following the above discussion, the petitioner should be treated to be in continuous service since the date of his initial appointment on 2.11.1999 and he must be covered under the Assam Service (Pension) Rules, 1969 and the undertaking at the time of the fresh appointment, should not be enforced against him. 15. Following the above discussion, the petitioner should be treated to be in continuous service since the date of his initial appointment on 2.11.1999 and he must be covered under the Assam Service (Pension) Rules, 1969 and the undertaking at the time of the fresh appointment, should not be enforced against him. Thus seniority and other service benefits, except back-wages, for the gap period must also be granted to the petitioner for such deemed continuation of service. It is ordered accordingly. 16. With the above direction, the case stands allowed in the manner indicated. No Cost.