JUDGMENT : DEVASHIS BARUAH, J. 1. Heard the learned senior counsels as well as all the counsels representing the petitioners and Mr. R. Borpujari, the learned counsel appearing on behalf of the Finance Department; Mr. R.A. Mazumdar, the learned counsel appearing on behalf of the School Education Department and Mr. R.M. Das, the learned counsel appearing on behalf of the Dima Hasao District Council. 2. The issue involved in the instant batch of writ petitions largely to say is as to whether the petitioners are entitled to pension in terms with the provisions of the Assam Services (Pension) Rules, 1969 (for short ‘the Rules of 1969’) or as to whether the petitioners are covered by the “New Pension Scheme” which was brought into effect from 01.02.2005. 3. The larger issue as stated supra involves determination taking into account that in the instant batch of the writ petitions, the services of the petitioners were recruited to the services and posts in connection with the affairs of the Government of Assam in different modes for which it would be relevant for this Court to deal with the method by which the petitioners were inducted to services and posts of the Government of Assam. Broadly speaking, it appears that the petitioners in the instant batch of writ petitions can be compartmentalized into six different groups on the basis of their nature of appointment. The six different groups in the opinion of this Court taking into account the facts involved are (i) Stipendiary Teachers; (ii) Dropped Teachers; (iii) Teachers appointed against the Scheme, i.e. the Operation Black Board; (iv) Excess Teachers; (v) Ad-hoc grant teachers and lastly (vi) Teachers appointed in the 6th Schedule areas and more particularly in the instant batch of writ petitions by the Dima Hasao District Autonomous Council. 4. This Court would in the later part of the instant judgment deal with the specific reasons as to why the petitioners have been grouped in the above categories. However, before doing so, this Court finds it relevant to take into account the overall dispute involved in the instant proceedings. The dispute arose out of compulsion due to pension liability of the State Government of Assam which was rising exponentially. In the meantime, the Government of India had also introduced the Contributory Pension Scheme for its employees. However, before doing so, this Court finds it relevant to take into account the overall dispute involved in the instant proceedings. The dispute arose out of compulsion due to pension liability of the State Government of Assam which was rising exponentially. In the meantime, the Government of India had also introduced the Contributory Pension Scheme for its employees. Taking into account the same, a policy decision was taken by the State Government to formulate a similar Contributory Pension Scheme applicable to future State Government employees who joined the services and posts in connection with the affairs of the State Government on or after 01.02.2005. In view of the said policy decision, the Commissioner and Secretary to the Government of Assam, Finance Department had issued a circular on 25.01.2005 wherein it was mentioned that in view of the decision of the Government to have a Contributory Pension Scheme applicable in future to the State Government employees who joined the services of the State Government on or after 01.02.2005, it was mandatory to mention in all advertisements for filling up of vacant posts under the State Government as well as in the appointment letters of the selected candidates that they would be governed by the new set of pension rules which have been formulated in line with the Contributory Pension Scheme announced by the Government of India. Further to that, it was also decided that those fresh recruits joining the services of the State Government on or after 01.02.2005 had also to furnish an undertaking along with the joining report to the effect that they would be governed by the New Pension Rules and not to be governed by the existing Rules of 1969. It is apposite herein to mention and take into account that in the said communication dated 25.01.2005, the Finance Department of the Government of Assam apprised all concerned Government officials that all advertisement henceforth has to contain the following prescription which is reproduced herein-below: “Government servants joining the service of the State Government on or after 1st February, 2005 shall not be Government by the existing Assam Services (Pension) Rules, 1969 and orders issued thereunder from time to time. So far as their pension and other retirement benefits are concerned, they will be governed by a new set of Pension Rules, which are being formulated in line with the Contributory Pension Scheme announced by the Government of India recently.” 5. Further to that, in respect to fresh recruits joining the services of the State Government on or after 01.02.2005, the undertaking to be given was also prescribed in the said communication which is also reproduced herein-below: “I understand and accept that Government servants joining the service of the State Government on or after 1st February, 2005 shall not be governed by the existing Assam Services (Pension) Rules 1969 and orders issued thereunder from time to time and that their pension and other retirement benefits will be governed by a set of new Pension Rules, which are being formulated in line with the Contributory Pension Scheme of Government of India and going to be notified in due course.” 6. Subsequent thereto, it further reveals that an Office Memorandum dated 06.10.2009 was issued by the Finance (Budget) Department. The said Office Memorandum brings into effect the New Defined Contribution Pension Schemes (for short NDCPS). A perusal of the said Office Memorandum dated 06.10.2009 shows that there is a reference to the communication dated 25.01.2005 whereby the Government had taken a policy decision to introduce the Contributory Pension Scheme for employees joining the State Government services on or after 01.02.2005 in tandem with the Government of India. It is on the basis thereof, the Governor of Assam was pleased to introduce the “New Defined Contributory Pension Scheme.” It was made clear that the Scheme would be application to all new entrants joining the State Government services on regular basis against vacant sanctioned posts on or after 01.02.2005. The details and the workability of the Scheme have been mentioned in the various Clauses of the said Office Memorandum dated 06.10.2009. It is pertinent to mention that the Office Memorandum dated 06.10.2009 had the backing of the Cabinet decision which was approved on 04.09.2009. 7. It is also relevant to take note of that Clause 12 of the said Office Memorandum dated 06.10.2009 stipulated about the Guidelines for the NDCPS which was appended to the said Office Memorandum. It was mentioned that the Scheme shall be deemed to have come into effect from 01.02.2005 as circulated by the communication dated 25.01.2005. 8. 7. It is also relevant to take note of that Clause 12 of the said Office Memorandum dated 06.10.2009 stipulated about the Guidelines for the NDCPS which was appended to the said Office Memorandum. It was mentioned that the Scheme shall be deemed to have come into effect from 01.02.2005 as circulated by the communication dated 25.01.2005. 8. Clause 3 of the said Guidelines stipulates that the Scheme shall be applicable to all new entrants joining the State Government services on regular basis against sanctioned posts filled up with the approval of either the SLEC or the Finance (SIU) Department on or after 01.02.2005. It was further made clear in the said Clause that it shall also be applicable to all Government servants whose services were/will be regularized against regular posts on or after 01.02.2005 with the benefit of prospective date. Clause 4 of the said Guidelines stipulates that the teaching and non-teaching employees of provincialised educational institutions as well as those Panchayat who joined the State Government services on or after 01.02.2005 on regular basis shall come within the purview of the NDCPS. Clause 5 stipulates that it is mandatory for all new employees mentioned in the foregoing Clauses of the said guidelines who are recruited on or after 01.02.2005 to become members of NDCPS. Clause 6 stipulates that the Rules of 1969 and its amendments made from time to time thereon will not be applicable to the Government servants who joined on or after 01.02.2005. Clause 7 is also pertinent for the purpose of the instant dispute in as much as it stipulates that the Government servants who were in the State Government service before 01.02.2005 but joined in a new Government service on direct recruitment after resignation which is in the nature of technical resignation is eligible for pension governed under the provisions of the Rules of 1969. The remaining Clauses of the said Guidelines pertain to the modus operandi of the NDCPS which however for the purpose of the instant dispute is not relevant to discuss further. The remaining Clauses of the said Guidelines pertain to the modus operandi of the NDCPS which however for the purpose of the instant dispute is not relevant to discuss further. It further appears from the records that though there was a policy decision taken in the year 2005 and the NDCPS was introduced vide the Office Memorandum dated 06.10.2009, but the Government realized that sans any amendment being carried out to the Rules of 1969, by way of executive instructions, it would not be possible to overshadow the statutory effect of the Rules of 1969. Therefore, pursuant to the approval of the Cabinet held on 05.07.2011, the Pension and Public Grievances Department, Government of Assam in exercise of the power conferred under the proviso to Article 309 of the Constitution issued a notification vide No. PPG (P) 88/20009/37 dated 14th July, 2011 thereby amending the Rules of 1969. The said notification by which the Rules of 1969 was amended being relevant is quoted herein-below: “GOVERNMENT OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR: GUWAHATI Order by the Governor NOTIFICATION Dated Dispur, the 14th July, 2011 No. PPG (P) 88/20009/37: In pursuance of the approval of Cabinet held on 05.07.2011 and in exercise of the powers conferred by the proviso to Article 309 of the Constitution of Indian, the Governor of Assam is pleased to make the following rules further to amend the Assam Services (Pension) Rules, 1969, hereinafter referred to as the principal Rules namely: 1. Short title and commencement: (1) These rules may be called the Assam Services (Pension) Amendment) Rules, 2011. (2) They shall be deemed to have come into force with effect from 01-02-2005. 2. Insertion of new rule 2A - In the principal Rules, after rule 2, the following new rule 2A shall be inserted, namely: “2A. Provisions of these rules shall not apply to Government servants appointed on or after 01.02.2005 to the services and posts in connection with the affairs of the State Government of Assam which are borne on pensionable establishment, whether temporary or permanent. Such employees shall be governed by the “New Defined Contribution Pension Scheme, 2009” newly introduced by the Government of Assam.” (Smt. G. Baruah, IAS), Commissioner and Secy. to the Govt. of Assam, Pension and Public Grievances Department.” 9. Such employees shall be governed by the “New Defined Contribution Pension Scheme, 2009” newly introduced by the Government of Assam.” (Smt. G. Baruah, IAS), Commissioner and Secy. to the Govt. of Assam, Pension and Public Grievances Department.” 9. Further to that vide another Notification No. PPG (P) 88/2009/38, the General Provident Fund (Assam Services) Rules, 1937 was further amended. The said notification being further relevant for the purpose of the instant dispute is reproduced herein-below: “GOVERNMENT OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR: GUWAHATI Order by the Governor NOTIFICATION Dated Dispur, the 14th July, 2011 No. PPG (P) 88/20009/38: In pursuance of the approval of Cabinet held on 05.07.2011 and in exercise of the powers conferred by the proviso to Article 309 of the Constitution of Indian, the Governor of Assam is pleased to make the following rules further to amend the General Provident Fund (Assam Services) Rules, 1937, hereinafter referred to as the principal Rules namely: 1. Short title and commencement: (1) These rules may be called the General Provident Fund (Assam Services) (Amendment) Rules, 2011. (2) They shall be deemed to have come into force with effect from 01-02-2005. 2. In the principal Rules, in rule 4, after proviso 2, the following new proviso shall be inserted, namely: “Provided further more that the Government Servant appointed on or after 01.02.2005 to the services and posts in connection with the affairs of the State Government of Assam which are borne on pensionable establishment, whether temporary or permanent, shall not be eligible to join the Fund.” (Smt. G. Baruah, IAS), Commissioner and Secy. to the Govt. of Assam, Pension and Public Grievances Department.” 10. It further appears that the Secretary to the Government of Assam, Pension and Public Grievances Department had vide a Corrigendum bearing No. PPG (P)140/2009/41 dated 17.09.2011 thereby requesting all concerned to read the Government notifications which have been quoted herein above as dated 14.07.2011 instead of 13.07.2011. 11. This Court finds it relevant at this stage to take note of another development in the meantime. 11. This Court finds it relevant at this stage to take note of another development in the meantime. The Director of Finance (Budget) Department issued a communication bearing No. BW-3/2003/Part II/203 dated 24.02.2010 to the Deputy Accountant General (P&F) stating inter-alia that the teachers who were appointed on stipendiary basis on fixed pay prior to 01.02.2005, but brought under the regular time scale of pay on or after 01.02.2005 would not be entitled to subscribe to GPF account as per the provisions of Assam Services (GPF) Rules, 1939 (for short ‘the Rules of 1939’) as the services of these employees are governed by the New Pension Scheme not by the Assam Services (Pension) Rules, 1969. 12. Before proceeding further, this Court would like to take into account the amendment made to the Rules of 1969 vide the Assam Service (Pension) Amendment) Rules, 2011 (for short, “the Amending Rules”). Rule 1 (2) of the Amending Rules stipulates that the said Amending Rules shall come into effect w.e.f. 01.02.2005 meaning thereby that the amendment to the Rules of 1969 was brought into effect retrospectively w.e.f. 01.02.2005. It is relevant to mention herein that in the present batch of writ petitions there is no challenge to the Amending Rules. Rule 2 of the Amending Rules further mentioned the introduction of a new Rule 2A after Rule 2 of the Rules of 1969. A perusal of the Rule 2A stipulates that the Rules of 1969 shall not apply to Government servants appointed on or after 01.02.2005 to the services and posts in connection with the affairs of the State Government of Assam which are borne on pensionable establishment whether temporary or permanent. Such employees shall be governed by NDCPS, 2009 newly introduced by the Government of Assam. Therefore, a perusal of Rule 2A stipulates that the Rules of 1969 shall not apply if the following conditions are fulfilled: (i) The employee has to be a Government servant appointed on or after 01.02.2005 to the services and posts in connection with the affairs of the State Government of Assam. (ii) The appointment so made are to be borne on pensionable establishment whether temporary or permanent. 13. (ii) The appointment so made are to be borne on pensionable establishment whether temporary or permanent. 13. From the above, it would be seen that a Government servant who has been appointed to post which are borne on pensionable establishment whether temporary or permanent on or after 01.02.2005 would not come within the ambit of the Rules of 1969. 14. At this stage, this Court would like to take into account that the Rules of 1969 though defines temporary appointment but do not define the term “temporary or permanent post.” However, the Fundamental Rules and Subsidiary Rules as applicable to the State of Assam and more particularly FR 9 (22) defines “permanent post” to mean a post carrying a definite rate of pay sanctioned without a limit of time. Again, FR 9 (30) defines “temporary post” to mean a post carrying a definite rate of pay sanctioned for a limited time. 15. This Court further would also take into account that the Rules of 1969 do not define the term “pensionable establishment.” However, in Note 2 of Rule 44 of the Rules of 1969 certain services have been stated to be not in pensionable service. Note 2 of Rule 44, being relevant, is quoted herein-below: “Note 2 - The following are not in pensionable service: (i) Government servants who are paid for work done for Government but whose whole time is not retained for the public service. (ii) Government servants who are paid from a contract grant whether such grant is a fixed amount or consists of fees. (iii) Government servants holding post which have been declared by the authority which created them to be non-pensionable. (iv) Government servants who are not in receipt of pay but are remunerated by: (a) fees or commission. (b) the grant of a tenure of land or of any other source of revenue, or of a right to collect money.” 16. (iii) Government servants holding post which have been declared by the authority which created them to be non-pensionable. (iv) Government servants who are not in receipt of pay but are remunerated by: (a) fees or commission. (b) the grant of a tenure of land or of any other source of revenue, or of a right to collect money.” 16. It appears from the above quoted Note 2 of Rule 44 that the Government servants who are paid for work done for Government but whose whole time is not retained for the public service; the Government servants who are paid from a contract grant whether such grant is a fixed pay or consists of fees; Government servants holding posts which have been declared by the authority which created them to be non-pensionable and the Government servants who are not in receipt of pay but are remunerated by (a) fees or commission (b) the grant of tenure of land or any other source of revenue or of a right to collect money are not in pensionable service. 17. The Rules of 1969 as already stated herein above have not defined the term “pensionable establishment” although the term has been used in various provisions of the said Rules of 1969 such as Rule 2A itself and Rule 139. 18. At this stage, this Court finds it relevant to refer to the judgment of the Supreme Court in the case of K. Anbazhagan and Another vs. The Registrar General High Court of Madras and Another, (2018) 9 SCC 293 wherein the Supreme Court was called upon to answer as to whether the appointments of the appellants therein were on pensionable establishment. Likewise to the present Rules of 1969, Tamil Nadu Pension Rules, 1978 also does not define the expression “pensionable establishment.” In such circumstances, the Supreme Court taking into account the facts involved in the said case to the effect that the appellants therein though appointed on Ad-hoc basis, but as would draw a pay scale of Rs. Likewise to the present Rules of 1969, Tamil Nadu Pension Rules, 1978 also does not define the expression “pensionable establishment.” In such circumstances, the Supreme Court taking into account the facts involved in the said case to the effect that the appellants therein though appointed on Ad-hoc basis, but as would draw a pay scale of Rs. 15000-400-18600/- and other usual allowances; the appellants were appointed in the judicial establishment of the district and were part of the Subordinate Courts under the High Court and further to that taking into account that the payment of salary of the appellants were made from the same source by which the other Additional District Judges and other Judicial Officers of the State were paid was of the opinion that the Fast Track Court so established on the basis of the scheme and the appointments of the appellants therein were in pensionable establishment. Paragraph Nos. 27 to 32 of the said judgment, being relevant, are quoted herein-below: 27. The first issue to be answered is as to whether the appointments of the appellants were appointment on “pensionable establishment” or not. The expression “pensionable establishment” is not defined under the 1978 Rules. Rule 2 of the 1978 Rules which provides for application of the Rules is as follows: “2. Application.-Save as otherwise provided in these Rules, these Rules shall apply to all government servants appointed to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent, but shall not apply to: (a) Persons in causal and daily-rated employment. (b) Persons paid from contingencies. (c) Persons employed on contract except when the contract provides otherwise. (d) Members of the All-India Services. *** *** *** (f) Persons who are entitled to the benefits under the Factories Act, 1948 and the Employees Provident Fund Act, 1952 excluding those who are governed by Statutory Service Rules and belong to pensionable service.” 28. The expression “pensionable establishment” has been used in Rule 2. (d) Members of the All-India Services. *** *** *** (f) Persons who are entitled to the benefits under the Factories Act, 1948 and the Employees Provident Fund Act, 1952 excluding those who are governed by Statutory Service Rules and belong to pensionable service.” 28. The expression “pensionable establishment” has been used in Rule 2. Rule 11 sub-rule (3) also uses the expression “non-pensionable establishment.” An indication in Chapter 12 of the Rules i.e. Rule 84 is given that service paid for from a local fund does not qualify for pension which indicates that services paid for from a local fund are services in “non-pensionable establishment.” For the purposes of this case, we have to only consider as to whether the establishment where the appellants were appointed and working was a “pensionable establishment” or “non-pensionable establishment.” 29. We have noticed above the Government Order dated 18-12-2001 by which the State Government created nineteen Fast Track Courts of District Judges (Additional District Judges) in the pay scale of Rs. 15,000-18,600. The appellants in their appointment Order dated 14-2-2002 were also referred to as having been appointed as Additional District and Sessions Judges (Fast Track Courts) on ad hoc basis. The appointment order further provided that the appellants as Additional District and Sessions Judges will draw a pay in the scale of Rs. 15,000-400-18,600 and other usual allowances. The appellants were appointed in the judicial establishment of the district and were part of the subordinate courts under the control of the High Court. Clause 9 of the Government Order dated 18-12-2001 read as follows: “9. The expenditure involved in the proposal shall be debited to 2014.00 Administration of Justice 800 other Expenditure-II State Plan-JA Eleventh Finance Commission Upgradation and Special Problem Grant setting up of additional courts for disposal of long pending cases 0.9 Grants in Add. 03. Other grants for Specific Scheme (DPC No. 2014.00 800 JA 0934).” 30. The payment of salary to the appellants were made from same sources by which other Additional District Judges and other Judicial Officers of the State were being paid. There is no indication from any of the material produced before us that the appellants were appointed on any different establishment than the judicial establishment of the district. 31. The payment of salary to the appellants were made from same sources by which other Additional District Judges and other Judicial Officers of the State were being paid. There is no indication from any of the material produced before us that the appellants were appointed on any different establishment than the judicial establishment of the district. 31. We have noticed above that this Court in Brij Mohan Lal vs. Union of India in Para 10 of the judgment has directed that persons appointed under the Scheme (Fast Track Courts Scheme) shall be governed, for the purposes of leave, reimbursement of medical expenses, TA/DA and conduct rules and such other service benefits, by the rules and regulations which are applicable to the members of the judicial services of the State of equivalent status. 32. By Direction 10(16), this Court had directed the State Governments to ensure compliance, hence, the terms and conditions of service of the appellants were same as those other judicial officers of the State as per order of this Court. The High Court in its judgment although observed that Fast Track Courts cannot be said to have been created in “pensionable establishment” but the said conclusion has been arrived at without considering relevant materials and without giving any cogent reasons. We thus are of the view that appointment of the appellants was in “pensionable establishment.” 19. Therefore, from the above judgment, it would be clear that in absence of the Rules of 1969 defining what is a pensionable establishment, it is to be seen from the attending facts involved in each case as to whether the appointments so made were to pensionable establishment in as much as the Supreme Court in its judgment in the case of K. Anbazhagan (supra) had observed that the same would have to be seen from the attending facts of each case. Be that as it may, it is clear from Rule 2A of the Rules of 1969 as brought into effect from 01.02.2005 that the Rules of 1969 shall not apply to the Government servants appointed on or after 01.02.2005 to services and posts in connection with the affairs of the State Government of Assam which are borne on pensionable establishment whether temporary or permanent. The said Rules further expressly mention that such employees shall be governed by the NDCPS, 2009. The said Rules further expressly mention that such employees shall be governed by the NDCPS, 2009. It would further be clear that in view of Rule 2A of the Rules of 1969, such Government servants appointed on or after 01.02.2005, would be regulated in terms with the NDCPS, 2009. 20. The questions therefore beg consideration in the batch of writ petitions are: (i) Whether the petitioners prior to 01.02.2005 were entitled to be covered under the Rules of 1969? (ii) If the answer to be first question is in the negative, are the petitioners still entitled to claim benefit under the Rules of 1969 by virtue of they being inducted into services and posts connected with affairs of the Government of Assam after 01.02.2005? 21. In the backdrop of the above, let this Court therefore take into consideration the entitlement of the petitioners in the instant batch of writ petitions who have been separately grouped as stated herein above. Stipendiary Teachers 22. The case of the Stipendiary Teachers are in WP (C) No. 5843/2022, WP (C) No. 5037/2020, WP (C) No. 5394/2017, WP (C) No. 5460/2017, WP (C) No. 5088/2019, WP (C) No. 297/2021, WP (C) No. 5202/2021, WP (C) No. 6051/2021, WP (C) No. 373/2023, WP (C) No. 5368/2022, WP (C) No. 5608/2022, WP (C) No. 438/2022 and WP (C) No. 234/2020. 23. This categorized group of teachers were appointed against the vacant sanctioned posts pursuant to a selection process under the provisions of Assam Elementary Education (Provincialisation) Act, 1974 (for short ‘the Act of 1974’) and the Assam Elementary Education (Provincialisation) Rules, 1977 (for short, ‘the Rules of 1977’). At this stage, it may be relevant to mention that the Rules of 1977 as it exists today underwent various amendments from time to time. It is pertinent to mention that notable amendments were carried out on 10.11.2005 and thereafter on 25.10.2012. The case of the petitioners herein relates to a period prior to amendments carried out on 10.11.2005. These teachers were initially paid a stipend. Subsequent thereto, after undergoing the Junior Basic teachers training for one year and becoming successful in the training, were given regular time scale of pay as prescribed in the ROP Rules, 1990 plus other allowances as admissible under the Rules from the date of announcement of the result. These teachers were initially paid a stipend. Subsequent thereto, after undergoing the Junior Basic teachers training for one year and becoming successful in the training, were given regular time scale of pay as prescribed in the ROP Rules, 1990 plus other allowances as admissible under the Rules from the date of announcement of the result. At this stage, it is relevant to mention that the Junior Basic Training was an in house Training which the Government of Assam was required to provide. The petitioners or for that matter the other similarly situated persons so appointed could not have on their own undergone the Training without the Government of Assam providing the Training. In the batch of the writ petitions before this Court, all the teachers were appointed prior to 01.02.2005 as Stipendiary Teachers by the concerned Deputy Inspector of Schools against vacant sanctioned posts. The details as regards the petitioners are given in the following charts: STIPENDIARY TEACHER’S DETAILS Case No. Name of Petitioners Date of appointment of Petitioner Confirmed Date of regular time scale of pay Vacant post arose on W.P. (C) 5843/2022, WP (C) No. 5037/2020 Soraf Uddin Laskar 31.03.1995 subsequently on 11.11.2002 the petitioner was vacancy which arose due to regularized against existing retirement of Nripash Chandra Das July/2005 11.11.2002 14.02.1994 W.P. (C) 5394//2017 Sri Mukunda Borah 08.03.2001 as fixed pay assistant teacher Joined in Govt. service on 12.03.2001, confirmed service from 19.10.2015 w.e.f. 20.10.2012 actually paid on April, 2015 29.11.1975 W.P. (C) 5460/2017 Sri Sida Saikia 08.03.2001 as fixed pay assistant teacher. Appointed against the existing vacancy of Uma Gogoi Joined service on 13.03.2001 20.10.2012, but in fact was paid only from April, 2015. 29.11.1975 W.P. (C) 5088/2019 Sri Bhupen Buragohain 08.03.2001 as fixed pay assistant teacher Confirmed service on 19.10.2015 20.10.2012 29.11.1975 W.P. (C) 297/2021 Sri Dhaniran Saikia 31.03.2001 30.01.2001 31.08.2006 Against the retirement vacancy of Sambhuram Goyari at Borimuir LP School Sri Loknath Dutta 31.03.2001 02.02.2001 31.08.2006 Against the retirement vacancy of Shamshul Ishlam at Laluk LP School Smti. 29.11.1975 W.P. (C) 5088/2019 Sri Bhupen Buragohain 08.03.2001 as fixed pay assistant teacher Confirmed service on 19.10.2015 20.10.2012 29.11.1975 W.P. (C) 297/2021 Sri Dhaniran Saikia 31.03.2001 30.01.2001 31.08.2006 Against the retirement vacancy of Sambhuram Goyari at Borimuir LP School Sri Loknath Dutta 31.03.2001 02.02.2001 31.08.2006 Against the retirement vacancy of Shamshul Ishlam at Laluk LP School Smti. Reena Bhuyan 01.08.2001 01.02.2001 31.08.2006 Against the vacancy of Runu Das at Badati Janajati LP School retirement Jamiuddin 02.04.2001 04.01.2010 31.08.2006 Against the retirement vacancy of Naren Doley at Malual LP School W.P. (C) 5202/2021 Smt. Bharati Roy 30.03.1995 Allowed to continue as 2nd teacher of the Guttilal LP School 21.10.2005 18.01.1995 W.P. (C) 6051/2021 Sri Bhaba Handique 08.03.2001 - 20.10.2012 29.11.1975 W.P. (C) 373/2023 Mukul Bhagabati Appointed on 31.07.1999, joined on 01.08.1999 - 20.10.2012 21.05.1999 @WP (C) No. 5368/2022 Dipali Choudhury 22.05.2001 07.02.2022 22.12.2011 Against the retirement vacancy of Madhab Ch. Das @WP (C) No. 5608/2022 Sri Deepak Saikia 08.03.2001 20.10.2012 Against the retirement vacancy of Tankeswar Hazarika at Kinapather LP School Smti. Momi Assomi Ahmed 08.03.2001 04.02.2006 Against the retirement vacancy of Kanaklata Bora at Rupjyoti LP School Smti. Jonmoni Saikia 08.03.2001 20.09.2007 Against the retirement vacancy of Upendra Nath Neog at Rajgrah LP School Smti. Mira Nazir 31.03.2001 20.09.2007 Against the retirement vacancy of Lalit Saikia at Majardalani LP School @WP (C) No. 438/2022 Santa Sen Gupta 12.03.2001 19.07.2016 20.09.2009 Against the retirement vacancy of Lalita Das at Kalibari Bidyaniketan LP School @WP (C) No. 234/2020 Smti. Sulma Begum Laskar 08.07.2003 Created on 06.08.2003 and adjusted against the retirement vacancy of Md. Nazir Ali Mazumdar, H/T 948 No. Dubakata LP School 06.05.2005 Against the retirement vacancy of Md. Nazir Ali Mazumdar, H/T 948 No. Dubakata LP School 24. The Act of 1974 and more particularly Section 12 deals with the effect of recognition of the Elementary Schools. It categorically stipulates that all existing teachers as defined in Section 2 (o) of the Act of 1974 and other employees of the school those to be appointed in an Elementary School under the Act of 1974 except autonomous district, shall be deemed to be appointed by the State Government in their corresponding rank. 25. The Rules of 1977 provides the methods of recruitment, payment of liability of the Board and the management of the elementary schools etc. 25. The Rules of 1977 provides the methods of recruitment, payment of liability of the Board and the management of the elementary schools etc. Rule 3 as it stood prior to the Amendment dated 10.11.2005 stipulates the method of recruitment. In terms with Rule 3 (i) which stipulates the method of recruitment, the Deputy Inspector of Schools in the month of January every year shall invite applications in prescribed form for vacancies of Elementary School Teachers which is likely to occur in the year in his establishment. The qualification was stipulated in Rule 3 (iii) of the Rules of 1977 to be (a) Matriculation/High School/School Leaving Certificate Examination or any other examination of equivalent standard shall be the minimum qualification for the post of teacher in Lower Primary and Junior Basic Schools preference being given to candidates trained in Senior Basic, Normal and Junior Basic Training Courses and (b) For M.V. and Senior Basic Schools, qualification shall be Matric, Normal or P.U. or intermediate or its equivalent. 26. Rule 3 (v), (vi), (vii), (viii) and (ix) as stood on 23.06.1979 and prior to 10.11.2005 are reproduced herein-below: (v) Selection Committee There shall be a selection Committee in each Educational Sub-Division to be constituted by the Sub-Division Level Advisory Board for Elementary Education. The Chairman of the Sub-Division Level Advisory Board for Elementary Education and the D.I. of Schools shall be the Chairman and Secretary of the Selection Committee respectively. (vi) On receipt of applications, the Selection Committee shall scrutinize the mark sheets and other necessary testimonials of the candidates and prepare a list of candidates for interview by the Selection Committee. The selection Committee shall then finalise the list of successful candidates in order of merit after interview and shall put up the list before the Board for approval. While approving the list, the Board shall be guided by the declared policies of the Government and instructions issued by the Government from time to time. After approval of the list by the Board the same shall be sent to the Director of Elementary Rules and Government instruction for the time being in force. The Deputy Inspector of Schools will appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per Government Rules and Government instructions for the time being in force. The Deputy Inspector of Schools will appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per Government Rules and Government instructions for the time being in force. The list shall be valid for one year unless its validity is extended by Government. (vii) Reservation There shall be reservation of posts for Scheduled Castes and Scheduled Tribes as per rules made by Government from time to time. (viii) Physical fitness: (a) A candidate shall be of sound health both physically and mentally and free form organic defects or bodily infirmity likely to interfere with his/her duties. (b) A candidate shall be required to undergo medical examination and to produce a medical certificate of fitness. (ix) An appointed candidate may be required to undergo such in-service training as Government may decide from time to time. 27. Rule 4 of the Rules of 1977 as it stood in the year 1979 stipulates that except as otherwise provided in the Act and the Rules all matters relating to pay, allowances, leave, pension, discipline and other conditions of service shall be regulated by the general rules framed by the Government from time to time. Rule 4 of the Rules of 1977, being relevant is quoted herein-below: 4. Other provisions relating to candidates for services. Except as provided otherwise in the Act and in these rules all matters relating to pay, allowances, leave, pension, discipline and other conditions of service shall be regulated by the general rules framed by the Government from time to time. 28. Therefore, from a reading of Rules 3 and 4 as it stood as on 22.06.1979 and prior to 10.11.2005, it would be seen that upon application being invited by the Deputy Inspector of Schools, the Selection Committee so formed in terms with Rule 3 (v) shall scrutinize the mark sheets and other necessary testimonials of the candidates and prepare a list of candidates for interviews by the Selection Committee. Thereupon, the Selection Committee shall finalize the list of successful candidates in order of merit after interview and shall put up the list before the Board for approval. The Board, while approving the list, shall be guided by the declared policies of the Government and the instructions issued by the Government from time to time. Thereupon, the Selection Committee shall finalize the list of successful candidates in order of merit after interview and shall put up the list before the Board for approval. The Board, while approving the list, shall be guided by the declared policies of the Government and the instructions issued by the Government from time to time. After approval of the list by the Board, the same shall be sent to the Director of Elementary Education for his final approval. The Deputy Inspector of Schools will then appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per the Government Rules and Government instructions for the time being in force. Rule 3 (ix) is pertinent in as much as it stipulates that an appointed candidate may be required to undergo such in-service training as Government may decide from time to time. This Rule makes it clear that the Training is a follow up to an appointment to a vacant sanctioned post to the services of the Government. 29. The condition of undergoing such in-service training was purely dependent upon the Government providing the said Stipendiary Teachers the opportunity to avail the training. Though it was mandated in the appointment letters of the petitioners who were appointed on stipend that their appointment was subject to passing out the training in question and upon passing the said training they would be given the regular time scale of pay, but for all purposes, the writ petitioners who were appointed on a fixed stipend were duly appointed to the Government service and their services were regulated by the general Rules framed by the Government including for pension which were the Rules of 1969. It is also be relevant herein to take note of that the Government vide an Office Memorandum dated 27.04.2015 had also duly admitted the fact that due to lack of facilities, the petitioners herein along with others who were appointed on stipend could not be sent to training and accordingly has decided to grant the regular scale of pay to those teachers on the basis of the said Officer Memorandum dated 27.04.2015. This clearly shows that on account of an unworkable condition, some of the petitioners herein could not undergo the training. This clearly shows that on account of an unworkable condition, some of the petitioners herein could not undergo the training. In the opinion of this Court, such conditions admittedly being unworkable and the imposition thereupon to deprive the petitioners of their benefits under the Rules of 1969 would be arbitrary and unfair. More so, when by virtue of Section 12 of the Act of 1974 and the Rules of 1977, the petitioners duly qualify under the Rules of 1969 for entitlement of pension. It would also be relevant that it is not the case of the respondent State that the petitioners were afforded training and they failed. 30. The respondent State, however, on the basis of the communication dated 23.02.2010 issued by the Director of Finance (Budget) Department to the Deputy Accountant General (P&A) had observed that the teachers who were appointed on stipendiary basis on fixed pay prior to 01.02.2005, but brought under the regular time scale of pay on or after 01.02.2005, would not be entitled to a GPF Account as well as the provisions of the Rules of 1939 as the services of these employees are governed by the New Pension Scheme and not by the Rules of 1969. This on the face of it, in the opinion of this Court, is erroneous in as much as the Rule 2A of the Rules 1969 which was brought into effect from 01.02.2005 as well as the newly inserted proviso brought into effect by the General Provident Fund (Assam Services) (Amendment) Rules, 2011 do not in any manner mention that teachers appointed on stipendiary basis on fixed pay prior to 01.02.2005, but brought under the regular time scale of pay on or before 01.02.2005 would not be entitled to subscribe to a GPF Account as per the provisions of the Rules of 1939 as well as the benefits under the Rules of 1969. Even upon perusal of the NDCPS, 2009 it does not deprive the teachers appointed on stipendiary basis who have been granted the regular time scale of pay on or after 01.02.2005, the benefits under the Rules of 1969. Even upon perusal of the NDCPS, 2009 it does not deprive the teachers appointed on stipendiary basis who have been granted the regular time scale of pay on or after 01.02.2005, the benefits under the Rules of 1969. Under such circumstances, this Court, therefore, is of the opinion that the writ petitioners herein who have been initially appointed on stipendiary basis but granted the regular scale of pay after 01.02.2005 would be entitled to the benefits under the Rules of 1969 or in other words would be covered under the Old Pension Scheme in terms with the Rules of 1969. Further to that, these writ petitioners who were appointed on stipendiary basis but granted the regular time scale of pay after 01.02.2005 would also be entitled to subscribe to the GPF Account as per the Rules of 1939. This aspect of the matter is also covered by the judgment of the Coordinate Bench of this Court in the case of Manati Basumatary vs. State of Assam and Others, (2021) 6 GLR 659 wherein also the issue involved is similar to the case of the writ petitioners who were appointed on stipendiary basis. Paragraph Nos. 10, 11, 12, 13 and 16 being relevant are reproduced herein-below: “10. It is evident on the face of the record that by relying on the OM dated 6.10.2009, the Government of Assam in the Department of Pension and Public Grievance, had issued the Office Memorandum dated 14.1.2016 laying down the guidelines for payment of invalid/extraordinary/special family pension to the Government servants appointed on or after 1.2.2005. 11. The learned departmental counsel have argued that the eligibility of the petitioner’s husband to receive regular pay scale was only with effect from 20.9.2007 and, therefore, his appointment prior to 20.9.2007 cannot be treated to be regular. However, it is to be noted herein that by the order dated 12.3.2001, the petitioner's husband was appointed against a regular vacancy. He was not allowed to draw the regular pay scale merely because he had not completed the Junior Basic Training. 12. Rule 4 of the Assam Elementary Education (Provincialised) Services and Conduct Rules, 1981 lays down the provisions for confirmation of an employee and as per rule 4(b). Successful completion of the departmental training is one of the criteria for confirmation of services of the employee. 12. Rule 4 of the Assam Elementary Education (Provincialised) Services and Conduct Rules, 1981 lays down the provisions for confirmation of an employee and as per rule 4(b). Successful completion of the departmental training is one of the criteria for confirmation of services of the employee. From a perusal of the said rules, it is clear that the employees coming within the purview of the Rules of 1981 would be entitled to confirmation only upon completion of the Jr. Basic Training. Accordingly, the petitioner has been allowed to draw the regular pay scale upon completion of the basic training. However, the Rules of 1981 does not debar appointment of Assistant Teachers who have not completed the Jr. Basic Training. Rather, it appears that Jr. Basic Training is a part of in-service training and fulfillment of that criteria merely has a bearing on the confirmation of the employee and his right to receive regular pay scale. Therefore, it cannot be said that under the Rules, non-completion of Jr. Basic Training would make the appointment of the candidate itself as irregular. If a candidate is appointed in the post of Assistant Teacher by following the prescription of the relevant Rules and against a regular vacancy, his appointment cannot be termed as irregular merely on the ground that the candidate had not acquired the qualification of having passed the basic training since the rules do not say so. 13. Regular appointment in services is one thing and permitting an employee to draw a regular pay scale upon achieving certain qualification is altogether a different thing. It may be the case that the petitioner was not allowed to draw the regular pay scale due to want of his qualification of having successfully completed the Junior Basis training. Completion of Junior Basic Training, in the considered opinion of this court, was one of the condition prescribed by the Rules for confirmation in service and also to permit drawal of regular pay scale and, therefore, non-completion of Junior Basic Training may create a bar for the employee to avail certain in service benefit including regular pay scale but the same by itself cannot be a valid ground to treat the appointment itself as irregular. Moreover, unless the initial appointment of the candidate is against a regular vacancy and in accordance with the Rules, his services cannot be regularized merely on completion of the Jr. Basic Training. Moreover, unless the initial appointment of the candidate is against a regular vacancy and in accordance with the Rules, his services cannot be regularized merely on completion of the Jr. Basic Training. It is not the case of the department that the initial appointment of the petitioner’s husband was de hors the Rules. 16. In another decision of this court rendered in the case of Binoy Kumar Nath and Others vs. State of Assam and Others [WP (C) Nos. 5559 and 3999/2014 decided on 12.4.2018] relied upon by Mr. R. Borpujari, the learned Single Judge has observed that the NPS scheme introduced by the OM dated 6.10.2009 would also be applicable to those employees whose services are regularized against regular post after 1.2.2005. However, as has been held above, this is not a case when the service of the petitioner’s husband had been regularized after 1.2.2005. He had merely been allowed to draw regular time scale of pay after 1.2.2005. Therefore, the ratio laid down in the aforesaid decision, in the opinion of this court, would not be applicable in this case.” 31. Another very important aspect of the matter to be taken note of are the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 (for short ‘the Rules of 1981’). Rule 2 (iv) defines the term ‘Period of Service’ as the period of continuous service against a sanctioned post. Rule 2(xii) defines ‘Service’ to mean service rendered under the State Board for Elementary Education under the Assam Elementary Education Act, 1968 and the service rendered under the Government before or after provincialisation both in respect of teachers and other employees. Rule 2 (xiii) defines ‘Teachers Training’ to mean the Junior Basic Training, Senior Basic Training, Normal Training, Pre-Primary Training or any other training recognized by the Government. Rule 3 of the Rules of 1981 stipulates the terms and conditions. Taking into account its relevance Rule 3 (v), (vi) and (vii) are extracted herein-below: “3. (v) The minimum qualification for the posts of elementary schools shall be Matriculation. The teachers on appointment should be required to undergo Junior Basic or Normal Teachers Training Course or any other training recognized by the Government. (vi) Recruitment to the posts of teachers of elementary schools shall be made under the provisions of Part I, Rule 3 of the Elementary Education (Provincialisation) Rules, 1977. The teachers on appointment should be required to undergo Junior Basic or Normal Teachers Training Course or any other training recognized by the Government. (vi) Recruitment to the posts of teachers of elementary schools shall be made under the provisions of Part I, Rule 3 of the Elementary Education (Provincialisation) Rules, 1977. (vii) Unless otherwise directed by Government the cadre of a teacher of a provincialised school shall be the cadre to which he is entitled to be admitted on the date of Provincialisation as shown in the Schedule I.” It may be relevant herein to mention that from the above, it would be seen that the minimum qualification for the posts of elementary schools shall be Matriculation and the teachers on appointment should be required to undergo Junior Basic or Normal Teachers Training Course or any other training recognized by the Government. In terms with Rule 3 (vi), the recruitment to the post of teachers of elementary school shall be made as per Rule 3 of the Rules of 1977. 32. Rule 4 of the Rules of 1981 stipulates when the member of the service would be confirmed. The said Rule being very relevant is reproduced herein-below: “4. Confirmation Subject to availability of a permanent vacancy every member of the service shall be confirmed in the cadre/class/grade to which he/she is appointed substantively, if: (a) he/she has completed at least 3 years’ continuous service after Provincialisation. The said Rule being very relevant is reproduced herein-below: “4. Confirmation Subject to availability of a permanent vacancy every member of the service shall be confirmed in the cadre/class/grade to which he/she is appointed substantively, if: (a) he/she has completed at least 3 years’ continuous service after Provincialisation. (b) he/she has successfully undergone necessary training as may be prescribed by this Department and facilities for which have been offered to him/her by the department during the period of 3 years: Provided that those teachers who have completed 45 years of age or have completed 3 years of continuous service after Provincialisation but no facilities have been provided to him/her for the prescribed training, will be confirmed provided there is nothing adverse against him/her: Provided further that all teachers whose services have been confirmed and approved by the State Board or the Regional Board prior to 5th September, 1975 shall be deemed to have been duly confirmed with effect from the date of such confirmation.” It would show from Rule 4 (b) that a member of the service would be confirmed when he/she had successfully undergone necessary training as may be prescribed by the Government and facilities for which have been offered to him/her by the Department during the period of 3 years. The proviso further mandates that in case those teachers who had completed 45 years of age or had completed 3 years of continuous service but no facilities have been provided to him/her for the prescribed training, such teachers will be confirmed provided there is nothing adverse against him/her. Pertinent herein to mention that it not the case of the respondent State there was anything adverse against the petitioners for which they were not confirmed after 3 years of continuous service. 33. Rule 6 of the Rules of 1981 is also relevant for which the same is reproduced herein-under: “6. Pension and gratuity etc. The teachers shall be entitled to pension, gratuity and other pensionary benefits as admissible to the Government employees. The teachers who opt for pension scheme will discontinue their C.P.F. contribution and open fresh G.P.F. account and deposit the amount of their own C.P.F. contribution along with interest accrued thereon into the G.P.F. account so opened. Pension and gratuity etc. The teachers shall be entitled to pension, gratuity and other pensionary benefits as admissible to the Government employees. The teachers who opt for pension scheme will discontinue their C.P.F. contribution and open fresh G.P.F. account and deposit the amount of their own C.P.F. contribution along with interest accrued thereon into the G.P.F. account so opened. For the purpose of pension the period of service shall be counted from the date on which they were qualified to receive the benefit of C.P.F. during the Boards’ regime.” This Rule categorically mandates that the teachers shall be entitled to pension, gratuity and other pensionary benefits as admissible to the Government employees. The said Rule does not differentiate between Trained Teachers and Untrained Teachers. The reason is obvious in as much as Rule 3 (vii) of the Rules of 1981 stipulates the cadre of teachers of a provincialised school in terms with Schedule I and Schedule I contains both trained and untrained teachers. 34. In view of the above reasons, this Court, therefore, holds that the petitioners herein would be entitled to pension in terms with the Rules of 1969 and would further be entitled to subscribe to GPF. The petitioners in respect to present category which also be entitled to all other pensionary benefits as admissible to the Government employees of equal rank who are regulated in terms with the Rules of 1969. Dropped Teachers 35. The case of the Dropped Teachers are in WP (C) No. 8822/2019, WP (C) No. 8900/2019, WP (C) No. 8911/2019, WP (C) No. 9187/2019, WP (C) No. 770/2021, WP (C) No. 4055/2020, WP (C) No. 8618/2019, WP (C) No. 479/2021, WP (C) No. 5086/2021, WP (C) No. 382/2022, WP (C) No. 5419/2021, WP (C) No. 6893/2021, WP (C) No. 947/2022, WP (C) No. 8856/2019, WP (C) No. 3523/2022, WP (C) No. 8659/2019,WP (C) No. 3233/2022, WP (C) No. 6377/2021, WP (C) No. 6627/2021,WP (C) No. 5119/2020, WP (C) No. 3009/2022, WP (C) No. 5032/2020, WP (C) No. 882/2023, WP (C) No. 8819/2019, WP (C) No. 8752/2019, WP (C) No. 6307/2014, WP (C) No. 8596/2019 and 5679/2021. 36. Let this Court first analyze the concept of Dropped Teachers. The petitioners in the above writ petitions were appointed by the School Managing Committee prior to taking over of the said schools under the provisions of the Act of 1974 read with the Rules of 1977. 36. Let this Court first analyze the concept of Dropped Teachers. The petitioners in the above writ petitions were appointed by the School Managing Committee prior to taking over of the said schools under the provisions of the Act of 1974 read with the Rules of 1977. At the time of provincialisation of those respective schools wherein the petitioners were working, the services of the petitioners were not provincialised. Under such circumstances, such teachers like the petitioners are commonly referred to as ‘Dropped Teachers’. It is the case of the petitioners that though their services were not provincialised, but they continued to render the services in the respective schools without any break. Under such circumstances, these petitioners along with others whose services were not provincialised submitted repeated representations before the respondent authorities. The respondent authorities, taking into account the grievances of these petitioners along with similarly situated others, issued a notification dated 21.06.2000 thereby constituting a Task Force with officials of the Government of Assam. 37. At this stage, it may also be relevant herein to mention that the petitioners herein claim continuity of their services since their initial appointment and further assert that such continuation was with the knowledge and concurrence of the District Level Officers of the Education Department. From a perusal of the notification dated 21.06.2000, the purpose behind the issuance of the notification can be discerned. The reason behind it was for verification of dropped and honourary teachers. The concerned Inspectors/DEO/DI of the Schools were to submit proposals to the Director of Secondary Education/Director of Elementary Education with documents and the Director of Secondary Education and the Director of Elementary Education as the case may be, after verification of the records were to submit the proposals to the Task Force for examination of the records and the Task Force, after examination of the proposals, were to submit recommendations for the next steps to regularize such teachers and to complete entire process within 90 days. It further appears from a perusal of the judgment of this Court in the case of Jiban Chandra Deka and Others vs. State of Assam and Others, 2008 (3) GLT 229 that an affidavit was filed by the State in the said proceedings wherein it was stated that the State was not unmindful of the plight of the Dropped Teachers’ claims. Over 6000 such teachers were adjusted against regular posts in accordance with the norms, policies and guidelines introduced from time to time. It was also mentioned that such norms and policies have been periodically reviewed in the light of the experience gained and the ever changing commitment and the constraints of the State. A policy document dated 13.01.2003 was enclosed to the said affidavit which was introduced to cover the cases of Dropped Teachers. It was stated in the said affidavit that such cases will be dealt with by the State in accordance with the said policy and all those who were found to be eligible would be regularized in phased manner as indicated in the policy. It was also conceded that the said policy would apply to members of nonteaching staffs also whose cases will be similarly dealt with. Before further proceeding with the said judgment in the case of Jiban Chandra Deka (supra), this Court finds it relevant to quote the policy document dated 13.01.2003 which is as under: “GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY) - DEPARTMENT NOTIFICATION ORDERS BY THE GOVERNOR OF ASSAM Dated, Dispur, the 13 January 2003 Memo No. (LC) 26/2002/341/69: In order to stream line the procedure of adjustment of dropped teachers of ME/MEM/MV and High Schools of various Districts in the state the following criteria will be adopted with prospective effect: (i) The teacher must have put in at least two years of continuous service immediately preceding the taking over of the concerned schools by the Government. (ii) The appointment of dropped teachers must have been duly approved by the concerned District Elementary Education Officer/Inspector of Schools. (iii) The appointment of dropped teachers by the Managing Committee must be commensurate with the enrolment of the students in the school at the time of provincialisation. (iv) The school wise norms of number of sanctioned posts to be maintained. (v) The provincialisation particulars submitted by the then District Elementary Education Officer/Inspector of Schools and available in the respective directorates will be used as reference documents. (vi) Teachers fulfilling the above criteria will be considered for regularisation of the services subject to the availability of sanctioned post in the concerned districts. Sd/- Prem Saran Commissioner and Secretary, to the Government of Assam Education Department. Dispur, Dated 13 Jan. 2003 Memo No. (LC) 26/2002/341/69-A Dated: Kahilipara the 13 January 2003 Copy to: 1. (vi) Teachers fulfilling the above criteria will be considered for regularisation of the services subject to the availability of sanctioned post in the concerned districts. Sd/- Prem Saran Commissioner and Secretary, to the Government of Assam Education Department. Dispur, Dated 13 Jan. 2003 Memo No. (LC) 26/2002/341/69-A Dated: Kahilipara the 13 January 2003 Copy to: 1. The P.S. to the Hon’ble Minister, Education, Assam. 2. The P.S to the Secretary, Education. 3. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. 4. The Director of Elementary Education, Kahilipara, Guwahati-19. 5. Elementary/Secondary Branch They are hereby directed to submit proposals by duly taking into account all the criteria mentioned above within three months for the approval of the Government - proposal in piece - manner should be submitted to Government. By order etc. Commissioner and Secretary, to the Government of Assam Education Department.” 38. It further appears from the said judgment in the case of Jiban Chandra Deka (supra) that certain changes were made to the said policy document on the basis of consensus in respect to the Condition Nos. 1 and 2 of the policy document dated 13.01.2003. Furthermore, by way of an affidavit, the State mentioned that the regularization would be made prospective but had agreed to give the benefit of previous services rendered, for the purpose of pension and retirement dues. Consequently, this Court, therefore, disposed of the said writ petitions with the direction as stipulated in paragraph No. 6 of the said judgment in the case of Jiban Chandra Deka (supra) which is reproduced herein-below: “(6) In view of the above, this bunch of cases will stand now disposed of with the following directions: (i) The cases of the petitioners in each of the cases will be considered in accordance with the norms, criteria and eligibility conditions prescribed by the policy document dated 13. 1. 2003 subject to the modification in Condition Nos. 1 and 2, as stated above. (ii) The Chief Secretary to the Government of Assam, shall within 7 days from today, constitute a Committee to examine the cases of the petitioners in the present bunch of cases and such other cases, as may be referred to the said Committee, from time to time, by this Court. 1 and 2, as stated above. (ii) The Chief Secretary to the Government of Assam, shall within 7 days from today, constitute a Committee to examine the cases of the petitioners in the present bunch of cases and such other cases, as may be referred to the said Committee, from time to time, by this Court. As the said Committee will be executing and implementing the policy decision taken by the state, this Court considers it appropriate to leave it to the discretion of the Chief Secretary to the Government of Assam to decide on the composition of the Committee with the suggestion that the Committee may be a high powered Committee consisting of 3 members and the present Secretary to the Government of Assam, Education Department may act as the Member Secretary. (iii) The Committee, upon due verification of the cases before it, shall within 6 months from the date of its constitution, prepare district wise list of “dropped teachers” eligible for regularisation in terms of the norms and criteria laid down as per direction No. 1 above. The eligible persons, on being identified, shall be arranged in the district wise lists, in order of seniority. (iv) Suitable adjustments in the placements assigned in the district wise lists, as may be required, upon consideration of such other cases which may be referred to the Committee in the future shall be made by the Committee. (v) Appointment against available posts in each district shall be made on the basis of the lists prepared. (vi) All appointments made would be prospective but will carry the benefit of past services for the purpose of computation of pensionary benefits.” 39. From a perusal of the above quoted directions, it is apparent that the cases of the petitioners in each case would be considered in accordance with the norms, criteria, eligibility conditions prescribed in the policy document dated 13.01.2003 subject to the modification in Condition Nos. 1 and 2 as mentioned in paragraph No. 4 of the said judgment in Jiban Chandra Deka (supra). Paragraph Nos. 6 (ii), 6 (iii) and 6 (iv) stipulate the manner of verification and scrutiny of the cases of the petitioner in the bunch of said writ petitions. 1 and 2 as mentioned in paragraph No. 4 of the said judgment in Jiban Chandra Deka (supra). Paragraph Nos. 6 (ii), 6 (iii) and 6 (iv) stipulate the manner of verification and scrutiny of the cases of the petitioner in the bunch of said writ petitions. Paragraph No. 6 (v) mentions that appointments shall be made against available posts in each district on the basis of the lists prepared meaning thereby that such appointments shall be made after carrying out the verification and scrutiny in terms with paragraph Nos. 6 (ii) to 6 (iv). It is further mentioned in paragraph No. 6 (vi) that all appointments made would be prospective but will carry the benefit of past services for the purpose of computation of pensionary benefits. 40. At this stage, this Court finds it relevant to take note of that till the date of passing of the said order in the case of Jiban Chandra Deka (supra), the petitioners therein were not in Government service. It was also categorically mandated that it is only after carrying out the exercise as stipulated in paragraph Nos. 6 (ii) to 6 (iv), appointments shall be made which shall be prospective meaning thereby the appointments to be made would not be counted from the date of their initial appointment for the purpose of seniority or pay protection. Although paragraph No. 6 (vi) stipulates that the benefits of past services for the purpose of computation of pensionary benefits would be given but this Court fails to comprehend as to how the benefit of past services can be given, if the appointments were to be made prospective. This aspect of the matter would be dealt with in detail at the subsequent stage after considering as to whether the respondents can resist the present petitions. Be that as it may, at that relevant point of time when the policy dated 13.01.2003 was made or the judgment in the case of Jiban Chandra Deka (supra) was pronounced on 01.09.2003, there was no policy decision of the Government to come up with the NDCPS as well as the NDCPS, 2009 or the Amending Rules were not in existence. 41. It appears from the records that the writ petitioners herein were appointed against the vacant sanctioned posts after 01.02.2005. 41. It appears from the records that the writ petitioners herein were appointed against the vacant sanctioned posts after 01.02.2005. The case of the writ petitioners in the present batch of writ petitions is that as per the direction in paragraph No. 6 (vi) in the judgment rendered in the case of in the case of Jiban Chandra Deka (supra) wherein it categorically mandated that the past services of the petitioners would be taken up for the purpose of computation of pensionary benefits. The petitioners, therefore, claim to be entitled to the pension in terms with the Rules of 1969 and not as per the New Pension Scheme. In that regard reference was made to the order dated 12.05.2015 passed in WP (C) No. 4169/2009; order dated 09.10.2020 passed in WA No. 148/2019 and order dated 11.02.2021 passed in Review Pet No. 16/2019. In the order dated 12.05.2015, it was held that in view of the judgment and order dated 01.09.2003 in the case of Jiban Chandra Deka (supra) have attained finality, the services of the petitioners therein should be counted as per the Rules of 1969 and the benefit of past services should be counted for the purpose of pensionary benefits and accordingly the State respondents were directed to count the benefit of past services of the petitioners therein for the purpose of pensionary benefits as per the Rules of 1969. It was further submitted that against the order dated 28.04.2015 passed in WP (C) No. 3662/2009 where similar directions were passed thereby granting benefits under the Rules of 1969 to the petitioners therein, a review was filed contending that while passing the order dated 28.04.2015 in WP (C) No. 3662/2009, Rule 2A of the Rules of 1969 which was given retrospective effect from 01.02.2005 was not taken into consideration. It was further submitted that the Coordinate Bench of this Court in the order dated 11.02.2021 in Review Pet No. 16/2019 had dismissed the Review Application holding inter-alia that as the petitioners therein became Government servants on 04.06.2008 and as on that date, the Rules of 1969 was in force, by way of executive instructions, the statutory law could not have been overshadowed. It is therefore the submission of the learned counsel for the petitioners that the question of entitlement of pension as per the Rules of 1969 in respect to those Dropped Teachers who were regularized after 01.02.2005 would be entitled to pension in terms with the Rules of 1969 is no longer res integra. It was further submitted that the State in terms with the various judgments or orders as referred herein above, had granted the benefits to similarly situated persons like that of the petitioners as such to maintain consistency in identical situations, this Court therefore, also should hold and declare that the petitioners herein are entitled to pension under the Rules of 1969. Further to that, it was also submitted that on the basis of the principles of constructive res judicata which applies to a proceedings under Article 226 of the Constitution as well as estoppel, the respondents are barred from resisting the claims of the petitioners in as much as the respondents have allowed those judgments to attain finality and have granted the benefit to those petitioners in whose favour such judgment or orders have been passed. 42. On the other hand, it is the submission of the learned counsel appearing on behalf of the Finance Department that the order dated 12.05.2015 passed in WP (C) No. 4169/2009 and the order dated 09.11.2020 passed in WA No. 148/2009 are judgments per incuriam and as such are not binding precedents upon this Court. Reference was made in that regard to the judgment of the Supreme Court rendered in the case of Secretary to the Govt. of Kerala, Irrigation Department and Others vs. James Varghese and Others, (2022) 9 SCC 593 . As regards the order dated 11.02.2021 passed in Review Pet No. 16/2019, the learned counsel appearing on behalf of the Finance Department submitted that the said judgment cannot be regarded as a binding precedent in view of the Rule of sub-silentio. Reference in that regard was made to the judgment of the Supreme Court in the case of MCD vs. Gurnam Kaur, (1989) 1 SCC 1001. Reference in that regard was made to the judgment of the Supreme Court in the case of MCD vs. Gurnam Kaur, (1989) 1 SCC 1001. On the question of constructive res judicata as well as estoppels on the ground that the State had allowed the order dated 12.05.2015 in WP (C) No. 4169/2009; order dated 09.10.2020 passed in WA No. 148/2019 and order dated 11.02.2021 passed in Review Pet No. 16/2019 and other writ petitions to attain finality, the learned counsel appearing on behalf of the respondent Finance Department submitted that the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions even though judgment in a case involving similar issue was allowed to reach finality in the case of others. He submitted that it is not the case of the writ petitioners herein that the State had adopted a pick and choose method only to exclude the petitioners on account of malafide or ulterior motives. He further submitted that neither the principles of res judicata nor the principles of estoppel are attracted to such cases. Further, the administrative law principle of legitimate expectation of fairness in action is also not attracted. Reference in that regard was made to the judgment of the Supreme Court in the case of Col. (Retd.) B.J. Akkara vs. Govt. of India and Others, (2006) 11 SCC 709 as well as the recent judgment of the Supreme Court in the case of Union of India and Others vs. Dr. O.P. Nijhawan and Others, (2020) 14 SCC 420 . On merits, the learned counsel appearing on behalf of the Finance Department further submitted that though the policy decision was taken on 13.01.2003 to bring the Dropped Teachers within the fold of the Government servants by issuing appointment orders, but subsequent thereto, in view of financial necessity, the Government of Assam had to take a policy decision which was conveyed to all concerned by the communication dated 25.01.2005 that all persons appointed to Government services with effect from 01.02.2005 would be brought under the NDCPS. Therefore, the decision which was taken in the case of Jiban Chandra Deka (supra) on 01.09.2003 was at a time when there was no policy decision to have a Contributory Pension Scheme. Therefore, the decision which was taken in the case of Jiban Chandra Deka (supra) on 01.09.2003 was at a time when there was no policy decision to have a Contributory Pension Scheme. The learned counsel for the Finance Department further submitted that in all the appointment letters wherein the petitioners were appointed to sanctioned vacant posts in the services of the Government of Assam, it was specifically informed to them that they would come under the purview of New Pension Scheme. The petitioners herein have thereafter joined their services without any demurrer and almost a decade ago and now some of them have challenged the conditions in their appointment letters that they would not come under the New Pension Scheme and the condition that they would be regulated by the New Pension Scheme is illegal and arbitrary. The learned counsel further submitted that if the petitioners’ appointment in terms with the directions passed in Jiban Ch. Deka (supra) is to be prospective meaning thereby that their entry into the Government service would be counted from their date of appointment, it is difficult to comprehend that without being in the Government service how can their services be taken into account for the purpose of pension. He submitted that the directions in paragraph No. 6 (vi) in the case of Jiban Ch. Deka (supra) cannot be applied after the Amending Rules have come into effect as well as the NDCPS, 2009. In that regards, the learned counsel for the petitioners had referred to the judgment of the Supreme Court in the case of Parmeswar Nanda and Others vs. State of Jharkhand through the Chief Secretary and Others, (2020) 12 SCC 131 . Furthermore, it is the submission of the learned counsel for the respondents that the Coordinate Bench of this Court in the order dated 12.05.2015 in WP (C) No. 4169/2009 and the Division Bench in the order dated 09.10.2020 in WA No. 148/2019 did not at all take into consideration Rule 2A of the Rules of 1969 as brought into effect from 01.02.2005 and as such the said orders so passed cannot be treated as a precedent as the said orders are per incuriam. The learned counsel for the petitioners submitted that in the order dated 11.02.2021 in Review Pet. The learned counsel for the petitioners submitted that in the order dated 11.02.2021 in Review Pet. No. 16/2019, though the Coordinate Bench in paragraph No. 3 had duly taken note of that the Rule 2A of the Rules of 1969 was brought with retrospective effect from 01.02.2005, but in paragraph Nos. 6 and 9 did not take into consideration that the amendment was to the Rules of 1969 w.e.f. 01.02.2005 but rather came to an opinion that the Rules of 1969 was amended in the year 2011 and as such the same cannot be treated as a precedent in view of the Rule of sub-silentio. 43. Upon hearing the learned counsel for the parties in the present category of cases, let this Court first take into consideration as to whether the respondent State can be allowed to resist the writ petitions after having allowed the order dated 12.05.2015 in WP (C) No. 4169/2009; the order of the Division Bench dated 09.10.2020 in WA No. 148/2019 as well as the order dated 11.02.2021 in Review Pet. No. 16/2019 to attain finality and thereupon granting benefits to those petitioners in the said proceedings. 44. The learned counsels for the petitioners have relied upon the judgments of the Supreme Court in the case of Forward Construction Co. and Others vs. Prabhat Mandal (Regd.) Andheri and Others, (1986) 1 SCC 100, Supreme Court Employees' Welfare Association vs. Union of India and Another, (1989) 4 SCC 189 and P.K. Vijayan vs. Kamalakshi Amma And Others, (1994) 4 SCC 53 to submit that on the ground of res judicata and constructive res judicata, the respondent State cannot resist the writ petitions in view of allowing the orders above mentioned to attain finality and the benefits thereupon being granted to the petitioners therein. 45. This Court has perused the judgments relied upon by the learned counsels for the petitioners. The judgments so placed relates to res judicata and constructive res judicata. It is well settled that the doctrine of res judicata is a universal doctrine laying down the finality to litigation between the parties meaning thereby when a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. It is well settled that the doctrine of res judicata is a universal doctrine laying down the finality to litigation between the parties meaning thereby when a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. It is well settled that so far as the parties are concerned, they will always be bound by the said decision. In the instant case, the petitioners herein were not parties to those proceedings on the basis of which the orders dated 12.05.2015; 09.10.2020 and 11.02.2021 were passed. Under such circumstances, the question of applying the principle of res judicata and constructive res judicata do not arise to the facts of the instant case. This aspect would be further clear from the judgments of the Supreme Court rendered in the case of Col. (Retd.) B.J. Akkara (supra) as well as Dr. O.P. Nijhawan (supra). In the case of Col. (Retd.) B.J. Akkara (supra), the issue involved therein, relevant for the purpose of the instant case, was that in the case of Civilian Medical Officers, the nodal Ministry had issued circulars dated 17.12.1998 and 29.10.1999 (corresponding to the Defence Ministry's Circulars dated 07.06.1999 and 11.09.2001). Some civilian Medical Officer Retirees challenged the circular dated 29.10.1999 directing that NPA shall not be added to minimum pay in the revised scale before the Delhi High Court. The said writ petition was allowed by the Delhi High Court vide an order dated 18.05.2002 and that the said order was not challenged by the Union of India, but on the other hand, was implemented by adding NPA to basic pay while stepping up the pension in the case of civilian Medical Doctors who had retired prior to 01.01.1996. It is under such circumstances, it was the plea so raised in the said case that the respondents having accepted and implemented the decision of the Delhi High Court in the case of civilian Medical Officers, cannot discriminate against the Defence Service Medical Officers placed in identical position and therefore the benefit given to the civilian Medical Officers in pursuance of the decision of the Delhi High Court should also be extended to them. The Supreme Court in the said case observed that neither the principle of res judicata nor the principle of estoppel is attracted and the State cannot be prevented or barred from resisting subsequent writ petitions even though judgment in a case involving similar issue was allowed to reach finality in the case of others. However, an exception was culled out that if petitioners plead and prove that the State had adopted a ‘pick and choose’ method only to exclude petitioners on account of mala-fides or ulterior motives, then the respondent State can be barred from resisting subsequent writ petitions. Paragraph Nos. 25 and 26 of the said judgment, being relevant, is quoted herein-below: “25. A similar contention was considered by this Court in State of Maharashtra vs. Digambar. This Court held: “Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matters where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.” 26. The said observations apply to this case. The said observations apply to this case. A particular judgment of the 2 High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of Db the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick and-choose” method only to exclude petitioners on account of mala-fides or ulterior motives, Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001.” 46. It further appears that in a very recent judgment in the case of Dr. O.P. Nijhawan (supra) wherein the issue involved amongst others was that some Scientists similarly situated to the respondents therein filed Original Application claiming that order has not been implemented and they have been denied computation of special pay for the purpose of pension. The Central Administrative Tribunal, vide its order dated 22.01.2013, allowed the Original Application. Thereupon, a writ petition was filed before the Delhi High Court which was dismissed. The Union of India thereafter preferred an appeal before the Supreme Court. In the said Appeal, it was contended on behalf of the respondent that similar to the respondent, there were other Scientists who had filed similar Original Applications before the Central Administrative Tribunal which were allowed and thereupon the writ petition which was filed was dismissed by the Delhi High Court. In the said Appeal, it was contended on behalf of the respondent that similar to the respondent, there were other Scientists who had filed similar Original Applications before the Central Administrative Tribunal which were allowed and thereupon the writ petition which was filed was dismissed by the Delhi High Court. Subsequent thereto, the Union of India had also carried out Special Leave to Appeals before the Supreme Court which were dismissed. It was therefore the case of the respondents therein that as the same issues have been raised in the appeal before the Supreme Court, the same ought to be also dismissed. The Supreme Court, in paragraph No. 28 of the said judgment, did not accept the said submission made on behalf of the respondents therein to the effect that the Union of India was precluded from raising the issue on the question of law which was earlier left open by the Court. It was further observed that even if various orders of the Central Administrative Tribunal have attained finality and implemented upon, then also the Union of India was not precluded to raise the issue again in as much as the principle of res judicata or estoppel are not attracted. Paragraph Nos. 24 to 26 of the judgment in the case of (Retd.) B.J. Akkara (Supra) were relied upon by the Supreme Court and in paragraph No. 32, the Supreme Court observed as follows: “32. The ratio as laid down by this Court in above case is fully attracted in the facts of the present case, thus, we conclude that the fact that the appellant has implemented the earlier orders passed by the Central Administrative Tribunals and the High Courts and issued order for including special pay in the pay for the purpose of computation of pension, the Union of India is not precluded to raise the issues again, the principle of res judicata or estoppel are not attracted.” 47. In view of the above law laid down by the Supreme Court, this Court is therefore of the opinion that on the principles of res judicata or estoppels, the State cannot be barred or prevented from resisting the present writ petitions. More so, when no case of pick and choose has been pleaded and proved. 48. In view of the above law laid down by the Supreme Court, this Court is therefore of the opinion that on the principles of res judicata or estoppels, the State cannot be barred or prevented from resisting the present writ petitions. More so, when no case of pick and choose has been pleaded and proved. 48. In the backdrop of the above, let this Court take into consideration as to whether the petitioners in the present category of cases are entitled to the Old Pension Scheme in terms with Rules 1969 or they are covered in terms with the NDCPS. The genesis of the petitioners’ claim is on the basis of the judgment of the Coordinate Bench of this Court in the case of Jiban Chandra Deka (supra). 49. Admittedly, the petitioners in the present category of cases were brought within the fold of the Government services after 01.02.2005. This Court in the forgoing paragraphs of the instant judgment has already dealt with the policy dated 13.01.2003 and the judgment of the Coordinate Bench of this Court in the case of Jiban Chandra Deka (supra). At the cost of repetition it is reiterated that at the time when the judgment was delivered in Jiban Chandra Deka (supra), i.e. dated 01.09.2003, there was no policy decision of the Government to bring in the NDCPS. Paragraph No. 6 (vi) of the judgment in the case of Jiban Chandra Deka (supra) had directed that all appointments made would be prospective while carrying the benefit of past services for the purpose of computation of pensionary benefits. It is on account of the said direction the orders dated 12.05.2015 and 09.10.2020 in WP (C) No. 4169/2009 and in WA No. 148/2019 respectively were passed. 50. At this stage, this Court finds it relevant to take note of that pension though not a bounty but the entitlement thereto is only when the condition precedent provided for in the Statute are fulfilled. The Statute in question is the Rules of 1969. Rule 31 of the said Rules of 1969 stipulates the conditions when a service of an officer qualifies for pension. Rule 31, being relevant, is quoted herein-below: “31. Conditions to qualifying service - The service of an officer does not qualify for pension unless it conforms to the following three conditions: Firstly, the service must be under Government. Secondly, the employment must be substantive and permanent. Rule 31, being relevant, is quoted herein-below: “31. Conditions to qualifying service - The service of an officer does not qualify for pension unless it conforms to the following three conditions: Firstly, the service must be under Government. Secondly, the employment must be substantive and permanent. Thirdly, the servant must be paid by Government. Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled: (i) declare that any specified kind of service rendered in a non-Gazetted capacity shall qualify for pension. (ii) in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension.” 51. A perusal of the above Rules will show that the service of an officer does not qualify for pension unless three conditions are met, i.e. service must be under Government; the employment must be substantive and permanent and the service must be paid by the Government. The proviso to the said Rule stipulates that the Governor may even though either or both of the conditions, i.e. the service must be under the Government and the employment must be substantive and permanent are not met, can declare that (i) any kind of service rendered in a non-Gazetted capacity shall qualify for pension and (ii) in individual cases and subject to such conditions as he may think fit to impose in each case allows service rendered by an officer to count for pension. In the case of the present category of writ petitions, admittedly prior to the petitioners’ appointments, which were given after 01.02.2005, they were not rendering service under the Government; their employment were also not substantive and permanent in the services of the Government and they were also not paid by the Government. Under such circumstances, the services of the petitioners prior to their appointments to vacant sanctioned posts after 01.02.2005, in the opinion of this Court, could not have been taken into account for the purpose of computation of pensionary benefits. Besides, there is also no order of the Governor in terms with the proviso to Rule 31. This Court further fails to understand how the petitioners would meet the third condition even if the first two conditions are done away with by declaration given by the Governor. Besides, there is also no order of the Governor in terms with the proviso to Rule 31. This Court further fails to understand how the petitioners would meet the third condition even if the first two conditions are done away with by declaration given by the Governor. Therefore, it is beyond comprehension as to how the past services of the petitioners in the present category could be taken into account for the purpose of computation of pensionary benefits. 52. At this stage, this Court finds it also relevant to take note of the judgment in the case of Parmeshwar Nanda (supra) wherein the appointment letters of the Project Officers contained two clauses amongst others. In terms with Clause 4 of the appointment letter, it was mentioned that the adjusted employees shall be covered under the Old Pension Scheme and their service period prior to retrenchment shall be counted for the purpose of pension. In terms with Clause 5 of the appointment letter, it was mentioned that adjustment of the surplus Project Officers shall be considered as fresh appointment and benefit of seniority on the basis of their service rendered prior to becoming surplus shall not be admissible to them. This aspect of the matter could be seen from a perusal of the paragraph No. 18 of the said judgment which is reproduced herein-under: “18. In the present case, Clause 11 of the notification dated 30-5-2007 issued by the Government of Jharkhand is to the effect that absorption of the surplus personnel will be considered as new appointments and they will not be granted benefit of seniority on the basis of their past service. Neither will such past service entitle them to such pay protection. One of the appointment letters appointing 65 candidates as Project Officers was issued of 20-12-2007, such appointment letter had following clauses which read as under: “4. Adjusted employees shall be covered under the old Pension Scheme. Their service period prior to retrenchment shall be counted for the purpose of pension. Period of retrenchment shall not be counted for the purpose of pension. 5. Adjustment of above surplus Project Officers shall be considered as fresh appointment and benefit of seniority on the basis their service rendered prior to becoming surplus shall not be admissible to them.” The appointment letters to the other employees is on similar lines.” 53. Period of retrenchment shall not be counted for the purpose of pension. 5. Adjustment of above surplus Project Officers shall be considered as fresh appointment and benefit of seniority on the basis their service rendered prior to becoming surplus shall not be admissible to them.” The appointment letters to the other employees is on similar lines.” 53. In paragraph No. 23 of the said judgment, the Supreme Court held that the appellants therein having been appointed as fresh candidates and therefore their period of service has to be calculated from the date of their regular appointment and therefore they cannot claim any benefit of past services rendered by them. Paragraph No. 23 of the said judgment is therefore quoted herein-below: “23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them.” 54. Keeping in mind the above perspective, let this Court therefore take into account the order passed by the Coordinate Bench in the order dated 12.05.2015 in WP (C) No. 4169/2009 and the order of the Division Bench dated 09.10.2020 in WA No. 148/2019. 55. A perusal of the order dated 12.05.2015, the Coordinate Bench of this Court held at paragraph Nos. 18 and 19 as herein-under: “18. In view of the fact that the judgment and order dated 01.09.2003 has attained finality and as it has been directed in the Direction No. 6 that all appointments made would be prospective but will carry the benefit of past services for the purpose of computation of pensionary benefits, I find that the petitioners ’ service should be counted as per the Assam Services (Pension) Rules, 1969 and the benefit of past service should be counted for the purpose of computation of pensionary benefits. 19. 19. Accordingly, the respondents are directed to count the benefits of past services of the petitioners for the purpose of pensionary benefits as per the Assam Services (Pension) Rules, 1969.” 56. A perusal of the above quoted paragraphs would reveal that on the ground that the judgment and order dated 01.09.2003 had attained finality and there was a direction in paragraph No. 6 that all appointments made would be prospective but will carry the benefit of past services for the purpose of computation of pensionary benefit, it was held that the petitioners’ services should be counted as per the Rules of 1969 and the benefit of past services should be counted for the purpose of computation of pensionary benefit. This Court had perused the entire order dated 12.05.2015 passed by the Coordinate Bench and with great respect to my learned esteemed Brother, this Court would observe that though the judgment was rendered in the year 2015, neither the Rule 2A nor the Rule 31 of the Rules of 1969 was taken into consideration. This Court also with great respect would observe that the Coordinate Bench did not also take into account that an additional fact would have made a world of difference between conclusion in two cases even when the same principles were applied to. 57. Now coming to the order dated 09.10.2020 passed by the Division Bench of this Court in WP No. 148/2019, it appears that the writ appeal was filed on the ground that the writ petition was dismissed by another Coordinate Bench of this Court on the ground of delay of 7 years 8 months from the date of regularization of the services of the appellants therein. The Division Bench of this Court was only to decide as to whether the appellants therein would be entitled to the same benefit in terms with the order dated 12.05.2015 passed in WP (C) No. 4169/2009 although there was a delay in filing the writ petition after 7 years 8 months from the date of regularization of the services of the appellants therein. The Division Bench, without going into the issue as regard the entitlement in terms with the judgment and order dated 01.09.2003 in Jiban Chandra Deka (supra), opined in paragraph No. 10 that even though the appellants may have approached the Court belatedly, but taking into account the stand taken by the State Government that they have agreed to give the benefit of previous services rendered for the purpose of pensionary and retirement benefits, the said benefit ought to be conferred to the appellants therein as well. It was further observed that as the petitioners/appellants therein were still in service, the delay in approaching the Court ought not to deprive the aforesaid benefits which have already been voluntarily given by the State Government and accordingly allowed the said Writ Appeal. Paragraph No. 10 and 11 of the said judgment is reproduced herein-under: “10. In view of above, we are of the opinion that even though the appellants may have approached this Court belatedly, in view of the stand taken by the State Government that they had agreed to give the benefit of previous service rendered for the purpose of benefit of the pensionary and retiral benefits, the said benefit ought to be conferred on the petitioners as well. Since the petitioners are still in service and have not yet retired from service, the grant of pensionary benefits are not yet forthcoming now, as such, the aforesaid delay in approaching this Court ought not deprive the aforesaid benefit which had been already voluntarily given by the State Government. 11. In view of above, we allow the writ appeal and direct that the State respondents shall not act upon the undertaking given by the appellants to the aforesaid effect in their appointment orders and the State Government shall count the benefits of past service of all the appellants for the purpose of pensionary benefits as per provision of Assam Services (Pension) Rules, 1969.” 58. A perusal of the above order dated 09.10.2020 in WA No. 148/2019 would show that the question before the Division Bench of this Court was as to whether the similar benefits in terms with the order dated 12.05.2015 passed in WP (C) No. 4169/2009 should be granted to the appellants therein or not on the ground of approaching the Court late for which reason the Coordinate Bench of this Court had dismissed the writ petition. It further transpires that the Division Bench of this Court, with great respect, did not take into account the Amending Rules, the newly inserted Rule 2A as well as Rule 31 of the Rules of 1969 as the same was not in issue before the Division Bench of this Court. 59. This Court further deems it appropriate to take note of the order dated 11.02.2021 passed in Review Pet. No. 16/2019. It is relevant to mention that review was sought for to the order dated 28.04.2015 passed by this Court in WP (C) No. 3662/2009 whereby this Court had directed that in view of the judgment and order dated 01.09.2003 passed in CR No. 1571/1998, the writ petitioners in WP (C) No. 3662/2019 were to given the pensionary benefit as per the Rules of 1969 and that their past services should also be counted for the purpose of computation of pensionary benefit in terms with the Rules of 1969. A further perusal of the order dated 11.02.2021 would show that the ground for review was that the Rules of 1969 was amended on 14.07.2011 vide the Amending Rules which was given retrospective effect from 01.02.2005. The Coordinate Bench of this Court in paragraph Nos. 6 and 9 though observed that the Rules of 1969 was amended vide the Amending Rules vide notification dated 14.07.2011 with retrospective effect given from 01.02.2005, but as the petitioners services were regularized prior to the Rules being amended, they would be entitled to the pensionary benefit under the Rules of 1969. 60. This Court with due respect to the learned Coordinate Bench would like to observe that the learned Coordinate Bench did not take into consideration Rule 31 of the Rules of 1969 which categorically mandated that the services of an officer to qualify for pension has to confirm to three conditions mentioned therein. With due respect, this Court further would like to observe that the Amending Rules may have been notified on 14.07.2011, but was given retrospective operation from 01.02.2005 and this aspect of the matter of giving retrospective operation was not put to challenge in the said proceedings, and therefore, the mandate of the law in terms with the amendment would be that Rule 1(2) of the Rules of 1969 had come into effect as on 01.02.2005 by virtue of Rule 1(2) of the Amending Rules. 61. 61. Now therefore the question arises in the backdrop of the above orders rendered by the Coordinate Bench as well as the Division Bench as to whether the same can be said to be precedent on the basis of which this Court would be bound on the ground of judicial discipline to follow the same. 62. It is submitted on behalf of the petitioners that this Court is bound on the ground of judicial discipline whereas the counsel appearing on behalf of the respondent State had categorically submitted that the above referred orders by the Coordinate Benches and Division Bench are the orders rendered per incuriam and as such not binding upon this Court. 63. Let this Court first take note of the concept of per incuriam. In the Seven Judges Bench of the Supreme Court in the case of Bengal Immunity Co. Ltd. vs. State of Bihar and Others, AIR 1955 SC 661 the Acting Chief Justice Mr. S.R. Das (as His Lordship then was) observed that in England, the Court of Appeal had imposed upon its power of review of earlier precedents a limitation, subject to certain exceptions. The limitation thus accepted is that it is bound to follow its own decisions and those of Courts of Coordinate jurisdiction and the Full Court is in the same position in this respect as a Division Court consisting of three members. The only exception to the said Rule were (i) the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow; (ii) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords and (iii) the Court is not bound to follow a decision of its own, if it is satisfied that the decision was given per incuriam, e.g., where a Statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Court. 64. The Supreme Court in the judgment rendered in the case of State of U.P. and Another vs. M/s Synthetics and Chemicals Ltd. and Another, (1991) 4 SCC 139 explained the concept of per incuriam as well as the Rule of sub-silentio in paragraph Nos. 40 and 41 which is quoted herein-under: “40. Incuria literally means carelessness. 64. The Supreme Court in the judgment rendered in the case of State of U.P. and Another vs. M/s Synthetics and Chemicals Ltd. and Another, (1991) 4 SCC 139 explained the concept of per incuriam as well as the Rule of sub-silentio in paragraph Nos. 40 and 41 which is quoted herein-under: “40. Incuria literally means carelessness. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. [Young vs. Bristol Aeroplane Co. Ltd. (1944) 1 KB 718 : (1944) 2 All ER 293]. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu vs. Rajdewan Dubey, (1962) 2 SCR 558 : AIR 1962 SC 83 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsburys Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes subsilentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” [Salmond on Jurisprudence 12th Edn. p. 153]. In Lancaster Motor Company (London) Ltd. vs. Bremith Ltd. (1941) 1 KB 675, 677 the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. It was approved by this Court in Municipal Corporation of Delhi vs. Gumam Kaur, (1989) 1 SCC 101 . The bench held that, precedents sub-silentio and without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. It was approved by this Court in Municipal Corporation of Delhi vs. Gumam Kaur, (1989) 1 SCC 101 . The bench held that, precedents sub-silentio and without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao vs. Union Territory of Pondicherry, AIR 1967 SC 1480 it was observed, it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” 65. In another judgment of the Supreme Court in the case of Sundeep Kumar Bafna vs. State of Maharashtra and Another, (2014) 16 SCC 623 , it was observed in paragraph No. 19 that a decision or a judgment can be per incuriam any provision in a Statute, Rule or Regulation which was not brought to the notice of the Court. It was observed that a decision or a judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the view of the Supreme Court. It was further observed that the per incuriam rule strictly and correctly is applicable to the ratio decidendi and not to obiter dicta. Paragraph 19 of the said judgment, being relevant, is quoted herein-below: “19. It was further observed that the per incuriam rule strictly and correctly is applicable to the ratio decidendi and not to obiter dicta. Paragraph 19 of the said judgment, being relevant, is quoted herein-below: “19. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.” 66. In a recent judgment by the Supreme Court in the case of Secretary to the Govt. of Kerala, Irrigation Department and Others vs. James Varghese and Others, (2022) 9 SCC 593 while explaining the concept of per incuriam, the same principles were reiterated. 67. This Court further would take into account another judgment of the Supreme Court rather in a different context but pertinent to the instant case. The judgment is in the case of Regional Manager vs. Pawan Kumar Dubey and Another, (1976) 3 SCC 334 wherein at paragraph No. 7, it was observed that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. Paragraph No. 7 of the said judgment is quoted herein-below: “7. Paragraph No. 7 of the said judgment is quoted herein-below: “7. We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh's case it should no longer be possible to urge that Sughar Singh's case could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.” 68. In a recent judgment of the Supreme Court in the case of Kotak Mahindra Bank Limited vs. A. Balakrishnan, (2022) 9 SCC 186 , the Supreme Court reiterating the principles as laid down in the case of Pawan Kumar Dubey (supra) observed at paragraph No. 64 that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. 69. Let this Court first take into account the judgment of the Coordinate Bench in the case of Jiban Chandra Deka (supra) as to whether the said judgment could have been applied to without taking into consideration the policy decision to bring into effect the NDCPS, the amendment brought into effect to the Rules of 1969 by insertion of Rule 2A by the Amending Rules and the NDCPS, 2009. As already observed herein above, the judgment in the case of Jiban Chandra Deka (supra) was rendered on 01.09.2003 and at that relevant point of time there was no policy decision to bring into effect the Contribution Pension Scheme, the NDCPS, 2009 as well as the insertion of Rule 2A to the Rules of 1969. As already observed herein above, the judgment in the case of Jiban Chandra Deka (supra) was rendered on 01.09.2003 and at that relevant point of time there was no policy decision to bring into effect the Contribution Pension Scheme, the NDCPS, 2009 as well as the insertion of Rule 2A to the Rules of 1969. Applying the law as laid down by the Supreme Court in the case of Pawan Kumar Dubey (supra) which categorically mandates that one additional or different fact can make a world of difference between the conclusion in two cases even when the same principles are applied in each case to similar facts, this Court is of the opinion that the policy decision taken to bring the Contribution Pension Scheme in the year 2005, the NDCPS, 2009, the insertion of Rule 2A to the Rules of 1969 by the Amending Rules w.e.f. 01.02.2005 would have made a world of difference in applying the judgment of the Coordinate Bench in the case of Jiban Chandra Deka (supra). Therefore, this Court is of the opinion that merely because in paragraph No. 6 (vi) of the judgment in the case of Jiban Chandra Deka (supra), it was mentioned that the benefit of past services would be taken into consideration for the purpose of computation of pensionary benefits the same could not have been applied without taking into consideration the policy decision of the Government in the year 2005, the NDCPS, 2009 as well the insertion of Rule 2A to the Rules of 1969 vide the Amending Rules w.e.f. 01.02.2005. It is pertinent herein to mention that if these relevant facts are taken into consideration, the directions in paragraph No. 6 (vi) of the judgment in the case of Jiban Chandra Deka (supra) had become redundant. With due respect, this Court further would like to observe that the Coordinate Bench as well as the Division bench of this Court in its order dated 12.05.2015 and the order dated 09.10.2020 have applied paragraph No. 6(vi) without taking into consideration the above aspect of the matter as well as without taking note of the judgment of the Supreme Court in the case of Pawan Kumar Dubey (supra). Consequently, this Court with great hesitation and utmost respect holds the order dated 12.05.2015 in WP (C) No. 4169/2009 and the order dated 09.10.2020 in WA No. 148/2019 as orders rendered per incuriam and hence not binding. It would also be seen from the foregoing paragraphs of the instant judgment that the Coordinate Bench had by its order dated 28.04.2015 in WP (C) 3662/2019 had also applied the same principle as was done by the Coordinate Bench in its order dated 12.05.2015 in WP (C) No. 4169/2009. Upon a review being filed against the order dated 28.04.2015 in WP (C) No. 3662/2019 wherein specific attention was drawn to the effect that Rule 2A of the Rules of 1969 was inserted vide the Amending Rules with retrospective effect from 01.02.2005, the Coordinate Bench of this Court in its order dated 11.02.2021 in Review Pet. No. 16/2019 had dismissed the Review petition holding inter-alia that the NDCPS came into effect by way of the Amending Rules vide notification dated 14.07.2011 with retrospective effect given from 01.02.2005, but as the petitioners were regularized prior to the amendment brought into effect on 04.06.2008, the Executive instructions issued could not have overridden the statutory law. With due respect, this Court is constrained to observe that the Amending Rules and more particularly Rule 1(2) of the Amending Rules categorically stipulated that the Amending Rules shall come into force with effect from 01.02.2005. Therefore, the amendment to the Statutory Rules by insertion of Rule 2A was bought to the Statute Book retrospectively from 01.02.2005. The said Rules having not been put to challenge, more particularly Rule 1(2) of the Amending Rules, this Court with due respect observes that the Coordinate Bench having not taken into account Rule 1(2) of the Amending Rules, the said order dated 11.02.2021 in Review Pet. No. 16/2019 is per incuriam in view of the law laid down by the Supreme Court in the case of M/s Synthetics and Chemicals Ltd. (supra) and Sundeep Kumar Bafna (supra) wherein it has been categorically held that a decision or judgment can also be per incuriam if any provision in the Statute or Rule or Regulation was not noticed by the Court. Consequently, the said order dated 11.02.2021 with great respect to my esteemed brother was rendered per incuriam and hence not binding. 70. Consequently, the said order dated 11.02.2021 with great respect to my esteemed brother was rendered per incuriam and hence not binding. 70. The above aspect of the matter can also be seen from another angle in view of Rule 31 of the Rules of 1969 as well as the judgment of the Supreme Court in the case of Parmeshwar Nanda (supra). This Court has already referred to Rule 31 of the Rules of 1969 in details wherein it would be seen that it is the mandate of Rule 31 that for the service of an officer to qualify for pension, firstly it is the requirement that the service must be under the Government; secondly the employment under the Government must be substantive and permanent and thirdly, the service must be paid by the Government. 71. At the cost of repetition, this Court further would reiterate that it is only in terms with the proviso to Rule 31 that the Governor may, if the Condition No. 1 and 2 are not fulfilled, i.e. the services must be under the Government and the employment under the Government must be substantive and permanent, has the power to declare any specified type of service rendered in the non-Gazetted capacity to qualify for pension and in individual cases and subject to such conditions as he may think fit to impose in each case allow service rendered by an officer to count for pension. This power in terms with Rule 31 is only given to the Governor. However, the Governor cannot, as per the Rules of 1969, forego the requirement of the third condition that the service must be paid by the Government. The first part of paragraph No. 6 (vi) in the judgment rendered in the case of Jiban Chandra Deka (supra) categorically mandates that all appointments made would be prospective meaning thereby that after carrying out such verification in terms with Clause 6 (ii), 6(iii) and 6 (v) shall make the appointments meaning thereby the appointment would be reckoned only from the date of appointment. This Court finds it difficult to comprehend as to how the past services of the petitioners herein till they have entered into the Government service can be used for the purpose of computation of pensionary benefits when they have not entered the Government service as well as their appointments were neither substantive and permanent under the Government and that too without there being any order passed by the Governor as is required under the proviso to Rule 31. This aspect of the matter is clear from paragraph No. 23 of the judgment in the case of Parmeshwar Nanda (supra) wherein also the Supreme Court while taking into account the parametria Rule, i.e. Rule 31 of the Jharkhand Pension Rules had observed that it was beyond comprehension to count the period when the appellants therein were working under the project as pensionable service in as much as the appellants were appointed as fresh candidates and therefore, the period of services for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past services rendered by them. 72. At the cost of repetition, this Court would reiterate that in paragraph No. 18 of the judgment in the case of Parmeshwar Nanda (supra) which has already been quoted herein above it was specifically mentioned in the appointment letters that the service period prior to retrenchment shall be counted for the purpose of pension in the appointment letters. Now the question arises is as to whether the Government by way of an affidavit agree to give the benefit of previous service rendered in the non-Government service for the purpose of pension and retirement dues. In a recent judgment by the Supreme Court in the case of Ashok Ram Parhad and Others vs. the State of Maharashtra, 2023 SCC Online SC 265 had observed that the Government’s resolution cannot override statutory Rules. Under such circumstances, this Court is of the opinion that the Government could not have bypassed the provision of Rule 31 of the Rules of 1969 and agree to give the benefit of previous services rendered not in Government service for the purpose of pension and retirement dues if the Rule 31 of Rules of 1969 does not permit so. Under such circumstances, this Court is of the opinion that the Government could not have bypassed the provision of Rule 31 of the Rules of 1969 and agree to give the benefit of previous services rendered not in Government service for the purpose of pension and retirement dues if the Rule 31 of Rules of 1969 does not permit so. As held by the Privy Counsel in the case of Nazir Ahmad vs. King Emperor, reported in AIR 1936 PC 253 (2), it is well settled that if a statute requires a thing to be done in a particular manner it should be done in that manner or not at all. This very principle of law have found wide spread acceptance and have also been reiterated by the Supreme Court in the case of Municipal Corporation of Greater Mumbai (MCGM) vs. Abhilash Lal and Others, (2020) 13 SCC 234 . In view of the above, without there being any amendment brought to Rule 31 of the Rules of 1969 or appropriate declaration being made in terms with the proviso to Rule 31 by the Governor (which however has not been done in the instant case), the question of granting benefit of past services for computation of the pensionary benefits do not arise in the facts of the instant case when the petitioners herein do not comply to any of the three conditions as mandated under Rule 31 of the Rules of 1969. It is also relevant to take note of that the judgment rendered in the case of Jiban Chandra Deka (supra) was on the basis of a consensus arrived at without averting to Rule 31 of the Rules of 1969. 73. As the entire edifice of the case of the petitioners in the present category of cases is on the basis of the judgment of the Coordinate Bench in the case of Jiban Chandra Deka (supra) and more particularly paragraph No. 6 (vi) which is not workable for the reasons assigned above, the orders passed by the Coordinate Bench and Divisions Bench referred to herein above, this Court with due respect is of the opinion that the same are not binding upon this Court and the law declared in the case of Parmeshwar Nanda (supra) which is binding for which this Court cannot declare that the petitioners are entitled to pension under the Rules of 1969. This Court further, in the present facts of the case, is of the opinion that the petitioners have failed to make out a case for issuing a mandamus upon the respondent authorities to give the benefit under the Rules of 1969 for the reason above mentioned. The petitioners in terms with their appointment orders would be only be entitled to pension under the NDCPS, 2009. Teachers Appointed under Operation Black Board 74. The case of the teachers appointed under Operation Black Board Scheme are in WP (C) No. 2258/2022, WP (C) No. 2256/2022, WP (C) No. 4353/2022, WP (C) No. 5786/2020, WP (C) No. 7259/2021, WP (C) No. 2390/2022,WP (C) No. 7256/2021, WP (C) No. 4541/2022, WP (C) No. 2261/2022, WP (C) No. 548/2021, WP (C) No. 5318/2022, WP (C) No. 2259/2022, WP (C) No. 5375/2022, WP (C) No. 4193/2019, WP (C) No. 4892/2021, WP (C) No. 5082/2021, WP (C) No. 4902/2021, WP (C) No. 2360/2022 and 7416/2017. 75. The claim of the petitioners herein is that they should be granted the benefit of pension in terms with the Rules of 1969 and not as per the NDCPS, 2009. Before dealing with the issues involved in these batch of writ petitions, this Court finds it relevant to enumerate the basic facts infra. 76. In the year 1987, the Ministry of Human Resources Development, Government of India had introduced the Centrally Sponsored Scheme of “Operation Black Board” (for short “OBB”) laying down the minimum level of facility to be provided in all primary schools of the State, such as provisions of at least two teachers for every primary schools. On 28.04.1998, the Government of Assam created 4040 posts of Assistant Teachers in regular time scale of pay under the OBB Scheme stating therein that the posts would be abolished after the 9th Plan period is over and the incumbents would be adjusted/absorbed in existing vacancies as the Government of India would not reimburse the expenditure after the end of 9th Plan. The 9th Plan ended on 31.03.2002. The Government of Assam took a decision that the teachers who were appointed against the 4040 posts would be adjusted against vacant posts in phase manner as per the terms laid down during creation of the said posts. 2378 posts out of those 4040 posts were actually filled up and the rest of the posts were abolished. 77. The Government of Assam took a decision that the teachers who were appointed against the 4040 posts would be adjusted against vacant posts in phase manner as per the terms laid down during creation of the said posts. 2378 posts out of those 4040 posts were actually filled up and the rest of the posts were abolished. 77. It further appears that the Government of Assam vide another letter dated 08.03.2001 created 7066 posts of Lower Primary and Middle School Teachers under the OBB Scheme in the fixed pay of Rs. 1,900/- per month for Lower Primary Schools and Rs. 2,000/- for Middle School for the period from 08.03.2001 to 31.03.2002 on the condition that “if the Government of India is not agreed to continue the posts beyond the 9th Plan under the CSS, then these posts will stand abolished from 01.04.2002.” 78. Prior to this development, another significant event had taken place. The Director of Elementary Education, Assam had issued an advertisement on 28.12.1996 inviting application for participating in a selection process in respect of 7600 posts of Assistant Teachers in provincialised Assamese/Middle, English/Madrasa/Sr. Basic/Jr. Basic/Lower Primary School of various districts of Assam. Although the said selection process was initiated but there was a ban on appointment for which the said selection process could be brought to its logical end. In the meantime, the Government of Assam as already stated herein above vide a communication dated 08.03.2021 created 7066 (LP 4976 and 2090 Middle) posts of Lower Primary School and Middle School teachers in the fixed pay of Rs. 1,800/- per month for LP Schools and Rs. 2,000/- per month for Middle Schools with effect from 08.03.2001 to 31.03.2002 subject to certain conditions which were: (i) that the appointment letters are legally vetted; (ii) to be made absolutely clear that the appointments on stipendiary/contract basis terminate automatically on 31.03.2002 and (iii) if the Government of India is not agreed to continue these posts beyond 9th Plan period under the CSS, then those posts would stand abolished from 01.04.2002. On the very same day, the Government of Assam, by way of a WT Message, lifted the ban on appointments on fixed pay teachers of LP Schools and ME/MV/MEM posts created under OBB Scheme. On the very same day, the Government of Assam, by way of a WT Message, lifted the ban on appointments on fixed pay teachers of LP Schools and ME/MV/MEM posts created under OBB Scheme. It was also mentioned in the WT Message that no new application would be called for and those candidates who had already applied with treasury challan would only be called for interview. Further, the earlier select list may be placed before the new Board for verification etc. It was categorically mentioned in the said WT Message that the appointments were up to 31.03.2002 and will stand terminated on 31.03.2002. 79. It further reveals that on 23rd April, 2001 that the Director of Elementary Education, Assam, Kahilipara had issued a communication to the Secretary to the Government of Assam thereby providing the breakup list of 7066 posts district wise. Relevant to mention that as per the said breakup list, 2690 posts were for the Middle Schools and 4376 were for the LP Schools. 80. The petitioners herein along with others who had applied pursuant to the advertisement dated 28.12.1996 were appointed against the aforesaid 7066 posts created under the OBB Scheme. A perusal of the appointment letters in the various writ petitions which are similar in content shows that the petitioners herein were appointed against the posts created vide the Government letter dated 08.03.2001 and appointments were purely on temporary basis and would continue up to 31.03.2002. It was categorically mentioned in the said appointment letters that the appointments were for a fixed period only and no right shall accrue for continuation of service beyond the fixed term up to 31.03.2002. The Head of Account under which the salary was to be paid to the petitioners was in respect to Centrally Sponsored Scheme pertaining to OBB. As the appointment letters have relevance, one of such appointment letters, which are similar in content with others is reproduced herein-under: “GOVT. OF ASSAM OFFICE OF THE DEPUTY INSPECTOR OF SCHOOLS: GOALPARA ORDER Shri/Smt. Chandan Chanda S/O, D/O, W/O Debal Chanda of Village-Goalpara, P.O. Goalpara, District-Goalpara is hereby appointed as Assistant Teacher in Kashallya LP School on fixed pay of Rs. 1800/- per month against the posts created vide Govt. Letter No. PMA24/96/215 dtd.8.3.2001 and allotted by D.E.E., Assam vide No. EPD/OB/14/2001/6 dated 8-3-2001. The appointment is purely temporary basis and will continue up to 31-3-2002. 1800/- per month against the posts created vide Govt. Letter No. PMA24/96/215 dtd.8.3.2001 and allotted by D.E.E., Assam vide No. EPD/OB/14/2001/6 dated 8-3-2001. The appointment is purely temporary basis and will continue up to 31-3-2002. The appointment made for the fixed period only and no right shall accrue for continuation of the service beyond the fixed term up to 31.03.2002. The expenditure will be dubitable to the head of accounts 2202-Genl.Edn-IIICentrally sponsored Scheme-01-Ele-Edn-102 Assistance to Non-Govt. Primary Schools- 549-Operation Black Board (i) and (ii) salaries plan 2001-2002. Sd/- A Islam I/C, Deputy Inspector of Schools, Goalpara Memo No. Apptt/OBB/2001/8526-33 Dated: 13.3.2001 Copy to the: 1. Secretary to the Govt. of Assam, Edn. Deptt., Assam, Guwahati-6, for favour of information. 2. Director of Elementary Education, Assam, Kahilipara, Guwahati-19, for favour of information. 3. District Elementary Education Officer, Goalpara, for favour of information. 4. Treasury Officer, Goalpara, for favour of information. 5. Block Elementary Education Officer, Officer, Dudhnoi/Lakhipur/Balijana and Matia. He is requested to ensure release of the appointee on 31.03.2002 by the Head Pandit concerned and to recover the salary of the period of overstay (if any) from the Head Pandit who violate the above instruction. 6. Sub-Inspector of Schools, Sader Circle. 7. Head Pandit, Kashallya L.P. Schoo. He is requested to ensure release of the appointee on the afternoon 31.03-2002 without fail. Otherwise salary due for the period of overstay will be recovered from him. 8. Person concerned. I/C, Deputy Inspector of Schools, Goalpara.” 81. It further appears from the records that various persons who had been appointed had approached this Court by filing writ petitions in the year 2001 and 2002 claiming regularization of their services in regular sanctioned posts of Assistant Teachers of LP/MV/MEM Schools; not to terminate the services at the end of March, 2002 pending regularization of their services and to pay them the monthly salary with effect from the respective dates of their joining. 82. The Coordinate Bench of this Court vide the judgment and order dated 08.04.2002 allowed all such writ petitions. 82. The Coordinate Bench of this Court vide the judgment and order dated 08.04.2002 allowed all such writ petitions. In the said judgment in the case of Nirmali Borah and Others and Others vs. State of Assam and Others, 2002 (1) GLT 462, the Coordinate Bench while allowing the writ petitions was of the opinion that the signing of the Memorandum between the State and the Central Government on 13.01.2000 cannot be shown as a watershed to mark the change in the Government policy for adjusting one batch of OBB Teachers against regularly sanctioned posts after 31.03.2002 to discontinuing the services of another batch of OBB Teachers after 31.03.2002 for the simple reason that the Memorandum had excluded altogether the posts in the education sector from the purview of economic measures to be taken by the State Government. It was further observed that there was no basis for differential treatment between the teachers appointed against 4040 OBB posts created before the date of signing of the memorandum and the teachers appointed against 7066 OBB posts created thereafter. The Coordinate Bench of this Court was also of the opinion that the differential treatment meted out between the one batch of OBB Teachers of 4040 posts with the other batch of OBB Teachers of 7066 OBB posts was discriminatory and constitute violation of the Article 14 of the Constitution. Accordingly, in paragraph No. 25 of the said judgment in the case of Nirmali Borah (supra), the Coordinate Bench of this Court disposed of the with petition with a direction to the Government of Assam and the other State respondents to regularize the services of the petitioners appointed as teachers against the post created under the OBB Scheme by adjusting/absorbing them in regularly sanctioned posts/vacancies of Assistant Teachers of LP/Middle Schools of Assam in a phased manner and not to terminate their services pending such regularisation thereby allowing them to continue in service beyond 31.3.2002 by sanctioning retention of these temporary posts created under the Operation Blackboard Scheme till completion of the process of such regularisation. Further the State respondents were further directed to pay the monthly salary to the writ petitioners therein along with arrears for the period they have been found actually rendering service as teachers in the respective schools within three months from the date of the said judgment. Further the State respondents were further directed to pay the monthly salary to the writ petitioners therein along with arrears for the period they have been found actually rendering service as teachers in the respective schools within three months from the date of the said judgment. Paragraph No. 25 and 26 of the said judgment being relevant is reproduced herein-under: “25. In view of what has been stated above, the above mentioned batch of writ petitions are disposed of with a direction to the Govt. of Assam and other State respondents to regularise the services of the writ petitioners appointed as teachers against the posts created under the Operation Blackboard Scheme by adjusting/absorbing them in regularly sanctioned posts vacancies of Assistant Teachers of LP/Middle Schools of Assam in a phased manner and not to terminate their services pending such regularisation allowing them to continue in service beyond 31.3.2002 by sanctioning retention of these temporary posts created under the Operation Blackboard Scheme till completion of the process of such regularisation. 26. The State respondents are further directed to pay the monthly salary to the writ petitioners along with arrears for the period they have been found actually rendering service as teachers in the respective schools, within three months from the date of this order.” 83. It appears that the State being aggrieved by the said judgment rendered in the case of Nirmali Borah (supra) filed a Writ Appeal before the Division Bench of this Court being WA No. 376/2002. At the time of entertaining the writ appeal, there was no stay to the directions passed by the Coordinate Bench in its judgment and order dated 08.04.2002 in Nirmali Borah (supra). The Division Bench of this Court subsequently vide the judgment and order dated 01.07.2008 dismissed the writ appeal with the following observations and discussions as could be seen in paragraph No. 39 of the said judgment which is reproduced herein-under: “(39) It is pertinent to mention herein that this Appeal was filed on 1.7.2002 challenging the impugned Judgment which was rendered on 8.4.02 and no interim relief whatsoever at the time of admission of this Appeal, was granted in favour of the State appellant staying the operation of the impugned judgment. That being so, it is placed on record that nothing has been done by the State respondents to comply with the directions given by the writ court for last 6 years save and except the payment of salaries only upto 28.2.2006. While confirming the impugned common judgment and keeping in view the severe hardship faced by the respondents, as submitted on behalf of the respondents, we do order that the directions given in paragraphs-25 and 26 in the impugned Judgment and Order dated 8.4.2002, as quoted hereinabove, with all consequential reliefs be implemented as expeditiously as possible preferably within a period of 6 (six) months from today. Having heard the learned counsel for the parties, we find enough and sufficient force in the submissions of the learned Senior Counsel representing the respondents. We do hereby accept the findings and views recorded by the learned Single Judge in toto and we do not find any cogent and plausible grounds to dislodge the impugned common judgment. Consequently, this State Appeal is bereft of any merit and the same stands dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs.” 84. A perusal of the above quoted paragraph of the Division Bench’s judgment makes it clear that the State respondents did not comply with the direction given by the Coordinate Bench for the last 6 years save and except the payment of salary only upto 28.02.2006. The Division Bench of this Court while confirming the judgment dated 08.04.2002 passed by the Coordinate Bench directed that keeping in view the severe hardship faced by the respondents therein, the directions given in paragraph Nos. 25 and 26 in the judgment and order dated 08.04.2002 in Nirmali Borah (supra) with all consequential reliefs be implemented as expeditiously as possible preferably within a period of 6 (six) months from the date of the said judgment by the Division Bench. 85. This Court before further dealing with the matter in issue finds it relevant to note that the Division Bench of this Court in the judgment had taken into account the judgment of the Supreme Court in the case of State of Kerala vs. Umadevi, (2006) 4 SCC 1 . 85. This Court before further dealing with the matter in issue finds it relevant to note that the Division Bench of this Court in the judgment had taken into account the judgment of the Supreme Court in the case of State of Kerala vs. Umadevi, (2006) 4 SCC 1 . It is however relevant to take into account the judgment of the Supreme Court in the case of State of Jammu and Kashmir and Others vs. District Bar Association, Bandipora, (2017) 3 SCC 410 wherein the Supreme Court explained the judgment of the Supreme Court in the case of Umadevi (supra) and observed that the issues which had arisen before the Constitution Bench in Umadevi (supra) were primarily two issues, i.e. (i) the right of the employees seeking regularization on the strength of long and continuous work and (ii) the correctness of the directions issued by the courts for regularization of employees under Article 226 of the Constitution. The Constitution Bench’s judgment in case of Umadevi (supra), as observed by the Supreme Court in the case of District Bar Association, Bandipora (supra) dealt firstly with the right claimed by temporary employees to be regularised in service on the basis of long, continuance, legitimate expectations, employment under the State and the Directive Principles. It was further observed that the second salient question which the Constitution Bench was called upon to answer as to whether the courts would be justified in issuing directions for regularisation based on such features such as equality and long spells of service. It was observed that in both the counts, the Constitution Bench held against the temporary employees. It was further observed that the Constitution Bench in the case of Umadevi (supra) is not an authority for the proposition that the Executive or the Legislature cannot frame a scheme for regularisation. In fact the Constitution Bench in the case of Umadevi (supra) did not denude the State or its instrumentalities from framing a scheme for regularization which is apparent from a perusal of paragraph No. 53 of the judgment in the case of Umadevi (supra). 86. In fact the Constitution Bench in the case of Umadevi (supra) did not denude the State or its instrumentalities from framing a scheme for regularization which is apparent from a perusal of paragraph No. 53 of the judgment in the case of Umadevi (supra). 86. This Court further before proceeding with the dispute also would like to refer to paragraph No. 26 of the said judgment in the case of District Bar Association, Bandipora (supra) wherein the Supreme Court explained the concept of regularization to mean that regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged under Articles 14 and 16 of the Constitution. It was observed that a scheme for regularization essentially, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases, it was left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. It was further observed that the State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed as per the Supreme Court is that the principle as formulated is not meant to create or invest in a temporary or ad-hoc employee the right to seek a writ commanding the State to frame a scheme for regularization in as much as this would simply reinvigorate a class of claims which has been shut out permanently by the Constitution Bench in the case of Umadevi (supra). It was further observed that it would ultimately be the decision of the State and its instrumentalities to consider whether the circumstances warrant such a scheme be formulated. Further to that the formulation of such a scheme cannot be accorded the status of an enforceable right. Paragraph No. 26 of the judgment in the case of District Bar Association, Bandipora (supra) being relevant is extracted herein-below: “26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Further to that the formulation of such a scheme cannot be accorded the status of an enforceable right. Paragraph No. 26 of the judgment in the case of District Bar Association, Bandipora (supra) being relevant is extracted herein-below: “26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Umadevi. Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in paragraph 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Umadevi and be upheld.” 87. Now coming back to the facts involved, it would further appear from the perusal of the materials in the writ petitions that the petitioners have been given appointments pursuant to the judgment of the Division Bench on 01.07.2008 after 01.02.2005. Now coming back to the facts involved, it would further appear from the perusal of the materials in the writ petitions that the petitioners have been given appointments pursuant to the judgment of the Division Bench on 01.07.2008 after 01.02.2005. Now the question therefore raised by the learned counsels for the petitioners is that it was on account of the delay which was caused by the State in not complying with the directions contained in paragraph Nos. 25 and 26 in the judgment rendered in the case of Nirmali Borah (supra) which has resulted in the appointment of the petitioners after 01.02.2005 and as such on account of the fault of the State to comply with the directions, the petitioners cannot be penalized for not being given the benefit of the pension in terms with the Rules of 1969. It is further relevant to take note of another submission made by the learned counsels for the petitioners to the effect that the advertisement dated 28.12.1996 on the basis of which the petitioners were issued appointment letters at a time when the pension in terms with the Rules of 1969 was holding the field and therefore their subsequent appointments/regularization so made after 01.02.2005 cannot denude the petitioners of their claims for pension in terms with the Rules of 1969. In that regard various judgments of the Delhi High Court have been placed to canvas the point that as the advertisement was issued when the Rules of 1969 was holding the field, the subsequent appointments made to the petitioners after 01.02.2005, the petitioners cannot be deprived of the benefit of the Rules of 1969. Reference in that regard was made to the judgment of the Delhi High Court amongst many to Shyam Kumar Choudhary and Others vs. Union of India and Others, 2019 SCC Online Del. 11891. The learned counsels for the petitioners further placed reliance upon a judgment of the Division Bench of this Court in the case of Sanjay Kumar and Another vs. Union of India and Others, 2022 SCC Online Gau. 11891. The learned counsels for the petitioners further placed reliance upon a judgment of the Division Bench of this Court in the case of Sanjay Kumar and Another vs. Union of India and Others, 2022 SCC Online Gau. 214 wherein also the selection proceedings were initiated under the Old Pension Scheme but there was delay in issuance of appointment letters for a period of 19 months and the Division Bench of this Court approving the judgment of the Delhi High Court in the case of Shyam Kumar Choudhary (supra) held that the cases of the petitioners in the case of Sanjay Kumar and Another (supra) would be covered under the Old Pension Scheme of 2003. 88. On the other hand, the learned counsel appearing on behalf of the respondent Finance Department had submitted that the advertisement so issued in the year 1996 had nothing to do with the appointments being given to the petitioners pursuant to the judgment rendered in the case of Nirmali Borah (supra). The learned counsel appearing on behalf of the Finance Department submitted that the judgments in the case of Shyam Kumar Choudhary (supra) as well as Sanjay Kumar and Another (supra) were rendered in completely different facts in as much as in those cases, the selection proceedings were initiated at the time when the Old Pension Scheme was holding the field and the appointment orders in respect to those selection proceedings were issued pursuant to coming into effect the New Pension Scheme and as such both the Delhi High Court and the Division Bench of this Court had granted the benefits to the petitioners therein that they would be covered by the Old Pension Scheme. The learned counsel appearing on behalf of the respondent Finance Department further submitted that the instant case is completely different in as much as the advertisement which was issued in the year 1996 could not be brought to a logical conclusion at that relevant time as there was a ban on appointment. No doubt, the petitioners herein had applied in pursuance of the said advertisement. It was only on 08.03.2001, the Government of Assam had created 7066 posts specifically for the period of only 2 years, i.e. uptill 31.03.2002. No doubt, the petitioners herein had applied in pursuance of the said advertisement. It was only on 08.03.2001, the Government of Assam had created 7066 posts specifically for the period of only 2 years, i.e. uptill 31.03.2002. Upon creation of those posts, the Government in its wisdom, instead of initiating a fresh process had used the uncompleted selection process pursuant to the advertisement of 1996 for the purpose of filling up the 7066 posts. The learned counsel appearing on behalf of the Finance Department further submitted that appointment orders were specific and clear that the said appointments were only valid uptill 31.03.2002 and the posts would be abolished. It is, therefore, the case of the respondent Finance Department that the facts in the case of Shyam Kumar Choudhary (supra) as well as Sanjay Kumar and Another (supra) as rendered by the Delhi High Court as well as the Division Bench of this Court are completely different. The learned counsel appearing on behalf of the Finance Department further in order to distinguish the facts submitted that the petitioners very well knew that the appointments given to them in the year 2001 were only till 31.03.2002 and that too temporarily. The learned counsel appearing on behalf of the Finance Department submitted that the question of the petitioners getting pension then, on the basis of the appointment orders of 2001, did not arise at all in as much as the petitioners were appointed temporarily in respect to posts created under a Scheme for the period uptill 31.03.2002. He further submitted that thereupon the Coordinate Bench of this Court in Nirmali Borah (supra) vide the judgment and order dated 08.04.2002 directed the State authorities to regularize the services of the petitioners by adjusting/absorbing them in regularly sanctioned posts in the vacancies of Assistant Teachers of LP/Middle Schools of Assam in phased manner. This direction of the Coordinate Bench of this Court vide judgment and order dated 08.04.2002 was affirmed by the Division Bench on 01.07.2008 in WA No. 376/2002 wherein there was specific direction issued by the Division Bench to comply with the judgment and order dated 08.04.2002 in Nirmali Borah (supra). This direction of the Coordinate Bench of this Court vide judgment and order dated 08.04.2002 was affirmed by the Division Bench on 01.07.2008 in WA No. 376/2002 wherein there was specific direction issued by the Division Bench to comply with the judgment and order dated 08.04.2002 in Nirmali Borah (supra). It is in pursuance of the judgment delivered by the Coordinate Bench on 08.04.2002 in Nirmali Borah (supra) as well as the judgment dated 01.07.2008 in WA No. 376/2002 that the petitioners were given appointments to vacant sanctioned posts freshly after 01.02.2005, and as such, the question of the petitioners getting any benefit under the Rules of 1969 do not arise in the facts of the instant case. He further submitted that some of the similarly situated persons like the petitioners had earlier approached this Court by filing a petition in the case of Binoy Kumar Nath and Others vs. State of Assam and Others, MANU/GH/0316/2018 wherein they claimed payment of regular scale of pay from the date of the initial appointment or from the date of the judgment dated 08.04.2002 in Nirmali Borah (supra). The learned counsel appearing on behalf of the respondent Finance Department submitted that in the said judgment delivered in the case of Binoy Kumar Nath (supra), the Coordinate Bench of this Court categorically held that the petitioners therein had failed to make out a case for a direction to pay the regular scale of pay from the date of the initial appointment or a case could be made out for a direction for grant of regularization with retrospective effect from the date of initial appointment or from the date of the judgment and order dated 08.04.2002 in Nirmali Borah (supra). The learned counsel appearing on behalf of the respondent Finance Department further submitted that in the said judgment, i.e. in the case of Binoy Kumar Nath (supra), another additional issue was taken up by the Coordinate Bench as to whether the petitioners would be entitled to pension in terms with the Rules of 1969 or they would be covered by the New Pension Scheme as formulated by the authorities in the Government of Assam by the notification dated 02.05.2015, which was implemented by the notification of 2009 w.e.f. 01.02.2005. The Coordinate Bench of this Court in the said judgment instead of deciding the said issue, referred the matter to the Finance Department to the Government of Assam to take a decision. The learned counsel appearing on behalf of the respondent Finance Department further submitted with all fairness that the Finance Department is yet to take a call on the said aspect of the matter in view of the pendency of the present writ petitions. Be that as it may, the learned counsel appearing on behalf of the respondent Finance Department submitted that the said aspect of the matter can be decided by this Court on the basis of the judgment of the Supreme Court in the case of Surendra Kumar and Others vs. Greater Noida Industrial Development Authority and Others, (2015) 14 SCC 382 . 89. On merits, the learned counsel appearing on behalf of the respondent Finance Department submitted that the petitioners were appointed against a particular scheme and as such under no circumstances they can be said to be Government servants, and therefore, the question of the services rendered by the petitioners under the scheme to be counted for the purpose of deciding their pensionary benefits does not arise. In that regard, the learned counsel appearing on behalf of the Finance Department relied upon the following judgments of the Supreme Court: (i) Parameshar Nanda (supra) (ii) State of Bihar and Others vs. Rajmati Devi and Another, 2022 SCC Online SC 669 (iii) Avas Vikas Sansthan and Another vs. Avas Vikas Sansthan Engineers Association and Others, (2006) 4 SCC 1 32 (iv) State of Bihar vs. S.A. Hassan and Another, (2002) 3 SCC 566 (v) Dhyan Singh and Others vs. State of Haryana and Others, (2002) 10 SCC 656 90. This Court has taken into consideration the submission made by the learned counsels for the parties. The first question which arises is as to whether the petitioners claim their rights to appointment to the posts presently held on the basis of the advertisement dated 28.12.1996 or on the basis of the orders passed by this Court which resulted in the appointment of the petitioners. From the materials on records, it is apparent that though the advertisement was issued on 28.12.1996 for selection of 7600 teachers, but the said selection process initiated was not brought to a logical conclusion. From the materials on records, it is apparent that though the advertisement was issued on 28.12.1996 for selection of 7600 teachers, but the said selection process initiated was not brought to a logical conclusion. It was only on 08.03.2001 that the Government had taken a decision for creating 7066 posts that too for a limited period up to 31.03.2002. Though the State Government did not initiate any fresh advertisement but on the basis of the selection proceedings through advertisement dated 28.12.1996, the petitioners were appointed on the various dates but it was made absolutely and categorically clear in the appointment letters that their appointments were at fixed pay and for a period uptill 31.03.2002. In the said appointment letters, a reference was made to the order of creation of the posts dated 08.03.2001 wherein it was categorically mentioned that if the Government of India was not agreeable to continue these posts beyond the 9th Plan period under CSS then these posts would stand abolished from 01.04.2002. The petitioners accepted those appointments. 91. At this stage, it may further be relevant herein to mention that in the advertisement dated 28.12.1996, it was categorically mentioned that the scale of pay would be paid to the teachers who were appointed however in the appointment letters, it was categorically mentioned that they would be entitled to fixed pay of Rs. 1,800.00/- and Rs. 2,000.00 per month. The petitioners duly accepted such appointments without any demurrer. Later on, at the time when the period was ending, the petitioners along with similarly situated persons approached this Court by filing writ petitions seeking the relief of regularization; not to terminate their services and to pay them the monthly salary with effect from respective date of their joining in services. This Court vide the judgment dated 08.04.2002 in Nirmali Borah (supra) had directed the State to regularize the services of the petitioners therein by adjusting/absorbing them in regular posts/vacancies of Assistant Teachers of LP/Middle Schools of Assam in phased manner and not to terminate the services pending regularization. The Division Bench subsequently vide an order dated 01.07.2008 taking into account that the judgment dated 08.04.2002 was not complied with, directed compliance to the said judgment within 6 months more particularly to paragraph Nos. 25 and 26 in Nirmali Borah (supra) which have been quoted herein above. The Division Bench subsequently vide an order dated 01.07.2008 taking into account that the judgment dated 08.04.2002 was not complied with, directed compliance to the said judgment within 6 months more particularly to paragraph Nos. 25 and 26 in Nirmali Borah (supra) which have been quoted herein above. Subsequent thereto, the petitioners have been issued appointment letters thereby bringing them within the fold of the regular Government cadre. Therefore, the question of the petitioners claiming their rights to accrue on the basis of the advertisement dated 28.12.1996, in the opinion of this Court, is completely fallacious and misconceived in as much as the appointments of the petitioners to the Government services are on the basis of the orders passed by the Coordinate Bench of this Court dated 08.04.2002 and the Division Bench dated 01.07.2008 respectively. Therefore, in the opinion of this Court, the judgments in the case of Shyam Kumar Choudhary (supra) as well as Sanjay Kumar and Another (supra) cannot be made applicable to the facts of the instant case in as much as in those cases, the selection proceedings were initiated by way of an advertisement at that relevant point of time when the Old Pension Scheme was in operation, but on account of the delay by the respondents therein in issuing the appointment letters, the New Pension Scheme had kicked in. 92. This Court in the foregoing paragraphs has dealt with the concept of regularization which has been explained by the Supreme Court in detail in case of District Bar Association, Bandipora (supra). This Court is further of the opinion taking into account the observation of the Supreme Court that as regularization is not a source of recruitment, it is the requirement of law that pursuant to the scheme of regularization as framed by the Legislature or the Executive there has to be appointment which would bring the persons within the fold of the Government servants. Otherwise, regularization simply would be a source of recruitment. The services of the petitioners which have been regularized pursuant to the judgment dated 08.04.2002 and the subsequent judgment of the Division Bench dated 01.07.2008 have led the petitioners herein being brought within the fold of Government service and into pensionable establishment. In other words being brought to the cadre of the school in question. The services of the petitioners which have been regularized pursuant to the judgment dated 08.04.2002 and the subsequent judgment of the Division Bench dated 01.07.2008 have led the petitioners herein being brought within the fold of Government service and into pensionable establishment. In other words being brought to the cadre of the school in question. In terms with the Rules governing the Elementary as well as Secondary Schools, the induction to the cadre of the schools has to be either by way of promotion or appointment. As in the case of the petitioners they were for the first time brought to the general cadre of the Government of Assam. Therefore, the regularization of their services has to be understood as appointment being given to them. 93. The Coordinate Bench of this Court in Binoy Kumar Nath (supra) in paragraph No. 52 had categorically held that the similarly situated persons, like the petitioners, have failed to make out a case for a direction to pay the regular scale of pay from the date of their initial appointment. It was also observed that neither a case could be made out for a direction for grant of regularization with retrospective effect from the date of initial appointments nor from the date of the judgment and order in the earlier writ petition, i.e. WP (C) No. 8764/2001. Therefore, as the question of retrospective regularization cannot be allowed in the case of the petitioners in view of the judgment of the Coordinate Bench in paragraph No. 52, the question of the petitioners’ past services being taken into account prior to the appointment upon regularization does not arise. This Court, at this stage, would like to extract the paragraph No. 52 of the judgment in the case of Binoy Kumar Nath (supra) which is as under: “52. In view of the aforesaid discussions and conclusions arrived at, this Court is of the view that the petitioners have failed to make out any case for a direction to pay the regular scale of pay from the date of their initial appointment, nor a case could be made out for a direction for grant of regularization with retrospective effect from the date of initial appointment or from the date of the judgment and order in the earlier writ petitions i.e. WP (C) No. 8764/2001.” 94. Before further continuing, this Court would further like to take note of another observation by the Coordinate Bench of this Court in the case of Binoy Kumar Nath (supra) whereby the Finance Department was directed to take a wholesome decision as to whether the class of employees who had a legal right to be appointed or regularized prior to 01.02.2005, but because of certain other intervening circumstances, such right of regularization was not affected prior to such date are to be governed by the Rules of 1969 or the New Contributory Pension Scheme. Paragraph No. 54 to 56 of the judgment in the case of Binoy Kumar Nath (supra) being pertinent is quoted herein-under: “54. The new defined Contribution Pension Scheme as introduced by the Office Memorandum dated 06.10.2009 provides that the Finance Department of the Govt. of Assam had decided to introduce the Contributory Pension Scheme for the employees joining the State Government service on or after 01.02.2005. The guidelines to the New Defined Contributory Pension Scheme provides that the scheme shall be applicable to all new employees joining the State Government service on a regular basis against the sanctioned vacant post after 01.02.2005 and that it shall also be applicable to those government servant, whose service will be regularized against the regular post after 01.02.2005. The said provision gives an indication that the persons who were appointed or regularized after 01.02.2005 shall be governed by the New Defined Contributory pension Scheme. From the said point of view, it is apparently clear that the class of persons, who were either appointed or regularized prior to 01.02.2005 would be governed by the Assam Service Pension Rules, 1969, whereas those employees who were appointed or regularized after 01.02.2005 shall be governed by the New Defined Pension Scheme. 55. But in between, another class of employees are also in existence like those of the present petitioners. This class of employees had a legal right to be appointed or to be regularized prior to 01.02.2005 and had the said legal right to be appointed or regularized been honoured by the State respondent authorities, they would have otherwise come within the class of people who were appointed or regularized prior to 01.02.2005 and as such, would have been governed by the Assam Service Pension Rules, 1969. But in spite of having such legal right, the respondent authorities had neither appointed nor regularized them prior to 01.02.2005, and on the other hand they were regularized subsequently. Neither the Assam Service Pension Rules, 1969 nor the New Defined Contribution Pension Scheme makes any provision for such category of employees. Although occasionally we have the instruction from the appropriate authorities in the Finance Department that such category of employees will be covered by the New Defined Pension Scheme, but such instructions are more of a view expressed by the concerned official rather than, a decision itself by the Finance Department in the Govt. of Assam. 56. In a legal parlance, a decision means a determination by the authorities by taking into account all such relevant parameters that are required to be taken into consideration to arrive at a definite conclusion. Accordingly, it is deemed appropriate that interest of justice will be satisfied if the highest authority in the Finance Department of the Govt. of Assam which is stated to be Addl. Chief Secretary in the Finance Department, takes a wholesome decision on the aforesaid factor as to whether the class of employees, who had a legal right to be appointed or regularized prior to 01.02.2005 but because of certain other intervening circumstance, such right of regularization was not effected prior to such date are to be convened by the Assam Service (Pension) Rules, 1969 or by the New Contributory Pension Scheme. In arriving at the decision, the authority shall state in detail the relevant parameters that they would take into consideration and the reasons thereof as to why the authority arrives at the decision that it would take.” 95. The learned counsel appearing in behalf of the respondent Finance Department submitted that till date, the Finance Department has not taken a call on the said decision in view of the pendency of the present writ petitions. Reference was made to the judgment of the Supreme Court in the case of Surendra Kumar (supra). 96. The learned counsel appearing in behalf of the respondent Finance Department submitted that till date, the Finance Department has not taken a call on the said decision in view of the pendency of the present writ petitions. Reference was made to the judgment of the Supreme Court in the case of Surendra Kumar (supra). 96. In the said judgment rendered in Surendra Kumar (supra) at paragraph No. 11, it was observed that when the vacancies for the post of Assistant Manager (Civil) were advertised on 20.11.2002, the scheme for regularization of contractual employees was not in vogue and it was only subsequently on 16.04.2003, respondent No. 1 therein had taken a policy decision regarding regularization of 27 contractual employees and the scheme was approved by the State Government vide letter dated 05.03.2008 and it is only thereafter, the appellants therein came to be appointed on 06.08.2010. It was observed that when the vacancies were initially advertised, the appellants did not have any substantive right against the notified vacancies. Further, it was observed that the appellants cannot be said to have acquired such right to be regularised by virtue of the decision of the learned Single Judge reported in Surendra Kumar and State of U.P. 2005 SCC Online All. 899 as in Umadevi (supra), the Supreme Court held that the High Court should not issue directions for regularization, unless the recruitment itself was made in terms of the constitutional Scheme and the wide power under Article 226 are not intended to be used for issuance of such directions for regularization. In paragraph No. 14 of the said judgment, the Supreme Court further observed in the said case that the appellants therein were initially engaged on contractual basis and they were not appointed against any sanctioned post before they were substantially appointed to the said posts on 6.08.2010. It was observed that even though advertisement dated 20.11.2002 indicated that there were vacancies, the policy of regularization of contractual employees was approved by the State Government only on 05.03.2008. The appellants were thereafter appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. The appellants were thereafter appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By the policy of regularisation, it was intended to give the benefit only from the date of appointment. Further it was mentioned that the appellants therein having accepted the appointment orders and joined the posts, the appellants cannot turn around and claim regularisation with retrospective effect. Paragraph Nos. 10, 11 and 14 of the said judgment in the case of Surendra Kumar and Others (supra) being relevant is reproduced herein-under: “10. The main issue that arises for consideration is whether the policy decision extending the benefit of regularisation to contractual employees against 60% vacant posts will be deemed to regularise the services of the appellants from the retrospective date, that is, 20.11.2002, when the said posts were first advertised. 11. At the outset, it is to be pointed out that when the vacancies for the post of Assistant Manager (Civil) were advertised on 20-11-2002, the scheme for regularisation of contractual employees was not in vogue and it was only subsequently on 16-4-2003, Respondent 1 had taken a policy decision regarding regularisation of 27 contractual employees and the scheme was approved by the State Government vide Letter dated 5-3-2008 and it is only thereafter, the appellants came to be appointed on 6-8-2010. Thus, when the vacancies were initially advertised, the appellants did not have any substantive right against the notified vacancies. The appellants cannot be said to have acquired such right to be regularised by virtue of the decision of the learned Single Judge in Surendra Kumar vs. State of U.P. as in Umadevi case, this Court held that the High Court should not issue directions for regularisation, unless the recruitment itself was made in terms of the constitutional scheme and the wide power under Article 226 are not intended to be used for issuance of such directions for regularisation. The appellants were actually regularised only by virtue of the policy decision taken by Respondent 1 and not by virtue of the decision of the High Court. 14. The appellants were actually regularised only by virtue of the policy decision taken by Respondent 1 and not by virtue of the decision of the High Court. 14. The appellants were initially engaged on contractual basis and they were not appointed against any sanctioned post before they were substantially appointed on the said post on 6.08.2010. Even though advertisement dated 20.11.2002 indicated that there were vacancies, the policy of regularization of contractual employees was approved by the State Government only on 05.03.2008. The appellants were appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By policy of regularisation, it was intended to give the benefit only from the date of appointment. The Court cannot read anything into the policy decision which is plain and unambiguous. Having accepted the appointment orders dated 6.08.2010 and also joined the post, the appellants cannot turn round and claim regularisation with retrospective effect.” 97. In the instant case, it would be seen that the directions which was issued by the Coordinate Bench on 08.04.2002 was to regularize the services of the petitioners therein in a phased manner. There was no time limit mentioned therein. However, the Division Bench in its judgment dated 01.07.2008 directed compliance of paragraph Nos. 25 and 26 within a period of 6 months. Under such circumstances, a question arises can it be said that the petitioners accrued their right in respect to the posts presently held under the Government of Assam cadre on the basis of the directions passed by this Court or on the basis of their appointment orders? 98. It cannot also be lost sight of that as per the Constitutional Bench mandate in Umadevi (supra), this Court ought not to issue direction for regularization unless the recruitment itself was made in terms with the Constitutional Scheme. It was also provided in Umadevi (supra) that the wide powers under Article 226 was not intended to be used for issuance of such direction for regularization. It was also provided in Umadevi (supra) that the wide powers under Article 226 was not intended to be used for issuance of such direction for regularization. The Supreme Court in the case of District Bar Association, Bandipora (supra) had categorically held that regularization is not a mode of recruitment and the scheme of regularization does not confer any enforceable right. Under such circumstances, it cannot be said that the petitioners had any legal right to be appointed on the basis of the judgment rendered in Nirmali Borah (supra) prior to 01.02.2005 in as much as the duty of the Court is only to determine a right as well as to enforce a right. Therefore, it is only when the order of appointments have been issued, the petitioners would be entitled to the benefits that accrue on the basis of their appointment. In the instant category of writ petitions, the petitioners were issued appointment letters after 01.02.2005. Under such circumstances, this Court is therefore of the opinion that in view of the law declared by the Supreme Court in Surendra Kumar and Others (supra) and District Bar Association, Bandipora (supra), the petitioners having been appointed after 01.02.2005, the question of the petitioners getting benefit under the Rules of 1969 do not arise in the facts of the instant cases. 99. This aspect of the matter can also be seen from another angle in as much as the Supreme Court in the case of Dhyan Singh and Others (supra); Parameshar Nanda (supra); Avas Vikas Sansthan and Another (supra) and S. A. Hassan and Another (supra) had categorically held that the prior service rendered in a non-Government service cannot be reckoned for the purpose of computation of pensionary benefits. In the case of Dhyan Singh and Others (supra), the Supreme Court categorically observed that the Supervisor in the Adult Education Scheme cannot be held to an employment under any establishment of the Government. It was observed that such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. It was observed that such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. But the employment under such scheme, not being a part of the formal cadre of the State Government, it is difficult to hold that the period for which an employee rendered service under such scheme can be counted either for the purposes of deciding their pensionary benefits or even for fixing of their salary in the scale of pay once they are regularly absorbed. The relevant portion of the judgment in the case of Dhyan Singh and Others (supra) is quoted herein-below: “The continuance/engagement of the appellants under the specific scheme cannot be held to an employment under any establishment of the Government. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. But the employment under such scheme not being a part of the formal cadre of the State Government, it is difficult to hold that the period for which an employee rendered service under such scheme can be counted either for the purposes of deciding their pensionary benefits or even for fixing of their salary in the scale of pay once they are regularly absorbed.” 100. Similarly, in the case of Parameshar Nanda (supra), the persons therein were employed under the Adult Education and Non-Formal Education Project who were later absorbed by the State on closure of the Project. The question before the Supreme Court was as to whether their past services could be taken into account for the purpose of computation of pension. This Court in the foregoing paragraphs of the instant judgment has already mentioned about the appointment letters issued to the appellants therein wherein it was categorically mentioned that prior to their retrenchment, their services shall be counted for the purpose of pension. The Supreme Court categorically held in paragraph No. 23 that when the appellants were appointed as fresh candidates, their period of services for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of their past services rendered by them. Paragraph No. 23 has already been quoted herein above. The Supreme Court categorically held in paragraph No. 23 that when the appellants were appointed as fresh candidates, their period of services for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of their past services rendered by them. Paragraph No. 23 has already been quoted herein above. Further to that in paragraph No. 26, the Supreme Court further mentioned that the appellants therein were absorbed as fresh appointees without pay protection and seniority as a consequence thereof, they will not be entitled to count their past services rendered under the Project for the purpose of pension. Paragraph No. 26 of the said judgment is extracted herein-below: “26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension. We, thus, do not find any error in the order passed by the High Court which may warrant interference in the present appeals.” 101. Taking into account the said, this Court is of the unhesitant opinion that the petitioners herein cannot claim to be entitled to pension in terms with the Rules of 1969. Excess Teachers 102. The writ petitions in the excess category group are WP (C) No. 225/2020, WP (C) No. 6970/2022, WP (C) No. 6955/2022, WP (C) No. 5640/2021, WP (C) No. 1067/2021, WP (C) No. 4973/2021, WP (C) No. 6949/2022, WP (C) No. 6403/2021, WP (C) No. 7463/2017, WP (C) No. 6969/2022, WP (C) No. 6951/2022, WP (C) No. 6954/2022, WP (C) No. 6961/2022, WP (C) No. 336/2018, WP (C) No. 6953/2022, WP (C) No. 6942/2022, WP (C) No. 6575/2021, WP (C) No. 6812/2022 and WP (C) No. 6849/2022. The details as regards the petitioners are given in the following charts: Case No. Name of Petitioners Date of regularisation order WP (C) No. 225/2020 Burhan Uddin Laskar 18th August, 2005 WP (C) No. 6970/2022 Labanya Bala Nath 11th August, 2005 WP (C) No. 6955/2022 Dipak Ch. Pathak 11th August WP (C) No. 5640/2021 Dilip Kr. The details as regards the petitioners are given in the following charts: Case No. Name of Petitioners Date of regularisation order WP (C) No. 225/2020 Burhan Uddin Laskar 18th August, 2005 WP (C) No. 6970/2022 Labanya Bala Nath 11th August, 2005 WP (C) No. 6955/2022 Dipak Ch. Pathak 11th August WP (C) No. 5640/2021 Dilip Kr. Kalita 11th August, 2005 WP (C) No. 1067/2021 Shibu Roy 18th August, 2005 WP (C) No. 4973/2021 Padumi Thakuria 11th August, 2005 WP (C) No. 6949/2022 Himanta Goswami 11th August, 2005 WP (C) No. 6403/2021 Purnima Hore 16th August, 2005 WP (C) No. 7463/2017 Dwijen Chadra Kalita 11th August, 2005 WP (C) No. 6969/2022 Abha Rani Bhattacharyya 11th August, 2005 WP (C) No. 6951/2022 Bimala Kalita Deka 11th August, 2005 WP (C) No. 6954/2022 Amrit Chandra Mali 11th August, 2005 WP (C) No. 6961/2022 Bijoy Lakshmi Dutta 11th August, 2005 WP (C) No. 336/2018 Anwar Uddin Mazarbhuiya 18th August, 2005 WP (C) No. 6953/2022 Mano Ranjan Das 11th August, 2005 WP (C) No. 6942/2022 Haren Chndra Das 11th August, 2005 WP (C) No. 6575/2021 Paulami Chakraborty and Others 18th August, 2005 WP (C) No. 6812/2022 Sunu Moni Kalita 11th August, 2005 WP (C) No. 6849/2022 Naba Kumar Sarma 11th August, 2005 103. These writ petitioners were appointed by the Deputy Inspector of Schools and they received their salary and allowances from the date of initial appointment up to the year 1996 and thereafter they were not paid. At that relevant point of time, certain irregularities in the appointments were detected in the Education Department and the Education Department was unable to determine as to which of the appointments were illegal, irregular or regular. In view of the above, an Enquiry Committee was constituted headed by Sri S. Manoharan, IAS which in common parlance called the Manoharan Committee. The cases of various teachers were subjected to scrutiny by the Manoharan Committee. It is an admitted position that the Manoharan Committee had categorized the appointments of teachers who were subjected to scrutiny into three categories. The first category being such teachers whose entry into the service was found to be illegal; the second category being such teachers whose entry to the services were found to be irregular and the third category being such teachers whose entry in the service were considered to be legitimate. The first category being such teachers whose entry into the service was found to be illegal; the second category being such teachers whose entry to the services were found to be irregular and the third category being such teachers whose entry in the service were considered to be legitimate. While making the scrutiny, it was found that there were various appointments which were made in excess of the vacant posts and such teachers who were appointed in excess of the vacant posts are commonly termed as Excess Teachers. It is an admitted position that in respect to the second category of cases, whose entry into the service was considered to be irregular, two Cabinet decisions were taken being dated 20.01.2000 and 24.02.2005. In the first Cabinet decision dated 20.01.2000, a decision was taken to regularly induct into services 3511 number of teachers. In the second Cabinet decision which was taken on 24.02.2005, a decision was taken to induct further 2776 number of teachers. It is an admitted fact that in respect to the petitioners before this Court, their services were regularized after 01.02.2005 on the dates so mentioned in the chart hereinabove. They had given an undertaking at the time of submitting the joining report that they would come within the ambit of New Pension Scheme. One very important aspect of the matter is that these petitioners, pursuant to their regularization in the year 2005 itself, have accepted their appointment order without any demurrer and now have approached this Court in the year 2020, 2021, 2022, i.e. almost after around 15 years. 104. This Court while dealing with the category of teachers belonging to the OBB Scheme has dealt with the concept of regularization as observed by the Supreme Court in the case District Bar Association, Bandipora (supra). In doing so, this Court has also opined that as regularization is not a source of recruitment but is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies, the State would be within its power to formulate a Scheme within the exception curved out in paragraph No. 53 of the judgment of the Supreme Court in the case of Umadevi (supra). The Manoharan Committee and the Cabinet decisions have categorically observed that appointments of those teachers which were irregular were to be regularized by virtue of the Cabinet decision. The Manoharan Committee and the Cabinet decisions have categorically observed that appointments of those teachers which were irregular were to be regularized by virtue of the Cabinet decision. In a recent judgment passed by the Coordinate Bench of this Court in the case of Abani Baruah and Others vs. State of Assam and Others, MANU/GH/0368/2022, the Coordinate Bench dealt with the question as to whether those teachers who were appointed in excess of the sanctioned posts as in the instant case, would be governed by the Rules of 1969. The Coordinate Bench of this Court after taking into account Rule 31 of the Rules of 1969 held that the petitioners therein, having been appointed in excess of the available sanctioned vacant posts, their entry into the Government services prior to 01.02.2005 were not legitimate under law and the petitioners therein have to be accepted that they have not entered the Government service in a manner so as to be given the entitlement to the aforesaid period to be included as a part of the Government service that they have rendered. The Coordinate Bench of this Court further held that there was no infirmity in the order of regularization dated 22.08.2005 which categorically provided that the petitioners therein would be governed by the NDCPS. Paragraph No. 17 to 21 of the said judgment, being relevant, is quoted herein-under: “17. On a conjoint reading of the aforesaid pronouncements laid down by the Supreme Court, it would be discernible that in order to be in a substantive employment the conditions to be fulfilled, amongst others, would be that the person holds the post for indefinite period, i.e., for a long duration in contradistinction to a person who holds it for a definite or a temporary period, the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant, although it may be immaterial as to in what manner the post is designated in officialese. If all the three conditions are simultaneously satisfied it could be understood that the person concerned was in a substantive employment. 18. If all the three conditions are simultaneously satisfied it could be understood that the person concerned was in a substantive employment. 18. Having taken note of the requirements to accept an employment to be a substantive employment, we have to understand that the second condition in Rule 31 of the Pension Rules of 1969 requires that the appointment to the post is made by the proper authority after the person concerned passes the prescribed test and the post to which the appointment is made is vacant i.e. a sanctioned vacant post. 19. In the aforesaid context, in the instant case, it is an admitted position that the writ petitioners were appointed in the year 1993, may be, by following some process, but it was in excess of the available sanctioned vacant posts. If it is accepted that the petitioners were in employment from the year 1993 and the same may have been for a long duration, but as regards the other conditions that the appointment to the post is to be made by a proper authority after the person concerned passes the prescribed test and that the post to which the appointment was made is a sanctioned vacant post, would not be satisfied in the facts and circumstances of the present case, more so, in view of the conclusion that had already been arrived that the petitioners were appointed in excess of the available sanctioned vacant posts. Having been appointed in excess of the available sanctioned vacant posts, not only the condition that the post is required to be a vacant sanctioned post would not be satisfied, even the requirement that the person concerned would have to pass the prescribed test may also be not satisfied as the selection or the prescribed test was done only in respect of the available sanctioned vacant posts for which the selection process was undertaken and, therefore, even if the petitioners may have participated in some selection process, it cannot be said that they have passed the prescribed test which is a requirement to be in a substantive employment. 20. 20. In the absence of the satisfaction of two of the conditions precedent that the petitioners ought to have been appointed on regular basis and against sanctioned vacant posts, prior to 01.02.2005, which is the cutoff date for the applicability of the NDCPS, it has to be understood that the present writ petitioners have not joined the Government services on a substantive and permanent employment prior to 01.02.2005, although they may have been appointed or continued in service in some other manner. Further, as the petitioners were not in an employment which was substantive and permanent, they have not satisfied the requirement of the condition of qualifying service provided in Rule 31 of the Pension Rules of 1969 that the employment must be substantive and permanent. If the entry into Government service of the present writ petitioners in the year 1993 were not legitimate under the law, it has to be accepted that they have not entered the Government service in a legitimate manner, so as to be given an entitlement to the aforesaid period of service to be also included as a part of the Government services they had rendered. 21. When we look into the order dated 22.08.2005 by which the petitioners were regularized in service w.e.f. the date of joining against the vacant posts, it is discernible that the petitioners had joined the Government services on a regular basis against sanctioned vacant posts subsequent to 01.02.2005. From such point of view, we do not find any infirmity in the order dated 22.08.2005 which provides that the petitioners would be governed by the NDCPS.” 105. In the instant cases, as the facts are similar to the facts in the case of Abani Baruah (supra), this Court has no reasons to differ with the observation so made in the above quoted paragraphs. 106. This Court further may add, in view of the submissions made by the learned counsels appearing on behalf of the petitioners, that the petitioners are entitled to the similar treatment in view of the order dated 12.05.2015 in WP (C) No. 4169/2009 as well as the order dated 04.08.2015 in WP (C) No. 5705/2011. 106. This Court further may add, in view of the submissions made by the learned counsels appearing on behalf of the petitioners, that the petitioners are entitled to the similar treatment in view of the order dated 12.05.2015 in WP (C) No. 4169/2009 as well as the order dated 04.08.2015 in WP (C) No. 5705/2011. It is also the categorical submission that pursuant to the order dated 04.08.2015 passed in WP (C) No. 5705/2011, the petitioners therein have already been granted the relief by the Director of Education thereby counting the past services for the purpose of computation of pensionary benefits as per the provisions of the Rules of 1969. 107. This Court while dealing with the category of Dropped Teachers by following the law laid down by the Supreme Court in the case of Col. (Retd.) B.J. Akkara (supra) as well as Dr. O.P. Nijhawan (supra) held that the principle of res judicata or estoppel shall not bar the State from resisting the instant writ petitions in respect to the similarly situated persons though the order passed by this Court had already been implemented upon. At this stage, it is relevant to mention that the order dated 12.05.2015 in WP (C) No. 4169/2009, this Court had already held that the said order shall not be a precedent in view of the fact that the said order was passed ignoring the insertion of Rule 2A by the Amending Rules with effect from 01.02.2005 as well as Rule 31 of the Rules of 1969. Apart from the above, the said order dated 12.05.2015 in WP (C) No. 4169/2009 was passed in the case of Dropped Teachers and this Court is baffled with the submissions made by the learned counsel for the petitioners that the said order should be applied to the facts of the instant case which is in the category of Excess Teachers. As regards the order dated 04.08.2015 passed in WP (C) No. 5705/2011, this Court with due respect is constrained to observe that it seems the attention of the Coordinate Bench of this Court was not drawn that there is a major difference between teachers who fall in the category of Dropped Teachers and those teachers who have been found to be irregular on account of being appointed against non-sanctioned vacancies and thereby termed as Excess Teachers. If the said aspect would have brought to the notice of the Coordinate Bench of this Court, the Coordinate Bench would not have applied the judgment of the Coordinate Bench of this Court dated 12.05.2015 passed in WP (C) No. 4169/2009 to the case of Excess Teachers. 108. Under such circumstances, this Court is further of the opinion that the claim of the writ petitioners to be granted the benefit under the Old Pension Scheme thereby treating the period of service rendered earlier prior to being regularized for the purpose of pension is totally misconceived. Besides, the petitioners having accepted the order of regularization passed in the year 2005 and thereupon having waited for a period of almost 15 years, this Court is of the opinion that the petitioners are not entitled to relief as claimed for. Taking into account the orders of Regularization, the petitioners in the instant category of cases cannot claim rights under the Rules of 1969. They shall be regulated under the NDCPS, 2009. Teachers Appointed on Ad-hoc Grant Basis 109. The writ petitions in the instant category are in WP (C) No. 336/2021, WP (C) No. 6031/2021 and WP (C) No. 4499/2022. 110. The petitioners herein were appointed by the respective School Managing Committees. These schools received ad-hoc grant under planned budget from time to time. Subsequent thereto, on the basis of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, the services of the employees of Venture Educational Institutions in the State were provincialised. It is relevant to take note of that in terms with Section 5 of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, the terms and conditions of service have been enumerated. Section 5 (2) of the said Act being relevant is quoted herein-below: “(2) All such employees shall get such emoluments as salary and allowances as may be prescribed with effect from the date of provincialisation of their services and the past service rendered by them shall not be counted for any purpose whatsoever, and all such employees shall get same pay and allowances as if they are fresh appointees and in respect of pension, they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank.” 111. A perusal of the said Sub-Section categorically mandates that all such employees shall get such emolument as salary and allowances as may be prescribed with effect from the date of Provincialisation of their services and the past services rendered by them shall not be counted for any purpose whatsoever and all such employees shall get same pay and allowances as if they are fresh appointees and in respect of pension they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. 112. It would also transpire from a perusal of the order of provincialisation of the services of the petitioners that they would be governed by the New Pension Scheme and they shall submit an undertaking as per the format. The petitioners herein have duly accepted those orders of provincialisation of their services and have submitted undertakings to the effect that they would be governed by the New Pension Scheme. Be that as it may, it is also pertinent herein to take note of that the Division Bench of this Court vide its judgment and order dated 23.09.2016 in WP (C) No. 3190/2012 along with other writ petitions, had struck down the provision of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as well as the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2012 and the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2013 on the ground that it offends the Right of Children to Free and Compulsory Education Act, 2009 as well as the Article 21A of the Constitution of India. The appointments of the petitioners herein were based upon the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 which was held to be ultra vires the Constitution. However, by Section 24 of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, the appointment of the petitioners were however saved subject to their cases be reviewed as per the eligibility norms set out for provincialisation under the Act of 2017. Section 24 of the said Act of 2017 is quoted herein-under: “24. However, by Section 24 of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, the appointment of the petitioners were however saved subject to their cases be reviewed as per the eligibility norms set out for provincialisation under the Act of 2017. Section 24 of the said Act of 2017 is quoted herein-under: “24. Repeal and savings: The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (Assam Act No. XVII of 2011) as amended vide the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2012 (Assam Act No. XXI of 2012) and the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2013 (Assam Act No. XX of 2013), which have been struck down by the Hon'ble Gauhati High Court vide order dated 23.09.2016 in WP (C) No. 3190/2012, and all rules, orders, notifications issued thereunder, shall stand repealed, however, all the teachers whose services were provincialised prior to 23.9.2016, shall continue and their cases shall be reviewed as per the eligibility norms set forth for provincialisation under this Act.” Taking into account the above, as the appointments of the petitioners were during the period prior to striking down of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 and they were regulated at that relevant point of time by Section 5 (2) of the said Act of 2011, they would be bound by the said provision, if the petitioners seek to take benefit of provincialisation of their services under the said Act of 2011. More so, in the provincialisation orders, it was specifically mentioned that they would be covered under the New Pension Scheme which the petitioners have duly accepted without any demurrer. 113. It is however relevant herein to take note of another aspect of the matter in the present batch of writ petitions which is a claim to bring in the death-cum-retirement gratuity facility in respect to the provincialised category employees under the Government of Assam as has already been provided by the Central Government as well as some other State Governments. In fact, the Additional Chief Secretary to the Government of Assam, Pension and Public Grievances Department had issued an Office Memorandum dated 01.02.2021 thereby extending the benefit of retirement gratuity and death gratuity to the State Government employees covered under the NDCPS. In fact, the Additional Chief Secretary to the Government of Assam, Pension and Public Grievances Department had issued an Office Memorandum dated 01.02.2021 thereby extending the benefit of retirement gratuity and death gratuity to the State Government employees covered under the NDCPS. The said Office Memorandum, being relevant, is quoted herein-under: “GOVERNMENT OF ASSAM PENSION and PUBLIC GRIEVANCES DEPARTMENT DISPUR: GUWAHATI No. PPG (P) 165/2014/36 Dated Dispur, the 1st February, 2021 OFFICE MEMORANDUM Subject: Extension of benefits of ‘Retirement Gratuity and Death Gratuity’ to the State Government employees covered by New Defined Contribution Pension System (National Pension System) - regarding. 1. Government servants appointed on or after 01.02.2005 are regulated by the New Defined Contribution Pension System (known as National Pension System), notified by the Finance (Budget) Department’s circular No. BW-3/2003/Pt.II/1, dated 25.01.2005. Later on, orders were issued for payment of gratuity on provisional basis in respect of employees covered under National Pension System on their retirement from Government service on invalidation or death in service, vide this Department's OM No. PPG (P) 165/2014/17, dated 14.01.2016. 2. The issue of grant of gratuity in respect of government employees covered by the National Pension System has been under consideration of the Government for some time. After careful examination, it has been decided that the government employees covered by National Pension System shall be eligible for the benefit of ‘Retirement Gratuity and Death Gratuity’ on the same terms and conditions, as are applicable to employees covered by Assam Services (Pension) Rules, 1969. 3. These orders issue with the concurrence of Finance (Budget) Department communicated vide their Endt. dated 25.01.2021. 4. These orders will be applicable to those State Government employees who joined Government service on or after 01.02.2005 and are covered by National Pension System and will take effect from the same date i.e. 02.02.2005. Sd/- V.S. Bhaskar, IAS Addl. Chief Secretary to the Govt. of Assam Pension and Public Grievances Department.” 114. By way of an additional affidavit, the petitioners has also brought to the attention of this Court that the said Office Memorandum dated 01.02.2021 as quoted herein above, has also been acted upon and in that regard various similarly situated persons have been granted the benefits who were covered under the New Pension Scheme. By way of an additional affidavit, the petitioners has also brought to the attention of this Court that the said Office Memorandum dated 01.02.2021 as quoted herein above, has also been acted upon and in that regard various similarly situated persons have been granted the benefits who were covered under the New Pension Scheme. Taking into account the said Office Memorandum dated 01.02.2021 as well as the various orders by which the benefits of the said Office Memorandum has been given to those persons who come under the New Pension Scheme, this Court deems it proper to observe and direct that that as the petitioners herein have been brought within the fold of State Government employees by provincialisation of the services and are governed by the New Pension Scheme, the petitioners coming under the ambit of NDCPS, 2009 would be entitled to the benefit in terms with the Office Memorandum dated 01.02.2021. Teachers Appointed in the 6th Schedule Area (Dima Hasao District Council) 115. The cases of the teachers of the instant category are in WP (C) No. 5409/2020 and WP (C) No. 5895/2021. In these two cases, this Court had earlier reserved the judgment on 23.02.2023. However, in the meantime, an additional affidavit-in-opposition was filed by the District Primary Education Officer, Dima Hasao, Hallong on 15.03.2022. Taking into account the said affidavit, this Court further heard these matters on 23.03.2023. Before dealing with the facts involved, it would be relevant to take note of that in the 6th Schedule Areas, more particularly in the Dima Hasao District Council, the said District Council has two sets of employees working; one category of employees is governed by the Service Rules of the North Cachar Hill Autonomous Council (presently known as Dima Hasao Autonomous Council) where employees are not entitled for pension and they are known as the Normal Sector Employees. Their salaries are being paid from the revenue earned by the Autonomous Council. The other category of employees are governed by the Assam State Government Service Rules and they are entitled for pension and other service benefits as declared by the State Government from time to time and they are called District Cadre State Sector Employees. In respect to later category of employees, their salaries are being paid by the State Government from the State Exchequer. In respect to later category of employees, their salaries are being paid by the State Government from the State Exchequer. It is also a practice that when vacancy arises in the State Sector, the employees working under the Normal Sector get an opportunity to apply for the same and as per the requirement and the qualification of the candidates, they are brought within the fold of the State Sector. 116. It is an admitted position that the petitioners in both the writ petitions were first appointed as the Normal Sector Employees by the North Cachar Hill Autonomous Council (as it was then existed). Subsequent thereto, when the vacancies arose in the State Sector, the North Cachar Hill Autonomous Council/Dima Hasao Autonomous Council allowed regularization of the LP School teachers thereby brining in them within the fold of State Sector by passing appropriate orders. A perusal of the writ petition in WP (C) No. 5409/2020 would show that on 25.10.2010 and on 28.06.2013, the petitioners herein who were serving under non-sanctioned posts (Normal), their services was regularized to the Government sanctioned posts (Non-Plan) caused due to retirement/death of the incumbents. In WP (C) No. 5895/2021, the service of the petitioner herein was regularized under the Government sanctioned vacancy due to retirement/death of the incumbent. The petitioners in both the writ petitions, therefore, prior to the order dated 25.10.2010 and 28.06.2013 were admittedly not entitled to pension in terms with the Rules of 1969. Although, in the order it has been mentioned that the services of the petitioners were regularized, but in the true sense, the same cannot be said to be regularization in view of the exposition of the term ‘regularization’ by the Supreme Court in the case of District Bar Association, Bandipora (supra). In fact, the petitioners were brought within the fold of the Government service on the basis of the said order dated 25.10.2010 and 28.06.2013. Under such circumstances, the petitioners cannot claim to be entitled to the pension in terms with the Rules of 1969 in view of the mandate of Rule 31 of the Rules of 1969 and Rule 2A of the said Rules. Under such circumstances, this Court does not find any merit in the instant writ petitions for issuing a mandamus as sought for. 117. Under such circumstances, this Court does not find any merit in the instant writ petitions for issuing a mandamus as sought for. 117. Lastly, this Court would also take up one further contention so raised by the learned counsels appearing on behalf of the petitioners. The contention being that the petitioners have rendered services for long period, and as such, it would be unjust not to take into consideration of their past services rendered and thereby not grant them the benefits of the Old Pension Scheme under the Rules of 1969. This Court finds it apt to take note of the observation of the Supreme Court in the case of Uttar Haryana Bijli Vitran Nigam Ltd. vs. Surji Devi, (2008) 2 SCC 310 wherein the Supreme Court categorically observed that a sentiment and sympathy alone cannot be a ground for taking a different view for what is permissible in law. Paragraph Nos. 16 and 17, being relevant, is quoted herein-under: “16. The Scheme relating to grant of family pension was made under a statute. A person would be entitled to the benefit thereof subject to the statutory interdicts. From a bare perusal of the provisions contained in the Punjab Civil Services Rules, Vol. 2 vis-a-vis the Family Pension Scheme, it would be evident that the respondent was not entitled to the grant of any family pension. The husband of the respondent was a work-charged employee. His services had never been regularised. It may be unfortunate that he had worked for 11 years. He expired before he could get the benefit of the regularisation scheme but sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law. [See Maruti Udyog Ltd. vs. Ram Lal, State of Bihar vs. Amrendra Kumar Mishra, SBI vs. Mahatma Mishra, State of Karnataka vs. Ameerbi and State of M.P. vs. Sanjay Kumar Pathak] 17. The statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as the deceased employee was a work-charged employee and not a permanent employee or temporary employee. The statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as the deceased employee was a work-charged employee and not a permanent employee or temporary employee. The period during which an employee worked as a work-charged employee could be taken into consideration only when his services are regularised and he becomes permanent and not otherwise.” Under such circumstances, this Court, therefore, is of the opinion that merely because of the fact that the petitioners in the various categories of teachers other than the Stipendiary Teachers have rendered services for long time before entering the services of the Government that cannot entitle them to the Old Pension Scheme regulated by the Rules of 1969. 118. In the backdrop of the above, this Court, therefore, disposes of the instant batch of writ petitions with the following observations and directions: (i) The writ petitioners who come within the fold of Stipendiary Teachers are entitled to the benefits under the Rules of 1969 and they are not covered under the NDCPS, 2009. The said petitioners are also entitled to subscribe to the GPF. The said petitioners would also be entitled to all other pensionary benefits to which a Government servant of corresponding rank is entitled to. (ii) The writ petitioners who come within the fold of Dropped Teachers are not entitled to pension in terms with the Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. (iii) The teachers coming within the fold of Teachers Appointed under the Operation Black Board, 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 Rules of 1969 as well as also shall not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. They shall be governed by the New Pension Scheme applicable to State Government employees of corresponding rank. They shall be governed by the New Pension Scheme applicable to State Government employees of corresponding rank. (iv) The writ petitioners who come within the fold of Excess Teachers would not be entitled to the pension in terms with the Rules of 1969 as well as also shall not entitled to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. (v) The writ petitioners who come within the category of Teachers appointed on Ad-hoc Grant Basis would not be entitled to pension in terms with the Rules of 1969, but shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. They would also not be entitled to join the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. (vi) The Teachers who have been brought within the fold of the State Sector Employees by regularization of their services by the Dima Hasao Autonomous District Council on or after 01.02.2005 would not get the benefit in terms with the Rules of 1969, but they shall be governed by the New Pension Scheme applicable to the State Government employees of the corresponding rank. (vii) The teachers coming within the category of Dropped Teachers, Operation Black Board, Excess, Ad-hoc Grant as well as Dima Hasao as mentioned in Sub-Paragraph Nos. (ii), (iii), (iv) (v) and (vi) herein above as they come within the ambit of the New Defined Contribution Pension Scheme, 2009 shall be eligible for 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. (viii) The communication dated 23.02.2010 issued by the Director, Finance (Budget) Department to the Deputy Accountant General (P&A) is set aside and quashed. (ix) It is observed that the instant judgment will come into effect prospectively. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to an employee on the basis of the directions passed by the various orders of this Court earlier. (ix) It is observed that the instant judgment will come into effect prospectively. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to an employee on the basis of the directions passed by the various orders of this Court earlier. This direction has been given specifically for the fact that the State Government had allowed such orders so passed by the Coordinate Bench as well as the Division Bench of this Court to attain finality and have granted benefit to them. These persons shall continue to be entitled to the pension under the Rules of 1969 as per the directions of this Court earlier. The above directions is based upon the judgment of the Supreme Court in the case of Umadevi (supra) wherein the Supreme Court at paragraph No. 53 had categorically observed that those regularizations, if any, already made but not subjudiced need not be reopened based on the observations made in the said judgment. (x) This Court further is of the opinion that the persons similarly situated to that of the writ petitioners coming within the category of Stipendiary Teachers, but who have not been able to approach this Court on account of various reasons, need not be deprived of the benefits of pension in terms with the Rules of 1969 as well as to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937. This Court, therefore, directs the respondent authorities to grant the benefits of pension in terms with the Rules of 1969 as well as to allow such persons to subscribe to the fund in terms with the General Provident Fund (Assam Service) Rules, 1937 after completing the necessary verification in that regard. The same may be done within a period of 6 (six) months from the date of the instant judgment. 119. Taking into account the facts involved in the instant batch of writ petitions, there is no order as to costs.