JUDGMENT : N. Unni Krishnan Nair, J. Heard Mr. A. M. Barbhuiya, learned counsel, appearing on behalf of the appellants. Also heard Mr. K. Gogoi, learned standing counsel, Higher Education Department, appearing on behalf of respondents No. 1 & 2; Mr. R. K. Talukdar, learned standing counsel, Accountant General, appearing on behalf of respondent No. 3; and Mr. S. Sarma, learned Government Advocate, appearing on behalf of respondent No. 4. 2. The appellants, herein, by way of instituting the present intra-Court appeal, have presented a challenge to a judgment & order, dated 21.03.2023, passed by the learned Single Judge in WP(c)620/2018. 3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed as under: The appellants No. 1, 2 & 3, herein, were initially recruited as Lecturers at Kokrajhar College on 01.07.1967, 01.07.1975 and 23.09.1970, respectively. The employees of the said College, at the relevant point of time, when the appellants had been so recruited, were covered by the provisions of the “Assam Aided College Employees Rules, 1960”. In terms of the said Rules of 1960, more particularly, Rule 11, thereof, the appellants, herein, were to superannuate from their services on attaining the age of 60 years. As the appellants were so continuing in their services in terms of the provisions of Rule 11 of the Rules of 1960; the Kokrajhar College, on enactment of the Assam College Employees (Provincialization) Act, 2005, came under the purview of the said Act of 2005 w.e.f. 01.12.2005. In terms of the provisions of Section 2(c) of the said Act of 2005, which defines “existing employee” to mean an employee of a college both teaching and non-teaching appointed substantively against a sanctioned post and who is or has been in service on or after 01.01.2005, the appellants, herein, along with others, by contending that on account of the fact that they in view of the provisions of Rule 11 of the Assam Aided College Employees Rules, 1960; having continued in their services after 01.01.2005, would be covered by the term “existing employee”, approached the respondent authorities pursuant to their retirement on attaining the age of 60 years claiming for being granted pension along with other pensionary benefits. Being aggrieved by the denial to them of their pensionary benefits like the Leave Encashment, DCRG, etc., the appellants, herein, had approached the writ Court by way of filing a writ petition being WP(c)136/2010. The writ Court vide order, dated 23.11.2013, proceeded to dispose of the said writ petition by directing the respondent authorities to take a decision as to whether the services rendered by the petitioners beyond 58 years of age upto 60 years of age; can be regularized and further, to release to the petitioners, therein, in the event, such regularization of services is not granted; their gratuity and Leave Encashment. The said direction not being complied with by the respondent authorities; the petitioners, therein, had instituted a contempt petition being Cont.Case(C) 386/2014, which was closed vide order, dated 14.11.2014, on an undertaking given by the respondents for compliance of the directions passed vide order, dated 23.11.2022. The undertaking as given, not being complied, the petitioners again instituted a contempt case being Cont.Case(C)122/2015, and the learned Single Judge, vide order, dated 11.09.2017, noticing that a speaking order in terms of the decision of the writ Court in WP(c)136/2010, having already been issued; proceeded to close the said contempt petition granting liberty to assail the said order. The Director, Higher Education Department, had, in terms of the directions passed by the learned Single Judge in WP(c)136/2010, issued a speaking order on 13.07.2016, and therein, by highlighting that the appellants, herein, in view of the provisions of the Assam College Employees (Provincialization) Act, 2005, must be deemed to have retired at the age of 58 years, and thereafter, by invoking the provisions of Section 8 of the Act of 2005, it was held that the appellants, herein, would be entitled only to a superannuation pension. It was further held that the appellants, herein, would be entitled to a gratuity, as provided for in the provisions of the “Assam Aided Colleges(under Deficit System) Employees Gratuity Rules, 1992”. The claim of the appellants, herein, for grant of leave encashment benefits was also rejected. 4. Being aggrieved, the petitioners had approached the writ Court by way of instituting a writ petition being WP(c)620/2018, assailing the order, dated 13.07.2016, along with a prayer for being authorized their pensionary benefits like Leave Encashment, DCRG, etc.. 5. The claim of the appellants, herein, for grant of leave encashment benefits was also rejected. 4. Being aggrieved, the petitioners had approached the writ Court by way of instituting a writ petition being WP(c)620/2018, assailing the order, dated 13.07.2016, along with a prayer for being authorized their pensionary benefits like Leave Encashment, DCRG, etc.. 5. The learned Single Judge, upon considering the issues as arising in WP(c)620/2018 and upon hearing the parties to the proceeding, was pleased vide judgment & order, dated 21.03.2023, to dismiss the said writ petition, rejecting the claims made by the appellants. 6. Being aggrieved, the appellants, herein, have instituted the present intra-Court appeal before this Court. 7. Mr. Barbhuiya, learned counsel for the appellants, herein, by referring to the provisions of Section 2(c) of the Assam College(Employees Provincialization) Act, 2005, has submitted that the definition of an “existing employee” as contained in the said Act of 2005, would also bring within its purview; the appellants, herein, in-as-much as, they were in service after 01.01.2005. 8. Mr. Barbhuiya, learned counsel, has further submitted that the provisions of Section 8 of the said Assam College Employees (Provincialization) Act, 2005, would not be applicable in case of the appellants, herein, and they should be deemed to be the existing employees of the College, in question, and accordingly, be extended with their pension and pensionary benefits in terms of the provisions of the Assam Service(Pension) Rules, 1969. 9. Mr. Barbhuiya, learned counsel, by placing reliance on a decision of the learned Single Judge in WP(c)87/2014 [judgment & order, dated 31.05.2016, Bidya Chandra Singha v. State of Assam & ors.], has submitted that in the said decision, in the case of the petitioner, therein, who was also covered by the provisions of the Act of 2005, his services till the age of 60 years, was directed to be so reckoned for the purpose of authorizing to him, pension in terms of the provisions of the Assam Service(Pension) Rules, 1969. Mr. Barbhuiya, learned counsel for the appellants, herein, has further submitted that although the said decision was placed before the learned Single Judge, however, the same was not appreciated by the learned Single Judge in the proper perspective. 10. In the above premises, Mr. Mr. Barbhuiya, learned counsel for the appellants, herein, has further submitted that although the said decision was placed before the learned Single Judge, however, the same was not appreciated by the learned Single Judge in the proper perspective. 10. In the above premises, Mr. Barbhuiya, learned counsel for the petitioners, has submitted that the appellants, herein, have to be deemed to be “existing employee” in terms of the provisions of Section 2(c) of the Assam College Employees (Provincialization) Act, 2005, and accordingly, they would be entitled to be extended with the pension and other pensionary benefits in terms of the provisions of the Assam Service (Pension) Rules, 1969. 11. Per contra, Mr. Gogoi, learned standing counsel, Higher Education Department, has submitted that with the coming into force of the Assam College Employees (Provincialization) Act, 2005; the provisions of the “Assam Aided College Employees Rules, 1960”, ceased to have any effect and the appellants, herein, in view of their continuance in service till the age of 60 years which fell after 01.01.2005, would not be entitled to be so treated as an “existing employee” in a provincialized College in view of the fact that Section 9 of the Assam College Employees (Provincialization) Act, 2005, clearly mandates that the age of superannuation of an employee covered by the provisions of the said Act of 2005, would be the age on which the similar category of government employees would be required to proceed on superannuation. 12. Mr. Gogoi, learned standing counsel, Higher Education Department, has further submitted that w.e.f. 01.01.2005, the age of superannuation of the government employees was increased from 58 to 59 years. Mr. Gogoi, has submitted that employees serving in Colleges coming under the purview of the Assam College Employees (Provincialization) Act, 2005, have to be so considered as “existing employees”, by reckoning the age of such employee as of 01.01.2025. In the event, any of such employee as of 01.01.2005, is aged more than 59 years, case of such employee would be governed by the provisions of Section 8 of the Act of 2005, and would not be deemed to be an “existing employee”. 13. Mr. In the event, any of such employee as of 01.01.2005, is aged more than 59 years, case of such employee would be governed by the provisions of Section 8 of the Act of 2005, and would not be deemed to be an “existing employee”. 13. Mr. Gogoi, learned standing counsel, by referring to the judgment & order, dated 21.03.2023, passed by the learned Single Judge, under appeal, in the present proceeding; has submitted that the learned Single Judge had taken into consideration all relevant factors and thereafter, reached a conclusion that the appellants, herein, would not be entitled to be authorized pensionary benefits in the matter, and accordingly, the same would not call for any interference. 14. We have heard the learned counsels appearing for the parties and also perused the materials available on record. 15. The appellants, herein, on their recruitment as Lecturers in Kokrajhar College, were covered by the provisions of the “Assam Aided College Employees Rules, 1960”. Rule 11 of the said Rules of 1960, stipulates that the employees covered by the said Rules, would proceed on superannuation on attaining the age of 60 years. The appellants, herein, in view of the said provisions of Rule 11 of the Rules of 1960, continued in their services beyond 01.01.2025, in the said College. 16. The Government enacted the provisions of the Assam College Employees (Provincialization) Act, 2005, w.e.f. 31.12.2005. The provisions of Section 2(c), being relevant, is extracted hereinbelow: “ 2. Definitions: ************************************************************************************************** (c) "existing employee" means an employee of a College both teaching and non-teaching appointed substantively against a sanctioned post and who is or has been in service on or after the 1 st day of January, 2005.” 17. A perusal of the provisions of Section 2(c) of the Assam College Employees (Provincialization) Act, 2005, would go to reveal that an employee of a College both teaching and non-teaching appointed substantively against a sanctioned post and who is in service on or after 01.01.2005, would be deemed to be an “existing employee”. 18. In the above view of the matter, the appellants, herein, contend that having continued in their services beyond 01.01.2005, in Kokrajhar Government College, they would come within the meaning of the term “existing employee”. 18. In the above view of the matter, the appellants, herein, contend that having continued in their services beyond 01.01.2005, in Kokrajhar Government College, they would come within the meaning of the term “existing employee”. However, the said definition of an “existing employee” is also required to be so considered by reckoning the provisions of Section 9 of the Assam College Employees (Provincialization) Act, 2005, which being relevant, is extracted hereinbelow: “ 9. Age of superannuation- The provincialised employees shall go on superannuation on attaining such age at which a Government servant similarly situated superannuates.” 19. A perusal of the provisions of Section 9 as extracted hereinabove, would go to reveal that an employee, on being provincialized, shall go on superannuation on attaining such age at which a government servant, similarly situated, superannuates. 20. The services of the appellants, herein, admittedly, had not been provincialized under the provisions of the Assam College Employees (Provincialization) Act, 2005, in-as-much as, they were deemed to have superannuated from their service on a date prior to 01.01.2005. 21. Accordingly, for the purpose of the provisions of the Assam College Employees (Provincialization) Act, 2005; the appellants, herein, cannot be deemed to be an “existing employee” merely on the ground that they had continued to render their services in the said College beyond 01.01.2005. 22. In order to bring the employees who had served in the Colleges of the State, but, had superannuated, or, deemed to have superannuated, considering the date of such superannuation in respect of similarly situated government employees; the Assam College Employees (Provincialization) Act, 2005, provides in Section 8, the mode of grant of pension to employees who had retired or died prior to 01.01.2005. The provisions of Section 8, being relevant, is extracted hereinbelow: “ 8. Mode of pension to employees who retired/died prior to 1 st January, 2005- Employees who retired/died, as the case may be, prior to 1 st January, 2005 shall be given only superannuation pension or the family pension, as may be applicable under the existing pension Rules of the Government. Mode of pension to employees who retired/died prior to 1 st January, 2005- Employees who retired/died, as the case may be, prior to 1 st January, 2005 shall be given only superannuation pension or the family pension, as may be applicable under the existing pension Rules of the Government. They shall not be entitled to any other pensionery benefits: Provided that the payment of such superannuation or family pension, as the case may be, are subject to refund of the Government's share of their Contributory Provident Fund within six months from the date of coming into force of this Act: Provided further that if the Government's share of Contributory Provident Fund is not refunded in respect of a retired/deceased employee within the aforesaid stipulated period no superannuation pension or family pension shall be admissible in respect of such employee.” 23. A perusal of the provisions of Section 8 of the Assam College Employees (Provincialization) Act, 2005, would go to reveal that the employees who had retired/died, as the case may be, prior to 01.01.2005, shall be authorized only a superannuation pension or a family pension, as may be applicable under the existing pension rules of the Government. 24. Accordingly, the appellants No. 1, 2 & 3, herein, given the dates of birth, having attained the age of 58 years prior to 01.01.2005; they would be deemed to have so retired from their service on 30.06.2003, 31.09.2003, and 31.10.2003, respectively. Hence, the cases of the appellants, herein, would be covered by the provisions of Section 8 of the Assam College Employees (Provincialization) Act, 2005, and not by the definition of the term “existing employee” as finding mention in Section 2(c) of the said Act of 2005. 25. The learned Single Judge, on considering the above aspects of the matter, had, vide judgment & order, dated 21.03.2023, in WP(c)620/2018; drawn the following conclusions: “ 25. The primary question which arises for consideration is as to whether the petitioners herein were existing employees in terms with Section 2(c) of the Act of 2005. The age of the petitioners herein have already been noted hereinabove. It has been brought to the attention of this Court that on 25/01/2005 an Office Memorandum was issued whereby the age of the retirement of the State Government employees was increased from 58 years to 59 years w.e.f. 1 st of January, 2005. The age of the petitioners herein have already been noted hereinabove. It has been brought to the attention of this Court that on 25/01/2005 an Office Memorandum was issued whereby the age of the retirement of the State Government employees was increased from 58 years to 59 years w.e.f. 1 st of January, 2005. The said office memorandum being relevant is reproduced herein under: “ No. AAP.115/72/Pt.I/140 Government of Personnel (Personnel A) Assam Secretariat (Civil) Dispur, Guwahati 781006. Dated Dispur, the 25 th January, 2005 OFFICE MEMORANDUM Subject: Raising of the age of retirement of State Government employees from 58 years to 59 years on superannuation. Government have been considering for sometime past the question of raising the age of superannuation of State Government employees from 58 years to 59 years. After very careful consideration of all relevant aspects it has now been decided that the age of retirement on superannuation of State Government employees other than those in whose case the age of superannuation is 60 years should be 59 years. This decision will be applicable to all State Government employees who are due to retire after 1st January, 2005. Those employees who retired on 31- 12-2004 on superannuation will not be entitled to get this benefit. This age of retirement of Grade IV employees and other State Government employees, who are at present entitled to serve up to the age of 60 years including the new entrants, will continue to be 60 years. Action is being taken to amend the relevant provision of rules in this regard accordingly. Sd/- J.P. Saikia Commissioner & Secretary to the Govt. of Assam Personnel (A) Department.” 26. A perusal of the said Office Memorandum would show that the age of superannuation of the State Government employees was raised from 58 to 59 years. However in the case of those State Government employees whose age of superannuation was 60 years have been reduced to 59 years. It has also been mandated that the decision would be applicable to all State Government employees who are due to retire after 01/01/2005 and those employees who retired on 31/12/2004 on superannuation will not get the benefit of the said Office Memorandum. 27. It has also been mandated that the decision would be applicable to all State Government employees who are due to retire after 01/01/2005 and those employees who retired on 31/12/2004 on superannuation will not get the benefit of the said Office Memorandum. 27. Taking into account the Office Memorandum dated 25/01/2005 and reading it with Section 9 of the Act of 2005, it would show that as on 01/01/2005 the age of superannuation for the provincialised employees would be 59 years. However, in the instant case, the age of superannuation of the petitioner Nos. 1, 2, 3, 4 and 5, if the benefits of the Office Memorandum dated 25/01/2005 is not given, the date of retirement of the petitioner Nos. 1, 2, 3, 4 & 5 would be 30/6/2003, 31/8/2003, 31/8/2003, 30/9/2003 and 31/10/2003 respectively. If the benefit of the Office Memorandum is given which is otherwise not applicable, then also the age of superannuation of the petitioner Nos. 1, 2, 3, 4 & 5 would be 30/6/2004, 31/8/2004, 31/8/2004, 30/9/2004 and 31/10/2004 respectively. Under such circumstances, Section 8 of the Act of 2005 duly applies to the case of the petitioners as they would be deemed to have retired prior to 01/01/2005 and accordingly they would only be entitled to superannuation pension or family pension as the case may be under the Rules of 1969. 28. Mr. M.U. Mahmud, the learned counsel appearing on behalf of the petitioner has however drawn the attention of this Court to the judgment of the Coordinate Bench of this Court in the case of Dulal Krishna Bhatta Vs. State of Assam & Ors. reported in (2011) SCC Online Gau 2. This Court however is of the opinion that the said judgment would not be applicable to the present facts taking into account that the date of birth of the petitioner therein was 17/06/1946 and accordingly would have got the benefit in terms with the Office Memorandum dated 25/01/2005. Mr. M.U. Mahmud, the learned counsel for the petitioners had also made a submission to the effect that in terms with the Rules of 1960 and more particularly Rule 11 of the said Rules, the age of superannuation of the petitioners have to be taken as 60 years and as such the petitioners were existing employees in terms with Section 2(c) of the Act of 2005. He further submitted that by way of an Office Memorandum which is in the nature of an executive instruction, the age of the petitioner could not have been reduced. In the opinion of this Court the said submission is misconceived taking into account Section 9 of the Act of 2005 which overrides Rule 11 of the Rules of 1960, the moment the College is provincialised in terms with the Act of 2005. 29. Another submission made by Mr. Mahmud, the learned counsel which is relevant to note is that the Government have duly agreed vide order dated 11/05/2015 to release the gratuity and leave encashment along with pensionary benefits to the petitioners in terms with the judgment dated 23/11/2013 passed in W.P.(C) No.136/2010 and as such it is the submission of Mr. Mahmud that the Director of Higher Education cannot go against the decision of the Government to grant the release of gratuity and leave encashment along with pensionary benefits to the petitioners. On the other hand, Mr. K. Gogoi, the learned counsel appearing on behalf of the Higher Education Department submitted that in view of the order passed by this Court dated 11/09/2017 in Cont. Case(C) No. 122/2015 whereby this Court had categorically held that the order dated 13/07/2016 is in compliance to the order dated 23/11/2013 in W.P.(C) No. 136/2010 as well as the various orders passed in the said Contempt proceedings and as such the Director of Higher Education cannot be said to be bound by the said decision of the Government. He further submitted that the rights of the petitioners to get leave encashment, gratuity as claimed have to spring from statute and when Section 8 of the Act of 2005 categorically mentions that employee retiring/dead prior to 01/01/2005 would only be entitled to superannuation pension/family pension and nothing else, the question of granting the leave encashment as well as gratuity as claimed by the petitioners do not arise. He submitted that it is well settled principle of law that when the Statute/Rule mandates a certain thing to be done in a certain way, the same has to be done in that way, to the exclusion of all methods of performance, or not at all is a widely accepted principle of law which was held by the Privy Council in its judgment in the case of Nazir Ahmad Vs. King Emperor reported in AIR 1936 PC 253 . 30. Upon hearing the learned counsels on that aspect of the matter and taking into account that the Section 8 of the Act of 2005 categorically mandates that an employee who retires/dies prior to 01/01/2005 would only be entitled to superannuation pension/family pension and nothing else, this Court is of the unhesitant view that the petitioners cannot claim leave encashment as well as gratuity beyond the amount which has been mentioned in Rule 3 (6) of the Rules of 1992. Accordingly, this Court does not find any merit in the instant writ petition for which the same stands dismissed.” 26. A perusal of the conclusions so drawn by the learned Single Judge in the said judgment & order, dated 21.03.2023, in WP(c)620/2018, as extracted hereinabove; would go to reveal that the same have been so done on a strict interpretation of the provisions of the Assam College Employees (Provincialization) Act, 2005, read with the provisions of the “Assam Aided College Employees Rules, 1960”. The learned Single Judge, has, in detail, analysed the provisions of the Act of 2005, to determine the extent, to which the same would be applicable to the case of the appellants, herein, and thereafter, had reached conclusions in the matter. 27. In view of the above, we are not persuaded by the submissions of the learned counsel for the appellants, herein, to take a different view in the matter than that has been so taken by the learned Single Judge vide the judgment & order, dated 21.03.2023, in WP(c)620/2018. 28. At this stage, the judgment & order, dated 31.05.2016, passed by the learned Single Judge in WP(c)87/2014; as relied upon by the appellants, herein, is being considered. 29. On perusal of the said judgment & order, dated 31.05.2016, it is seen that the petitioner, therein, who was appointed as Lecturer in a government aided college, had continued his service upto the age of 60 years in terms of the provisions of the “Assam Aided College Employees Rules, 1960”. The petitioner, therein, had retired from his service w.e.f. 31.12.2004. However, the petitioner, therein, was not authorized his pension by holding that he did not have the minimum qualifying service of 10 years, to be entitled for a pension. The petitioner, therein, had retired from his service w.e.f. 31.12.2004. However, the petitioner, therein, was not authorized his pension by holding that he did not have the minimum qualifying service of 10 years, to be entitled for a pension. The learned Single Judge upon noticing the issues arising in the said writ petition; was pleased to hold that the petitioner, therein, having continued in his service till 31.12.2004, i.e. till attaining the age of 60 years; the petitioner, therein, is to be construed to have acquired the minimum qualifying service of 10 years for being eligible for pension. The respondent authorities had construed that the petitioner, therein, would be deemed to have retired from his service at the age of 58 years and accordingly, he would not be entitled to his pension and pensionary benefits. The learned Single Judge by noticing the provisions of Section 8 of the Assam College Employees (Provincialization) Act, 2005, and also by reckoning that the petitioner, therein, had rendered his services from 02.08.1993 till 31.12.2004, had proceeded to hold that the petitioner had the minimum qualifying service of 10 years for being authorized a pension in terms of the provisions of Section 8 of the said Act of 2005. 30. In view of the conclusions reached by the learned Single Judge in the said writ petition being WP(c)87/2014, it was held that a detailed analysis of what was the age of retirement of a government servant in the year 2005, was not called for the purpose of adjudication of the said writ petition. Basing on the said conclusion; the learned Single Judge, in the facts of the said case, had proceeded to direct the respondent authorities to finalize the pension of the petitioner, therein. The said decision having not reckoned the provisions of Section 9 of the Assam College Employees (Provincialization) Act, 2005, and its effect on the service of an employee who was earlier covered by the provisions of the “Assam Aided College Employees Rules, 1960”; the said decision would not, in our considered view, have any application to the issue arising in the present proceeding and the same would not advance the case of the appellants, herein. 31. For the foregoing discussions, we are of the considered view that the judgment & order, dated 21.03.2023, passed by the learned Single Judge in WP(c)620/2018, would not call for any interference. 32. 31. For the foregoing discussions, we are of the considered view that the judgment & order, dated 21.03.2023, passed by the learned Single Judge in WP(c)620/2018, would not call for any interference. 32. In view of the above; the instant writ appeal is held to be bereft of any merit and accordingly, the same is hereby dismissed. However, there shall be no order as to costs.