Dimbeswar Barua And 5 Ors vs The State Of Assam And 5 Ors

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GAHC010044252017

2026:GAU-AS:6754
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5066/2016
DIMBESWAR BARUA and 5 ORS
S/O. CHAMPARAM BARUA
VILL. RAMRAIPARA
P.O. PATHARIGHAT
DIST. DARRANG
ASSAM
PIN-784144.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMM. and SECY.
REVENUE AND DISASTER MANAGEMENT DEPTT.
DISPUR
GHY.-781006.
BEFORE
HON’BLE MRS. JUSTICE SHAMIMA JAHAN
Advocate for the petitioner(s): Mr D Das, Sr. Adv
Mr S Das.

Advocate for the respondent(s):Mr. D Mazumdar,
Sr. Adv/State Counsel

Date on which judgment was reserved : NA
Date of pronouncement of judgment : 12.05.2026

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Whether the pronouncement is of the :
operative part of the judgment?: NA
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (ORAL)
Heard Mr D Das, learned Senior Counsel, assisted by Mr S Das, for the
petitioners and Mr D Mazumdar, learned Senior State Counsel, assisted by Ms. S.
Nath learned counsel for the State Respondents.
2. By filing this application under Article 226 of the Constitution of India, the
petitioner has prayed for allowing them to get the benefits under theAssam
Service (Pension) Rules, 1969, and not under the New Pension Rules.
FACTS:
3. It is the case of the petitioners that an advertisement was issued on
18.09.1998, calling for applications from the intending candidates, who had
passed the Assam Survey Training Examination, for filling up the post of
Mandals, lying vacant in the amalgamated establishment of the office of the
Deputy Commissioner, Darrang. In pursuance to the said advertisement, the
selection process started and the select list of 38 candidates was prepared on
19.06.1999, wherein the petitioners appeared at Serial No. 29, 31 to 35. It is
stated by the learned counsels that the candidates appearing at Serial No. 32
as well as 35 had expired, however, pursuant to the said select list, 23
candidates were appointed and the petitioners were not appointed in the said
post. Aggrieved thereby, the petitioners filed a writ petition being WP(C) No.
9294 of 2004 and the said case was disposed of in the motion stage itself on

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the consent of the learned counsel vide order dated 17.12.2004 for all the
parties. Dring the proceeding the learned counsel for the State submitted that
the petitioners could not be appointed due to a ban imposed for appointments
and that they will be appointed once the ban is over and on the said
submission, this Court gave a direction to the Commissioner and Secretary to
the Government of Assam, Revenue Department, to appoint the petitioners in
accordance with law and the said writ petition was disposed of.
4. Against the said order dated 17.12.2004, a review application was filed by
the petitioner, praying therein that the appointing authority is not the
Commissioner and Secretary to the Government of Asam, Revenue Department,
but the direction is required to be made to the Deputy Commissioner, Darrang,
Mangaldoi, to appoint the petitioners in the vacant post of Mandal. The
petitioners filed a review application, since they came to know about the said
fact after the aforesaid writ petition was disposed of. In view of the said
submissions, this Court had reviewed the order and directed the Deputy
Commissioner, Darrang District, to appoint the petitioners in the vacant post of
Mandal, after getting approval from the Government and also immediately after
the ban of appointment gets lifted. The said review application was disposed of
on 31.05.2005.
5. Pursuant to the said order, an office order was issued by the Deputy
st
Commissioner, Darrang, Mangaldoi, on 21 of December, 2005, by which the
petitioners were appointed. It was stipulated in the said order that the
petitioners Nos. 1, 3, 4, 5 and 6 were appointed against the existing vacancy
and the petitioner No. 2 was appointed in place of an employee, who had
retired. The said order also reflects that appointments were made in pursuance
to the approval of the Governor of Assam dated 09.12.2005, with further

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stipulation that the petitioners were appointed as they appeared in the select list
prepared in the year 1999.
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6. In the meantime, i.e., on 25 of January, 2005, the Commissioner and
Secretary to the Government of Assam, Finance Department, by a
communication to the Additional Chief Secretary to the Government of Assam,
and other authorities had informed that a new Pension Scheme has been
formulated by introducing a Contributory Pension Scheme applicable to the
future State Government Employees, who will be in the service of the State
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Government on or after 1 of February, 2005, and that henceforth, a New
Pension Rule will be mentioned both in the advertisement as well as in the
appointment letters and also that the Government Servants, who are appointed
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on or after 1 of February, 2005, have to give an undertaking that they will be
governed by the New Pension Scheme.
7. Pursuant thereto, the petitioner had filed a writ petition being WP(C) No.
5072 of 2007, praying for a direction that although they were appointed after
the New Pension Scheme came into force, but they having been selected in view
of the select list of 1999, they should be given the benefit of the Old Pension
Scheme, i.e., Assam Service (Pension) Rules, 1969. During the proceeding of
the writ petition, i.e., WP(C) No. 5072/2007, this Court, vide order dated
21.07.2014, disposed of the writ petition, and passed an order that 23
candidates were appointed from the select list of 1999 and the rest of them,
i.e., the petitioners were not appointed, despite there being vacancies. It was
also observed in the said order that the Deputy Commissioner had written a
letter to the Commissioner to appoint the rest of the persons of the select list,
but since the same was not done, a writ petition, as stated above, was filed and

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the appointments were finally made on 21.12.2005. This Court, while passing
the said order, had relied on a decision of the Hon’ble Supreme Court in State
of Bihar -Vs- Mithilesh Kumar, reported in (2010) 13 SCC 467, wherein it
was held that norms or rules which existed on the date when the selection
process started would apply to the entire selection process, unless an amended
rule or norms provides for its retrospective operation. This Court, therefore, held
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that since New Pension Rule had come into effect from 1 of February, 2005,
and the select list was published on 19.06.1999, the petitioner would be
covered by the Old Pension Scheme, more so, their appointments were simply
delayed, but were given from the same select list.
8. Thereafter, the petitioners made representations before the Deputy
Commissioner, Darrang, Mangaldoi, bringing into the notice of the said authority
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about the said judgment. Thereafter, on 22 of May, 2016, the Deputy
Commissioner, Darrang, Mangaldoi, by a communication to the Commissioner
and Secretary to the Government of Assam, had written that since the
appointment of the petitioners was from the same select list of 1999 and also
due to the fact that this Court had given relief to the petitioners, the said
Deputy Commissioner requested the Commissioner and Secretary to the
Government of Assam, to communicate instructions so that the representations
of the petitioners can be disposed of at the earliest. Thereafter, a number of
communications went on between the authorities concerned and finally, a
comprehensive note was put up by the Additional Deputy Commissioner,
Darrang, Mangaldoi, stating the same facts and further asked for the views of
Pension and Public Grievance (P & PG) Department, for awarding pension to the
petitioners under the Old Pension Scheme. Thereafter, a committee was
constituted to look into the grievances and in the meantime, the petitioners

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were busy with their work assigned to them.
9. Mr. D. Das, learned Senior Counsel submitted that since the selection process
had started with the advertisement, i.e., 18.09.1998, and on publication of the
select list which was dated 19.06.1999, showing the petitioners as selected
candidates, the erstwhile Assam Service (Pension) Rules, 1969, will be
applicable. He further submitted that the stand of the State while passing the
order dated 21.07.2014 was that the petitioners could not be appointed due to
the ban on appointment and it was the further stand of the State that the
petitioners would be appointed immediately on lifting of the said ban and as
such, the petitioners were appointed, but not giving them the benefits of the
erstwhile pension rules, is an illegality committed by the State and as such, on
challenge made to the same, this Court passed the order dated 27.01.2014, by
which he relied on the judgment passed by the Hon’ble Division Bench of this
Court in WP(C) No. 7369 of 2021 (Sanjay Kumar -Vs- Union of India), disposed
of on 04.02.2022, wherein this Court had stated that when the advertisement
was issued in the year 2003, and the selection process has commenced, the Old
Pension Scheme was in force and any delay in the appointment of the
petitioners, the cause which is not attributable to the petitioners, cannot
disentitle the petitioners from the benefits of Old Pension Scheme, and as such,
a mandamus was issued to the respondents to treat the petitioners as members
of the Old Pension Scheme. He also relied on the judgment of Mithilesh
Kumar (supra), wherein it is held that the norms of appointment as applicable
on the date when the candidates are selected for appointment would be
applicable and not the amended Rules.
10. The learned Senior State Counsel, Mr Mazumdar submitted that the
appointment of the petitioners was not given due to non-availability of vacancies

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and he relied upon a letter dated 9 of March, 2005, which was written by the
Deputy Commissioner, Darrang, to the Commissioner and Secretary to the
Government of Assam, Revenue Department, Dispur, in which it was stated that
although 38 candidates were selected for appointment to the post of Mandals as
per the select list of 1999, only 23 candidates were appointed and the other
selected candidates could not be appointed by that time due to non-availability
of adequate number of vacancies and also due to expiry of the select list. It was
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further stated that presently, i.e., on 9 of March, 2005, there are 61 numbers
of post of Mandal, lying vacant in the amalgamated establishment of the Deputy
Commissioner, Darrang, Mangaldoi, and further, a prayer was made that due to
work pressure, Government approval was sought for appointment of the
petitioners in the vacant posts of Mandal in compliance with the review order
dated 31.01.2005, passed by this Court. The learned counsel for the State of
Assam, as such, submits that since the appointment could not be made due to
non-availability of vacancies and the appointments were made after the New
Pension Rules have come into force, the petitioners would be covered by the
New Pension Rules. He further stated that by virtue of the New Pension
Scheme, an undertaking was sought for from the new incumbents and the same
was required to be given by the said incumbents as per the new Pension
Scheme. He further stated that this Court in the order dated 21.07.2014, had
referred to a decision of Mithilesh Kumar (supra), which according to the
learned counsel is inapplicable in the present facts and circumstances,
inasmuch, as, he stated that the norms and rules relatable to the recruitment of
the candidates will remain the same throughout the selection process and any
change in the recruitment rules may not affect the selection process, which was
undertaken and completed, but in this case, he stated that it is not the case of

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recruitment rules, but entitlement of the pension of the petitioner, which is a
different subject matter. He further submitted that in the said decision of
Mithilesh Kumar (supra), another case, i.e., YV Rangaiah -Vs- G
Srinivasa Rao, reported in (1983) 3 SCC 284, and that the said decision was
overruled by a subsequent decision, i.e., State of Himachal Pradesh -Vs-
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Raj Kumar and Others’; reported in (2023) 3 SCC 773, decided on 20 of
May, 2022, by which it was observed that the Rangaiah ‘s case (supra) does
not reflect the correct proposition of law governing services under the Union
and States under Part-XIV of the Constitution of India and the said judgment
was overruled. He submitted a list of dates in connection with the instant case,
wherein he had stated that the letter dated 09.03.2005 of the Deputy
Commissioner to the Commissioner was not brought to the notice of the Court,
while the Court passed the order dated 21.07.2014.
11. Mr Mazumdar, learned counsel for the State, however made a distinction
of the judgment rendered by this Court in WP(C) No. 7369 of 2021, by
submitting that in the facts of the said decision, the vacancy position was clear
and although there is delay in the appointment, the Old Pension Scheme was
said to be applicable, whereas in the instant case, according to the learned
counsel there were no vacancies for appointment of the petitioners. Further, the
argument of Mr Mazumdar that the case referred in the Mithilesh Kumar
(supra), i.e., Rangaiah’s case (supra) , was overruled later by the Hon’ble
Supreme Court. It be stated here that the Hon’ble Supreme Court observed in
the said decision, i.e., State of Himachal Pradesh (supra), that there is no
rule of universal application that vacancies must be necessarily filled on the
basis of the law which existed on the date when it arose and that Rangaiah’s
case (supra) , must be understood in the context of rules inferred therein.

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12. It is seen that in WP(C) No. 5072 of 2007, this Court by order dated
21.07.2014, had disposed of the said writ petition and had held that merely
because the appointment orders were issued on a later date, the petitioners
cannot be denied of the benefit of pension. However, after the order was
passed, the petitioners had submitted representation before the concerned
authority and the Under Secretary to the Government of Assam, Revenue
Department, had called for a detailed report from the Deputy Commissioner,
Darrang, Mangaldoi, and the Deputy Commissioner, Darrang had given a
detailed report on 23.05.2015, wherein he stated that the petitioners were
selected in the year 1999 and were appointed in 2005 and that they could not
be appointed due to ban on appointments. However, by the said report, the
view of Pension and Public Grievance Department was called for. Further, in the
affidavit filed by the respondent No. 6 in the instant writ proceedings, it was
stated that the petitioners had not made any verbal request for providing them
with the benefits of pension under the Assam Service (Pension) Rules, 1969. It
be stated here that the petitioners had made representations, as stated above,
to the Deputy Commissioner, Darrang, Mangaldoi, on several dates.
13. In view of the same, it is hereby directed that the concerned authority in
the Government, would pass necessary order in the light of the judgment dated
21.07.2014, passed in WP(C) No. 5072/2007 as well as the representations filed
by the petitioners, and would dispose of the matter. The said exercise be done
within a period of 1 (one) month from the date of receipt of this order.
14. Petition is disposed of.
15. No order as to cost(s).
16. The aforesaid findings and conclusions are given in the peculiar facts and

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circumstances of the instant case.

JUDGE

Comparing Assistant