JUDGMENT AND ORDER :

Heard Mr.M.U. Mahmud, the learned counsel appearing on behalf of the petitioner. Mr. K Gogoi, the learned counsel appears on behalf of the respondent Nos. 1 and 2, Mr. R.K. Talukdar, the learned counsel appears for the respondent No.3, Mr. S. R.Baruah, the learned counsel appears for the respondent No. 4.

2. The petitioners herein who are five in numbers have the following date of birth:-

3. The petitioners were earlier employed in the Kokrajhar College, Kokrajhar which was a deficit grant-in-aid College. Thereupon the State Legislature with a view to provincialise the services of the employees of non-Government colleges in receipt of deficit grant-in-aid from the Government of Assam enacted the Assam College Employees’ (Provincialisation) Act, 2005 (hereinafter for short referred to as “the Act of 2005”).

4. For the purpose of the instant case, it is relevant to take note of that in terms with Section 2(c) of the Act of 2005, the term “existing employees” means an employee of the 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.

5. In terms with Section 2 (f) of the Act of 2005, the term “provincialisation” has been defined to mean taking the liabilities for payment of salaries including dearness allowances, medical allowances and such other allowances as admissible to the Government employees of the similar category and gratuity, pension, leave encashment, etc as admissible, under the existing Rules, to the employees of the State Government serving under the Government of Assam.

6. Section 2(h) of the Act of 2005 has been defined to mean an employee who has retired on attaining the age of superannuation or otherwise. Section 3 of the Act of 2005 relates to employees who are to be provincialised. It has been mentioned in the said Section that subject to the provisions of Article 30 and 309 of the Constitution all employees of colleges, save and except the employees who exercise the option to continue in the existing terms and conditions of service under Section 3(d) of the Act of 2005, shall be deemed to have become the employees of the Government on and from the date on which the colleges have been brought under the deficit system of grants-in-aid on the terms and conditions mentioned in Section 3 of the Act of 2005.

7. Section 3(d) of the Act of 2005 is pertinent for the purpose of the instant dispute which stipulates that the existing employees who want to continue in the existing terms and conditions of service shall give an option in writing to the Director, Higher Education, Assam within a period of three months from the date of coming into force of the Act of 2005. The proviso to the said Section stipulates that once the option exercised by an existing or retired employee may be withdrawn by him at any time, if he wants to come under the Act of 2005 subject to refund of the amount of the Government’s share of the Contributory Provident Fund with interest thereon upto the date of refund of the Government’s share of the Contributory Provident Fund with interest. It has also been mentioned in the second proviso to Section 3(d) that the withdrawal of option shall be effective on the date of refund of the amount of the Government’s share of the Contributory Provident Fund with interest thereon.

8. Section 8 of the Act of 2005 is relevant for the purpose of the instant dispute and the same is extracted herein below :

“8. Mode of pension to employees who retired/died prior to 1st January, 2005— Employees who retired/died, as the case may be, pr