IMPORTANT POINT
The court affirmed that an employee appointed before the New Pension Scheme is entitled to benefits under the Old Pension Scheme, regardless of any undertaking given under duress.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Mr. P.N. Sharma, learned standing counsel, Education (Elementary) Department, appearing for the respondent Nos.1 and Mr. B. Choudhury, learned standing counsel, BTC, appearing for the respondent Nos.2-4.

2. In this petition, under Article 226 of the Constitution of India, the petitioner Rupak Chandra Kalita has prayed for issuing direction to the respondent authorities to provide pensionary benefit to the petitioner under Assam Services (Pension) Rules, 1969 as he was appointed on 04.12.1999 and also to consider his past service, with effect from the aforementioned date and not to act upon the undertaking given by him for accepting the pensionary benefit as per the prevalent Rule.

3. The background facts leading to filing of the present writ petition is briefly stated as under:-

“The petitioner, Shri Rupak Chandra Kalita was appointed by the Deputy Inspector of Schools, Nalbari, on 04.12.1999, as per approval of the Chairman, Sub-Divisional Elementary Education Advisory Board, Nalbari, Bodoland Autonomous Council (BAC). Thereafter, vide order dated 28.11.2000 the Deputy Inspector of Schools, Nalbari has allowed the petitioner to draw the regular salary in the scale of pay and other allowances as admissible and thereafter, the petitioner had completed his Junior Basic Training Course in the year 2006, on Government deputation and in the meantime, GPF account and service book in respect of the petitioner was also opened.

Thereafter, on 30.01.2009 the Director of Education, Bodoland Territorial Council (BTC), Kokrajhar, terminated the petitioner along with some other teachers from service. Thereafter, the petitioner approached this Court by filing one writ petition, wherein this Court was pleased to set aside the termination order vide order dated 06.12.2007 in WP(C) No.6067/2006. The respondent authorities then preferred one writ appeal before a Division Bench of this Court and the Division Bench of this Court vide order dated 06.02.2015, disposed of the writ appeal with a direction to the respondent authorities to regularize the service as per the policy decision of the BTC authorities of all those eligible teachers who were regularly receiving salaries up to 17.10.2006.

Thereafter, the BTC authority had withdrawn the termination order of the petitioner on 22.09.2015 and he has been regularized and reinstated as an Assistant Teacher in his original school, vide order dated 01.10.2015, in the scale of pay. Again, the respondent authorities passed another order dated 30.09.2022 regularizing the service of the petitioner for the 2 ^nd time as Assistant Teacher, however, imposing certain conditions, and posted him at Bhangabarua L.P. School. And this time he was asked to give an undertaking that he will be governed by the new set of pension rules and not by the Assam Services (Pension) Rules, 1969.

The contention of the petitioner is that he should be governed by the Old Pension Scheme under the Assam Services (Pension) Rules, 1969, as he was appointed prior to coming into force of the New Pension Rule w.e.f. 01.02.2005 and therefore, he approached this Court by filing the present writ petition seeking aforementioned relief.

4. The respondent No.4 had filed affidavit-in-opposition, wherein a stand is taken that the petitioner was serving in the Barbalishiha Janata L.P. School and was terminated from his service on 22.11.2010, vide order No.DE/BTC-Appt-148/09/97, by the BTC authority for being illegal- doubtful teacher, as he did not fulfill the following conditions as per the statutory rules i.e.:-

(a) No advertisement was issued by the DEEO, D.I. of Schools, Nalbari, inviting applications to fill up the vacant posts in the school;

(b) No approval of the SLEC of the Personal Department of Government of Assam