Assistant teachers v. Education Department

Heard Mr. Dasgupta, learned counsel for the petitioners, Mr. Goswami, learned st anding counsel, Education Department appearing for the respondent Nos. 1, 2 and 3, Mr. Talukdar, learned counsel, appearing for the respondent No. 4 as well as the learned standing counsel, Finance Department appearing for the respondent No s. 5 and 7. Also heard the learned counsel appearing for the respondent No. 6. The petitioners, who were initially appointed as assistant teachers and posted i n different schools in the State of Assam, pursuant to their selection in the pr ocess initiated by the appropriate authority for appointment against the regular sanctioned posts, by the present petitions, have prayed for a direction to the respondent authorities to allow them to open the GPF account and to pay their sa laries without insisting them to open the Permanent Pension Account in accordanc e with the New Defined Contributory Pension Scheme formulated by the Govt. of As sam and circulated vide Office Memorandum dated 6.10.2009, apart from praying fo r a direction to the respondent authorities to grant the pensionary benefits und er the provisions of the Assam Service (Pension) Rules, 1969 taking their dates of joining in service on regular basis for that purpose, pursuant to their initi al appointment on fixed pay basis at Rs. 2,500/-. Mr. Dasgupta, learned counsel for the petitioners submits that though the proces s for selection of the candidates for appointment as assistant teachers against the regular vacancies and in the regular scale of pay was initiated by the appro priate authority and pursuant to which the petitioners were selected, they were, however, appointed on fixed pay basis, for which they filed writ petitions befo re this Court which were disposed of directing the respondents to pay the petiti oners the salary in the time scale of pay with effect from January 2006, taking their dates of appointment as the date of joining pursuant to such appointment o n fixed pay basis. It has also been submitted that though the State preferred Wr it Appeal No. 341/2007, the judgment and order passed by the learned Single Judg e has not been interfered with. Mr. Dasgupta further submits that since a Divisi on Bench of this Court vide judgment and order dated 30.9.2008 passed in WA No. 341/2007 has clearly held that the petitioners were appointed on regular basis w ith effect from date when they joined in service on fixed pay basis they cannot be asked to open the Permanent Pension Account pursuant to the Office Memorandum dated 6.10.2009. According to the learned counsel the petitioners having been r egularly appointed against regular sanctioned post prior to 1.2.2005, even thoug h they were paid the regular scale of pay from 1.1.2006, the authority cannot in sist the petitioners to open the Permanent Pension Account pursuant to the Offic e memorandum dated 6.10.2009. The learned counsel appearing for the Accountant General, Assam respondent No. 4 submits that in view of the judgment and order dated 30.9.2008 passed by the wr it appellate court in the aforesaid writ appeal the Office of the Accountant Gen eral has sought clarification from the Commissioner and Secretary to the Govt. o f Assam, Finance Department as to whether the petitioners would be treated as re gularly appointed persons prior to 1.2.2005 and since such clarification has not been furnished no final decision could be taken by the Accountant General in th at regard. The learned standing counsel for the Finance Department submits that since the p etitioners were allowed to draw the salary in the regular scale of pay with effe ct from 1.1.2006 they would be governed by the New Defined Contributory Pension Scheme. The learned standing counsel, however, submits that pursuant to the quer y made by the Accountant General no decision has been taken by the Commissioner and Secretary, Finance Department so far. The learned standing counsel for the Education Department has also submitted tha t the Director of Secondary Education, Assam pursuant to the aforesaid order dat ed 30.9.2008 passed in WA No. 341/2007 has passed the order on 13.7.2010 regular ising the petitioners’ services with effect from the date of their joining on fi xed pay basis at Rs. 2,500/- but allowing the petitioners to enjoy the benefit o f time scale of pay with effect from 1.1.2006. It has also been submitted by the learned standing counsel that since the petitioners were given the benefit of t he regular time scale of pay with effect from 1.1.2006 they are governed by the New Defined Contributory Pension Scheme. I have considered the submissions made by the learned counsel for the parties an d also perused the pleadings. The Director of Secondary Education, Assam pursuant to the order dated 30.9.2008 passed in WA No. 341/2007 has regularized the services of the petitioners with effect from the date of their joining on fixed pay basis at Rs. 2,500/. By the s aid order, the petitioners were, however, allowed to draw the salary in time sca le of pay with effect from 1.1.2006, in view of the aforesaid order passed by a Division Bench of this Court. It is not in dispute that the petitioners were selected for appointment pursuant to the selection process initiated by the appropriate authority as assistant te achers against the regular sanctioned posts. Though initially the posts were adv ertised in regular time scale of pay, the petitioners were, however, appointed o n fixed pay basis at Rs. 2,500/-. A Division Bench of this Court vide the afores aid judgment and order passed in the aforesaid writ appeal, keeping in view the said fact, has directed the State respondents to pay the salaries to the petitio ners in time scale of pay with effect from 1.1.2006 and consequently the aforesa id order dated 13.7.2009 was passed by the Director of Secondary Education regul arizing the services of the petitioners with effect from the date of their joini ng on fixed pay basis. The Office Memorandum dated 6.10.2009 issued by the Principal Secretary to the G ovt. of Assam, Finance Department reveals that the New Defined Contributory Pens ion Scheme would be applicable to all new entrants appointed in Govt. service on /or after 1.2.2005. The Office of the Accountant General also sought for clarification from the Fina nce Department relating to the applicability of the New Defined Contributory Pen sion Scheme in respect of the petitioners keeping in mind the order dated 13.7.2 009 passed by the Director of Secondary Education regularizing the services of t he petitioners with effect from the date of their joining on fixed pay basis whi ch is prior to 1.2.2005. The Finance Department as well as the Education Departm ent are yet to take any decision relating to the applicability of the New Define d Contributory Pension Scheme to the petitioners on the basis of the aforesaid j udgment and order passed by a Division Bench of this Court as well as the order dated 13.7.2009 passed by the Director of Secondary Education. That being the position, the present writ petitions are disposed of directing th e Commissioner and Secretary to the Govt. of Assam, Finance Department as well a s the Commissioner and Secretary to the Govt. of Assam, Education Department to decide the claim of the petitioners for opening the GPF account as well as appli cability of the New Defined Contributory Pension Scheme, keeping in mind the afo resaid judgment and order dated 30.9.2008 passed by a Division Bench of this Cou rt in WA No. 341/2007 as well as the subsequent order dated 13.7.2009 passed by the Director of Secondary Education regularizing their service with effect from the date of joining on fixed pay basis at Rs. 2,500/- and allowing them to enjoy the benefit of the regular time scale of pay from 1.1.2006. The said decision shall be taken within a period of six weeks from the date of p roduction of the certified copy of this order by any of the petitioners before t he said authorities. The decision that may be taken shall be communicated to the petitioners as well as to the Office of the Accountant General. It is needless to say that in the event the petitioners are aggrieved by the dec ision that may be taken by the authority it is open to them to approach this Cou rt again. The writ petitions are accordingly disposed of No. cost.