- (1.)THE 41 (forty one) petitioners are Primary School Teachers under the Government of Mizoram. The State respondents by notification dated 18.9.1996 notified 50 posts of Primary School Teachers under Operation Black Board Scheme (CSS). The petitioners responded to the said notification and after going through the selection process were declared successful by the DPC and accordingly appointed as Primary School Teachers under the OBB Scheme by office order dated 29.4.1997. While the petitioners were serving as Primary School Teachers under the OBB, the respondent No. 5 i.e. the Director of School Education, Govt. of Mizoram, Aizawl by a communication dated 26.3.2002 conveyed to all Sub -Divisional Education Officers and Education Officer in the Autonomous District Council to discontinue the service of the Primary School Teachers who were engaged under the OBB Scheme (CSS) which included the petitioner w.e.f. 1.4.2002. Being aggrieved, the petitioners approached this Court by way of WP(C) No. 161/2002 which was disposed of by judgment and order dated 8.4.2004. By the said judgment and order dated 8.4.2004, the State respondents were directed to consider the case of the petitioners for absorption against the present or future vacancies till the petitioners are absorbed or adjusted in phased manner according to their seniority, the respondents were directed not to resort to any direct recruitment to the vacant post, be it present or future without first considering the case of the petitioner for absorption as per seniority and any other criteria as may be laid down. It was also provided that if at all any process or selection by way of direct recruitment is required to be initiated to fill up the present or future vacancies under compelling reasons without first considering the case of the petitioner for their adjustment or absorption, they shall be given age relaxation and due weightage of their past experience and training. Despite the judgment and order dated 8.4.2004 passed in WP(C) No. 161/2002, the respondents neglected the case of the petitioner and proceeded to regularize 112 Primary School Teachers besides others as approved by the School Education Department by communication dated 20.4.2007. The State respondents further recruited as many as 145 Primary School Teachers directly by another order dated 18.1.2012. The petitioners therefore again approached this Court by way of a contempt petition against the respondents which was registered as Contempt Case (C) No. 4/2012. While the contempt case was pending, the respondents therein issued an order dated 4.6.2012 regularizing the petitioners in the post of Primary School Teachers with immediate effect. As a result, the contempt petition was closed by order dated 8.6.2012. Subsequently, the respondent No. 5 issued another order dated 21.9.2012 conveying the approval of the Government for counting of past services of the petitioner for the purpose of qualifying service toward their upgradation, pension, leave and pensionery benefits with effect from their respective date of joining on contract basis except for seniority and increment of pay. However, by another order dated 7.11.2012, the earlier order dated 21.9.2012 was cancelled in pursuance to a letter dated 16.10.2012 made by the respondent No. 6 i.e. Director, Accounts & Treasuries, Mizoram. On enquiry, the petitioners learned that the Finance Department had also issued a notification dated 27.2.2012 by which the 'Mizoram New Defined Contributory Pension Scheme, 2010' was sought to be modified providing that Tier -I paragraph 2.1 shall include all Muster Roll/Contract/Adhoc/Officiating/Casual employees whose services were regularized on or after 1.9.2010. Being aggrieved, the present writ petition has been filed challenging the notification dated 27.2.2012 and the office order dated 7.11.2012.
(2.)HEARD Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel appearing for the petitioners as well as Mr. Lalsawirema, learned Govt. Advocate appearing for the State respondents.
(3.)MR . N. Sailo, learned senior counsel appearing for the petitioners submit that the Mizoram New Defined Contributory Pension Scheme, 2010 (in short Pension Scheme of 2010) was enacted under Article 309 of the Constitution of India and the said Scheme came into force w.e.f. 1.9.2010. Under the Pension Scheme of 2010, persons employed in contract basis besides others were specifically excluded. However, as a result of the Finance Department, notification dated 27.2.2012, the past service of any of the Muster Roll/Contract/Adhoc/Officiating/Casual employees would not be taken forward to be counted for the purpose of pensionery benefits as far as regularization of the service is done on or after 1.9.2010. He, therefore, submits that a plain reading of the notification dated 27.2.2012 would show that the said notification was issued without following the prescribed procedure and the same modifies the Pension Scheme of 2010 enacted under Article 309 of the Constitution, which is not permissible in law.
He also submits that the order dated 7.11.2012 was based on a letter dated 16.10.2012 issued by the Director, Accounts and Treasuries on the basis of the notification dated 27.2.2012 issued by the Finance Department. The notification dated 27.2.2012 being bad in law, the office order dated 7.11.2012 is also liable to be quashed and set aside. He submits that the order dated 21.9.2012 was issued on the basis of an approval given by the Government whereby the past services of the petitioners were taken into account for the purpose of qualifying service towards upgradation, pension, leave and pensioner benefits with effect from their respective date of joining on contract basis. As the order dated 21.9.2012 was issued on the approval of the Government, the respondent No. 5 had no authority to issue the impugned order dated 7.11.2012 which had cancelled the earlier order of 21.9.2012. He submits that the case of the petitioners was regularized on the basis of judgment and order passed by this Court on 8.4.2004. Thereafter, their past services was sought to be counted for other service benefits except seniority and increment of pay. He therefore submits that the Pension Scheme of 2010 is therefore not applicable to the case of the petitioners and in fact, the case of the petitioners are covered by the Government of Mizoram Regularisation of Contract Employees Scheme, 2008 which was formulated under the Proviso to Article 309 of the Constitution. Under the facts and circumstances of the case, he submits that the impugned notification dated 27.2.2012 and order dated 7.11.2012 be set aside and quashed.

Mr. Lalsawirema, learned Government Advocate submits that services rendered outside the State plan fund i.e. CSS Scheme or fund provided by the Central Government cannot be taken as the qualifying service under the State Government. The petitioners were regularized and absorbed on 4.6.2012 only after the introduction of the Pension Scheme of 2010. According to the Pension Scheme of 2010, no persons who entered service or are regularized on or after 1.9.2010 are ineligible to receive pension at par with employees who were recruited or regularized before 1.9.2010. The petitioners therefore are covered under the Pension Scheme of 2010. He also submits that the notification dated 21.2.2012 was issued by the Finance Department whereby the Pension Scheme of 2010 was partially modified providing that Tier -II paragraph 2.1 shall also include Muster Roll/Contract/Adhoc/Officiating/Casual Employees whose services were regularized on or after 1.9.2010. It was on the basis of this notification that the order dated 7.11.2012 was issued cancelling the earlier order dated 21.9.2012 by which the petitioners were allowed to count their past services for the purpose of qualifying service towards upgradation, pension, leave and pensioner benefits with effect from their respective date of joining on contract basis. He therefore submits that there is nothing wrong in the order dated 7.11.2012 and therefore the writ petition should be dismissed as being devoid of any merit.