Gunakar Sarma, Gauhati v. Secretary, Board of Secondary Education, Assam, Gauhati & Others.
1988-06-10
A.RAGHUVIR, S.N.PHUKAN
body1988
DigiLaw.ai
S. N. Phukan, J.: - In this petition the petitioner has assailed the order of his retrenchment from the post of office peon. which was passed by the Secretary, Board of Secondary Education, Gauhati on 15th November, 1979 vide Annexure 'D' to the petition. We quote below the said order : "ORDER Shri Gunakhar Sarma who was appointed as personal peon (Attached to Shri D. Nath, Academic Officer) on purely temporary basis vide Orders No. SEBA/EST/12/75/1093-85 dated 30.6.75 against the post sanctioned vide Administration Commttee's resolution No. 6 dated 9.9.75 and approved by the Board in its meeting dated 26.9.75 is hereby retrenched from his services with immediate effect. Sd/- Dr. S. Bbarali, Secretary, Board of Secondary Education, Assam, Gauhati - 21." Being aggrieved, the petitioner has approached us for issuance of an appropriate writ. It appears that this petition was dismissed by a Division Beach of this Court on 8th September, 1986. However, on a Review Application filed by the petitioner which was registered as Review Application No.6 of 1986, the petition was allowed and the main case was fixed for hearing vide order dated 7.3.88 passed in the aforesaid Review petition. Briefly stated the petitioner was appointed as personal peon with effect from 2.7.77 by the Secretary of the Respondent Board vide order dated 30th June, 1977 (Annexare 'A' to the petition). By subsequent order dated 13th October, 1977 the Board decided in pursuance of the decision of the Administration Committee to abolish the posts of personal peons attached to officers of the Board. However, it was also decided that the existing incumbents would be absorbed as office peons in the same scale of pay with effect from 1.11.77. We quote below the relevant portion of the office order : "In pursuance of decision of the Administration Committee as recorded in Item No. 8 dated 7.10.77 and approved by the Board in its meeting held on 10.10.77, the posts of personal peons attached to the officers of the Board are abolished with effect from 1.11.77. The existing incumbents are hereby absorbed as Office Peons in the same scale of pay with effect from 1.11.77. The last pay as they are drawing now shall be entitled to them. Sd/ - Dr. S. Bharali, Secretary, Board of Secondary Education, Gauhati." We have heard Mr. Malakar, the learned counsel for the petitioner and Mr. Goswami, the learned counsel for the respondents.
The last pay as they are drawing now shall be entitled to them. Sd/ - Dr. S. Bharali, Secretary, Board of Secondary Education, Gauhati." We have heard Mr. Malakar, the learned counsel for the petitioner and Mr. Goswami, the learned counsel for the respondents. The first contention of Mr. Goswami is that the Board has got absolute power to abolish any post and in support of his contention Mr. Goswami has placed reliance in K. Rajendran and others vs. State of Tamil Nadu and others, (1982) 2 S.C.C. 273 . The law on this point is settled as held by the apex Court that abolition of post may have the effect of termination of Government service and such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. But in the case in hand though the post was abolished by the order dated 13.10.77, by the said order the Board also decided to absorb the then existing incumbents including the petitioner as office peon. The second contention of Mr. Goswami is that as from the appointment letter dated 30th June, 1977 (Annexure-A) the petitioner was appointed purely on temporary basis, the termination of his service will not attract the provisions of Article 311 of the Constitution of India and in support of that Mr. Goswami has placed reliance in Oil and Natural Gas Commission and others vs. Dr. Md. S. Iskender Ali (1980) 3 S. C. C. 428 and Commodore Commanding Southern Naval Area, Cochin vs. V. N. Rajan (1981) 2 S. C. C. 636. In the case in hand the question is not of removal of a temporary person but whether the petitioner can be retrenched in view of the circumstances stated in the petition and as such, we are of the opinion that the above decisions on which Mr. Goswami has placed reliance are of no help to us. From the termination order dated 15th November, 1979 we find that the Secretary of the Board retrenched the petitioner on the ground that the petitioner was appointed purely on temporary basis. As the petitioner was appointed to the post of office peon which appears to us to be substantive post, we fail to understand how the question of retrenchment arise in such a case.
As the petitioner was appointed to the post of office peon which appears to us to be substantive post, we fail to understand how the question of retrenchment arise in such a case. In the counter challenge made is that the petitioner, after the post of personal peon was abolished, was appointed as a casual employes but this is contrary to the order passed on 30th October, 1977 vide Annexure 'B' where it was clearly stated that the existing incumbents including the petitioner were absorbed as office peons. This order clearly show that the petitioner was appointed as an office peon and was not appointed as a casual employee. As the petitioner was not a casual employee, the question of his retrenchment cannot arise. Moreover, the post of office peon to which the petitioner was appointed was not abolished. From what have been stated above, we are unable to accept the submissions put forward by Mr. Goswami and we are of the opinion that the impugned order is liable to be set aside on the ground that the petitioner was holding a substantive post and was not appointed as a casual employee and as such the retrenchment is bad in law. In the result, the impugned order dated 15th November, 1979 vide Annexure 'D' to the petition is set aside. We direct the respondents to reinstate the petitioner forthwith and to pay him all back wages from 15th November, 1979. In the result, the petition is allowed with cost which is quantified at Rs. 250/-.