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Gauhati High Court · body

2018 DIGILAW 165 (GAU)

JANAK KALITA v. STATE OF ASSAM

2018-01-30

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. H. Talukdar, the learned counsel appearing for the petitioner. The official respondent Nos.1—3, are represented by Dr. B. Ahmed, the learned standing counsel for the Industries Department. However, none appears for the respondent No.4. 2. The challenge here is to the order dated 14.3.2005 (Annexure-J), whereby the authorities have rejected the petitioners plea for service benefits with retrospective effect from 1.3.2001 to 23.6.2003. In the impugned order, the Commissioner & Secretary to the Govt. of Assam, Industries & Commerce Department had noted that the petitioner was appointed afresh on 21.6.2003, after his service was terminated on 1.3.2001 and on that basis, his claim for service benefits for the concerned period, was negated by the authority. 3. The petitioner was initially appointed as Assistant Manager under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as the APSC Regulation). Since he was not recommended by the Assam Public Service Commission (APSC), his service came to be terminated by the order dated 1.3.2001 (Annexure-D). However, since the APSC in their recommendation of 26.9.2000 (Annexure-C), had empanelled the petitioner in the waiting list for future vacancies, on extension of the waiting list, the petitioner came to be appointed afresh on 21.6.2003 (Annexure-G) . Because of the resultant break in service through termination and de-novo appointment, the authorities had declared that the petitioner shall not be entitled to any service benefits, for the break period. 4.1. The learned counsel Mr. H. Talukdar refers to the interim order passed by this Court on 2.3.2001 (Annexure-E) , in the WP (C) No.1295/2001, to contend that the petitioners service as a 3 (f) appointee, was protected by the High Court and accordingly the counsel argues that his service should be treated as continuous without any break. 4.2. The petitioner claims that he is similarly situated with his colleague Santanu Deori (respondent No.4) , who too was appointed under Regulation 3 (f) of the APSC Regulation and since the private respondent who was also in the APSCs waiting list, both employees of the Industries Department should be treated at par, without any discrimination. 5.2. On the other hand, Dr. 5.2. On the other hand, Dr. B. Ahmed, the learned standing counsel for the Industries Department, contends that the petitioner after his service was terminated on 1.3.2001, was appointed afresh on 21.6.2003 and thus there was service break for the employee. However, because of the Courts interim order passed on 22.2.2001, the service of Santanu Deori (respondent No.4) , could not be disturbed and accordingly, he remained in continuous service until his service was regularized, following the recommendation made by the APSC, on 26.9.2000. But the petitioner was not similarly protected by the Courts interim order. 5.2. The respondents therefore, argue that the past service rendered by the petitioner under the Regulation 3 (f) of the APSC Regulation, got obliterated with the termination order of 1.3.2001 and the High Courts conditional interim order passed on 2.3.2001, in the WP (C) No.1295/2001, does not result in continuation of service for the petitioner. 6. The appointments made under the Regulation 3 (f) of the APSC Regulation, are temporary in nature and if such posts are to continue, consultation with the APSC is mandatory. When the adhoc appointments continued for a while in the Industries Department, the requisition was made on 25.9.1997 to the APSC, to advertise the vacancies and recommend the selected candidates for regular appointment. Although the departmental requisition was for 13 vacancies, the APSC issued advertisement only for the 4 vacant posts of Assistant Manager. It however appears that the APSC recommended five names in order of preference, for the posts of Assistant Manager (Non-Technical) , under its recommendation letter dated 26.9.2000 (Annexure-C) . Five additional names were shortlisted by the APSC against future vacancies and in this waiting list, the petitioners name appears at Sl. No.5 and the name of Santanu Deori (respondent No.4) , as an ST (P) category candidate, appears at Sl. No.4. 7. As the petitioner was not in the recommended list for appointment of Assistant Manager, his adhoc service under the Regulation 3 (f) of the APSC Regulation, was terminated on 1.3.2001. Only because Santanu Deori could obtain an interim order from the High Court on 22.2.2001, his service could not be similarly terminated. By the time the petitioner secured the interim order on 2.3.2001, in the WP (C) No.1295/2001, his service stood terminated on 1.3.2001. This was the distinguishing feature in the service tenure of the petitioner and the respondent No.4. 8. By the time the petitioner secured the interim order on 2.3.2001, in the WP (C) No.1295/2001, his service stood terminated on 1.3.2001. This was the distinguishing feature in the service tenure of the petitioner and the respondent No.4. 8. When the APSCs waiting list was extended and the five empanelled persons became entitled to appointment, Santanu Deori (respondent No.4) as an adhoc employee, was regularized in service. However, since the petitioners service stood terminated on 1.3.2001, he was appointed afresh on 21.6.2003 (Annexure-G) , with the remaining 3 wait-listed candidates. Interestingly, the petitioner who worked as Assistant Manager, was not re-appointed in the same post but was appointed as Superintendent, under the fresh appointment order dated 21.6.2003. Therefore, it is not only a case of service break for the petitioner but in the second stage, he was reappointed to a different post, unlike Santanu Deori (respondent No.4) , who continued without any service break, in the post of Assistant Manager. 9. When the petitioner was terminated and was appointed afresh on 21.6.2003, his claim for service benefits during the service break period can hardly be justified. Therefore, I see no infirmity with the impugned speaking order dated 14.3.2005 (Annexure-J) , whereby the Government rejected the retrospective service benefit, claimed by the employee. 10. Moreover, when the petitioner filed the WP (C) No.1593/2001, to challenge the impeding termination, when the case was finally decided on 8.3.2001 (Annexure-F) , the learned Court never interfered with the termination order and instead recorded that the order of termination was passed on 1.3.2001, a day before the Courts conditional interim order. However, after noticing the fact that the petitioner was empanelled in the waiting list by the APSC for future vacancies, the Court directed consideration of the petitioners claim for appointment. Thereafter, the APSCs waiting list was extended and the four wait listed candidates were appointed afresh. 11. It can be seen from the above discussion that the petitioner was not in continuous service but was re-appointed after his service was terminated on 1.3.2001. Moreover, the petitioner was appointed in a different post and not in the post of Assistant Manager, where he rendered the adhoc service prior to termination. In such circumstances, it will be illogical to allow service benefit for that period when the petitioner was not in service. Moreover, the petitioner was appointed in a different post and not in the post of Assistant Manager, where he rendered the adhoc service prior to termination. In such circumstances, it will be illogical to allow service benefit for that period when the petitioner was not in service. Consequently, this writ petition is found devoid of merit and the same is thus dismissed, without any order on cost.