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2025 DIGILAW 170 (GAU)

Jiten Chandra Das v. State of Assam

2025-01-30

KAUSHIK GOSWAMI, VIJAY BISHNOI

body2025
J UDGMENT : (Kaushik Goswami, J) Heard Mr. O.P. Bhati, and Mr. P. Sarma, learned counsels, appearing for the appellant. Also heard Mr. N. Das, learned Government Advocate, appearing for respondent Nos.1 & 2 and Mr. P. Nayak, learned Standing Counsel, Finance Department, appearing for respondent No.4. 2. By way of this writ appeal, the appellant/petitioner is assailing the judgment & order dated 06.03.2019 passed by the learned Single Judge in WP(C) No.1573/2013. 3. The facts of the case are that the appellant/petitioner was temporarily appointed by the respondent No.2 as a Helper to the Art Instructor in the Government B.D.S. Deaf and Dumb School, Kahilipara, Guwahati (hereinafter to be referred to as “school”) on 17.05.1994, on a consolidated fixed pay of Rs. 900/- per month, for a period of three months. Thereafter, the service of the petitioner was extended from time to time by the respondent No.2 after expiry of every three months, with a day’s break, on the condition that his appointment will be automatically terminated on expiry of the said period of three months. It is the further case of the appellant/petitioner that the appellant/petitioner, having completed his probationary period, though applied for regularization of his post, no regularization, as sought, has been made by the respondent No.2. It is the further case of the appellant/petitioner that though he was appointed initially as a Helper, however, due to shortage of staff he has been working as a Art Teacher but he was receiving a consolidated payment of Rs. 900/- per month despite the pay revisions that had taken place from time to time. Accordingly, the appellant/petitioner filed the WP(C) No. 1573/2013 seeking regularization of the post. However, the learned Single Judge by order dated 06.03.2019, though rejected the claim of regularization, directed the Department of Social Welfare to consider the case of the appellant/petitioner in the selection process to be undertaken by the said department and also directed the petitioner to submit representation so as to enable the authorities to process the matter of condonation of age of the petitioner enabling him to participate in future opportunities with further rider not to terminate the services of the appellant petitioner pending his participation in the next selection process. The learned Single Judge also directed the respondent authorities to pay monthly honorarium of Rs. 7,000/- or such enhanced honorarium to which the petitioner may be entitled. The learned Single Judge also directed the respondent authorities to pay monthly honorarium of Rs. 7,000/- or such enhanced honorarium to which the petitioner may be entitled. Having not been fully satisfied with the directions given by the learned Single Judge vide the aforesaid judgment & order, the present appeal has been preferred by the appellant/petitioner. 4. Mr. O.P. Bhati, learned counsel for the appellant/petitioner submits that the petitioner having put in almost 25 years of service is entitled for regularization. He further submits that the petitioner being a disabled person is entitled for the benefits and protections contained under the Provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995. 5. Per contra, Mr. P. Nayak, learned Standing Counsel, Finance Department appearing for respondent No.4, and Mr. N. Das, learned Government Advocate, appearing for respondent Nos.1 & 2 submit that the nature of appointment of the appellant/petitioner being temporary and the post being a non sanctioned post, the services of the appellant/petitioner cannot be regularized and, therefore, the judgment & order under appeal warrants no interference from this appellant Court. 6. We have given our prudent consideration to the argument advanced by the learned counsel for the contesting parties, and have perused the material available on record. We have also considered the case laws submitted at the bar. 7. The issue arising for consideration in the present appeal is whether the services of the appellant/petitioner in the subject post can be regularized. 8. Apt at the outset to refer to the appointment order dated 17.05.1994, which is extracted hereunder for ready reference. “GOVERNMENT OF ASSAM DIRECTORATE OF SOCIAL WELFARE AND PROBATION ASSAM:::GUWAHATI Memo No. DSW(E)46/79/736, Dated Guwahati, the 17th May/94 OFFICE ORDER Shri Jiten Ch. Das, c/o Sri Benudhar Das Vill-Sarpara P.S. Palasbari Dist-Kamrup is hereby temporarily engaged as Helper to the Arts Instructor in the BDS D/D School, Kahilipara on a consdiated fixed pay of Rs.900/- for month with effect from the date of his joining for a period of three months. This engagement is purely temporary and may be terminated at any time without notice and assigning any reason thereof. No claim for future extension or regular appointment in this Deptt. shall be entertained Director, Social Welfare & Probation, Assam:::Guwahati-1.” 9. This engagement is purely temporary and may be terminated at any time without notice and assigning any reason thereof. No claim for future extension or regular appointment in this Deptt. shall be entertained Director, Social Welfare & Probation, Assam:::Guwahati-1.” 9. From perusal of the aforesaid appointment order, it is apparent that the appointment of the appellant/petitioner as a Helper to the Art Instructor in the school was purely temporary, for a period of three months. It further appears that the service of the appellant/petitioner was subsequently extended by the respondent No.2 after expiry of every three months with a day’s break condition. It further appears that the appellant/petitioner has, in the meantime, retired in the year 2020. It further appears from the affidavit-in-opposition filed by the respondent No.2 that the said post of Helper is not a sanctioned post at the school in question. Paragraph 4 of the affidavit-in-opposition filed by the respondent No.2 in the writ petition is extracted hereunder for ready reference: “4. That the deponent begs to state that proposal was send to Government vide letter No. DSW [G] 157/2011/34 dtd. 6/12/2013 for creation and sanction of post for the office of the principal Govt. BDS Dumb School Khahilipara, Guwhati and proposal once again for approval sanction for enhancement of honorarium to Rs. 5000/- in respect of writ petitioner, Art Instructor from Rs.900/- as per proposal submitted by the Principal, Govt. BDS, Deaf & Dumb School, Khalipara. In this regard a Meeting was held in the Office Conference Hall of the Hon'ble Minister of Social Welfare, Assam on 28/5/2013 with Assam Association of Deaf and in the meeting the Hon'ble Minister instructed to enhance the honorarium of writ petitioner from Rs. 900/- to Rs. 5000/-.It would be pertinent to mention herein that although the writ Petitioner was engaged as 'Helper to the Art Instructor' but there is no such sanction post at Govt. BDS Deaf & Dumb School.” 10. It is thus evident that the appointment of the petitioner was not to a sanctioned post and the same was made purely on temporary basis without any selection whatsoever. That being so, the appointment of the appellant/petitioner is illegal and, therefore, no case of regularization is made out. It appears that the learned Single Judge has disposed of the writ petition by observing and directing as hereunder: “9. That being so, the appointment of the appellant/petitioner is illegal and, therefore, no case of regularization is made out. It appears that the learned Single Judge has disposed of the writ petition by observing and directing as hereunder: “9. Having considered the materials available on record, more specifically considering the length of employment of the petitioner and further taking into consideration that the petitioner is a differently abled person for which there are various schemes required to be taken by the State under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act , 1995, this Court is inclined to direct the Director, Department of Social Welfare and Probation, Govt. of Assam to provide an opportunity to the petitioner to participate in the employment process as and when vacancies arise in the Grade-IV post and if the petitioner participated in the said process, the Department of Welfare and Probation, Govt. of Assam shall condone the age of the petitioner for permitting him to participate in the selection process. 10. It is made clear that as and when occasion arise, the petitioner shall participate in the selection process without fail. The petitioner is further directed to submit his representation/participation to the Director of Department of Social Welfare and Probation, Govt. of Assam to consider his case for regular appointment in the selection process to be undertaken by the said Department within a period of 10 days from today, so as to enable the authorities to process the matter of condonation of age of the petitioner to participate in future employment opportunities. 11. As a temporary measure, the respondents are directed not to terminate the service of the petitioner, pending the participation of the petitioner in the next selection process and till then the petitioner would be continued to be paid the monthly honorarium of Rs.7,000/- per month, or such enhanced honorarium to which the petitioner may be found entitled to.” 11. In view of the aforesaid, we are of the considered view that the directions given by the learned Single Judge while disposing of the writ petition warrant no interference. Accordingly, the writ appeal stands dismissed. No order as to costs.