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Judgment
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.
The challenge here is to the order dated 14.3.2005 (Annexure-J), whereby the authorities have rejected the petitioner''s 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.
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.
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 petitioner''s 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 APSC''s waiting list, both employees of the
Industries Department should be treated at par, without any discrimination.
1. 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
Court''s 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 Court''s 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 Court''s 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.
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 petitioner''s 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.
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.
When the APSC''s 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 petitioner''s 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.
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.
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 Court''s 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 petitioner''s claim for appointment. Thereafter, the APSC''s
waiting list was extended and the four wait listed candidates were appointed afresh.
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.
Consequently, this writ petition is found devoid of merit and the same is thus dismissed, without any order on cost.