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Judgment
1.Heard Dr. B. Ahmed, the learned counsel for the petitioner and Mr. B. Gogoi, the learned Standing Counsel for the respondent Nos. 2 and 3 (Soil
Conservation Department). None appears for the respondent No. 1 who in fact is only a profoma respondent since no relief is claimed from the said
respondents.
The case of the petitioner is that the Government of India gave its approval for implementation of a Central Scheme for strengthening State Land
Use Board (SLUB) during the 7th Five Year Plan period at a total cost of Rs. 328 lakhs. As per the Scheme, the Central Government is to meet
100% of the cost of the Scheme with 50% as grants and 50% as loans during the 7th plan period both for States and Union Territories. Such approval
was conveyed by the respondent No. 1 to all State Chief Secretaries including the State of Assam. As per the Scheme, creation of Nucleus Cell for
the SLUB’s compromising of staff strength of 7 (seven) persons in case of a State was contemplated. Consequently, a Nucleus Cell under the
Soil Conservation Department of the State was created by the State Government which included one post of LDA amongst the 7th posts created. The
creation of the Nucleus Cell was conveyed to the Accountant General, Assam at Shillong by the Deputy Secretary to the Government of Assam, Soil
Conservation Department vide communication dated 26.02.1993. By notification dated 05.05.1993, the State Government in the Soil Conservation
Department declared the Soil Conservation Department as the Nodal Department for SLUB with immediate effect. Further, vide communication
dated 15.05.1993 issued by the Under Secretary to the Government of Assam, Soil Conservation Department to the Accountant General Assam at
Shillong, the Director of Nucleus Cell for SLUB was declared as the Drawing and Disbursing Officer (DDO) for the funds under the SLUB Scheme.
That the petitioner was appointed as Lower Division Assistant cum Typist under the SLUB w.e.f 01.03.1996 vide Office Order dated 03.03.1996
against the post that was created vide the communication dated 26.02.1993. On being appointed as such, the petitioner joined the post and was
allowed to subscribed the State Government Employees Group Insurance Scheme (GIS) as well as the General Provident Fund (GPF) as was done in
respect of the State Government Employees.
The Government of India in the Ministry of Agriculture however decided to discontinue the implementation of the programme of SLUB w.e.f
01.08.2009 and the same was communicated to all the States and Union Territories where SLUB was being implemented vide communication dated
02.07.2009. In view of such decision and having regard to the effect that they were 4 (four) regular employees under SLUB, the Joint Director in
charge of the Nucleus Cell of SLUB wrote to the Commissioner and Secretary to the Government of Assam for absorbing the services of the 4 (four)
regular employees which included the petitioner. Such proposal was sent to the respondent No. 2 by the Joint Director in charge of the Nucleus Cell
of SLUB vide communication dated 30.07.2009. In the said communication, it was also mentioned that out of the 4 (four) employees under SLUB, one
Matlib Ali was appointed against the post of a regularized Muster Roll Worker and accommodated in the Nucleus Cell of SLUB as per the approval
and sanction of the Finance Department. The Joint Director of Soil Conservation Department who was also in charge of SLUB in fact, on 19.08.2003
had written to the respondent No. 3 to induct the services of Shri Matlib Ali in the Soil Conservation Department so that his services could be utilized.
Since SLUB was to be discontinued with effect from 01.08.2009, the Under Secretary to the Government of Assam, Soil Conservation Department
vide communication dated 03.09.2009 informed the respondent No. 3 to submit a proposal for regularization of the services of the employees engaged
in SLUB against the vacant posts available in the Directorate of Soil Conservation Department. The said communication also mentioned that the
salary of the erstwhile staff of SLUB be made from the unutilized fund in the salary head of SLUB for the period 01.03.2009 to 31.07.2009.
Pursuant to the letter dated 03.09.2009 written by the Under Secretary to the Government of Assam, Soil Conservation Department, the respondent
No. 3 wrote to the Joint Director of Soil Conservation Department in charge of SLUB to submit a proposal for regularization of the services of the
employees under SLUB.
In the meantime, an advertisement was issued by the respondent No. 3 in the local newspaper dated 12.08.2010 inviting application for eligible
candidates for the post of Junior Assistant, both Directorate and District Level amongst others. The last date of submission of the application was
06.09.2010. The petitioner also applied for the post in question after his age was condoned but failed to get selected. The petitioner thereafter, filed a
representation for regularization of his service to the respondent No. 3 on 18.07.2011. Through his representation, he requested sympathetic
consideration of his case and that he be absorbed against a suitable post in the Department. The representation having not been considered, the
petitioner approached this Court by filing WP(C) No. 1499/2012. The writ petition was disposed of vide order dated 28.03.2012 with a direction to the
respondent No. 3 to consider the petitioner’s representation and to pass necessary orders after affording him reasonable opportunity.
Pursuant to the aforesaid direction, the petitioner was given a personal hearing but however, his prayer for absorption was rejected vide order dated
25.07.2012. Being aggrieved, the petitioner is again before this Court through the instant writ petition.
Appearing for the writ petitioner, Dr. B. Ahmed the learned counsel submits that the petitioner was appointed as Lower Division Assistant cum
Typist w.e.f 01.03.1996 and he continued as such for 13 (thirteen) years till his service was discontinued w.e.f 01.09.2009. He submits that the
petitioner was appointed against the post sanctioned and created by the State Government and therefore, his service cannot be done away with after
he having served for 13 (thirteen) long years. He submits that the petitioner in fact subscribed to the Group Insurance Scheme (GIS) and the General
Provident Fund (GPF) as given to the State Government employees. In fact, as per the Scheme of SLUB, the Scheme was to be taken over by the
State Government and therefore, even if the Scheme was stopped by the Central Government, the State Government ought to have continued with the
Scheme and if not, absorb the employees of the SLUB under the Soil Conservation Department of the State. He also submits that other employees of
SLUB such as Matlib Ali was absorbed and regularized under the Soil Conservation Department and therefore, it is highly discriminatory on the part
of the respondents in not considering the absorption of the petitioner. He also submits that at the relevant time, in terms of the advertisement published
on 12.08.2010, there were as many as 38 (thirty eight) posts available. The respondents could have very well adjusted the employees of the SLUB
including the petitioner against such vacancies in the Department. He further submits that out of the 38 (thirty eight) posts advertised, not all the
vacancies were filed up and therefore, the petitioner should be considered against any of the existing vacancy even if it is a Grade-IV post. Dr. B.
Ahmed also submits that the petitioner has been pursuing his case diligently since the year 2009 by submitting representation and approaching this
Court as early as 2012. Therefore, the respondents having failed to consider his case, a direction be issued to the State respondents to absorb the
petitioner against any appropriate post under the State Government in view of the petitioner having rendered 13 (thirteen) long years of service in a
structured post.
In support of his submission Dr. B. Ahmed relies upon the decision of the Apex Court rendered in the case of U.P. State Electricity Board Vs
Pooran Chandra Pandey & Others 2007 11 SCC 92. By referring to the said decision, Dr. B. Ahmed submits that the ratio led down in the case with
regard to violation of the petitioner’s right under Article 14 of the Constitution of India is squarely applicable. Considering the engagement of the
petitioner for a long duration, the State as a model employer has to be reasonable in affording the petitioner an opportunity to be regularized in service.
The same having not been done, appropriate interference of this Court is called for.
Mr. B. Gogoi, the learned Standing Counsel of the Soil Conservation Department submits that the petitioner cannot claim to be absorbed into
regular services in view of the fact that he was appointed under the Centrally Sponsored Scheme of SLUB where employees were only to be
employed so long as the Scheme subsisted. The Scheme having been discontinued from the year 2009, the petitioner has no right to continue beyond
the aforesaid period. He submits that the appointment order of the petitioner also clearly indicated the terms of such appointment. The appointment
was only temporarily and to continue, so long as the Scheme subsisted. Therefore, the petitioner being fully aware of the nature and status of his
appointment, none of his rights have been violated.
Mr. B. Gogoi by referring to the affidavit-in-opposition filed by the respondent No. 2 also submits that in case of the Muster Roll Worker i.e.,
Matlib Ali as referred to by the petitioner, he stands on a different footing altogether. He was a Muster Roll Worker engaged by the Department of
Soil Conservation and only attached to SLUB for administrative reasons. He having completed the required number of years of service as stipulated
by the regularization of Muster Roll Scheme, he was regularized in service. Therefore, the petitioner is not correct in submitting that similarly situated
person such as the petitioner have been absorbed in service. Mr. B. Gogoi further submits that the petitioner was given opportunity to participate in the
recruitment process against the 38th vacancies that was advertised on 12.08.2010. The petitioner was over-aged and therefore, relaxation of age was
dully granted to him. The petitioner after participation in the selection process and having failed to get selected cannot have any grievance against the
respondent Department. The claim for the petitioner for regularization or absorption in any view of the matter is not tenable inasmuch as he was
appointed pursuant to the creation of posts to implement the Scheme of SLUB. Now that the Scheme is discontinued w.e.f 01.08.2009, the petitioner
does not have any right to claim absorption under the State Government.
In support of his submission Mr. B. Gogoi relies upon the decision of the Apex Court rendered in the case of Mohd. Abdul Kadir & Anr. Vs.
Director General of Police, Assam & Ors. (2009) 6 SCC 611 and also Official Liquidator Vs. Dayanand and Ors. (2008) 10 SCC 1. By referring to
Mohd. Abdul Kadir & Anr. (supra), Mr. B. Gogoi submits that the Apex Court has clearly held that the staffs appointed against as particular scheme
which is temporary in nature can only continue so long as such scheme lasts. No indefeasible right of the employee is curtailed if such employment is
discontinued when the scheme comes to end. He therefore submits since the Scheme of SLUB was discontinued w.e.f 01.08.2009, the petitioner has
no right to continue beyond the said period. Further, by referring to a case of Official Liquidator (supra), Mr. B. Gogoi submits that the Apex Court
clearly deprecated the Judgment rendered in Pooran Chandra Pandey & Ors. (supra) wherein, an attempt was made to distinguish the case from the
Judgment rendered by a larger bench in Secretary State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. (2006)4 SCC 1. The Apex Court in the case
of Official Liquidator (supra) held that following of judicial discipline is of cardinal importance and the judgment of the Constitution Bench in Uma
Devi (3) (supra) is binding on all Courts including the Supreme Court till the same is over-ruled by a larger bench. The attempt to dilute the ruling of
Uma Devi (supra) by the suggestion made in Pooran Chandra Pandey & Ors. (supra) should only be read as orbiter and not binding upon High Courts,
Tribunals and other Judicial foras and that it should not be relied upon or made the basis for by-passing the principles laid down by the Constitution
Bench in Uma Devi (supra).
I have heard the submissions advanced by the learned counsels for the parties and I have perused the materials available on record. The point to
be decided is as to whether with the discontinuation of SLUB, the petitioner will have the right to be regularized or absorbed to a post under the State
Government.
As may be noticed, SLUB was created under a Central Scheme during the 7th Five Year Plan and it was totally funded by the Central
Government. Under the Scheme, a Nucleus Cell was created by the State Government whereby 7 (seven) posts were created which included the post
of LDA. The petitioner was appointed to the post of LDA on 03.03.1996 w.e.f. 01.03.1996 and he continued as such till the Scheme was discontinued
w.e.f. 01.08.2009. With the discontinuance of the Scheme, all the ministerial and Grade-IV staffs appointed under the Nucleus Cell were rendered
jobless. That none of the staffs have been absorbed to an employment under the State Government. It may be noticed that the appointment order of
the petitioner dated 03.03.1996 stipulated that it was a temporary appointment and would continue till such time the Scheme lasted or was
discontinued. The absorption and regularization of one Matlib Ali as pointed out by the petitioner has been clarified by the respondents. In fact he was
a Muster Roll employee engaged under the Soil Conservation Department and it was only due to administrative exigency that he was attached to
SLUB. He upon being eligible to be considered for regularization under the regularization of Muster Roll Scheme, his service was regularized.
The learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Pooran Chandra Pandey & Others
(supra) to contend that in view of the long years of service rendered by the petitioner under SLUB, his services should be absorbed or regularized
under the State Government. However, it may be noticed that the facts in Pooran Chandra Pandey & Others (supra) and the present case are not
similar. The petitioner in Pooran Chandra Pandey & Others (supra) was an employee of the Cooperative Electric Supply Society. The society is taken
over by the U.P. State Electricity Board which decided to regularize the services of its employees working on daily wage basis before 04.05.1990.
The petitioner therein who was appointed under the Society earlier to 04.05.1990 was denied regularization. Therefore, it was in that context that the
Apex Court held that the petitioner could not be discriminated in view of Article 14 of the Constitution and that he too should be regularized. In the
present case, it may be seen that SLUB was not taken over by the State Government and also none of the ministerial or Grade-IV staff have been
absorbed or regularized under the State Government and therefore, the decision referred to cannot be applied.
It may further be noticed that the case of Pooran Chandra Pandey & Others (supra) was rendered by a 2 (two) Judge Bench of the Apex Court.
The decision that was arrived at was examined by a 3 (three) Judge Bench of the same Court in the case of Official Liquidator (supra) where it was
held that it was not open for the 2 (two) Judge Bench to deviate from the law laid down by the Constitution Bench in Uma Devi (supra) by
distinguishing the case. It was held that the decision of a larger bench would be binding on a smaller bench. The necessity to maintain Judicial
discipline was emphasized and it was directed that the comments and observations made by the 2 (two) Judge Bench should only be read as orbiter.
Therefore the case of Pooran Chandra Pandey & Others (supra) cannot be applied to the present case.
It may further noticed that an advertisement was floated by the Director of Soil Conservation on 12.08.2010 inviting applications from eligible
candidates for filling up of as many as 38 (thirty eight) posts under the Directorate as well as the District Establishments. Amongst the posts
advertised, the post of Junior Assistant, both at the Directorate and District Level were advertised. It may be mentioned that the post of Junior
Assistant is equivalent to the post of LDA. Though the petitioner participated in the selection process for the post of Junior Assistant after he was
given the benefit of age relaxation by the respondent authority concerned, he was unsuccessful in getting himself selected.
The Apex Court in the case of Md. Abdul Kadir & Anr. (supra) has held that staffs employed for a particular project or scheme which is
temporary in nature, though continued for some decades would not entitle the employee concerned to seek permanency or regularization. Even if any
posts are sanctioned with reference to the scheme, such sanctioned is of adhoc or temporary posts co-terminus with the scheme and not of permanent
posts. Similar nature can be noticed in the present case from a perusal of the creation of the Nucleus Cell by the State Government vide
communication dated 26.02.1993 (Annexure-2) wherein, posts were created for a certain duration to strengthen SLUB while keeping equal number of
existing posts in equivalent rank/levels in abeyance. Therefore, the decision of the Apex Court as referred to above is found applicable to the present
case. Further, in absence of regularization or absorption to a regular post under the State Government or the Union, mere subscription of GPF and GIS
by the employee concerned will not render his or her employment to be a regular employment.
Under the facts and circumstances of the case and upon giving due consideration, I do not find any merit in the writ petition and the same is
accordingly dismissed. No cost.