State Of Assam And Anr vs Dr. Bhabatosh Kumar Roy And 2 Ors

A.M Bujor Barua, J

Heard Mr. D. Saikia, learned senior counsel for the appellant Health and Family Welfare Department of the Government of Assam and the other

authorities under the Department. Also heard Mr. KN Choudhury, learned senior counsel/Mr. SK Goswami learned counsel for the respondent writ

petitioner Dr. Bhabatosh Kumar Roy in WP(C) No.6640/2018 and Mr. MK Choudhury learned senior counsel for the respondent writ petitioner

Regional Dental College Teachers Association (in short RDCTA) and others in WP(C) No.7231/2018.

These two intra-court appeals WA No.125/2019 and WA No.133/2019 being against the common judgment and order of the learned Single Judge

dated 08.03.2019 in WP(C) No. 6640/2018 and WP(C) No. 7231/2018, we propose to give a consideration to the two appeals by this common

judgment.

WP(C) No.6640/2018 was instituted by the respondent Dr. Bhabatosh Kumar Roy assailing the notification dated 04.09.2018 of the Principal

Secretary to the Government of Assam in the Health and Family Welfare Department, by which in the public interest the respondent Dr. Bhabatosh

Kumar Roy, who was the Professor and Head of Department of Orthodontics, Regional Dental College (in short RDC), Guwahati was posted as the

Principal-in-Charge of the Government Dental College, Dibrugarh till further orders or till the posting of a regular Principal, whichever is earlier. In the

WP(C) No.6640/2018, the respondent writ petitioner Dr. Bhabatosh Kumar Roy took the following stands, amongst others, which are extracted

below:-

“2. That, the Regional Dental College, Guwahati was established on 01/10/1982 and was subsequently declared as an independent

Regional Dental College, Guwahati with effect from 1985. The Regional Dental College, Guwahati was established on the basis of the funds

provided by the North East Council. The Regional Dental College was established on the basis of a Memorandum of Understanding (MOU)

signed between the State of Assam and the North East Council and other North Eastern States, on recommendation of the Planning

Commission of Government of India. The Government of Assam acted as a trustee in administration of the College though the State of Assam

has only 10% contribution in the establishment of the College and salaries of the staff including teaching faculties were given by all the

North Eastern States in pro-rata basis.

That, as a trustee, the administrative control was given to Government of Assam; as such Government has appointed various faculty

members specifically for this institution only forming a separate cadre of its own. The Government of Assam made an advertisement i.e.

advertisement No.3/1988 through Assam Public Service Commission (APSC) for recruitment to the post of Demonstrator in the Regional

Dental College, Guwahati and accordingly all the eligible persons applied for the post and ultimately, the APSC has recommended along

with the others. Thereafter, select list was published on 29/03/1989 by the APSC and in the said advertisement the petitioner was also

selected at Sl. No.6 against the post of Resident Surgeon.â€​

Based on the said stand, the petitioner assailed the order of transfer and posting dated 04.09.2018 on the ground that he was appointed as a

Demonstrator in the RDC and in his service career, he was ultimately promoted as Professor and Head of Department of Orthodontics in the RDC

and therefore, the order of transfer would be without jurisdiction and authority as the RDC itself is a separate entity and therefore he having been

appointed in the RDC, cannot be transferred to any other post/cadre under the Health and Family Welfare Department of the Government of Assam.

In order to substantiate the claim, the respondent Dr. Bhabatosh Kumar Roy refers to the manner in which the RDC was constituted and came into

its existence. By relying upon certain communications between the Government of India in the Health Department, the North Eastern Council (in short

NEC) and the Government of Assam in the Health and Family Welfare Department as well as the other States of the Northeastern Region,

contentions were raised that the RDC is a Regional institute of its own and therefore, the services of the officials of RDC including that of transfer

are not subjected to the conditions of service of the Health and Family Welfare Department of the Government of Assam.

During the pendency of WP(C) No.6640/2018, the other writ petition WP(C) No.7231/2018 was instituted by the respondent RDCTA, who was

represented by its President and by the said writ petition the following prayers were made:-

“1. To restrain the State of Assam from changing the regional character of Regional Dental College, Guwahati.

To restrain the respondents from altering the service conditions of the faculty members of Regional Dental College, Guwahati by

preparing a set of service rules or otherwise to the detriment of the members of the petitioner Association.

To restrain the respondents from amalgamating the gradation list of Regional Dental College, Guwahati with that of the gradation list of

the faculty members of Dental wings of other Medical colleges of Assam as well as with that of the newly established Dental Colleges of

Assam.

To direct the respondents to maintain a separate gradation list for faculty members of Regional Dental College, Guwahati as maintained

from the date of inception of the Regional Dental College, Guwahati.â€​

The respondent RDCTA in paragraph 4 of the writ petition took the following stand:-

“4. That the Regional Dental College, Guwahati was declared as an independent Regional Dental College, Guwahati with effect from

1985. The RDC, Guwahati was established on the basis of the funds provided by the North Eastern Council on the basis of a Memorandum

of Understanding (MOU) signed between the State of Assam and other North Eastern States on recommendation of the planning commission

of Government of India. The Government of Assam acted as a trustee in administration of the College though State of Assam only has 10%

contribution in the establishment of the College and salaries of the staffs including teaching faculty are being borne by all the North

Eastern States on pro-rata basis. As a trustee, the Administrative control was given to the Government of Assam; as such Government has

appointed various faculty members specifically for this institution for manning a separate cadre of its own.â€​

Apart from the above extracted stand in paragraph 4, the respondent RDCTA also took the stand that the Planning Commission of India had

chosen the location of the Dental Wing to be established at Guwahati considering the standard, cleanliness and quality of service of Guwahati Medical

College. It was also stated that as per the arrangement, an Advisory Committee was to be constituted comprising of representations of all

Northeastern States and two eminent Dental Professors/Surgeons of the Country. Accordingly, the Government of Assam by the notification dated

27.11.1982 constituted the Advisory Committee for the Dental Wing of the Guwahati Medical College as indicated above.

It is taken note of that the Dental Wing of the Guwahati Medical College was subsequently given the nomenclature of Regional Dental College,

Guwahati. In WP(C) No.7231/2018 it was also the stand of the RDCTA that the members of the association were specifically appointed to the RDC

at Guwahati and a gradation list for the RDC had been maintained since the date of inception of the institute while on the other hand, for the faculty

members of the Department of Dentistry of the Medical Colleges of Assam, a separate gradation list was maintained. It was stated that the conditions

of service of the faculty members of the Department of Dentistry of the Medical Colleges of Assam is governed by the Medical Council of India

Regulation and they have a separate service Rules whereas the conditions of service of the faculty members of the RDC at Guwahati are governed

by the Dental Council of India. Accordingly, the contention raised was that no parity can be drawn between the two streams of faculty members.

A further stand was taken that the finances that were required for establishing the Dental Wing/RDC at Guwahati were borne by the NEC and

the various State Governments of the Northeastern States have been contributing for meeting the daily expenses of the institute. The institute was

established for the benefit of the people of the entire Northeastern Region, where specific numbers of seats are kept exclusively for the students from

the other Northeastern States and the institute has a strong regional flavour and therefore, it cannot be said to be an entity under the Health and

Family Welfare Department of the Government of Assam. A contention was also raised that the Government of Assam is given the administrative

responsibility of running the RDC at Guwahati as a trustee and not as an institute of their own.

The appellant Government of Assam in the Health and Family Welfare Department took the stand in the writ proceeding that there existed a

Department of Dentistry in the Guwahati Medical College and Hospital at Guwahati and the Government of India in the Health and Family Welfare

Department jointly with the NEC required that the Department of Dentistry be converted to a Dental Wing of the Guwahati Medical College and for

the purpose around Rs.65,00,000/- (rupees sixty five lacs) were initially provided by the NEC for up-gradation of the prevailing infrastructure so as to

accommodate the Dental Wing as proposed. The different Northeastern States provides for certain finances on a pro-rata basis against the number of

seats allotted to the particular State. Merely based upon the fact that some initial amount was provided by the NEC and certain amounts are provided

by the different Northeastern States on a pro-rata basis, it cannot be said that the Dental Wing of the Guwahati Medical College was a regional

institute under the control of the NEC and all the Northeastern States.

The Government of Assam took the further stand that in the year 1985, the nomenclature of the Dental Wing of the Guwahati Medical College

was re-named by the Government of Assam as the Regional Dental College, Guwahati and along with it the institute was also up-graded to a separate

Dental College. It was contended that the change of nomenclature and up-gradation was neither a requirement of the Government of India nor of the

NEC and nor of any of the Northeastern States and it was a unilateral decision of the Government of Assam after having informed about it to all

concerned. Merely because the institute was re-nomenclatured as the Regional Dental College, the same on its own would not convert it to an institute

belonging to all the Northeastern States and under the control of the NEC.

The NEC by filing affidavit took the stand that it disowned the contention that the RDC at Guwahati was an institute of the NEC or that the NEC

exercised administrative control over the institute. In the aforesaid background, the common judgment and order dated 08.03.2019 of the learned

Single Judge was passed. The learned Single Judge in paragraph 20 of the judgment arrived at, amongst others, the following conclusions:-

¨ The NEC decided to establish the first ever Dental College at Guwahati by converting the existing Dental Department of Guwahati Medical

College to a Dental Wing and the Regional Dental College, Guwahati was conceived and established for catering the need of the entire

Northeastern States and not only for the State of Assam and thus from the very inception, the RDC had a regional independent character and

purpose, which it continues to be show till now and still caters to the need of the students of the entire Northeastern States.

¨ The RDC was set up with the contribution of the NEC and the existing infrastructure of the Dental Department of the Guwahati Medical

College was amalgamated by constructing a new building, hostel, purchase of equipments and furniture for which an amount of Rs.65.16 lacs was

initially allotted by the NEC under the 6th Five Year Plan and thereafter the contribution of the NEC continued, although the State of Assam

contends that the NEC has by now stopped funding. There is no clarification that it had permanently stopped the funding.

¨ The faculty and staff of the RDC are recruited by the Government of Assam through the Assam Public Service Commission.

¨ The scheme under which the institute was established provides for constituting an Advisory Committee and the Government of Assam had

constituted the Advisory Committee of the Dental Wing of Guwahati Medical College by notification dated 27.11.1982 and the Committee was

entrusted with certain responsibilities for the smooth functioning of the College.

¨ Though the NEC in their affidavit had stated that the NEC is not directly or indirectly involved in the internal administration and conditions of

service related issues of the institute, but there is an allegation of the institute being managed by a society with a Governing Body and Executive

Council as evident from the proceeding of the 23rd Advisory Committee meeting held on 11.01.2013. Although the 23rd Advisory Committee

meeting refers to the constitution of a Governing Body and an Executive Council, no records had been produced by the NEC nor the Government

of Assam nor the petitioners as regards the constitution and existence of any such Governing Body and Executive Council.

¨ The annual plan of NEC for 2011-12 refers to a specific recommendation that the regional institutions should be transferred to the Line

Ministries, but in the absence of any material, the Court is unable to make any further observation in that regard. In all such official

communications of the RDC and the other authorities, the fact that the RDC is a project of the NEC having a regional character had been

reiterated from time to time.

¨ The two other Dental Colleges established by the Government of Assam at Dibrugarh and Silchar were from the funds raised by the State itself

and were not financed by the NEC and further these State Colleges offer only the BDS Course and not the MDS Course.

Based on the aforesaid observations, the learned Single Judge concluded that the RDC is an institution, which cannot be considered to be purely an

institute of the Government of Assam and at the same time on the basis of the materials that were made available before the Court it also cannot be

said to be an autonomous and independent institution. Even if the Government of Assam had extended the maximum assistance for the establishment

of the institute by way of infrastructure and human resources support, which it continues to do so, it cannot be said to be exclusively a Government of

Assam educational enterprise. It is the only Dental institute in the Northeastern region, where NEC had invested its resources and other Northeastern

States have also contributed though it may not be in the scale as that of the Government of Assam.

The fact that the Government of Assam had been given the primary authority to administer the institute, it does not necessarily follow that the State

has over all authority of management of the institute and for the purpose the scheme itself envisages the constitution of an Advisory Committee

comprising of representatives of the States. Though the terms of reference of the Advisory Committee do not pertain to day to day administration and

management of the institute, but it certainly is an authority to advice the Government of Assam for its proper management and functioning. The

Government of Assam has been given the intra-institutional jurisdiction, but it does not necessarily mean that it had also been given the inter-

institutional and extra-institutional jurisdiction, meaning thereby in respect of issues which goes beyond the internal management of the institution.

The conclusion arrived was that the Government of Assam had been given the authority to manage the internal administrative situation, but it had

not been given the authority to enable it to integrate or incorporate the RDC with the other State Dental Colleges. In other words, the conclusion

arrived at was that the Government of Assam had not been given the overriding authority of the RDC in the same manner as it has over the other

institutions established by it on its own. The further conclusion arrived at was that the RDC cannot be treated to be an exclusively State institute in

view of the manner in which the institute was established and the role played by the other entities other than the Government of Assam in establishing

it. Although the Government of Assam has an overwhelming and dominant role in the management of the affairs of the institute, but it cannot be

concluded nor be treated at par with any other Dental Colleges established by it and therefore, the RDC is a unique institution of its own having its

own attributes beyond the attributes of a State Dental College. Accordingly, a conclusion arrived that the employees serving in the RDC are not under

the control of the Government of Assam. Although the materials indicate that they were appointed by the Government of Assam and their services

are also being looked after by the Government of Assam, but for that purpose, the State Government is getting financial contributions from other

States. RDC is a unique institution and it cannot be treated at par with the other two Dental Colleges of the Government of Assam at Dibrugarh and

Silchar.

In the above premises, the further conclusion of the learned Single Judge was that as the RDC cannot be treated in the same manner as the other

State Dental Colleges of the Government of Assam, the employees of the RDC also cannot be treated at par with that of the other State Dental

Colleges. As the RDC was established as an institute keeping in mind the interest of the entire Northeastern States therefore it can be considered to

be an institute with a regional flavour of the entire Northeast and the uniqueness of the RDC shows it to be not an exclusive State Dental College like

the other Dental Colleges. But because of the ambiguous stand taken by the NEC at whose instance the RDC was established and also because of

the existence of the bodies like the Advisory Committee, Executive Council etc, who are supposed to manage the affairs of the RDC, but again the

details of which are not available before the Court, the Court was unable to declare in a conclusive and categorical manner that the employees of the

RDC are not to be treated as employees of the State Government.

But again, the ultimate conclusion arrived was that merely as because the Government of Assam had been vested with the authority to manage

the internal administration of the RDC, it ipso-facto does not mean that the Government of Assam had exclusive control over the RDC, so far as to

transfer the employees of RDC to another institute exclusively managed by it and also to amalgamate the existing employees of the RDC with the

State Government employees, who were appointed in the other Dental Colleges. Accordingly as because of the ambiguity as regards the status as

well as the service conditions of the employees of the RDC, the learned Single Judge was of the view that the authorities should take a decision on the

matter and make it publicly known in clear and unequivocal terms on the issue. For the purpose all the stakeholders being the Government of Assam,

the NEC and the Government of India should speak in a collective and unanimous voice and declare the status of the RDC and its employees.

Being aggrieved by the judgment and order dated 08.03.2019, the two intra-Court appeals have been preferred by the appellant State of Assam in

the Health and Family Welfare Department.

Before we proceed further in the appeals, we have taken note of that Mr. KN Choudhury, learned senior counsel appearing for the respondent

Dr. Bhabatosh Kumar Roy has raised a question on the maintainability of the intra-Court appeals by referring to the judgment of the learned Single

Judge in paragraph-36 which requires all the stakeholders involved to take a collective and unanimous decision on the issue of the status of the

employees of the RDC. According to Mr. KN Choudhury, as the issue was not decided by the learned Single Judge, it would otherwise be open for all

the stakeholders including the writ petitioners to sit together and arrive at a collective and unanimous decision on the issue and therefore, there is no

requirement for any adjudication in these appeals.

Mr. D. Saikia, learned senior counsel for the appellant State of Assam has referred to several paragraphs in the judgment of the learned Single

Judge, in which conclusions were arrived at which goes against the interest of the Government of Assam, more particularly, the conclusion that the

employees of the RDC are distinct and separate from the employees of the other Dental Colleges established by the Government of Assam and

because of such conclusion, as arrived, an adjudication on merit in the appeals would be required. It is the further contention of Mr. Saikia that

although it is a preliminary question raised on the maintainability of appeals, but the said contention was raised only at the fag end of the hearing of the

appeals and not at the initial stage when the appeals itself were taken up for its hearing.

On the question of the maintainability of the appeals raised by Mr. K.N. Choudhury, learned senior counsel for the respondent Dr. Bhabatosh

Kumar Roy we take note of that in the two appeals the core questions for adjudication raised by the appellant are whether the conclusion arrived at by

the learned Single Judge that the RDC at Guwahati is an institute distinct and separate from the other Dental Colleges under the State of Assam and

whether it necessarily follows that the Government of Assam has overall authority of management of the institute where for the purpose the Scheme

envisages an Advisory Committee upon whom the responsibility is entrusted for proper management and functioning of the institute and further

whether the Government of Assam in the Health and Family Welfare Department has the control over the conditions of service of the employees of

the RDC, including the control to regulate their transfer and posting. The learned Single Judge in the judgment dated 08.03.2019 having arrived at its

own conclusion as regards the overall authority of the Government of Assam as regards the management of the institute as well as certain conclusions

as regards the authority who may have the administrative control over the service conditions of the employees of the RDC, we are of the view that

merely because the learned Single Judge in its judgment dated 08.03.2019 had also directed for a collective decision to be taken by the Government of

Assam, the States of the Northeastern Region, the NEC and the Government of India and to speak in a collective and unanimous voice as regards the

status of the RDC and its employees, it cannot be said that the issues raised in the appeal are not required to be adjudicated upon. Apart from the

question of maintainability being raised at the fag end of the hearing, taking into consideration the issues being raised as regards the conclusion arrived

at by the learned Single Judge in the judgment dated 08.03.2019, we are of the view that it would not be appropriate to close the appeal on the basis of

the question of maintainability being raised by Mr. K.N. Choudhury, learned senior counsel for the respondent Dr. Bhabatosh Kumar Roy. Further,

even Mr. S.K. Goswami, learned counsel who appeared and made his submissions on behalf of the respondent Dr. Bhabatosh Kumar Roy, prior to

the appearance of Mr. K.N. Choudhury, learned senior counsel nor Mr. M.K. Choudhury, learned senior counsel for the respondent RDCTA, had

raised any question on the maintainability of the appeal, and had made their respective submissions on the merit of the contentions otherwise raised by

the appellant.

Mr. D. Saikia, learned senior counsel for the appellant while assailing the conclusions arrived at by the learned Single Judge on the question as to

whether the RDC at Guwahati is a Regional Institute of all the Northeastern States where the Government of Assam has no exclusive authority over

the management and control of the institute, although it may have its own role to play under the Scheme under which the RDC was created, raises the

issue that initially the RDC was the Dental Department of the Gauhati Medical College which is exclusively an institute of the Government of Assam.

It is taken note of that the Assistant Financial Advisor in the NEC Secretariat made a communication bearing no. NEPF/5/67/AS dated 24.03.1982

to the Secretary to the Government of Assam in the Health and Family Welfare (B) Department stating that the Government of India on the

recommendations of the NEC had approved a Scheme for opening of a Dental Wing at the Gauhati Medical College under NEC program of the 6th

Plan period at an estimated cost of Rs.65.16 lacs subject to the condition of the Government of Assam complying with the suggestion of the Planning

Commission contained in DO Letter No. HLH.8(8)/81 dated 24.02.1982 from Mr. N.L. Meena, Deputy Advisor, Planning Commission and that of the

O.M. No. V.12825/28/81-PMS dated 30.11.1981 of the Department of the Health of the Government of India. The suggestions contained in the letter

dated 24.02.1982 of Mr. N.L. Meena, Deputy Advisor, Planning Commission are as follows:

“1. Specific formal arrangements may be made for all States/TUE of the North east to get a fair share of the facility created with NEC

assistance.

Considering numerous complaints of different standards of cleanliness and quality of service in Gauhati Medical College, arrangements

should be made about the maintenance of paper standards of cleanliness and service; and

As Advisory Committee, comprising respresentatives of all States/TUE and one or two eminent dental Professors/Surgeons of the country

may be included as members.â€​

The communication of the Assistant Financial Advisor of NEC dated 24.03.1982 made to the Secretary to the Government of Assam in the Health

and Family Welfare (B) Department firstly provides that the Government of India had approved a scheme for opening of a Dental Wing in the Gauhati

Medical College and such approval is subject to the suggestions of the Planning Commission in their letter dated 24.02.1982. The suggestions

apparently pertained to a specific formal arrangement to be made for all States of the Northeastern Region to get a fair share of the facilities created

with NEC assistance and constituting an Advisory Committee comprising of the representatives of all the states and one or two eminent dental

professors/surgeons of the country as members.

Apparently, the Government of Assam in the Health and Family Welfare Department accepted the suggestions of the Planning Commission while

opening the Dental Wing at the Gauhati Medical College as per the communication of the Assistant Financial Advisor to the NEC dated 24.03.1982.

The acceptance of the opening of the Dental Wing as per the communication of the Assistant Financial Advisor to the NEC dated 24.03.1982 also

included the compliance of the suggestion of the Deputy Advisor to the Planning Commission contained in the letter dated 24.02.1982 and the

suggestions having comprised of the requirement of having a specific formal arrangement for all the States to get a fair share of the facilities created

with the NEC assistance and the constitution of an Advisory Committee comprising of all the Northeastern States with one or two eminent dental

professors/surgeons of the country, it would have to be understood that under the arrangement an obligation was bestowed on the Government of

Assam in the Health and Family Welfare (B) Department to have a formal arrangement with the other Northeastern States to provide them with a

fair share of the facilities in the Dental Wing and that an Advisory Committee as indicated would have to be in place.

The Scheme referred in the communication of the Assistant Financial Advisor to the NEC dated 24.03.1982 provides that as there was no

educational facilities in Dental Science in the Northeastern Region, and considering the importance of dental care and absence of sufficient numbers

of dentists in the region it was considered necessary to set up a Dental Wing attached to the Gauhati Medical College with an annual admission

capacity of at least 30 (thirty) students to meet the long felt need of the State of the Northeastern Region. The Gauhati Medical College campus was

considered to be an ideal site to set up the Dental Wing in view of the well developed infrastructure which was already available. The Scheme

provides for the courses which are to be undertaken in the Dental Wing. The Scheme further provides that there would be a requirement of

constructing a Dental Wing building with an estimated cost of Rs.23.49 lacs, a Dental Wing hostel of 100 seats at an estimated cost of Rs.22.69 lacs

and a further amount of Rs.18.98 lacs for equipments and furniture etc., the total of which was Rs.65.16 lacs. It is stated that for the purpose the

NEC had provided the amount of Rs.65.16 lacs in a phased manner as provided at Annexure â€" 3 to the scheme.

As regards the staff, comprising of both teaching and non-teaching, of the Dental Wing to be constituted, clause-13 of the Scheme provides that

the existing staff of the Department of Dentistry of Gauhati Medical College will constitute the nucleus of the staff of the Dental Wing after the

formal conversion of the Department into a Dental Wing as proposed. The clause-13 of the Scheme also provides the details of the existing staff

which would constitute the nucleus of the staff of the Dental Wing, which was as follows:

Sl. No. Name of Post No. of Posts

Professor of Dentistry 1 (one)

Registrar of Dentistry. 1 (one)

Resident Surgeon of Dentistry 1 (one)

House Surgeon, Senior Surgeon. 1 (one)

Ward Boys. 3 (three)

Sweeper. 1 (one)

Sister. 2 (two)

Resident Surgeon of Dentistry. 1 (one)

Dental Technician. 1 (one)

L.D. Assistant-cum-typist 1 (one)

By referring to the communication of the Assistant Financial Advisor to the NEC dated 24.03.1982, the letter dated 24.02.1982 of the Deputy

Advisor, Planning Commission and the Scheme which was approved by the Government of India in the Ministry of Health, Mr. D. Saikia, learned

senior counsel for the appellants has raised the contention that in compliance of the suggestions contained in the letter of the Planning Commission of

24.02.1982, the fair share of the facilities created in the Dental Wing are being provided to all the States of the Northeastern Region, including Sikkim

and there is no complain from any of the States that the facilities so created are not appropriately shared. The learned senior counsel contends that

apart from giving the service to all the people of the Northeastern States whosoever desires to have the benefit of the dental services provided in the

Dental Wing, the required numbers of the seats in the dental courses conducted in the Dental Wing are also being provided in the proportionate

manner as required.

According to the learned senior counsel the requirement under the referred communication, letter and Scheme to provide the facilities which

includes the seats in the dental courses is itself the regional character of the Dental Wing which subsequently had the nomenclature RDC. The issue

of regional character or regional flavour sought to be raised by the respondent writ petitioners are not to be construed to the extent that the Dental

Wing created as per the above referred communication, letter and Scheme, respectively, which subsequently had the nomenclature RDC, is an

institute of the NEC or conjointly of all the States so as to render it to be an institute not under the administrative control of the Government of Assam

for all purposes. The learned senior counsel contends that though certain financial inputs were provided by the NEC for the construction of the

building of the institute and the building for the hostel and some furniture and equipments, and some further financial inputs may have been provided

for time to time, although in the meantime in had been stopped, but as per the terms of the communication, the letter and the Scheme respectively, the

Department of Dentistry of the Gauhati Medical College upon being converted to the Dental Wing was neither taken over by the NEC nor conjointly

by the other States. It is further contended that the other Northeastern States provide for certain pro-rata finances proportionate to the number of

seats allotted to them, but the entire institute is being operated in the infrastructure of the Government of Assam and it is the responsibility of the

Government of Assam to meet all the other financial obligations necessary for operating the institute. Merely because the other States are providing

some financial input on a pro-rata basis proportionate to the number of seats allotted to them, that by itself would not convert the institute to be an

institute jointly of all the States and the other States have no other obligations other than to provide the pro-rata financial input.

In this respect, it is contended by the learned senior counsel that in the writ proceedings the NEC had filed an affidavit-in-opposition wherein in

paragraph 5 a specific stand has been taken that the NEC is not directly or indirectly involved in the matter relating to the internal administration and

service related issues of the institution. A further stand has been taken in the said paragraph of the affidavit by the NEC that although several

institutions were initially set up with the support of the NEC, but eventually all such institutions are handed over to the respective Central/State

Governments for the purpose of operating them. Therefore, accordingly, learned senior counsel, it is the own stand of the NEC that the RDC at

Guwahati is not an institution being owned and operated by the NEC.

As regards the issue that the nomenclature of the institute was subsequently changed to ‘Regional Dental College, Guwahati’, the learned

senior counsel for the appellants contends that by the communication no. HLB.499/84/54 dated 11.02.1985 of the Under Secretary to the Government

of Assam in the Health and Family Welfare (B) Department, the Governor of Assam had sanctioned the upgradation of Dental Wing at Gauhati

Medical College to a full-fledged dental college and named it as Regional Dental College, Guwahati. For the purpose, a post of Principal was also

created. It is the contention that the said decision to upgrade and rename the Dental Wing as RDC was a unilateral decision of the Government of

Assam without there being any requirement of the communication, the letter and the Scheme, respectively, under which the Dental Wing at Gauhati

Medical College was constituted. The expression ‘Regional Dental College’ was merely a nomenclature given to the institute and it does not

convey that the Dental Wing was made a Regional Institute within the meaning of the expression ‘Regional Institute’ as understood in common

parlance. The change incorporated and the renaming the institute as Regional Dental College, Guwahati was duly informed to all the States of

Northeastern Region and by such change neither the entitlements nor the obligations of the other States of the Northeastern Region had changed in

any manner and it continued to remain the way it was as provided in the communication, the letter and the Scheme referred above, under which the

Dental Wing at Gauhati Medical College was constituted.

A further contention has been raised that as required under paragraph 13 of the Scheme, the existing staff of the Department of Dentistry of the

Gauhati Medical College was made the nucleus of the staff of the Dental Wing after the conversion and the details of the existing staff provided in

paragraph 13 of the Scheme itself shows that the requirement on the Health and Family Welfare (B) Department of Government of Assam was to

place the given posts of the department with the Dental Wing. According to the learned senior counsel what was required to be placed was post

specific and not person specific and whosoever person may hold the post at a given point of time would be the person to serve in the Dental

Wing/RDC, and the post as such remains a post under the Health and Family Welfare (B) Department of the Government of Assam.

A contention is also raised by the learned senior counsel for the appellant that although the posts are required to be placed by the Health and

Family Welfare (B) Department of the Government of Assam with the Dental Wing/RDC, but the person who is holding the post continues to remain

an employee of Government of Assam and all his service conditions including appointment, promotion and pensionary benefits are provided by the

Government of Assam itself. The person concerned being an employee of the Government of Assam, under the service law jurisprudence, it is the

discretion of the Government of Assam to post the person concerned to any of the posts of similar benefit under the Government of Assam and the

employee has no right to choose as to where he should be posted or as to where he should be continued to be posted. From the said point of view the

order dated 04.09.2018 of the Principal Secretary to the Government of Assam in the Health and Family Welfare (B) Department, by which the

respondent Dr. Bhabatosh Kumar Roy was posted as the Principal-in-Charge of the Dental College at Dibrugarh would be within the acceptable

competence of the Department.

A further contention has also been raised by the learned senior counsel for the appellant that the Advisory Committee contemplated in the letter

dated 24.02.1982 of the Deputy Advisor Planning Commission was constituted by the Government of Assam in the Health and Family Welfare(B)

Department as per Notification dated 27.11.1982. The Advisory Committee constituted as per the said Notification comprised of the following:

“Name of Representatives

Secretary to the Government of Assam, Health & Family -Ex-Officio Chairman

Welfare Deptt.

Professor & Head of the Dental Wing, Gauhati Medical College-Ex-Officio Member Secretary

Principal, Gauhati Medical College, Gauhati -Member

Director of Health Services, Assam, Gauhati-6 - do-

Representative from North Eastern Council, Shillong - do-

Representative from Government of Meghalaya, Shillong - do-

Representative from Government of Manipur - do-

Representative from Government of Arunachal Pradesh - do-

Representative from Government of Mizoram - do-

Representative from Government of Tripura - do-

Representative from University of Gauhati - do-

Dr. RL Ghose, Dental Surgeon, Zunheboto Civil Hospital -do- “

Nagaland (Representative from Government of Nagaland)

The Notification of 27.11.1982 further provided for the duties and powers of the Advisory Committee, which are extracted as below:

“The duties and powers of the Advisory Committee are as follows:

(1). To resolve problems that may arise from time to time relating to smooth functioning of the Dental Wing.

(2). To recommend such measures as the Committee considered necessary in matters relating to students’ Hostels and welfare.

(3). To consider, examine and initiate proposals for improvement of the Dental Wing.

(4). To advise on any question as referred to it by the Director of Health Services, Government of Assam or North Eastern Council.

The decisions and recommendations of the Advisory Committee would be reported to Director of Health Services, Assam and to Government of

Assam.

The Secretary of the Advisory Committee would hold meeting in consultation with the Chairman of the Advisory Committee as and when necessary.

Meeting of the Advisory Committee may be as often as occasion demand.â€​

Mr. D Saikia, learned senior counsel for the appellant by referring to the Notification dated 27.11.1982 contends that the duties and powers of the

Advisory Committee is limited to what has been provided in the said Notification and, amongst others, it includes the duty to resolve any problem that

may arise from time to time relating to smooth functioning of the Dental Wing, to recommend measures in the matters relating to students hostel and

welfare, to initiate proposal for improvement of the Dental Wing and to advise the Director of Health Services, Government of Assam or the NEC on

any question referred by them. It further provides that the decision and recommendation of the Advisory Committee would be reported to the Director

of Health Services, Assam and to the Government of Assam.

On the basis of the powers and duties of the Advisory Committee provided by the Notification dated 27.11.1982, it is the contention of Mr. D

Saikia, learned Senior counsel that the Advisory Committee does not determine the service conditions of the employees of the Dental Wing/RDC. Its

role is basically confined to being advisory or recommendatory. It being so, the Advisory Committee has no authority to determine as to which

particular person is to be posted in a given post in the RDC, nor it has the authority to determine as to which particular person posted in the RDC is

required to be transferred out. All that the Government of Assam is bound to provide are persons of acceptable competence to man the posts which

are required to be provided by the Government of Assam to the RDC as per the Scheme and the Advisory Committee has no authority and control as

to who should be the particular person to be posted in such post.

A contention has been raised by Mr. D Saikia, learned senior counsel for the appellant that the writ petitioner in WA No.133/2019, namely, the

RDCTA was no longer a registered association when the writ petition WP(C)No.7231/2018 was filed, inasmuch as, its registration had already

expired and, secondly, the association does not represent all the existing teachers in the RDC and in fact, except for a few teachers having some

vested interest of their own, the majority of the teachers are against the cause being espoused by the RDCTA in the said writ petition. According to

the learned senior counsel, many of the teachers in the RDC are in favour of being employees of the Government of Assam and in being so they have

a much better career prospect inasmuch as, more promotional avenues would be available to them when they are accepted to be part of a common

cadre in the dental colleges in Assam, rather than being accepted, as claimed for by the writ petitioners, to be a part of a separate cadre confined to

the RDC. It is only a handful of the teachers of RDC who are interested to claim that they are a separate cadre confined to the RDC and such

interest to claim is for the reason that they have a lucrative private dental practice at Guwahati and, therefore, for their own vested interest they are

unwilling to be transferred to any other dental college located at a place other than Guwahati.

Per contra, Mr. MK Choudhury, learned senior counsel for the respondent/writ petitioner RDCTA, contends that the learned Single Judge in the

common judgment dated 08.03.2019 had not decided the issues raised by both the writ petitioners on the question of the RDC being a regional institute

of the NEC and all the States of the North Eastern Region having a common authority over the Institute for the reason that according to the learned

Single Judge there was a lack of material on record to arrive at any such conclusion. The learned Single Judge, due to lack of material had not decided

the issue regarding the regional character of the institute although certain tentative conclusions were arrived at on the issue.

According to the learned senior counsel for the writ petitioner RDCTA, admittedly the RDC is an institute which was established keeping in mind

the interest of the entire North Eastern States, although the details may not be available to conclusively declare that it is an institute of all the North

Eastern States. In the circumstance, the learned Single Judge was appropriate in requiring all the authorities of the respective North Eastern States,

including the NEC to sit together and resolve the issue and, therefore, the said requirement brought about by the learned Single Judge does not require

any interference in an intra-court appeal.

The learned senior counsel for the writ petitioner RDCTA contends that as it had not been conclusively decided whether the RDC is an institute of

all the North Eastern States and the NEC, therefore, an order of transfer issued by the Government of Assam in the Health and Family Welfare (B)

Department to transfer certain teachers functioning in the RDC to some other dental colleges in Assam would be an act without jurisdiction. Unless a

conclusion is arrived at that the teachers so transferred are employees of the Government of Assam in the Health and Family Welfare (B)

Department, any such order of transfer would be unsustainable. Accordingly, the view taken by the learned Single Judge that till any such appropriate

decision is taken on a collective basis by all the North Eastern States and the NEC and the questions framed in the judgment are adequately answered,

no action be taken for transferring any of the employees of the RDC to any other State managed dental colleges, does not require any interference.

The learned senior counsel for the respondent RDCTA refers to a memorandum of understanding (MOU) and contends that the Dental

Wing/RDC having been established on the basis of such MOU, the service conditions of the employees of the RDC would be governed by the

provisions of the MOU and the Scheme and all such provisions indicate that the RDC is not an institute of the Government of Assam in the Health

and Family Welfare (B) Department.

With regard to the said submission, we specifically take note of that it is the per contra contention of Mr. D Saikia, learned senior counsel for the

appellant that there does not exist any such MOU and the RDC was established as per the requirement of the communication, the letter and the

Scheme indicated above. The only reference to a MOU can be found in a letter bearing No.RDC/57/86/2266 dated 05.12.2017 of the Principal RDC

addressed to the Secretary to the Government of Assam in the Health and Family Welfare (B) Department. Clause 4 in the portion ‘copy to’ of

the said letter dated 05.12.2017, which has a reference to a MOU between the NEC and the beneficiary States is extracted as below:

“4. The Economic Advisor (HR) & L/o Advisor (Health), Ministry of Development of North Eastern Region, North Eastern Council Secretariat,

Nongrim Hills, Shillong, Meghalaya-793003 for favour of information and necessary action. This has a reference to your letter no.NEC/MED/49/97/03

dtd.23.11.2017. As per the MOU between NEC and Concerned States the beneficiary States i.e., Tripura, Meghalaya, Mizoram, Nagaland,

Arunachal Pradesh and Manipur have to clear their outstanding dues upto March, 2017. This may kindly be taken up with the concerned states. The

copy of the statement of pro-rata share to be paid by the beneficiary States is enclosed herewith.â€​

On the issue of existence of the MOU, the learned counsel for the other States of the North Eastern Region, as well as that of the NEC, have

made specific respective statements that neither the records contain any such MOU, nor they have noticed the existence of any such MOU. In fact,

the NEC upon receiving a copy of the said letter of the Principal RDC had requested that if any such MOU do exists, the copy thereof be provided to

them. Neither of the writ petitioners who rely upon the existence of the MOU could produce any copy of any such MOU so as to enable the Court to

arrive at a satisfaction about its existence.

In the circumstance, in course of the hearing the Court required the concerned former Principal of RDC, Dr. AK Adyapak, who was the author of

the letter dated 05.12.2017, to personally appear before the Court and apprise about the MOU referred in his letter. Other than making a statement

that he had seen the MOU, the former Principal concerned could not put forth any further information. On being asked as to what were the contents

of the MOU, the former Principal conveniently stated that he does not remember anything. As he was of the view that the document exists in the

office of the Principal of the RDC, we allowed the former Principal complete access to the Office of the Principal of the RDC to find out and extract

the MOU if it exists. After a search in the office of the Principal, the former Principal reported back that he could not find out any such MOU.

In the circumstance, we are constrained to follow the principle of Section 106 of the Evidence Act and arrive at a conclusion that the existence of

the MOU is a fact specifically in the knowledge of only the former Principal who had referred to it but the said person could not show its existence,

and as the former Principal could not show its existence, the existence itself of the MOU has to be disbelieved. Also, if the said document would have

been in existence, which was supposedly entered between the NEC and the other North Eastern States, atleast the NEC or any of the other States

would have had a copy of it in their record.

Mr. MK Choudhury, learned senior counsel for the writ petitioner RDCTA by referring to certain advertisements pertaining to recruitment in the

medical colleges in Assam and for recruitment to the RDC, raises the contention that although the faculty members of RDC, are recruited by the

Government of Assam in the Health and Family Welfare (B) Department, but they were specifically recruited for the RDC, and, therefore, they

cannot be transferred to any other institute. It is the contention that the fact that the faculty members were specifically recruited for the RDC, also

shows that they are a separate cadre, unconnected with the similar cadres of the Government of Assam in the Health and Family Welfare (B)

Department and, therefore, cannot be transferred.

For the purpose, Mr. MK Choudhury refers to the definition of ‘cadre’ contained in FR 9 of Assam where cadre is defined to mean the

strength of a service or part of service, sanctioned as a separate unit. According to the learned senior counsel, RDC is a separate unit having their

own separate gradation list and the gradation list pertaining to the RDC is not connected with any such gradation list of the medical colleges of Assam.

Mr. MK Choudhury, learned senior counsel also contends that the RDC is a joint venture of the NEC and the States of the North Eastern Region

and the salary and expenses of the faculty members are shared by the NEC and other States. It is submitted that since the finances are borne by the

States as well as the NEC, any decision regarding the service conditions of the faculty members of the institute, including that of transfer, cannot be

unilaterally taken by the Government of Assam, without taking the Governments of the other States into consideration.

A further submission is made by Mr. MK Choudhury, learned senior counsel that the Scheme under which the Dental Wing/RDC was constituted

envisages the existence of the ‘Advisory Committee’, and therefore, all such administrative decisions regarding the service conditions of the

faculty members can be taken only by the ‘Advisory Committee’ and not by the Government of Assam.

By referring to the provisions of Section 60 of the North Eastern Areas (Re-organization) Act, 1971, a submission is made by Mr. MK Choudhury,

learned senior counsel that as per Section 60 of the said Act, the Government of Assam would have to continue to provide the facilities to any other

Government which shall not be less favourable to such Government and people than what were provided before the appointed date and, therefore, the

Government of Assam cannot take over the service conditions of the faculty members of the RDC to the detriment of the Government and people of

other States.

To the contention raised by the appellant that the experience of the faculty members of the RDC are required by the Government of Assam for

the benefit of the students of the other dental colleges, Mr. MK Choudhury, learned senior counsel responds by contending that the two other dental

colleges in Assam and the RDC are different units and further the RDC is a post graduate institution, where there are research scholars and post

graduate guides and, therefore, the services of their faculty members would have to remain confined to the RDC itself.

A further contention is raised that no service rules have been framed for the faculty members of the RDC and the same can be framed only by

the Advisory Committee and therefore in the absence of the service rules the Government of Assam in the Health and Family Welfare (B)

Department cannot unilaterally have control over the service conditions.

Mr. SK Goswami, learned counsel for the respondent/writ petitioner, Dr. Bhabatosh Kumar Roy, while adopting the arguments made by Mr. MK

Choudhury, learned senior counsel for the writ petitioner RDCTA as regards the regional character of the RDC, that RDC was an institute

established by the NEC and the other North Eastern States, the RDC itself is a separate unit unconnected with the Health and Family Welfare(B)

Department of the Government of Assam and that the faculty members of the RDC constitutes a separate cadre, has raised a further contention that

the salary of the faculty members of the RDC is not wholly paid by the Government of Assam.

In this regard, it is the contention that financial inputs are provided by the NEC from time to time and all the States pays the required amount to the

Government of Assam on a pro-rata basis commensurating with the number of seats allotted to the respective States. The salary and allowances of

the faculty members and the other members of the RDC are, therefore, also partly paid by all the States and hence, it cannot be said that the salary

and allowances are paid by the Government of Assam.

Mr. SK Goswami, learned counsel by referring to the above submits that under the service law jurisprudence whichever entity pays the salary and

allowances to the employee has to be construed to be the employer. In the instant case, as the Government of Assam is not the sole entity which is

paying the salary and allowances to the faculty members of the RDC, therefore, the Government of Assam is not the employer entitling them to

transfer the faculty members to other posts under the Government of Assam.

Mr. SK Goswami, learned counsel also raises the contention that the RDC being an institute which was not established by the Government of

Assam, rather it being a college established as per Scheme of the NEC and presently being run on the basis of pro-rata shares contributed by all the

North Eastern States, and, it being an institute of purely regional character which came into existence as a separate entity, the writ petitioner, Dr.

Bhabatosh Kumar Roy can neither be transferred nor his conditions of service be changed by way of a transfer to any other institute established by

the Government of Assam from its own funds and schemes which are without any regional character. Accordingly, it is the contention that the writ

petitioner Dr. Bhabatosh Kumar Roy having been appointed to an exclusive cadre in the RDC, he cannot be transferred to any other Government

college comprising of a different cadre.

Mr. SK Goswami, learned counsel also raises a contention that the RDC is a post graduate institute for the North Eastern States established under

a NEC scheme where students from all over the North Eastern States have the benefit of seat allocation in both BDS and MDS courses, whereas the

dental colleges established by the Government of Assam at Silchar and Dibrugarh, where the writ petitioner Dr. Bhabatosh Kumar Roy has been

transferred to the Dental College at Dibrugarh are institutes where only the BDS courses are being offered. By referring to FR 9(4) of Assam, the

learned counsel relies on the definition of ‘cadre’ which is defined to be a separate unit and submits that the RDC, for the reasons stated above

and also as because it has a separate gradation list, is an entity separate from that of the other dental colleges in the State of Assam.

Accordingly, reliance is placed on the pronouncement of the Supreme Court in Jawaharlal Nehru University Vs. KS Jawatkar and Others reported

in 1989 Supp (1) SCC 679, wherein in paragraph 6 it is provided that no employee can be transferred without his consent from one employer to

another. Reliance is also placed on the pronouncement of the Supreme Court in Kavi Raj Vs. State of Jammu & Kashmir and Others reported in

2013(3) SCC 526, wherein in paragraph 24 it has been provided that an employee can only be posted or transferred to a post against which he was

selected and in the absence of any statutory rule where the service conditions are regulated differently, an employee cannot be posted or transferred

beyond the cadre to which he is selected without his readiness/willingness.

An alternative submission is also made that if the transfer of the writ petitioner Dr. Bhabatosh Kumar Roy at the dental college at Dibrugarh is

construed to be a deputation, still, by relying on the proposition laid down by the Supreme Court in paragraph 8 of Umapati Chowdhury Vs. State of

Bihar and Another reported in (1999) 4 SCC 659, wherein it is provided that the concept of deputation is consensual and involves a voluntary decision

of the employer to lend the services of his employee and also the consent of the employee whether to go on deputation or not, a submission is made

that in the instant case, the writ petitioner Dr. Bhabatosh Kumar Roy had not given any consent to be transferred to the Dental College at Dibrugarh.

To the aforesaid contention of the writ petitioner, Dr. Bhabatosh Kumar Roy, Mr. D Saikia, learned senior counsel for the appellant relies upon the

pronouncement of the Supreme Court in paragraph 10 of the pronouncement in PU Joshi and Others Vs. Accountant General, Ahmedabad and

Others reported in (2003) 2 SCC 632, wherein it is provided that there is no right in any employee of the State to claim that the rules governing the

conditions of his service should forever remain the same and except for ensuring or safeguarding the rights or benefits already earned, acquired or

accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new

rules relating even to an existing service.

We are also required to take note of the contention raised on behalf of the respondent NEC, that NEC does not consider the RDC to be an

institute of the NEC, except for providing the financial inputs that were already provided and that the NEC neither seeks any administrative control

over the institute, as well as to regulate the service conditions of its employees, nor the NEC seeks to consider the faculty members and the

employees of the RDC to be the employees of the NEC. To that effect, specific stand has been taken by the NEC in their affidavit and oral

submissions on the same effect are also made before the Court.

On the basis of the contention raised by the writ petitioner, Dr. Bhabatosh Kumar Roy that the respective States of the North Eastern Region

having contributed to the financial input to the institute from which the salary and allowances of its employees are paid, the implication thereof would

be that the employees of the RDC are employees of all the North Eastern States in a collective manner, a further question had arisen before the Court

as to whether the other States of the North Eastern Region considers the employees of the RDC to be their employees in a collective manner.

Accordingly, all the respective States were required to file their respective affidavits and make their stand clear.

The States of Meghalaya, Tripura and Sikkim have not responded to the aforesaid query. But the State of Manipur was emphatic and

unambiguous that they are happy with the present arrangement of the RDC where the State of Manipur is provided with certain number of seats and

the pro-rata amount required to be paid against such seats are being paid by them. The State of Manipur had been emphatic that they do not consider

the faculty members and the other employees of the RDC to be their employees in any manner and also they are not agreeable to take any

responsibility towards the faculty members and the employees.

Mr. S Sarma, learned counsel for the State of Manipur makes a candid submission that accepting the faculty members and employees of the RDC

to be the employees of the State of Manipur, even partly, would entail the State of Manipur to take the responsibility of the faculty members and the

employees even for their pensionary benefits, over and above, the payment of salary and allowances. Understanding the implication the State of

Manipur is not ready to accept the faculty members and employees of the RDC to be their employees, even partly.

The States of Arunachal Pradesh and Mizoram through Mr. BD Goswami, learned Additional Advocate General for the State of Arunachal and

Mr. AD Choudhury, learned Additional Advocate General for the State of Mizoram, respectively, takes the same view as that of Mr. S Sarma learned

counsel for the State of Manipur. The State of Nagaland initially tried to take a different view by making a presentation that they consider the faculty

members and the employees of the RDC also to be partly their employees, but on a deeper understanding of the stand taken by the State of Manipur,

Ms. T Krow, learned Senior Government Advocate for the State of Nagaland also takes the stand that the State of Nagaland is not willing to take the

responsibility of the faculty members and employees of the RDC.

Mr. KN Choudhury, learned senior counsel who subsequently appeared for the writ petitioner Dr. Bhabatosh Kumar Roy raises the contention

that the RDC being an institute with a distinct regional character under the Scheme, is administered by the Advisory Committee comprising of the

representatives of all the North Eastern States. The Advisory Committee being the authority under which the RDC functions, it would be the Advisory

Committee who would pay and regulate the salary and allowances as well as the pensionary/retirement benefits of the faculty members and

employees of the RDC.

Mr. KN Choudhury, learned senior counsel also raises a contention that in creating the dental colleges in the State of Assam there was an

amalgamation of the Department of Dentistry in the medical colleges at Dibrugarh and Silchar with that of the dental colleges, but there was no such

amalgamation with the RDC and therefore, the RDC remained a separate entity.

Mr. D Saikia, learned senior counsel for the appellant in reply states that the gradation list of 2015 specific to the RDC cannot give an indication

that the RDC comprises of a separate cadre, inasmuch as, in the year 2015 there was only one dental college in the State of Assam, that was the

RDC and, therefore, the gradation list of the dental colleges referred only to RDC. But subsequent to the establishment of the other two dental

colleges, there now would be a combined gradation list of all the 3(three) dental colleges including the RDC.

As regards the contention that the RDC imparts post graduate courses as well as houses research scholars and therefore, it is a class distinguishable

and separate from the other dental colleges, it is the contention of Mr. D Saikia that every dental college needs a period of gestation to mature into a

full bloom dental college offering the graduate, post graduate courses and other research facilities and in course of time even the other two dental

colleges at Dibrugarh and Silchar and also the other dental colleges whose establishment is in the pipeline would also be offering the same courses as

that of the RDC. Further the faculty members of the other dental colleges are in no way inferior as regards qualification and eligibility and even the

RDC at its stage of inception was in a similar situation and further the policy of transfer from one dental college to the other would support the more

rational distribution of the faculty members amongst all the three dental colleges.

Mr. D Saikia in his reply relies upon the pronouncement of the Supreme Court in paragraph 37 of Union of India Vs. Pushpa Rani and others

reported in (2008) 9 SCC 242 wherein in paragraph 37 it is provided that it is the settled legal position that matters relating to creating and abolition of

posts, formation and structuring/restructuring of cadres etc., fall within the exclusive domain of the employer. The power of judicial review can be

exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently

arbitrary or is vitiated due to malafides. It is the submission that in the instant case, it is a restructuring of the cadre by the Government of Assam in

the Health and Family Welfare (B) Department, which was necessitated by the establishment of two further dental colleges. The act of restructuring

of the cadre is contended to be neither contrary to any constitutional or statutory provision nor it is patently arbitrary or vitiated by malafides.

Reliance has also been placed in the pronouncement of the Supreme Court in paragraph 51 of Dhole Govind Sahebrao and Others reported in

(2015) 6 SCC 727 wherein an earlier pronouncement in State of Maharastra Vs. Chandrakant Anant Kulkarni reported in (1981) 4 SCC 13 0was

extracted which provided that a decision to merge cadres is essentially a matter of policy and since the three cadres that were merged carried the

same scale of pay at the relevant time, the merger cannot be said to have caused any prejudice to the members of any of the cadres.

A further reliance is placed in the pronouncement of the Supreme Court in paragraph 17 of Nihal Singh and others Vs. State of Punjab and others

reported in (2013) 14 SCC 65 wherein it was provided that from a mere fact that the payment of wages came from the Bank at whose disposal the

services of the appellants therein were kept, did not render the said appellants to be the employees of those Banks. It was provided that the

appointment was made by the State and the disciplinary control vested with the State and the two factors conclusively established that a relationship of

master and servant existed between the State and the appellants therein. By relying on the said proposition the contention raised is that merely

because the other States may have a contribution to the financial inputs to the RDC on a pro-rata basis and which contribution may ultimately be

channelized for paying their salary and allowances, the same would not make the faculty members and the employees of the RDC to be employees of

such other States.

With regard to the conclusion arrived at by the learned Single Judge to give a hearing to the writ petitioners in the discussion that was directed to

be made between the States and the NEC, Mr. Saikia relies upon the pronouncement of the Supreme Court in paragraph 39 ofI ndian Airlines

Officers’ Assn. Vs. Indian Airlines Ltd. and Others reported in (2007) 10 SCC 68 4wherein it was provided that where in the situation of merger

between the Indian Airlines and the Air India, the authorities were alive to the service conditions of the Indian Airlines employees and had their future

in mind, the authorities were not bound to negotiate with the Indian Airlines Officers’ Association before formulating the policy of merger.

To conclude it is the contention of Mr. D Saikia, learned senior counsel that in any view of the matter the writ petitioner Dr. Bhabatosh Kumar

Roy as well as the members of the writ petitioner RDCTA were all appointed to posts under the Government of Assam in the Health and Family

Welfare (B) Department and their services were under the Director of Medical Association Assam and, hence, there was no change of any cadre in

issuing the order of transfer against the petitioner Dr. Bhabatosh Kumar Roy. All the service benefits of Dr. Bhabatosh Kumar Roy are protected. In

fact, he was transferred and posted at a post of higher level being the In-Charge Principal of the Dental College at Dibrugarh. The transfer was fully

in the interest of administrative exigency and public interest of establishing and operating more dental colleges in the State of Assam from which the

dental patients as well as the aspiring students for a dental course would all benefit.

In the conspectus of the aforesaid contentions raised by the parties to the proceeding, the following questions for determination arises:-

(i) Whether the Dental Wing of the Gauhati Medical College/Regional Dental College, has a regional character and whether it is an institution of the

NEC as well as that of the States of the Northeastern region on a collective basis?

(ii) Whether the employees of the Dental Wing of the Gauhati Medical College/Regional Dental College, including the teaching faculty, are employees

of the Government of Assam in the Health and Family Welfare (B) Department or they are directly employees of the Dental Wing of the Gauhati

Medical College/Regional Dental College and which authority has a control over the service conditions of such employees?

Whether the Dental Wing of the Gauhati Medical College/Regional Dental College, has a regional character and whether it is an institution of the

NEC as well as that of the States of the Northeastern region on a collective basis?

Both Mr. MK Choudhury, learned senior counsel for the respondent RDCTA in WA No.133/2019 as well as Mr. SK Goswami learned counsel

and Mr. KN Choudhury, learned senior counsel for the respondent Dr. Bhabotosh Kumar Roy in WA 125/2019 has raised the contention that the

Dental Wing of the Gauhati Medical College which was created in the year 1982 and later on became the RDC in the year 1985 has a regional

character of its own inasmuch as, it was created and established for the purpose of catering to the needs and requirements of all the States of the

Northeastern Region and it was established on the basis of financial inputs from the NEC and is being operated on the basis of financial contributions

from all the States of the Northeastern Region. Upon the creation and establishment of the Dental Wing/RDC, it no longer remains an institution of the

Health and Family Welfare (B) Department of the Government of Assam and the institute became an institute of the entire Northeastern Region,

although it is not in the class of an autonomous institution. For the purpose of being in overall control and managing the affairs of the institution, the

Advisory Committee has been put in place and it is the Advisory Committee which would be the authority who would be in-charge and also decide

upon the service conditions of the employees and the faculty members of the institute. For the creation and establishment of the Dental Wing/RDC,

the employees and the faculty members severed their link with the Government of Assam in the Health and Family Welfare (B) Department and

became whole-time employees of the institute. The Government of Assam in the Health and Family Welfare (B) Department may be paying the

salary and allowances to the employees and the faculty members, but that is not because they are the employees of the Government of Assam, but

because all the States are financially contributing their part of their contributions to the Government of Assam and the Government of Assam pays the

salaries and allowances from such fund which includes the contributions. It is the contention that in the circumstance, the Government of Assam

merely acts as a trustee and a medium for making the payment of the salaries and allowances.

Per-contra, it is the contention of Mr. D Saikia, learned senior counsel for the appellant being the Government of Assam in the Health and Family

Welfare (B) Department that the Dental Wing/RDC was created upon the acceptance by the Government of Assam of the requirement of the

communication bearing No.NEPF/5/67/AS dated 24.03.1982 of the Assistant Financial Advisor of NEC. The said communication of the Assistant

Financial Advisor of the NEC referred to the approval of the Scheme for opening a Dental Wing in the Gauhati Medical College under NEC

programme, subject to the Government of Assam complying with the suggestions of the Planning Commission contained in the D.O letter dated

24.02.1982. The D.O letter dated 24.02.1982 of the Planning Commission contains the approval granted to the Scheme for opening the Dental Wing

subject to, amongst others, on the condition that specific formal arrangements may be made for all the States and Union Territories of the

Northeastern Region to get a fair share of the facilities created with NEC assistance and further that an Advisory Committee comprising of the

representatives of all the States and Union Territories with one or two eminent Dental Professors/Surgeons of the country as members, be put in

place.

By referring to the said communication of the Assistant Financial Advisor to the NEC dated 24.03.1982 and the D.O letter dated 24.02.1982 of the

Deputy Advisor to the Planning Commission, it is the contention of Mr. D Saikia, learned senior counsel that the status of the Dental Wing/RDC as to

whether it is an institute with regional character and whether it is an institution of the NEC as well as that of the States of the Northeastern Region on

a collective basis, would be determined on the basis of the contents of the said communication dated 24.03.1982, D.O letter dated 24.02.1982 as well

as the contents of the Scheme that was approved by the Planning Commission. According to the learned senior counsel, if it is discernible from the

contents of the communication dated 24.03.1982, D.O letter dated 24.02.1982 and the approved Scheme of the Planning Commission that the Dental

Wing/RDC is an institute with a regional character and it is an institute of the NEC as well as that of the States of the Northeastern region on a

collective basis, in such event it can be said to be so. But according to the Government of Assam the Dental Wing/RDC is an institute, whose status

would be as provided in the aforesaid communication dated 24.03.1982, D.O letter dated 24.02.1982 and the approved Scheme of the Planning

Commission and nothing further can be imported as regards the status of the institute beyond what is provided in the aforesaid communication, D.O

letter and the approved Scheme of the Planning Commission.

On the aforesaid basis, it is the submission of the appellant that the D.O letter dated 24.02.1982 only requires that there must be a specific formal

arrangement for all the States and the Union Territories of the Northeastern Region to get a fair share of the facilities created in the Dental

Wing/RDC with NEC assistance. The fact that the NEC had provided Rs.65,00,000/- towards constructions of buildings, equipments etc has to be

accepted that the Dental Wing/RDC is a facility created with NEC assistance and as a quid pro quo for such assistance the Government of Assam is

required to provide a fair share of the facilities that have been created to all the States and Union Territories of the Northeastern region. According to

the learned senior counsel, the fair share comprises of providing the required number of seats in the dental courses undertaken in the Dental

Wing/RDC to all the States of the Northeastern region (in the meantime we only have States in the Northeastern region although at the time of

initiation there may have been Union Territories also). The Government of Assam, as required, is providing the required number of seats to all the

States. Further, the dental service facilities available in the Dental Wing/RDC are made openly available to any dental patient from the Northeastern

States who may like to avail such services. When there was an increase in the number of seats in the dental courses, the Government of Assam on its

own volition had allotted proportionate number of such increased seats to all the States of the Northeastern region. The said aspect of the matter

according to the learned senior counsel comprises of the fair share of the facilities in the Dental Wing/RDC being provided to all the States of the

Northeastern Region.

According to the learned senior counsel the fact of providing a fair share of the facilities in the Dental Wing/RDC by itself is the regional

character of the institute.

It is also the contention that in the year 1985, the Government of Assam re-nomenclatured the institute to be a Regional Dental College and the re-

nomenclature was accepted by all the States of Northeastern Region. Merely because the Government of Assam has unilaterally changed the

nomenclature as Regional Dental College, such change of nomenclature on its own would not change the nature and character of the institute beyond

what are provided in the aforementioned communication dated 24.03.1982, D.O letter dated 24.02.1982 and the Scheme approved by the Planning

Commission.

The further contention of the appellant is that although the D.O letter dated 24.02.1982 requires an Advisory Committee to be put in place, but the

role of the Advisory Committee is confined as provided in the notification No.HLB.202/82/30 of the Government of Assam in the Health and Family

Welfare (B) Department. The Government of Assam as required by the D.O letter dated 24.02.1982 of the Planning Commission had also put in

place the Advisory Committee as required and the duties and powers of the Advisory Committee as notified in the notification dated 27.11.1982 had

been circulated amongst all the States of the Northeastern region and the duties and powers of the Advisory Committee provided in the notification

had been accepted by all the Northeastern States without seeking for any modification.

In determining the question as the whether the Dental Wing of the Gauhati Medical College/Regional Dental College has a regional character and

whether it is an institution of the NEC as well as that of the States of the Northeastern Region on a collective basis, we also take note of the stand of

the NEC that its requirement is that the Dental Wing/RDC should continue to share the facilities of the institution with all the States of the

Northeastern Region and continue to allocate the required number of seats in the dental courses to all the States. The States of Manipur, Mizoram and

Arunachal Pradesh are also unambiguous in their view that they are happy under the present arrangement that they will be continued to be allotted

with the required number of seats for the dental courses and the dental services facilities be also made available to the people of the States and in lieu

thereof they would continue to pay the required amount on a pro-rata basis corresponding to the number of seats allotted to them. Although the State

of Nagaland initially took a stand that the Dental Wing/RDC is also an institute of the Government of Nagaland, but upon a deeper understanding of

the implications thereof, had taken the same stand as that of the States of Manipur, Mizoram and Arunachal Pradesh. The States of Meghalaya,

Tripura and Sikkim have not entered appearance, even though notices were served through special messenger and in the circumstance we are to

understand that they do not have a view of their to be expressed.

The concept of an institution being an institution of regional character is a wide concept. Any institute under the arrangement on which it was

created or established may require the benefits of the institute to be shared in a given manner with any other State or States within a region. Any

requirement of sharing such benefits would render the institute to be an institute with regional character.

In the instant case, under the communication dated 24.03.1982 of the NEC, there is a requirement of the Government of Assam to comply with

the suggestions of the Planning Commission in the D.O letter dated 24.02.1982. One such suggestion in the D.O letter dated 24.02.1982 of the

Planning Commission is that there be a specific formal arrangement made for all the States of the Northeastern Region to get a fair share of the

facilities in the Dental Wing/RDC that is to be created with the NEC assistance. The said suggestion in the D.O letter dated 24.02.1982 of the

Planning Commission which has to be complied with by the Government of Assam, is itself an indication that it is the Government of Assam which

would have the overall control over the institution, but in doing so the facilities have to be shared in a fair manner with all the other States. No mention

has been made in the suggestion contained in the D.O letter dated 24.02.1982 of the Planning Commission or in the approved Scheme that upon

creation of the Dental Wing/RDC, it would be an institute either of the NEC or of all the States of the Northeastern region in a collective basis.

In our view, in the absence of any such provision either in the communication dated 24.03.1982 of the NEC or in the D.O letter dated 24.02.1982

of the Planning Commission or in the approved Scheme, the regional character of the Dental Wing/RDC has to be accepted to be the requirement to

give a fair share of the facilities in the institution to all the Northeastern States. The aspect as to whether the Dental Wing/RDC itself is an institute of

the NEC or of all the States of the Northeastern Region on a collective basis would have to be construed separately and independently from the

aspect of the institute having a regional character as indicated above.

It has heavily been relied upon by the respondents RDCTA and Dr. Bhabotosh Kumar Roy, respectively, on the requirement of putting in place

the Advisory Committee to substantiate that the Dental Wing/RDC is wholly being governed by the Advisory Committee. In fact, it has also been

contended that the Advisory Committee being made defunct pursuant to the minutes of the 23 rd meeting of the Advisory Committee held on

11.01.2013 under the Chairmanship of the Additional Chief Secretary to the Government of Assam in the Health and Family Welfare Department, the

Government of Assam had usurped upon the Dental Wing/RDC to claim it to be their own institute.

True, by the minutes of the meeting of the Advisory Committee held on 11.01.2013, the Advisory Committee had been made dysfunctional to

some extent. But at the same time, it by itself cannot be the sole basis to arrive at any conclusion that the Dental Wing/RDC being an institute of all

the States of the Northeastern Region has been usurped upon by the Government of Assam. For the purpose, we look into the role as well as the

duties and powers of the Advisory Committee even at the stage when it was fully functional. The duties and powers of the Advisory Committee as

provided in the notification dated 27.11.1982 are to resolve problems that may arise from time to time relating to smooth functioning of the Dental

Wing; to recommend such measures as the Committee considered necessary in matters relating to students hostels and welfare; to consider, examine

and initiate proposals for improvement of the Dental Wing; and to advise on any question as referred to it by the Director of Health Services,

Government of Assam or North Eastern Council, and the decisions and recommendations of the Advisory Committee would be reported to Director of

Health Services, Assam and to Government of Assam. The notification further provided that the Secretary of the Advisory Committee would hold

meeting in consultation with the Chairman of the Advisory Committee as and when necessary and the meeting of the Advisory Committee may be as

often as occasion demands.

We also take note that the duties and powers of the Advisory Committee, as contained in the notification dates 27.11.1982 have been accepted by

all the States of the Northeastern Region and there was no disagreement requiring any modification. As a corollary, it has to be understood that the

role of the Advisory Committee in respect of the Dental Wing/RDC is mainly recommendatory and advisory in nature in respect of any such problem

that may arise from time to time related to its smooth functioning. The duties and powers clearly does not provide for any complete overall control of

the Administrative Council over the Dental Wing/RDC. We further take note of that any such decision or recommendation by the Advisory

Committee would be reported to the Director of Health Services of Assam and to the Government of Assam, which again makes it discernible that

even the decision or recommendation would be implemented by the Director of Health Services, Assam or the Government of Assam.

From the aforesaid aspects as regards the Advisory Committee, it would be unsafe for us to arrive at a conclusion that the Dental Wing/RDC is

an institution which is wholly governed by the Advisory Committee constituted for the purpose and all such day to day administrative decisions and

actions as regards the institution would be performed by the Advisory Committee.

From the said point of view, we also cannot accept the contention of the respondents RDCTA and Dr. Bhabatosh Kumar Roy that by making the

Advisory Committee dysfunctional, the Government of Assam had usurped upon the Dental Wing/RDC to claim it to be their own institute. But at the

same time, we also express our view that as the requirement of putting in place an Advisory Committee is a provision of the D.O letter dated

24.02.1982 of the Planning Commission, it is incumbent upon the Government of Assam as well as the other States of the Northeastern Region and

the NEC to keep the Advisory Committee functional and allow it to perform its duties and powers as provided in the notification dated 27.11.1982.

In the absence of any challenge to the notification dated 27.11.1982 and all the States having accepted the provisions thereof and as no

modification of the same has been sought for, we are of the view that the duties and powers of the Advisory Committee cannot be expanded on the

basis of the contention raised by the respondents RDCTA and Dr. Bhabatosh Kumar Roy and if the States of the Northeastern Region or the NEC

deems it appropriate that the same requires any modification, it can always be up to the States or the NEC to arrive at a consensus with the

Government of Assam and incorporate the modification as may be required.

In the circumstance as indicated above, the question as to whether the Dental Wing/RDC has a regional character, is answered to the extent that

the regional character would be as provided in the suggestions contained in the D.O letter dated 24.02.1982 of the Planning Commission to provide for

a fair share of the facilities in the Dental Wing/RDC to all the States of the Northeastern Region. It is an admitted position that a given quantified

number of seats in the dental courses undertaken in the Dental Wing/RDC are allotted and provided to all the States of the Northeastern Region in the

manner as determined and the dental services provided in the institution are also open to be availed by any person from the Northeastern Region and

at least three of the States have expressed their view before the Court that they are satisfied with the present arrangement. Accordingly, it has to be

construed that the suggestion contained in the D.O letter dated 24.02.1982 of the Planning Commission to provide for a fair share of the facilities in

the Dental Wing/RDC had been complied with.

As regards the question as to whether the Dental Wing/RDC is an institution of the NEC or of all the States of the Northeastern Region on a

collective basis, the materials available on record, particularly the communication dated 24.03.1982 of the NEC, the D.O letter dated 24.02.1982 of the

Planning Commission and the Scheme approved by the Planning Commission, does not in any clear terms indicate that the Dental Wing/RDC would

be an institution of the NEC or of all the States of the Northeastern Region on a collective basis. In the absence of any further specific material to

give a conclusive answer to the question, we are of the view that if the NEC or the States of the Northeastern Region are of the opinion that the

Dental Wing/RDC ought to be an institution either of the NEC or of all or any of the other States of the Northeastern Region, the same may be

amicably decided between all the States and the NEC. But in doing so, if any such conclusion is arrived that it would be an institute of the NEC or of

all the Northeastern States on a collective basis, specific and elaborate provisions should be put in place for governing the administration of the Dental

Wing/RDC as well as provide for the specific service conditions of the employees and the faculty members of the institute. Till any such conclusion is

arrived between the States and the NEC, and specific provisions are put in place, the employees and the faculty members would be governed by the

service conditions presently in place in the Dental Wing/RDC.

In the judgment of the learned Single Judge, it had also been provided that in the event any such decision is sought to be arrived at by the

stakeholders in the institute i.e. the Government of Assam, the NEC, and the Government of India, the writ petitioners i.e. the respondents RDCTA

and Dr. Bhabatosh Kumar Roy be also given an opportunity of submitting their views and being heard. Mr. D Saikia, learned senior counsel for the

appellant has raised an objection to the participation of the writ petitioners in any such decision making process and that the writ petitioners would

have no role to play in any such decision making process between the States, the NEC and the Government of India. For the purpose, reliance is

placed on the pronouncement of the Supreme Court in Indian Airlines Officers Association (supra), wherein in paragraph 41 it is provided that if the

authorities were alive to the service conditions of the employees and had their future in mind, the authorities were not bound to negotiate with the

employees association before formulating any policy and such policy would not be rendered non est, nor would suffer from the vice of arbitrariness.

Paragraph 41 of the pronouncement of the Supreme Court in Indian Airlines Officers Association (supra) is extracted below:-

“………Where it is seen that the authorities were alive to the service conditions of the Indian Airlines employees and had their future

in mind also, the authorities were not bound to negotiate with the appellant Association before formulating the policy. Such policy which is

framed without active negotiations with the appellant Association would not (for that reason alone) be rendered non est and would suffer

from the vice of arbitrariness. …….â€​

The proposition laid down by the Supreme Court is amply clear that if there arise a question as to which authority would be the employer, any

decision between the authorities on the question of who would be the employer would be within the realm of a policy decision between the authorities

and the employees as such would not have a role to play in any such decision. The only aspect remaining open to the employees would that if after the

decision between the authorities as to who would be employer, the employees are subjected to any adverse service condition, the employees would be

within their liberty to assail the same.

But as of now, without there being any decision having arrived at as to whether the Dental Wing/RDC is an institute of the NEC, or the States of

the Northeastern Region on a collective basis or the Central Government, the service conditions of the employees and the faculty members of the

Dental Wing/RDC would have to be looked into and understood from the existing materials on record, more particularly the communication dated

24.03.1982 of the NEC, D.O letter dated 24.02.1982 of the Planning Commission and the Scheme approved by the Planning Commission.

Whether the employees of the Dental Wing of the Gauhati Medical College/Regional Dental College, including the teaching faculty, are

employees of the Government of Assam in the Health and Family Welfare (B) Department or they are directly employees of the Dental Wing

of the Gauhati Medical College/Regional Dental College and which authority has a control over the service conditions of such employees?

It is the contention of both Mr. MK Choudhury learned senior counsel for the respondent RDCTA as well as Mr. SK Goswami learned counsel

and Mr. KN Choudhury learned senior counsel for the respondent Dr. Bhabatosh Kumar Roy that the faculty members of the Dental Wing/RDC

comprises of a separate cadre by itself, distinguishable from the teaching faculties of the other dental colleges under the Health and Family Welfare

(B) Department of the Government of Assam and therefore there cannot be an inter cadre transfer from the teaching faculties of the Dental

Wing/RDC to the teaching faculties of a dental college under the Health and Family Welfare (B) Department of the Government of Assam. The

learned counsel in order to substantiate their contention refers to the definition of the expression ‘cadre’ as contained in FR 9 of Assam where

cadre is defined to mean ‘the strength of a service or part of service sanctioned as a separate unit’. Further reliance has also been placed on a

gradation list of the year 2015 of the faculty members of the RDC to substantiate that the maintenance of a separate gradation list is also an indicator

that the faculty members of the Dental Wing/RDC forms a separate cadre as a gradation list itself is a concept based upon a cadre.

Further, contention has been raised that the salaries of the faculty members of the Dental Wing/RDC although paid by the Government of Assam,

but are paid from a fund to which there are contributions from all the States of the Northeastern Region, as well as that of the NEC. The learned

counsel for the respondents RDCTA and Dr. Bhabatosh Kumar Roy refer to a concept under the service law jurisprudence that whosoever pays the

salary is the employer. Accordingly, the contention raised is that the salaries of the faculty members of the Dental Wing/RDC having been paid by all

the States of the Northeastern Region on a collective basis, as well as by the NEC, it cannot be said that the Government of Assam in the Health and

Family Welfare (B) Department would be the employer of the faculty members of the Dental Wing/RDC and hence, the Government of Assam in the

Health and Family Welfare (B) Department would also have no authority to transfer the faculty members from the Dental Wing/RDC to any other

dental college under the said department.

With regard to the contention of the faculty members of the Dental Wing/RDC being a separate cadre on the basis of there being a separate

gradation list which existed in the year 2015, we also take note of the per contra contention of Mr. D Saikia, learned senior counsel of the appellant

that in the year 2015 there was only one institute where the employees of the Government of Assam in the Health and Family Welfare (B)

Department were its faculty members and that was the Dental Wing/RDC. In the said factual circumstance, the only logical presentation would be

that the gradation list of the faculty members who were employees of the department would comprise of a gradation list containing only the faculty

members of the RDC. But subsequently, upon the other dental colleges being brought into existence, the gradation list of the faculty members who are

employees under the Health and Family Welfare (B) Department would constitute a combined gradation list of all the faculty members which would

include the Dental Wing/RDC as well as the other dental colleges.

On the issue whether the faculty members of the Dental Wing/RDC comprises of a separate cadre on the basis of the existence of the gradation

list of the faculty members of the RDC in the year 2015, it would be unsafe to conclude that faculty members of the Dental Wing/RDC forms a

separate cadre merely because of the existence of the gradation list of the faculty members of the RDC in the year 2015. It would be unsafe as in the

year 2015 there did not exist any other gradation list of faculty members of any dental college who were employees of the Health and Family Welfare

(B) Department of the Government Of Assam, which would have been separate and distinguishable from the gradation list of the faculty members of

the Dental Wing/RDC of the year 2015.

In this respect due weightage would also have to be given to the contention of Mr. D Saikia, learned senior counsel for the appellant that the

composition of a cadre is a continuous process and it is always open for the authorities to increase or decrease the cadre or to form two separate

cadres out of one existing cadre or to merge two separate existing cadres into one cadre.

In this respect reliance is placed on the pronouncement of the Supreme Court in paragraph 37 in Pushpa Rani and Ors. (supra) which is

extracted as below:-

“Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to

creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and

qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What

steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can

be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is

patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a

particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of

recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the

candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of

improving efficiency of administration.â€​

Reliance is also placed in paragraph 10 of P.U. Joshi and Ors. (supra) which is extracted as below:-

“We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern,

nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including

avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and

jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the

statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of

promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to

change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other

conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise,

the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories

of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and

cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts.

There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one

when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at

a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new

rules relating to even an existing service.â€​

Further reliance is also placed on the pronouncement of the Supreme Court in paragraphs 40 and 51 of Dhole Govind Sahebrao and Ors. (supra)

which are extracted as below:-

40.“As a proposition of law it is imperative for us to record that chances of promotion do not constitute conditions of service, and as

such, mere alteration of chances of promotion, would not per se call for judicial interference. The above general proposition would not be

applicable in case the chances of promotion are altered arbitrarily, or on the basis of considerations which are shown to be perverse or

mala fide.â€​

“Reliance was also placed on the decision of this Court in S.P. Shivprasad Pipal v. Union of India [(1998) 4 SCC 598 : 1998 SCC

(L&S) 1263] . In the said judgment, this Court considered the validity of the Notification dated 3-2-1987, which had resulted in the

constitution of a Central Labour Service, by a merger of three existing cadres. According to the appellant before this Court, the three

cadres which were sought to be amalgamated, had different statutory functions, different qualifications and different duties and powers. By

merging the three cadres, according to the appellant before this Court, unequals had been treated as equals. The pointed contention on

behalf of the appellant, who belonged to one of the three cadres was, that he had been placed in a condition, worse than the position he

occupied in the original cadre. The claim of the appellant was, that his chances of promotion had been substantially diminished. One of the

grounds for raising the challenge was, that the merger of the three cadres was in violation of Articles 14 and 16 of the Constitution of

India. This Court having taken into consideration the decision in Chandrakant Anant Kulkarni case [(1981) 4 SCC 130 : 1981 SCC (L&S)

562] , concluded as under: (S.P. Shivprasad Pipal case [(1998) 4 SCC 598 : 1998 SCC (L&S) 1263] , SCC pp. 603-04, paras 14-19)

A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time,

merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts

were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any

manner adversely affected by the merger of the cadres.

From the aforesaid propositions laid down by the Supreme Court it is a settled legal position that matters relating to creation and abolition of post

and formation and structuring/restructuring of cadres fall within the exclusive domain of the employer and a judicial review can be exercised in such

matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated due

to mala fide. It is within the exclusive discretion and jurisdiction of the State with regard to questions relating to constitution and pattern of the cadre

and its creation/ abolition. And it is well open and within the competency of the State to change the rules to a service. There is no right in any

employee of the State that the rules governing the conditions of his service should forever be the same as the one when he entered service for all

purposes and except for ensuring or safeguarding the rights or benefits already earned a government servant has no right to challenge the authority of

the State to amend/alter and bring into force new rules even relating to an existing service. Further, as a proposition of law, it is imperative that even

chances of promotion do not constitute a condition of service and any decision to merge such cadres is essentially a matter of policy and if the posts

within the merged cadre carry the same scale of pay at the relevant time, a merger of cadres cannot be said to have caused any prejudice to the

members of any of the cadres

When we examine the facts prevailing in the present matter in the light of the aforesaid propositions of law we are confronted with a situation

where prior to the bringing into existence of the dental colleges in the State of Assam the cadre under which the faculty members of the Dental

Wing/RDC worked comprised of the posts that were put at the disposal of the Dental Wing/RDC. But subsequent to bringing into existence the other

dental colleges, the posts comprising of the faculty members of the other dental colleges were also included in the cadre of the faculty members of the

dental colleges under the Health and Family Welfare (B) Department of the Government of Assam.

In the aforesaid circumstance we are required to examine whether the posts comprising of the faculty members of the Dental Wing/RDC are

posts under the Health and Family Welfare (B) Department of the Government of Assam or they are posts other than the posts under the said

department.

With regard to the contention of Mr. MK Choudhury learned senior counsel for the respondent RDCTA by referring to the meaning of the

expression ‘cadre’ as contained in FR 9 of Assam that cadre is defined to mean the strength of a service or part of service sanctioned as a

separate unit, which has also been adopted both by Mr. SK Goswami learned counsel and Mr. KN Choudhury learned senior counsel for the

respondent Dr. Bhabatosh Kumar Roy, the relevant question for consideration would be whether the faculty members of the Dental Wing/RDC are

sanctioned as a separate unit.

For the purpose of determining the question as to whether the faculty members of the Dental Wing/RDC are posts under the Health and Family

Welfare (B) Department of the Government of Assam and whether the faculty members of the Dental Wing/RDC are sanctioned as a separate unit,

a relevant consideration would be to examine as to in what manner the posts comprising of the faculty members were created/ brought in when the

Dental Wing/RDC was established.

We have already arrived at a conclusion that the Dental Wing/RDC was established as per the communication of the Assistant Financial Advisor

to the NEC dated 24.03.1982, the letter dated 24.02.1982 of the Deputy Advisor Planning Commission and the Scheme which was approved by the

Government of India in the Ministry of Health. We have also arrived at a conclusion that although a given letter of one of the former Principals of the

RDC bearing no. RDC/57/86/2266 dated 05.12.2017 referred to a MOU in Clause 4 in the portion ‘copy to’, but the existence of any such

MOU could neither be established by any of the parties nor the records contained any such MOU and therefore the existence of any such MOU has

to be disbelieved.

The communication of the Assistant Financial Advisor to the NEC dated 24.03.1982 provides that the Government of India had approved a

Scheme for opening of a Dental Wing in the Gauhati Medical College and such approval is subject to the acceptance of the suggestions of the

Planning Commission in their letter dated 24.02.1982. The letter dated 24.02.1982 of the Deputy Advisor Planning Commission contains three specific

suggestions as regards formal arrangements to be made for the other States to get a fair share of the facilities created in the Dental Wing/RDC,

maintenance of proper standards of cleanliness and service and the constitution of an Advisory Committee. From the aforesaid communication dated

24.03.1982 and the letter dated 24.02.1982 nothing is discernable as regards as to in what manner the posts comprising of the faculty members were

created/ brought in when the Dental Wing/RDC was established.

On the other hand clause-13 of the Scheme provides that the existing staff of the Department of Dentistry of Gauhati Medical College will

constitute the nucleus of the staff of the Dental Wing after the formal conversion of the Department into a dental wing. Clause-13 further clarifies that

the details of the existing staff which would constitute the nucleus of the staff of the Dental Wing would be as follows:

Sl. No. Name of Post No. of Posts

Professor of Dentistry . 1 (one)

Registrar of Dentistry 1 (one)

Resident Surgeon of Dentistry 1 (one)

House Surgeon, Senior Surgeon. 1 (one)

Ward Boys. 3 (three)

Sweeper. 1 (one)

Sister. 2 (two)

Resident Surgeon of Dentistry. 1 (one)

Dental Technician. 1 (one)

L.D. Assistant-cum-typist 1 (one)

It is noticeable that the requirement of clause-13 of the Scheme was to place the given posts of the Department of Dentistry of the Gauhati

Medical College with the Dental Wing so as to constitute the nucleus of its staff but no indication is given that the persons by name who happened to

be holding the given posts at the relevant time had been made the employees of the Dental Wing on its inception. Clause-13 does not provide that the

given posts in the Department of Dentistry of the Gauhati Medical College upon it being placed with the Dental Wing would sever its link with the

Health and Family Welfare Department(B) of the Government of Assam and become posts of the Dental Wing. A reading of clause-13 of the

Scheme would go to show that the Scheme required that the given posts of the Health and Family Welfare Department(B) of the Government of

Assam be placed with the Dental Wing in order to enable it to function as the nucleus of its staff.

Service law jurisprudence recognizes the concept of the posts belonging to one establishment being placed at the disposal of another

establishment in order to carry forward its functioning. Unless by appropriate instrument the posts so placed at the disposal of the other establishment

are made the posts of that establishment alone with a complete severance of the ties with the original establishment and the establishment which

accepts such posts to be their posts undertakes all the duties, responsibilities and liabilities of maintaining such posts and becomes the sole

establishment to govern their service conditions, it cannot be said that the posts so placed at the disposal of the other establishment loses its

characteristics of being posts of the original establishment.

Further FR 49 of Assam defines ‘cadre’ to mean ‘sanctioned as separate unit’. The word sanctioned means an official approval or

authorization. The word ‘sanction’ as found in the Black’s Law Dictionary means ‘to assent, conquer ,confirm, reprimand or ratify’

and also ‘approval or ratification’.

From the meaning of the expression cadre in FR 49 of Assam that is sanctioned as separate unit, when we examine as to whether the faculty

members of the Dental Wing/RDC forms a separate cadre, we are required to look into the aspect as to whether there was an official approval or

authorization by the Dental Wing/RDC either giving assent or confirming that the posts comprising of the faculty members would comprise of a

sanctioned separate unit of the Dental Wing/RDC.

A relevant consideration for the purpose would be whether the establishment upon whose disposal the posts are placed had created and

sanctioned any post of their own so as to give the posts so placed at their disposal an identity that they are the posts of that establishment.

As already indicated in the foregoing paragraphs, except for clause-13 of the Scheme providing that the existing staff of the Dental Department

of the Gauhati Medical College would comprise the nucleus of the staff of the Dental Wing/RDC, there is no other material available on record that

the Dental Wing/RDC upon its creation had given any official approval or authorization, giving assent or confirming that the posts comprising of the

faculty members would comprise of a sanctioned separate unit of the Dental Wing/RDC.

A reading of clause-13 of the Scheme goes to show that the Dental Wing/RDC had not sanctioned or created any post of their own for its

functioning. The Scheme merely requires that at the given point of time the Health and Family Welfare Department of the Government of Assam was

required to put the given number of posts at the disposal of the Dental Wing/RDC so as to carry forward its functions. The requirement does not

identify that the incumbent who had held the given post at the time of it being placed at the disposal of the Dental Wing/RDC as per the Scheme

would alone continue to hold the given post for all time to come. In other words, the requirement of the Scheme on a plain reading appears to be post

specific, rather than it being person specific who had held the post.

From the above we are to conclude that the given posts which constituted the nucleus of the staff of the Dental Wing at its inception continues to

remain to be posts of the Health and Family Welfare (B) Department of the Government of Assam and the faculty members of the Dental

Wing/RDC are neither sanctioned nor created as a separate unit.

A contention had also been raised that the Departments of Dentistry in the medical colleges of Assam would comprise of a different cadre from

that of the Dental Wing/ RDC inasmuchas the Department of Dentistry is governed by the Medical Council of India and the Dental Wing/ RDC is

governed by the Dental Council of India. The said contention in our view would not be of much relevance inasmuchas the issue at hand in whether the

faculty members of the dental colleges and the Dental Wing/ RDC would be a part of the same cadre. The issue does not relate in any manner with

the Department of Dentistry in the medical colleges of Assam and the Department of Dentistry in the medical colleges and the newly created dental

colleges are not indicated to be one and the same.

In this respect it would also be relevant to note that the various appointments, promotions, etc. to the given posts which constituted the nucleus of

the staff of the Dental Wing/RDC continued to be made by the Health and Family Welfare (B) Department of the Government of Assam, which also

is an indication that the service conditions thereof are controlled by the Health and Family Welfare (B) Department of the Government of Assam. The

advertisements which had been relied upon by the respondents RDCTA and Dr. Bhabatosh Kumar Roy to contend that the appointments are made to

a post in the Dental Wing/RDC cannot by itself be the sole material to establish that the posts to which the appointments were made are posts of the

Dental Wing/RDC alone independent of any other authority having a control over the service conditions.

A further contention has been raised by Mr. SK Goswami learned counsel for the respondent Dr Bhabatosh Kumar Roy that the salary of the

faculty members of the Dental Wing/RDC are paid from, amongst others, the funds provided by the States of the Northeastern Region on a pro rata

basis. For the purpose reference had been made to the Annexure at page no. 167 of WA 125/2019 which shows the various amounts paid by the

different States from time to time. Accordingly a contention has been raised that whichsoever entity pays the salary that entity itself would have to be

construed to be the employer of the employees who receives such salary.

Fundamentally we find the said proposition to be attractive and logically speaking an employee would be an employee of that particular entity who

pays his salaries. From the said point of view, as the various States of the Northeastern Region are paying certain amounts to the Government of

Assam, it cannot be wholly said that amount so received by the Government of Assam is not channelized to pay the salaries of the faculty members of

the Dental Wing/RDC and therefore the faculty members of the Dental Wing/RDC are not the employees of the other States of the Northeastern

Region on a collective basis.

But in order to accept the said contention that the faculty members of the Dental Wing/RDC are employees of all the States of the Northeastern

Region on a collective basis, we are also required to examine certain other aspects of the matter. If the faculty members of the Dental Wing/RDC are

employees of all the States of the Northeastern Region on a collective basis, a question would arise as to who would be responsible for paying the

retirement benefits upon superannuation. Further being an employer, carries it with itself many other duties, liabilities and responsibilities and a question

would remain as to whether all the other States of the Northeastern Region would be agreeable to accept such duties, liabilities and responsibilities of

the faculty members of the Dental Wing/RDC.

Another relevant aspect would be that the WP(C) 6640/2018 resulting in WA 125/2019 was instituted by the respondent Dr Bhabatosh Kumar

Roy in his individual capacity, assailing an order of transfer dated 04.09.2018 and in doing so the question that the faculty members of the Dental

Wing/RDC are employees of all the States of the Northeastern Region on a collective basis had been raised. On the other hand, WP(C) 7231/2018

resulting in WA 133/2019 was instituted by the respondent RDCTA, which claims itself to be an association of all the faculty members of the Dental

Wing/RDC and the respondent RDCTA also raises the question that the faculty members of the Dental Wing/RDC are employees of all the States of

the Northeastern Region on a collective basis.

But in doing so, we cannot be oblivious to the aspect that the Dental Wing/RDC for the purpose of its functioning is also required to avail the

services of many other officials/staffs, apart from the faculty members involved in the teaching activities. None of such other officials/staffs are

before the Court nor any claim had been made on their behalf that they are employees of all the States of the Northeastern Region on a collective

basis and that they are not employees of the Health and Family Welfare Department (B) of the Government of Assam.

Further on behalf State of Assam it has been contended that the RDCTA is no longer a registered association as its earlier registration already

came to an end and secondly, many of the faculty members, except for a few of them, are not in favour of supporting the issues raised by the

respondent RDCTA in the present litigation. The contention raised is that the other faculty members are happy and content with their service

conditions being regulated by the Government of Assam in the Health and Family Welfare Department (B) and do not favour a declaration that the

Government of Assam has no control over their service conditions and that they are not employees under the Government of Assam.

The State of Manipur also raises a serious objection on the maintainability of the writ petition by the respondent RDCTA in the circumstance

where its registration is not in force at the present. The States of Manipur, Arunachal Pradesh and Mizoram are emphatic and unambiguous that they

do not consider the faculty members of the Dental Wing/RDC to be their employees even on a collective basis and are not agreeable to undertake any

duty, liability or responsibility of the faculty members as an employer, other than to continue paying the required amount on a pro rata basis

corresponding to the benefits of the number of seats allotted to the respective states. The State of Nagaland although initially expressed some views

that they are employers of the faculty members of the Dental Wing/RDC on a collective basis, but after the submission of the States of Manipur,

Arunachal Pradesh and Mizoram and faced with the requirement of accepting the duties, liabilities and responsibilities, even though on a collective

basis, the State of Nagaland also took a view consistent with that of the States of Manipur, Arunachal Pradesh and Mizoram. The other States of the

Northeastern Region, even though the notices were duly served, have not come forward to express their views.

On the question whether an entity contributing to the fund from which the salaries of the employees may be paid would also have to be

considered to be the employer, albeit on a collective basis, relevance is also found on the pronouncement by the Supreme Court in paragraphs 16 and

17 in Nihal Singh (supra) which is extracted as below:

It is obvious both from the said section and also the appointment orders, the appellants are appointed by the State in exercise of the

statutory power under Section 17 of the Act. The appellants are amenable to the disciplinary control of the State as in the case of any other

regular police officers. The only distinction is that they are to be paid daily wages of Rs 35 (which came to be revised from time to time).

Further, such payment was to be made by the bank to whom the services of each one of the appellants is made available.

From the mere fact that the payment of wages came from the bank at whose disposal the services of each of the appellants was kept did

not render the appellants employees of those banks. The appointment is made by the State. The disciplinary control vests with the State. The

two factors which conclusively establish that the relationship of master and servant exists between the State and the appellants. A fact which

is clearly recognised by the Division Bench of the High Court in LPA No. 209 of 1992. It may be worthwhile mentioning here that under the

law of contracts in this country the consideration for a contract need not always necessarily flow from the parties to a contract. The

decision of the SSP to reject the claim of the appellants only on the basis that the payment of wages to the appellants herein was being made

by the banks concerned rendering them disentitled to seek regularisation of their services from the State is clearly untenable.

From the propositions laid down by the Supreme Court in Nihal Singh (supra) from paragraphs 16 and 17 it is discernible that even if the salary is

paid by an entity upon whom the services of an employee is placed, the employee does not become an employee of such entity. Two aspects were

taken into consideration by the Supreme Court i.e. as to which of the entity had made the appointment and upon whom the disciplinary control vests

upon where the existence of the two factors would conclusively establish the relationship of a master and servant.

Mr. D Saikia learned senior counsel for the appellants relies upon the aforesaid proposition laid down by the Supreme Court in Nihal Singh

(supra) and raises the contention that in the instant case also the faculty members of the Dental Wing/RDC are appointed by the Government of

Assam in the in the Health and Family Welfare Department (B) and their disciplinary control also vests upon the Department. Accordingly the

contention raised is that even though, although not admitted, that the funds provided by the other States of the Northeastern Region on a pro rata basis

may be channelized for the purpose of payment of salaries of the faculty members of the Dental Wing/RDC, but same by itself cannot lead to a

situation that the faculty members are employees of the all the States of the Northeastern Region on a collective basis, inasmuch as their appointments

are made by the Government of Assam in the Health and Family Welfare Department (B) as well as their disciplinary control also vests in the

Department.

No material has been placed before the Court to arrive at a conclusion that the appointment of the faculty members of the Dental Wing/RDC are

not made by the Government of Assam in the Health and Family Welfare Department (B) nor any materials been placed to show that their

disciplinary control is not vested upon the Department.

Upon a due consideration of the proposition of law laid down in Nihal Singh (supra) in the facts and circumstances of the present case as

indicated above, it would be unsafe to arrive at any conclusion that the faculty members of the Dental Wing/RDC are not employees under the Health

and Family Welfare Department (B) of the Government of Assam and that their service conditions are not governed by the Government of Assam.

Hence the contention of the respondents RDCTA and Dr Bhabatosh Kumar Roy that the faculty members of the Dental Wing/RDC are not

employees under the Government of Assam in the Health and Family Welfare Department (B) cannot be accepted.

Reliance is also placed by Mr. SK Goswami learned counsel for the respondent Dr Bhabatosh Kumar Roy on the pronouncements of the

Supreme Court in paragraph 5 of KS Jawatkar (supra) wherein the proposition that no employee can be transferred from one employer to another

without the consent of the employee had been laid down; paragraph 24 of the Kavi Raj (supra) wherein the proposition that an employee can only be

posted and transferred only to a post against which he was selected and an employee cannot be posted or transferred beyond his cadre without his

willingness had been laid down; paragraph 8 of Umapati Chowdhury (supra) wherein the proposition that the deputation is consensual and involves a

voluntary decision of the employer to lend the services of his employee and therefore it requires the consent of the employee whether to go on

deputation or not has been laid down.

As regards the proposition laid down in KS Jawatkar (supra), we take note of that a conclusion had been arrived that it cannot be said that the

faculty members of the Dental Wing/RDC are not the employees of the Health and Family Welfare Department (B) of the Government of Assam. In

view of such conclusion, in the instant matter, there is no transfer from one employer to another when a faculty member of the Dental Wing/RDC has

been transferred to any other post under the Health and Family Welfare Department (B) of the Government of Assam.

As regards the proposition laid down in Kavi Raj (supra), we take note of our conclusion that the posts comprising of the faculty members of the

Dental Wing/RDC are posts under the Health and Family Welfare Department (B) of the Government of Assam is not a separate cadre and

therefore there is no such transfer beyond the cadre to which the faculty members were appointed.

As regards the proposition in Umapati Chowdhury (supra), the faculty members of the Dental Wing/RDC being posts under the Health and Family

Welfare Department (B) of the Government of Assam, there is no element of there being a deputation when a faculty member of the Dental Wing is

transferred to any other post under the Health and Family Welfare Department (B) of the Government of Assam.

In view of the above, the propositions of law laid down by the Supreme Court in KS Jawatkar (supra), Kavi Raj (supra) and Umapati Chowdhury

(supra) would not be applicable in the facts and circumstances of the present matter.

Both the appeals accordingly stand party allowed. The part of the Judgment and Order dated 08.03.2019 of the Learned Single Judge in WP(C)

6640/2018 and WP(C) 7231/2018 requiring the main stake holders namely the State of Assam, the other States of the Northeastern Region, the NEC

and the Government of India to take a decision and to let it be known publicly in clear and unequivocal terms, as provided in paragraph 36 of the

Judgment, stands modified to the extent that if any of the stake holders are of the view that the prevailing provisions providing for the existence and

functioning of the Dental Wing/RDC requires any changes to be incorporated, the stakeholders may convene a meeting amongst themselves and take

a decision acceptable to all and any such decision taken be duly published so as to make it known to all. In such event, terms of the decision providing

for the duties, responsibilities and liabilities to be undertaken by any or all of the stakeholders should be clearly provided so that the faculty members or

the other employees are aware of and knows as to who is their employer. But on the other hand, if the stakeholders are of the view that no changes

are required to be incorporated and prevailing arrangement is acceptable to all or if no consensus decision is arrived between the stakeholders after

convening any such meeting, the present arrangement shall continue, meaning thereby that the provisions of the communication No. NEPF/5/67/AS

dated 24.03.1982 of the Assistant Financial Advisor in the NEC Secretariat to the Secretary to the Government of Assam in the Health and Family

Welfare (B) Department, the provisions of the DO letter No. HLH.8(8)/81 dated 24.02.1982 of the Deputy Advisor Planning Commission and the

provisions of the Scheme approved by the Government of India would govern the status of the Dental Wing/RDC as well as that of its faculty

members and employees.

Further as regards the Advisory Committee, which was a requirement of the letter dated 24.02.1982 of the Deputy Advisor Planning Commission

and accepted by the Government of Assam, the Advisory Committee be made functional forthwith and be allowed to function as per the provisions of

the notification dated 27.11.1982 of the Government of Assam by which it was constituted, unless all the stakeholders in any meeting that may be

convened arrives at a consensus which may be different from the provisions of the notification dated 27.11.1982 .

Having arrived at a conclusion that it cannot be said that the faculty members of the Dental Wing/RDC are not a part of the cadre under the

Health and Family Welfare (B) Department, the WP(C) No. 6640/2018 instituted by Dr. Bhabatosh Kumar Roy assailing the notification dated

04.09.2018 by which he was transferred and seeking for a direction not to change his service condition by amalgamating with the faculty members of

the other dental colleges of Assam, stands dismissed. As regards the WP(C) 7231/2018 instituted by the respondent RDCTA seeking for a direction

to restrain the Government of Assam from changing the regional character of the Dental Wing/RDC, it is provided that the regional character of the

Dental Wing/RDC as it emanates from the letter dated 24.02.1982 of the Deputy Advisor Planning Commission incorporating the requirement of all

the States of the Northeastern Region to get a fair share of the facilities in the Dental Wing/RDC shall be retained and continued to be provided as

has been done, which would also include the seats allotted to the respective States. But the other direction sought for to restrain the State respondents

from amalgamating the gradation list of the faculty members of the Dental Wing/RDC with that of the other dental colleges of Assam would be

untenable in the facts and circumstances of the present case in as much as a conclusion has been arrived that the faculty members of the Dental

Wing/RDC cannot be said to not to be a part of the cadre under the Health and Family Welfare (B) Department of the Government of Assam. For

the same reason, the other direction sought for to restrain the State respondents from altering the service conditions of the Faculty Members of the

Dental Wing/RDC by preparing a set of service rules which would be detrimental to the members of the RDCTA as well as to maintain a separate

gradation list for the faculty members would also be unacceptable.

Writ appeal accordingly stands partly allowed as indicated above.