Am Bahadur Chetry Vs the State of Assam and 3 Ors.

Heard Mr R.P Sarmah, learned Sr. counsel assisted by Ms M. Borah, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Addl. Sr. Government Advocate appearing for the respondents/department.

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2. The facts leading to the filing of this writ petition are that the Social & Welfare department, Government of Assam, had floated an advertisement for the post of LDA-cum-Typist. Although a select list was prepared pursuant to the selection process, and the petitioner had been placed at Sl. No. 23 position 18 of the select list, persons below the petitioner in the select list had been appointed. The petitioner had approached this Court by filing W.P(C) No. 5682/2001. By the order dated 29.05.2003, this Court had held that the only conceivable way in which the wrong done to the petitioner can be remedied was by issuing an appropriate direction to forthwith appoint the petitioner in the post

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of LDA in the office of the Child Development Project Officer (CDPO), ICDS Project, Juria, Nagaon. This Court was also of the view that if it was possible to accommodate the appointment of the petitioner against a vacant post, then the person who had been placed lower in the select list but came to be appointed need not be disturbed. Any disturbance in the service of such a person placed lower would arise only to accommodate the petitioner.

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3. By the order dated 28.08.2003, the Director of Social Welfare had terminated the service of one of the persons who was situated lower in merit to accommodate the petitioner herein in the office of the Child Development Project Officer, Binakandi ICDS Nagaon. It is the case of the petitioner that by the joining report dated 01.09.2003, the petitioner had joined before the CDPO, Binakandi ICDS Project, Nagaon.

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4. A review petition was then filed by one of the persons who had been dislodged from service to accommodate the petitioner. Notice in Review Petition No. 88/2003 was issued on 11.09.2003 with an observation that the operation of the impugned judgment & order dated 29.05.2003 would remain suspended. It was also directed that any order passed by the authority on 28.08.2003 in furtherance of the directions of this Court in W.P.(C) No. 5682/2001 would remain suspended, if the same had not been implemented in the meantime. Taking a cue from the order passed in the review petition, the Director of Social Welfare, Assam, had passed an order dated 14.10.2003, directing the CDPO, ICDS Project Binakandi, along with the CDPO, ICDS Project Barhampur, to maintain the status quo by allowing the two persons lower in merit appointed before the petitioner to continue in service. By a communication dated

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27.10.2003, the Divisional Programme Officer (DPO), ICDS Nagaon, informed the Director that the petitioner and another person had already joined the office of the concerned ICDS Projects. However, due to the public disturbance, they were not attending their Project Office but were present in the office of the Divisional Programme Officer, ICDS at Nagaon without being allowed to sign the attendance register.

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5. By the order dated 01.02.2005, this Court had dismissed Review Petition No. 88/2003, and by a specific order passed in WP(C) No. 552/2004, which was preferred by the present petitioner, the order dated 14.10.2003 passed by the Director of Social Welfare was set aside and quashed. Such being the position, the writ petitioner herein, on the dismissal of the review petition and in compliance with the order dated 01.02.2005 passed in WP(C) No. 558/2004, was again issued an appointment letter by the Director of Social Welfare Assam requiring him to join in the office of the Lakhipur ICDS Project, DistrictGoalpara on a certain scale of pay. The petitioner is now before this Court seeking the effect of his appointment from 01.09.2003.

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6. On 22.08.2022, the petitioner made a representation to the Director, Woman and Child Development, Assam, praying that the petitioner ought to have been given all service benefits on or from 28.08.2003, showing the date of his joining as 01.09.2003 in terms of the appointment order dated 28.08.2003 instead of the fresh appointment order that had been issued on 31.03.2005 appointing him as an LDA-cum-Typist.

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7. The petitioner in his representation had submitted that his service benefits, like GPF, benefits under the old pension scheme, etc., had all been taken away

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due to the delayed date of appointment shown against the services of the petitioner. When such a representation was not replied to, the petitioner has preferred this present writ petition with the following prayers;

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“I. Issue of a Writ in the nature of Mandamus directing the respondent authorities to make necessary correction in the Service Book of the petitioner by reflecting 01.09.2003 as his date of joining as LDA cum Typist pursuant to the appointment order dated 28.08.2003 made in compliance of this Hon'ble Court's order dated 29.05.2003 passed in WP(C) No.5688/2001 and publish the inter-se seniority list mentioning the petitioner's initial date of appointment dated 28.08.2003 and his joining dated 01.09.2003;

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II. Issue of a Writ in the nature of Mandamus, directing the respondent authorities to pay arrear salaries from 01.09.2003 to 31.03.2005 with revised scale and other consequential service benefits as well as to count his past services for the purpose of seniority, promotion, and other admissible dues under Rules by taking 01.09.2003 as the date of joining as LDA cum Typist under the establishment of the Director, Social Welfare, Assam.

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III. Pass such further or other order(s), as Your Lordships may deem fit and proper in the interest of justice and to grant complete relief to the petitioners.”

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8. The learned Senior counsel for the petitioner has submitted that there is no denying the fact that the petitioner was required to have been appointed ahead of his juniors in the merit list and it was in such a situation that the order dated 29.05.2003 had required the petitioners to be appointed, if required by disturbing the services of the junior persons who had already been appointed to the detriment of the petitioner. It is also an undeniable fact that the petitioner had reported for joining on service pursuant to the order dated 28.08.2003, by

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furnishing joining report on 01.09.2003 and it also remains an undisputed fact that since the petitioner could not discharge duties in the place of his posting due to public outcry, he had reported to the nearest senior officer and such attendance in the office of the DPO had also been admitted by the concerned authorities. In such a situation, although the petitioner was allowed to join again in service by the fresh appointment order dated 31.03.2005, the effective date from which the service of the petitioner has to be counted for all practical purposes is 28.08.2003, when the petitioner was first given his appointment.

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9. The learned Senior counsel for the petitioner has submitted that it is not the case of the respondents that the petitioner did not join services, but the case projected in the affidavit-in-opposition is that although the petitioner had reported for duty, he was not given any duties, and he was also not allowed to sign the attendance register. This fact finds corroboration not only in the letter given by the DPO to the Director of Social Welfare, but also in the affidavit-inopposition at paragraph 6, which reads as follows;

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“ 6. That the deponent begs to state that Sri. Bakul Chandra Hazarika and Am Bahadur Chetry were working in the office of the DPO, Nagaon during the period w.e.f. 01.09.2003 to 28.02.2005 as reported DPO, Nagaon vide No. DPO(N)-E/178/2001-02/589 dated 27.11.2003.”

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10. The learned Senior counsel for the petitioner has submitted that mere reliance on the attendance registers will not belie the actual attendance of the petitioner, which has been admitted by the DPO in their official communication. 11. Mr. R. Dhar, learned Addl. Sr. Government Advocate appearing for the State

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has controverted the submissions made by the learned Senior counsel for the petitioner by submitting that it remains a fact that although the petitioner may have reported for joining on duties on 01.09.2003, he was not allotted any duties and in fact he was not even attending the office to which he had been posted. Since it is an admitted fact that the petitioner has not rendered any service during that period, as would be reflected from the attendance registers themselves, the petitioner cannot claim any right to salary for the aforesaid period, and further, his claim to seniority also cannot stand the scrutiny of law since there is no record of him having served during that period. 12. This court is not impressed by the submission of the learned Addl. Sr. Government Advocate that the petitioner will not be entitled to salary as he has not rendered any service during the period from 01.09.2003 to 28.03.2005. Rather, it appears to this Court that having reported for duty, he was not allowed to perform duties in the station to which he had been posted, and thereafter he had reported to the DPO, who acknowledged his reporting and also acknowledged that he was not given any duties by the office concerned. It is settled law that when a person reports for duty and is not allotted any duties, he cannot be denied the salaries for the period for which he was not allotted any duties. This Court draws strength from the judgment of the Hon’ble Apex Court as rendered in the case of Deepali Gundu Surwase -Versus- Kranti Junior Adhyapak Mahavidyalaya , reported in (2013) 10 SCC 324.

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13. It is also settled law that when the appointment of a candidate is delayed either due to litigation or due to delay caused on the part of the respondent authorities in appointing him, more so when juniors have been afforded

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appointment to the detriment of the candidate concerned, the effective date of appointment of such a candidate would have to relate to the date on which his immediate junior had been appointed from the select list.

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14. In the present case, the specific case of the petitioner before this Court in the earlier rounds of litigation was that persons who were junior to the petitioner in the select list had been appointed by disregarding the seniority of the petitioner and therefore this Court had directed that the petitioner could be appointed to his posts, if required by dislodging the person who was already appointed by disregarding the petitioner.

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15. This court notices that the select list of the petitioner had been published on 29.12.2000, and the appointment of the petitioner had been delayed only because persons who were of lesser merit than the petitioner had been preferred for appointment over the petitioner, and the petitioner had to resort to litigation to have his grievances redressed. In the event the petitioner's date of appointment is taken to be 01.09.2003, which was after the first round of litigation had been decided by this Court, even then, the petitioner would be entitled to be granted the benefit of the old pension scheme. However, due to the unreasonable and arbitrary act of the respondents in considering the date of the appointment of the petitioner to be 31.03.2005, the petitioner has been deprived of the benefit of the old pension scheme.

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16. In such circumstances, this Court is of the considered view that the respondents are required to be directed to take the date of appointment of the petitioner to be 01.09.2003 pursuant to the order of appointment dated 28.05.2003 and to grant the petitioner all the consequential reliefs on such

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fixation of the date of appointment, including the benefits under the Old Pension Rule. Since it is an apparent case that the petitioner was not allotted duty even after reporting for joining of services on 01.09.2003, this Court is of the considered opinion that the petitioners would be entitled to the salary for the period from 01.09.2003 to 31.03.2005 when he was issued the second appointment letter.

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17. On the issue of the prayer of the petitioner for the grant of seniority with effect from 01.09.2003, the learned Sr. counsel for the petitioner submits that once the date of appointment is taken up to be 01.09.2003, the petitioner would be entitled to the grant of seniority from that day onwards.

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18. However, Mr R. Dhar, the learned Addl. Sr. Government Advocate has submitted that since persons who would be affected by such restructuring of the seniority are not before this Court, perhaps it will not be prudent to pass orders regarding the fixation of the seniority of the petitioner. This Court finds force in the submission of the learned Addl. Sr. Government Advocate appearing for the State respondents.

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20. Accordingly, the issue of being granted seniority from 01.09.2003 is not adjudicated upon by this Court as the same has not been pressed by the learned Sr. counsel for the petitioner for the present. The said issue is left for adjudication later, if such an occasion arises. However, the petitioner shall be entitled to all other consequential benefits regarding the counting of his service from 01.09.2003 for all practical purposes, including calculation of his length of service for fixation of pay, pension, promotion, etc. The benefits of the refixation of the appointment of the petitioner shall be released to him within a

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period of 3 months from the date of receipt of a certified copy of this order.

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21. This writ petition is accordingly disposed of. No costs.

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JUDGE

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Am Bahadur Chetry v. the State of Assam and 3 Ors.

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Am Bahadur Chetry v. the State of Assam and 3 Ors.

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