Gauhati High Court
Dr Chandra Barooah vs Assam Science Technology And ... on 3 August, 2017
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) NO.1834 OF 2008
DR. CHANDRA BAROOAH,
Junior Scientific Officer, Environment Division,
Assam Scientific Technology & Environment Council,
Bigyan Bhawan, G.S. Road, Guwahati - 5, Assam, India.
........Petitioner
-Versus-
1. ASSAM SCIENCE TECHNOLOGY & ENVIRONMENT
COUNCIL, represented by its Director, Bigyan Bhawan,
G.S. Road, Guwahati - 5.
2. THE DIRECTOR, Assam Science Technology &
Environment Council, Bigyan Bhawan, G.S. Road,
Guwahati - 5.
3. THE DEPUTY ADMINISTRATIVE OFFICER,
Assam Science Technology & Environment Council,
Bigyan Bhawan, G.S. Road, Guwahati - 5.
4. THE HEAD IN-CHARGE, Environment Division, Assam
Science Technology & Environment Council, Bigyan
Bhawan, G.S. Road, Guwahati - 5.
5. THE STATE OF ASSAM, represented by the
Commissioner & Secretary to the Government of Assam,
Science & Technology Department.
........Respondents
B E F O R E
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
For the petitioners : Mr. R. De, Advocate.
For respondent Nos.1 to 4 : Mr. P.J. Saikia, Advocate.
For respondent No.5 : Mr. S. Tai, Government Advocate.
Date of hearing & Judgment & Order : 3rd August, 2017.
WP(C) No.1834/2008 Page 1 of 5
JUDGMENT & ORDER (ORAL)
Heard Mr. R. De, learned counsel for the petitioner. Also heard Mr. P.J. Saikia, learned counsel, appearing for the respondent Nos.1 to 4 and Mr. S. Tai, learned State counsel, appearing for the respondent No.5.
2. The petitioner was appointed as Project Scientist in the Bio-Research Centre at Madan Kamdev under the Environment Division of the Assam Science Technology & Environment Council (AST&EC) at a consolidated pay of Rs.2,000/- (Rupees Two Thousand) by an order dated 22.12.1994 issued by the Director of AST&EC. Subsequently, an advertisement dated 28.02.1995 was issued inviting applications in respect of some temporary posts including 1(one) post of Junior Scientific Officer in the Assam Bio-Research Centre. The job description as indicated in the advertisement indicated that incumbent would have to work at Madan Kamdev site of the Bio-Research Centre of AST&EC and any other such centres/Sub-Centres. Pursuant to the selection made by the Selection Committee, the petitioner was appointed temporarily as Junior Scientific Officer in the Assam Bio-Research Centre at Madan Kamdev by an order dated 30.01.1996. Subsequently, by an office order dated 12.07.2000, because of heavy pressure of work, the petitioner was also directed to work in the Environment Division for 3(three) days in a week in addition to his own duty.
3. On 22.01.2003, an office order was passed regularizing the services of the petitioner as Junior Scientific Officer under Environment Division of the AST&EC w.e.f. 07.12.2002. The order reads as under:-
"OFFICE ORDER As per the decision of the 8th Governing Body meeting held on 7th December, 02, Dr. Chandra Baruah who was appointed under ABRC project on temporary basis earlier is hereby regularised subject to discharge without notice and assigning any reason thereof as Jr. Scientific Officer under Environment Division of the ASTE Council in the Scale of pay of Rs.4390-90- 4480 - 120 - 5200 - 175 - 6075 - EB - 175 - 6600 - 250 - 8100 - 325 - 11025 WP(C) No.1834/2008 Page 2 of 5
- 400 - 11425/- p.m. and other allowances as admissible under rules with effect from the date of approval of the 8th Governing Body.
The appointment is subject to police verification of character and antecedents."
4. Against the aforesaid order of regularization, the petitioner had submitted a representation to the Director, AST&EC, which was forwarded to the Government of Assam in the Science & Technology Department. However, the representation was not favourably considered.
5. By filing this application, the petitioner prays for extension of service benefits from 01.02.1996, i.e. from the date of his initial appointment.
6. Mr. De submits that the petitioner was appointed under AST&EC as a Junior Scientific Officer pursuant to a selection process and, therefore, there can be no justification for regularizing the service of the petitioner only w.e.f. 07.12.2002 and not from the date of his initial appointment and, therefore, it is a fit case for issuing a direction to the respondents to consider the case of the petitioner for regularization of his service and consequently to grant all benefits w.e.f. 01.02.1996.
7. Mr. Saikia has submitted that the issue raised in the writ petition is covered by judgment & order dated 17.09.2009 passed in WP(C) No.3604/2007 (Sandeep Bhattacharjee -Vs- AST&EC & Ors.) and other connected cases, whereby similar plea raised by the petitioners therein for regularization of their service from the date of their initial appointment, was rejected.
8. The petitioners in the aforesaid writ petitions, engaged in different Projects under AST&EC, were also regularized w.e.f. 07.12.2002 along with the present petitioner and their prayer for retrospective regularization from the date of joining was negated by this Court holding that no such posts existed in AST&EC.
9. Placing reliance on the affidavit filed, it is submitted by Mr. Saikia that that Assam Bio-Resarch Centre is a Project under the Environment Division of the AST&EC and the pay and allowances of the employees appointed under the Project are paid from the fund of the Project. It is submitted by him that the petitioner was WP(C) No.1834/2008 Page 3 of 5 appointed in a temporary post under the sponsored Project located at Madan Kamdev. The temporary post of Junior Scientific Officer was a post in Assam Bio- Research Centre and not under AST&EC. It is further submitted by him that the sanctioned post of Junior Scientific Officer in the Environment Division of AST&EC having been created pursuant to a policy decision of the AST&EC to regularize the service of the employees engaged in different Projects, on 07.12.2002 in the 8th Governing Body's meeting of the AST&EC, the service of the petitioner was regularized on and from that day in AST&EC as Junior Scientific Officer.
10. This Court in Paragraphs-12 and 13 of Sandeep Bhattacharjee (supra), has held as follows:-
"12. Upon perusal of the pleadings of the parties and also on consideration of the submissions made by the learned counsel appearing for the parties, this Court has no hesitation to hold that the petitioners in WP(C) Nos.3604, 3605, 3606, 3607 of 2007 did not hold any sanctioned/regular posts prior to 7.12.2002 and, similarly, no posts were in existence prior to 1.9.2005 in respect of petitioners in WP(C) Nos.3608/2007 and 3624/2007. The above position is not disputed by the learned counsel appearing for the petitioners, rather, the same is admitted as discussed above. Thus, the period of service rendered by the petitioners in work charged capacity prior to regularisation, can neither be regularised retrospectively nor can the same be counted towards seniority and pension for the simple reason that there were no posts in existence prior to 7.12.2002 and 1.9.2005, as discussed above.
13. There is no dispute that Assam Science Technology and Environment Council (ASTEC) is a Non Government Organization (NGO) which functions with grant-in-aid from the Government and all the relevant decisions of the Council are taken by its Governing Body and as such, it is clearly distinguishable from the Government Department. Therefore, the service of the employees of the Council is not comparable with the service of Govt. employees though there are some area of similarity with regard to certain service benefits and facilities. In view of the above, the arguments WP(C) No.1834/2008 Page 4 of 5 advanced by the learned counsel appearing for the petitioners that the benefits applicable to Govt. employees, shall also be applicable to the petitioners, is not acceptable."
11. The submission of Mr. De that the petitioner was appointed in the temporary post of Junior Scientific Officer under the AST&EC pursuant to the advertisement dated 28.11.1995 on the basis of an observation in the advertisement, which reads, "temporary posts under the ASTE Council", is found to be without any merit. It is very specifically stipulated in the said advertisement that temporary post of Junior Scientific Officer was in the Assam Bio-Research Centre and accordingly, he was also appointed by the order dated 30.01.1996 at Assam Bio- Research Centre. Assam Bio-Research Centre is a Project under the Environment Division of AST&EC and the expression "temporary posts under the ASTE Council"
has to be understood in that context.
12. It is not stated in the reply affidavit that a sanctioned vacant post of Junior Scientific Officer was available prior to the meeting of the 8th Governing Body held on 07.12.2002. Existence of a valid sanctioned post is a condition precedent for regularization of the service of a person. Apparently, there was no available sanctioned vacant post of Junior Scientific Officer for appointment of the petitioner in ASTEC prior to 07.12.2002. Therefore, the claim of the petitioner for retrospective regularisation is not tenable in law.
13. Having regard to the above, I am of the considered opinion that there is no merit in this writ petition and accordingly, the same is dismissed. No cost.
JUDGE M. Sharma WP(C) No.1834/2008 Page 5 of 5