SOFIUL ALOM Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner is before this Court seeking a direction from the Court for giving effect to his permanent absorption in the post of Deputy Director (Training) with effect from 13/3/1999 namely the date he was absorbed under the Panchayat and Rural Development Department (hereinafter referred to as 'P&RD Department') along with his consequential seniority and other service benefits. The petitioner is also aggrieved by the communication dtd. 28/8/2020 whereby the P&RD held that the absorption of the petitioner under the P&RD Department is with effect from the date he was permanently absorbed against the sanctioned post w.e.f. 1/10/2016.

(2.) The petitioner was appointed as Agriculture Extension Officer in the Irrigation Department, Government of Assam in the year 1994 under Sec. 3(f) of the APSC (Limitation of Function) Regulation 1951. He was subsequently regularized with effect from 26/2/1996 in the post Agriculture Extension Officer in the Irrigation Department. On 4/2/1999, the petitioner was sent on deputation to the P&RD Department to an equivalent post of Assistant Project Officer (Agriculture) for a period of one year. He was posted on deputation against an existing vacancy under DRDA, Golaghat. The petitioner joined in the post of Assistant Project Officer (Agriculture) under the P&RD Department on 13/3/1999. In the year 2001, NOC was sought for permanent absorption of the petitioner by the P&RD Department from the Irrigation Department. The said NOC was accordingly granted by the Irrigation Department. However, in the year 2005 notwithstanding the NOC being granted, the petitioner was repatriated to his parent department. He approached the High Court by filing writ petition being W.P.(C) No. 1109/2005. By operation of an interim order granted by the Court, his repatriation was stayed. Subsequently, the writ petition was disposed of on 23/8/2010 giving the petitioner the liberty to file application for regular absorption in the borrowing Department namely the Department of P&RD. In terms of the leave granted to the writ petitioner, he filed an application in the borrowing department, namely the P&RD Department. Thereafter, a Cabinet Memorandum was issued with the views of the relevant Departments namely, Personnel, Finance and P&RD Department for permanent absorption of the writ petitioner in the P&RD Department. On 27/7/2016, the Cabinet approved the proposal for permanent absorption of the writ petitioner in the establishment under the P&RD Department. Thereafter, by Notification dtd. 12/9/2016 issued by the Additional Chief Secretary, Government of Assam, P&RD department, the petitioner was absorbed in the post of Deputy Director (Training) with effect from the date joining in the P&RD Department. The petitioner took charge of the Deputy Director (Training) on 1/10/2016. The petitioner thereafter filed representation before the Office of the Accountant General brining to its notice that he had been permanently absorbed in the P&RD Department w.e.f 13/3/1999. On receipt of the representation from the petitioner, the Office of the Accountant General raised certain queries seeking the exact date from which the petitioner has been permanently absorbed as Deputy Director (Training) in the P&RD Department. The P&RD Department responded by stating that the post was lying vacant since 1/3/1999 and as such the absorption of the petitioner as Deputy Director (Training) was w.e.f 13/3/1999 in the P&RD Department. In response to the actual date of absorption in the P&RD Department, several communications were exchanged amongst the Office of the Accountant General, the P&RD, the Finance and the Personnel Department. The representations were also filed by the writ petitioner claiming the fixation of the exact date of absorption w.e.f 13/9/1999. Finally the communication dtd. 28/8/2020, the Principal Secretary, Government of Assam, P&RD Department responded to the queries raised by the Accountant General that the petitioner joined as Deputy Director (Training) on 1/10/2016 at 10 AM (FN) after permanent absorption against the sanctioned post. Hence the date of absorption of the petitioner in the Department is 1/10/2016 as the same can only be pursuant to the approval of the Cabinet which decision came on 27/7/2016.

(3.) The learned Sr. counsel for the petitioner submits that the denial of the petitioner of his date of absorption with effect from the date he joined the Department is contrary to the provisions of law. It is submitted that the writ petitioner had joined in the post of Assistant Project Officer (Agriculture) on 13/3/1999 in the P&RD Department. The Cabinet of the Government of Assam at the relevant point in time had approved the Cabinet Memorandum which was in respect of the permanent absorption of the petitioner in the P&RD Department. Pursuant to the Cabinet decision, by order dtd. 12/9/2016, the Department of P&RD issued the order that the petitioner is permanently absorbed against the vacant sanctioned post of Deputy Director (Training) which was created vide No. CPES.29/56/P.II/35 dtd. 22/3/1957 and retained permanently vide No. PDB.330/60/73 dtd. 10/9/1969 under the establishment of Commissioner, P&RD in the scale of Pay Band-4 of Rs.12,000.0040,000/- with Grade Pay of Rs.6300.00 P.M as per RoP, 2010 w.e.f the date of joining in P&RD Department. He took over the charge as the Deputy Director (Trainee) under P&RD Department on 1/10/2010. It is submitted by the learned Sr. counsel for the petitioner that the petitioner was placed under the P&RD Department on deputation by the Irrigation Department and he joined the services of the P&RD Department and was posted at DRDA, Golaghat on 13/3/1999. It is submitted that the DRDA is a Scheme/Agency under the P&RD Department. His borrowing department is the P&RD Department and not the DRDA which is evident from the NOC issued by the Irrigation Department at the time he was sent on deputation. Subsequently, inspite of the NOC being granted by the Irrigation Department for his permanent absorption, he was repatriated which order came to be challenged before this Court and by way of an interim order passed on 23/2/2005 in W.P.(C) No. 1109/2005, his repatriation order was stayed. It is submitted that since the petitioner was under on deputation and he joined under the Department of P&RD on 13/9/1999, his date of absorption in the Department has to be given effect from 13/9/1999 and not from 1/10/2016 as has been done now. The petitioner is entitled to his rightful claim of the benefit of services rendered earlier as well as the services rendered under the P&RD Department along with all financial benefits. The learned Sr. counsel for the petitioner has referred to the Judgment of the Apex Court rendered in Sub-Inspector Rooplal and Anr. Vs. Lt. Governor, through the Chief Secretary, Delhi and Ors, reported in (2000) 1 SCC 644 as well as the Judgment of the Apex Court in R.K. Makashi and Ors. Vs. I.M. Menon and Ors, reported in (1982) 1 SCC 379 and Wing Commander J. Kumar Vs. Union of India, reported in (1982) 2 SCC 116, the petitioner has been unjustly denied his right to get his past services counted for the purposes of fixation of his seniority in the borrowing department. The learned Sr. counsel strenuously urges that the petitioner was not sent on deputation to DRDA, he was sent on deputation to the P&RD Department and the NOC issued by the Irrigation Department was for his deputation to DRDA. As such where his permanent absorption is to be counted from the date he was absorbed against the sanctioned vacant post, his services rendered from the date he was sent on deputation is required to be counted for the purposes of fixation of seniority. The views of the department that his seniority is to be counted w.e.f 1/10/2016 namely the date in which he was allowed to join him as Deputy Director (Training) pursuant to the Cabinet approval is erroneous and contrary to the law laid down by the Apex Court.