Nripen Das vs State Of Assam And 3 Ors

Heard Mr. S.K. Barkataki, learned counsel for the writ appellant. Also heard Mr. D. Gogoi, learned standing counsel, PHE Department, appearing for

the respondent Nos.1, 3 & 4 and Mr. P. Nayak, learned standing counsel, Finance Department, appearing for the respondent No.2.

This writ appeal has been filed by the writ petitioner against the order dated 13.03.2020 passed by the learned Single Judge in WP(C) No.4315/2016.

Brief facts of the case are that the petitioner was working as a Work Charged employee in Public Health Engineering (PHE) Department at Barpeta

Division, Barpeta. The admitted position is that much before the seminal decision of the Apex Court in State of Karnataka (2006) 4 SCC 1, a matter

had come up before this Court

in Achyut Chandra Pathak -Vs- State of Assam & Ors. 2000 (1) GLT 243, wherein it was decided that all the work charged employees who have

completed more than ten years of service were liable to be considered for regularisation. Pursuant to the said order, an exercise was undertaken in

Assam and it is again an admitted fact that in the year 2005 such exercise was also done in the PHE Department. At the relevant time, for some

reason the petitioner’s service could not be regularised although many of his juniors succeeded in getting themselves regularised in service.

All the same, the petitioner did not challenge his exclusion from regularisation at the relevant point of time and then in the year 2013 vide order dated

04.09.2013 passed by the Executive Engineer (PHE), Barpeta Division, Barpeta, the petitioner was appointed on a substantive vacancy of Chowkidar

in the Pay Scale of Rs.4560/- to Rs.15000/- (Grade Pay of Rs.1500/-). The appointment order dated 04.09.2013 since has an important bearing must

be reproduced, which reads as under:-

“In pursuance with the Govt. letter (1) No.PHED-244/2012/34 Dt. 10/4/2013 (2) PHE-55/Estt/2010/6184 Dt. 1/6/2013 (3) and finance

deptt. Letter No.FS55/2005/vol-vi/81 dtd. 19/8/13 and on the strength of the decision of the meeting of selection committee held on

15/7/2013 Sri Nripen Das Muster roll labour is hereby appointed as chowkidar against the sanction vacant post in the scale Rs.4560 to

Rs.15000 (grade pay Rs.1500) w.e.f. date of joining.

This arrangement is purely temporary and may be terminated without notice or assigning any reason thereof.

He is directed to submit an undertaking regarding acceptance that his service shall not be governed by the existing Assam Service (Pension)

rule (1969). His pension and other retirement benefit will be governed by a set of new pension rule which are being formulated in line with

the contributory pension scheme of Govt. of India to be notified in due course.

He is directed to submit his joining report along with the prescribed undertaking to the Executive Engineer (PHE) Barpeta Division,

Barpeta within 7(seven) days from the date of issue of this order.

He is to submit medical fitness certificate from authority concern.

Executive Engineer (PHE)

Barpeta Division, Barpetaâ€​

Pursuant to the said appointment order, the petitioner joined his services as a Chowkidar. Thereafter, he made enquiries including enquiry under the

Right to Information Act and he was informed that in the year 2005, his name was dropped due to inadvertence. He then filed a writ petition before

this Court being WP(C) No.4315/2016 with a prayer that he is liable to be regularised in service from the year 2005, and secondly, that he is liable to

be given the benefit of pension under the Old Pension Scheme (OPS) and not under the New Pension Scheme (NPS) as mentioned in the order of his

appointment dated 04.09.2013. This writ petition was dismissed by the learned Single Judge of this Court. As far as the question of regularisation was

concerned, the learned Single Judge was of the view that nothing has been shown before the Court that the petitioner was working on a regular

substantive vacancy in the year 2005 to claim regularisation and that he is not liable to be given the benefits of Old Pension Scheme (OPS), etc.

Aggrieved, he had filed the present writ appeal.

Having heard Mr. S.K. Barkataki, learned counsel for the appellant and Mr. D. Gogoi, learned standing counsel, PHE Department as well as Mr. P.

Nayak, learned standing counsel, Finance Department, even assuming for the sake of argument that the name of the petitioner was wrongly dropped

from the list of those whose names were sent for regularisation in the year 2005, the fact remains that this was never challenged by the petitioner at

the relevant point of time even in the year 2005 or immediately thereafter. On the other hand, when he was offered the substantive vacancy of

Chowkidar in the year 2013, the petitioner readily accepted the same under the terms and conditions mentioned in the appointment order dated

04.09.2013. One of the essential conditions of appointment order rather clearly stated that “His pension and other retirement benefit will be

governed by a set of new pension rule which are being formulated in line with the contributory pension scheme of Govt. of India to be notified in due

course.â€​

As rightly pointed out by Mr. D. Gogoi, learned standing counsel, PHE Department, and Mr. P. Nayak, learned standing counsel, Finance Department,

the benefit of continuous officiation cannot be granted to the petitioner from 1988 or even from 2005 as there was a clear rupture in his service in the

year 2013 when he ceased to be a work charged employee and was appointed on a regular substantive vacancy of Chowkidar.

We have already been informed at the Bar that the petitioner is presently continuing in service and is going to retire from service on attaining the age

of superannuation on 30.09.2024 and will be governed under the New Pension Scheme (NPS).

Under these facts and circumstances of the case, we find no occasion to interfere with the order dated 13.03.2020 passed by the learned Single Judge

in WP(C) No.4315/2016 as the petitioner has not been able to establish his claim either for regularisation in the year 2005 or for grant of pension under

the Old Pension Scheme (OPS), which was prevalent in the year 2005.

In view of the above, we find no merit in this writ appeal and hence the writ appeal is dismissed.