The nature of appointment as temporary and lack of challenge to appointment orders can impact the claim for back wages.

JUDGMENT :

Michael Zothankhuma, J.

Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. S.N. Sarma, learned Standing Counsel for Oil India Ltd. Mr. G. Pegu, learned Govt. Advocate appears for the respondent Nos. 5,6 & 7.

2. The petitioner has prayed for a direction to be issued to the respondent Nos. 1 to 4 for payment of back wages w.e.f. 10.05.2005 to 14.07.2010 along with adequate interest, by holding the period from 10.05.2005 to 14.07.2010 as period spent on active duty.

3. The petitioner's case in brief is that the petitioner was appointed as a Special Police Officer (SPO) under Section 17 of the Assam Police Act,1861 by the District Magistrate, Dibrugarh vide order dated 25.02.2004 and was thereafter made to join the Indian Oil Ltd. (OIL). The petitioner thereafter joined OIL and was working for the OIL. However, the petitioner was given a letter dated 09.05.2005 by the OIL, wherein, he was informed that his service was terminated. The petitioner ventilated his grievance before the District Magistrate concerned and the District Magistrate vide order dated 16.09.2006 gave a fresh appointment to the petitioner as SPO. He preferred an appeal against the order dated 16.09.2006 before the Divisional Commissioner, Upper Assam Division, Govt. of Assam. However, no decision was made in the appeal. Suffice to say that subsequent to the above, the petitioner was again reappointed as SPO vide order dated 23.07.2010, issued by the District Magistrate, Dibrugarh. The petitioner thereafter rejoined OIL on 30.07.2010. The petitioner's case is that as his service was illegally terminated by OIL, he should be given his back wages for the period he was not allowed to work, i.e. from 09.05.2005 to 30.07.2010.

4. The learned counsel for the petitioner submits that in view of the letter dated 09.05.2005, issued by OIL, the petitioner was restrained from joining his duty w.e.f 09.05.2005. He also submits that no notice was issued to the petitioner, prior to issuing the letter dated 09.05.2005 by OIL. He submits that as the termination of the petitioner's service vide letter dated 09.05.2005 was illegal and as there was no termination order issued by the District Magistrate, his prayer for payment of back wages should be considered by OIL. In this regard, the petitioner's counsel has referred to the District Magistrate's letter requesting OIL to consider the petitioner's case.

5. Mr. S.N. Sarma, learned Senior Counsel appearing for the OIL submits that the petitioner is not a Government Servant and that the petitioner was never appointed by OIL. He accordingly submits that there is no master-servant relationship between the petitioner and OIL. He also submits that the initial appointment order of the petitioner clearly shows that the petitioner's service was purely temporary and that he could be released from duty as and when it was felt necessary. The learned Senior Counsel for OIL submits that as the service of the petitioner, who was given daily remuneration was found to be unsatisfactory, he had been released from service vide letter dated 09.05.2005. However, only due to the request made by the District Magistrate, Dibrugarh, he was again allowed to rejoin OIL w.e.f. 30.07.2010.

6. I have heard the learned counsels for the parties.

7. In the case of Tanil Dutta v. Oil India Ltd. & 3 Others, WP(C) No. 1191/2015, which was decided vide Judgment & Order dated 08.05.2019, this Court has held that the appointment of an SPO is need based and that they are not a Civil Servant within the meaning of Article 311 of the Constitution of India or a Government Servant within the meaning of Section 2(e) read with section 5 of the Assam Services (Discipline And Appeal) Rules,1964. Thus, the SPO does not hold any Civil post.

8. The initial appointment order of the petitioner as an SPO vide order dated 25.02.2004 states that he has been appointed under Section 17 of the Assam Police Act,1861 and that "the appointment is on need and requirement