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2022 Supreme(Gau) 445
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, J.
HC(B)(Ex-S)(Retired) Chakradhar Deka S/o Lt. Dhirmeswar Deka – Petitioner
Versus
The State of Assam Rep. by Its Commissioner And Secretary To The Govt. Of Assam,
Home (A) Deptt. And Ors. – Respondents
WP(C)/2258 of 2020
Decided On : 17-06-2022
Advocate Appeared:
For the Petitioner: Mr H Gupta
Point of Law: Those who were appointed on time scale of pay should be granted benefit of increment from date of initial appointment while those appointed on fixed pay may also be conferred with benefit of time scale of pay as well as incremental benefits from date of initial appointment.
Headnote:
Service matter - Appointed as an adhoc head constable - Letter of agreement - Discharged from service - Petitioner who is an ex service man was appointed as an adhoc head constable in Border Organization under Office of Additional Director General of Police Border as per letter of agreement. Letter of agreement also contained Clause that if an appointee is incapacitated from carrying out duties on being involved in civil or criminal proceeding, then it may be lawful for authorities to terminate the agreement - Court unable to accept claim of petitioner that he be deemed to be in continuous service without any break and to accept break due to discharge in service to be an artificial break.(Para 7)
Finding of the court:
If reasoned order results in an entitlement of petitioner for the time scale of pay for the period of service he had actually rendered notwithstanding that there is a break in service because of the order of discharge, an appropriate calculation be made for his entitlement as per the time scale of pay and the benefits be given to him within a period of another two months thereafter - As the writ petitioner had retired from service and is drawing the provisional pension, if the order for entitlement of time scale goes in his favour, the provisional pension be also accordingly modified.
Result: Writ petition partly allowed
JUDGMENT :
Heard Mr. H Gupta, learned counsel for the petitioner. Also heard Mr. C S Hazarika, learned Junior Government Advocate for the respondents no. 1, 2, 3, 4, 5, and 7 being the authorities under the Home Department and Assam Police, Mr. B Gogoi, learned counsel for the respondents no. 8 and 11 being the authorities under the Finance Department, Government of Assam, Mr. R K Talukdar, learned counsel for the respondent no. 10 being the Accountant General, Assam and Mr. H Sarma, learned Additional Senior Government Advocate for the respondent no. 9 being the authorities under the Pension & Public Grievances Department, Government of Assam.
2. The petitioner who is an ex service man was appointed as an adhoc head constable in the Border Organization under the Office of the Additional Director General of Police Border as per the letter of agreement dated 12.09.2000. The letter of agreement also contained the Clause that if an appointee is incapacitated from carrying out the duties on being involved in civil or criminal proceeding, then it may be lawful for the authorities to terminate the agreement.
3. It is stated that the petitioner in course of his employment was involved in GR Case No. 403/2003 in the Court of learned Judicial Magistrate 1st Class at Lakhimpur. Subsequently, by the order dated 22.03.2006, he is acquitted in the criminal proceeding. In the resultant situation, the petitioner was discharged from service as per the order dated 23.10.2003 of the Deputy Inspector General of Police (SR), Assam. However, by a subsequent letter of agreement dated 29.06.2006, he was again appointed as an adhoc head constable in the same Border Organization under the Office of the Additional Director General of Police Border, Assam. The petitioner accordingly continued to serve and retired from service on 31.03.2020.
4. This writ petition is instituted for two purposes. Firstly, the petitioner claims that the break in service between the date of his discharge on 23.10.2003 and his subsequent appointment by the letter of agreement dated 29.06.2006 was an artificial break in service and accordingly, relied upon a pronouncement of the Supreme Court in Mohd. Abdul Kadir and another v. Director General of Police, Assam reported in (2009) 6 SCC 611.
5. We are in agreement with the aforesaid proposition of law rendered by the Supreme Court in Mohd. Abdul Kadir (supra)but the said proposition is in respect of an artificial break in service i.e. the person otherwise continues in the same service but to take advantage of the service conditions, the authorities bring the person concerned out of service for a given short interval of time and thereafter, again allows to continue in service.
6. In the instant case, the petitioner was discharged from service by the order dated 23.10.2003 by invoking Clause 13 of the letter of agreement by which he was appointed and there is no challenge to such discharge from service by the petitioner. However, by a later letter of agreement he was again appointed in the same post after being acquitted in the criminal proceeding, the reason for which he was earlier discharged. Upon perusal of the materials on record, it is discernable that the break in service of the petitioner from the date of discharge on 23.10.2003 upto his subsequent appointment on 29.06.2006 was not an artificial break in service but it was a break as because he was discharged from his service in his earlier engagement and thereafter, given a fresh appointment after the reason for his earlier discharge stood mitigated.
7. From such point of view, we are unable to accept the claim of the petitioner that he be deemed to be in continuous service without any break and to accept the break due to discharge in service to be an artificial break.
8. But the second purpose for which this petition is preferred is that as per the order of Governor contained in the order dated 23.09.2011, it had been provided as extracted:
“……… ..in view of the above, those who
