JUDGMENT :

The instant writ petition has been filed with regard to a claim for pay protection. The petitioner, who is a diploma holder in Civil Engineering, was initially appointed as a Sector Inspector Trainee pursuant to a duly conducted recruitment process initiated by the Jorhat Development Authority (JDA). The said authority is constituted under the Assam Town and Country Planning Act, 1959 (Act of 1959) and is under the Department of Urban Development, Government of Assam.

2. It is the case of the petitioner that his appointment which was made on 08.03.2001 was regularized w.e.f. 01.03.2002. While in service, an advertisement was published by the Assam Public Service Commission (APSC) on 08.10.2007 for filling up 3 numbers of post of Junior Engineer (Civil) in the Department of Town and Country Planning. The petitioner applied for the said post and since, he was already employed with the JDA, the application dated 24.10.2007 was duly forwarded by the JDA. The petitioner was selected in the said recruitment process and vide order dated 03.06.2009, he was appointed as a Junior Engineer (Civil) under the Directorate of Town and Country Planning.

3. The grievance of the petitioner is that while being appointed in the aforesaid capacity, he was not given the pay protection and in this regard, he had made a representation dated 17.07.2009. There was response by the Director of Town and Country Planning by stating that the petitioner was earlier serving in the JDA. The claim of the petitioner was, however, negated in terms of the opinion expressed by the Finance Department that the earlier post in which the petitioner was working was a non-government post.

4. I have heard Shri N.J. Dutta, learned counsel for the petitioner. I have also heard Shri J.K. Goswami, learned Addl. Senior Government Advocate, Assam as well as Shri P. Nayak, learned Standing Counsel, Finance Department, Assam.

5. Shri Dutta, learned counsel for the petitioner by referring to the Act of 1959 has submitted that under Section 8A, the constitution of the Authority has been laid down as per which, the Authority would be a body corporate having perpetual succession and a common seal and sue and be sued in its own name. He submits that for all purposes, the body is a statutory body and is governed by the Act of 1959 and the Rules framed thereunder. Reference has also been made to Section 50 which is with regard to grants, advances and loans wherein it has been laid down that the State Government may make such grants etc. as may be deemed necessary.

6. Under Section 50-C, the accounts of the Authority is subject to audit to be done annually by the Accountant General, Assam. As per Section 57, every officer and servants of the Authority is deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

7. Shri Dutta, learned counsel for the petitioner has also referred to Section 3 of the Act of 1959 which pertains to constitution of the Advisory Council. The learned counsel has also referred to FR 22-A which is with regard to pay protection and in this connection, he relies upon a judgment of this Court in the case in WP(C)/2973/2006 (Shri Ajit Kumar Kakoti Vs. State of Assam & Ors.) dated 14.06.2013. Shri Dutta, learned counsel submits that though the issue in that case was one with regard to seniority, it was held that the provision of FR 22-A would apply. It may be mentioned that the petitioner in that case was earlier working with Assam Syntex Ltd. and subsequently appointed in the Assam Textile Institute.

8. Shri Dutta, learned counsel has also relied upon the case of R.L. Marwaha Vs. Union of India, reported in (1987) 4 SCC 31. The said case though relating to a claim for pension, the Hon’ble Supreme Court has laid down that the earlier services of the incumbent after absorption is required to be counted.

9. The learned counsel for the petitioner has also referred to the affidavit-in-reply filed on 13.09.2023 with which an order dated 24.0