IMPORTANT POINT
The main legal point established in the judgment is that the petitioner's appointment is to be treated as an appointment in the post of Peon from the date of his initial appointment on 30.10.2006, and his pay scale is to be re-fixed as per the Revision of Pay Rules from the said date of appointment. The recovery of excess pay and allowances drawn by the petitioner since his initial date of appointment on 30.10.2006 is not allowed.

JUDGMENT :

The present writ petition under Article 226 of the Constitution of India is preferred by the petitioner to assail an Order dated 30.06.2017 passed by the respondent no. 4, that is, the Presiding Officer, Labour Court, Assam, Guwahati. By the Order dated 30.06.2017, the respondent no. 4 as the Appointing Authority has held that the appointment of the petitioner on 30.10.2006 is to be treated as appointment in the post of Peon in the office of the Labour Court, Guwahati, Assam and the petitioner’s pay scale is to be revised as per the Revision of Pay Rules [old] from the date of his original appointment, that is, 30.10.2006. In the Order dated 30.06.2017, it has been further observed that the excess salary drawn by the petitioner since the date of his appointment on 30.10.2006 is to be recovered.

2. In order to appreciate the nature of challenge made and its sustainability, it is appropriate to exposit the necessary and relevant background events leading to the passing of the Order dated 30.06.2017.

2.1. The petitioner came to be appointed temporarily as a Driver on daily wage basis for a period from 19.07.2006 to 31.07.2006 in view of suspension of one Anil Baishya by an Office Order dated 19.07.2006 passed by the respondent no. 4. At that point of time, Anil Baishya was serving in the substantive post of Driver in the establishment of the Labour Court, Assam, Guwahati [hereinafter referred to as ‘the Labour Court’, for short] but, Anil Baishya was placed under suspension in contemplation of drawal of disciplinary proceedings against him. Subsequently, an Advertisement came to be published on 20.09.2006 by the office of the respondent no. 4. By the Advertisement published under the hand of the respondent no. 5 applications were invited for filling up a vacancy in the post of Peon in the establishment of the Labour Court. The Advertisement prescribed that the applicant should have the qualification of Class-VIII pass and the applicant should not be below 18 years and should not be above 37 years. The petitioner responded to the Advertisement by submitting his application. After processing all the applications received in response to the Advertisement, the respondent no. 5 issued an Office Order dated 10.10.2006 whereby those applicants who were found eligible, were called to appear for interview before an Interview Board on 27.10.2006 along with the original documents. For the said post of Peon, 16 nos. of candidates had applied and out of those 16 nos. of candidates, 14 nos. of candidates appeared in the interview held on 27.10.2006. The results of the interview process were declared on 27.10.2006 itself. As per the Selection List published, the petitioner secured the highest marks in the selection process and his name figured at serial no. 1 in the Selection List. One Nayanmani Sarma secured the second highest marks and accordingly, his name figured at serial no. 2 in the Selection List. After the selection process for the post of Peon was over, the Appointing Authority passed the following Office Order on 30.10.2006 :

OFFICE ORDER

Dtd. 30.10.2006

In the interest of public service, Sri Dimbeswar Deka, S/o Late Phatik Ch. Deka, Vill & P.O. :- Baihata, P.S. :- Kamalpur, Dist.:- Kamrup [Assam] is appointed to the post of Driver in the office of the Labour Court, Assam, Guwahati in the Scale of Rs. 2650-60-2770-3310-EB-60-3490- 4480-120-5200/- P.M. plus other allowances as admissible under the Rules [Revision of Pay Scale, 1996] with immediate effect.

The appointment is purely temporary and provisional and may be terminated at any time without any reason.

2.2. On receipt of the above Office Order dated 30.10.2006, the petitioner submitted his joining letter on 30.10.2006 itself. After joining, the petitioner was discharging the duties and responsibilities in terms of the Office Order and he was enjoying the scale of pay, mentioned therein.

2.3. In the meantime, Anil Baishya who was holding the substantive post of Driver,