Gauhati High Court

Page No.# 1/14 vs The Union Of India And 3 Ors on 20 February, 2025

Page No.# 1/14

GAHC010133702024




                         THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WP(C)/428/2017

            GOUTAM KUMAR BORDOLOI and ANR.
            R/O KAMALAKANTA ENCALVE
            JAYANAGAR
            P.O. KHANAPARA
            GUWAHATI - 781022
            DIST. KAMRUP M
            ASSAM.

            2: SRI SARAT CHANDRA PHUKAN
            S/O BIPIN PHUKAN
             R/O HOUSE NO. 4
             F A AHMED AND JURIPAR LINK ROAD
             PURANIBASTI KHANAPARA
             DIST. KAMRUP M
            ASSAM
             PIN - 781022.
            VERSUS

            THE UNION OF INDIA and 3 ORS.
            REP. BY SECRETARY TO THE MINISTRY OF AGRICULTURAL AND FARMERS
            WELFARE
            KRISHI BHAWAN
            NEW DELHI- 110001.

            2:THE STATE OF ASSAM
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
            AGRICULTURE DEPARTMENT and STATE NODAL OFFICER
             CSS-ATMA
            ASSAM
             DISPUR
             GUWAHATI- 781006.

            3:THE ADDITIONAL SECRETARY
            TO THE GOVT. OF ASSAM
 Page No.# 2/14

            AGRICULTURAL DEPARTMENT AND STATE CO-ORDINATOR SAMETI
            KHANAPARA
            GUWAHATI-22.

            4:THE DIERECTOR OF AGRICULTURE
            ASSAM
            KHANAPARA
            GUWAHATI - 781022.
            ------------

Advocate for : MR. A GOGOI Advocate for : MRS. A GAYAN (CGC R1) appearing for THE UNION OF INDIA and 3 ORS.

Linked Case : WP(C)/413/2017

DR. SURENDRA KUMAR SAIKIA and ANR.

R/O. SHANTIGRAM HOUSING COMPLEX TRIPURA ROAD P.O. KHANAPARA GHY.-781022 DIST. KAMRUP M ASSAM.

2: MD. DELOWAR HUSSAIN

S/O. MD. SAHID ALI

GOALPARA TOWN PITBARI AZADNAGAR P.O. BALADMARI PIN-783121 DIST. GOALPARA.

VERSUS

THE UNION OF INDIA and 5 ORS.

REP. BY THE SECRETARY TO THE MINISTRY OF AGRICULTURAL AND FARMERS WELFARE KRISHI BHAWAN NEW DELHI-110001.

2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPTT. and STATE NODAL OFFICER CSS-ATMA ASSAM Page No.# 3/14

DISPUR GUWAHATI- 781006.

3:THE ADDL. SECRETARY TO THE GOVT. OF ASSAM

AGRICULTURE DEPTT. and STATE CO-ORDINATOR SAMETI KHANAPARA GUWAHATI-22.

4:THE DIRECTOR OF AGRICULTURE ASSAM

KHANAPARA GUWAHATI- 781022.

5:THE DISTRICT AGRICULTURE OFFICER MORIGAON

DIST. MORIGAON ASSAM.

6:THE DISTRICT AGRICULTURE OFFICER GOALPARA

DIST. GOALPARA ASSAM.

------------

Advocate for : MR.D CHOUDHURY Advocate for : MR.B DEKA appearing for THE UNION OF INDIA and 5 ORS.

Linked Case : WP(C)/6909/2017

DR. SURENDRA KUMAR SAIKIA and 3 ORS. R/O SHANTIGRAM HOUSING COMPLEX TRIPURA ROAD P.O. KHANAPARA GUWAHATI- 781022 DIST. KAMRUP M ASSAM

2: ME. DELOWAR HUSSAIN S/O MD.

GOALPARA TOWN PITBARI AZADAGAR P.O. BALADMARI Page No.# 4/14

PIN - 783121 DIST. GOALPARA

3: DR. GOUTAM KUMAR BORDOLOI S/O LT. SARADA KANTA BORDOLOI R/O KAMALAKANTA ENCLAVE JAYANAGAR P.O. KHANAPARA GUWAHATI - 781022 DIST. KAMRUP M ASSAM

4: SRI SARAT CHANDRA PHUKAN

F A AHMED AND JURIPAR LINK ROAD PURANIBASTI P.O. KHANAPARA GUWAHATI- 781022 DIST. KAMURP M ASSAM VERSUS

THE UNION OF INDIA and 4 ORS.

REP. BY THE SECRETARY TO THE MINISTRY OF AGRICULTURE and FARMERS WELFARE DEPARTMENT OF AGRI.

COOPN. and FARMERS WELFARE KRISHI BHAWAN NEW DELHI- 110001.

2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT and STATE NODAL OFFICER CSS-ATMA ASSAM DISPUR GUWAHATI - 781006.

3:THE ADDL. SECRETARY TO THE GOVT. OF ASSAM AGRICULTURE DEPARTMENT AND STATE CO-ORDINATOR CSS-ATMA ASSAM KHANAPRA GUWAHATI - 781022.

4:THE DIRECTOR OF AGRICULTURE

ASSAM Page No.# 5/14

KHANAPARA GUWAHATI - 781022.

5:THE JOINT DIRECTOR OF AGRICULTURE CUM DIRECTOR

SAMETI KHANAPARA GUWAHATI - 781022 DIST. KAMRUP M ASSAM

------------

Advocate for : MR.P S BHARALI Advocate for : MRS. A GAYAN (CGC R1) appearing for THE UNION OF INDIA and 4 ORS.

Linked Case : WP(C)/1875/2017

DR. SURENDRA KUMAR SAIKIA and 3 ORS. R/O. SHANTIGRAM HOUSING COMPLEX TRIPURA ROAD P.O. KHANAPARA GHY.-781022 DIST. KAMRUP M ASSAM.

2: MD. DELOWAR HUSSAIN

S/O. MD. SAHID ALI

GOALPARA TOWN PITBARI AZADNAGAR P.O. BALADMARI PIN-783121 DIST. GOALPARA.

3: SRI GOUTAM KR. BORDOLOI

R/O. KAMALAKANTA ENCLAVE JAYANAGAR P.O. KHANAPARA GHY.-781022 DIST. KAMRUP M ASSAM.

4: SRI SARAT CH. PHUKAN Page No.# 6/14

S/O. BIPIN PHUKAN

F A AHMED AND JURIPAR LINK ROAD PURANIBASTI KHANAPARA DIST. KAMRUP M ASSAM PIN-781022.

VERSUS

THE UNION OF INDIA and 3 ORS.

REP. BY THE SECRETARY TO THE MINISTRY OF AGRICULTURAL AND FARMERS WELFARE KRISHI BHAWAN NEW DELHI-110001.

2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM AGRICULTURE DEPTT.

and STATE NODAL OFFICER CSS-ATMA ASSAM DISPUR GHY.-781006.

3:THE ADDL. SECRETARY

TO THE GOVT. OF ASSAM AGRICULTURAL DEPTT. and STATE CO-ORDINATOR SAMETI KHANAPARA GHY.-22.

4:THE DIRECTOR OF AGRICULTURE

ASSAM KHANAPARA GHY.-781022.

------------

Advocate for : MR.D CHOUDHURY Advocate for : MR. R DHAR ADDL.SR. GOVT. ADVOCATE ASSAM. appearing for THE UNION OF INDIA and 3 ORS. Page No.# 7/14

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral) Date : 20.02.2025

Heard Mr. R. C. Sancheti, learned counsel for the petitioners. Also heard Mr. R. Dhar, learned Addl. Senior Government Advocate, Assam and Mr. A. Gayan, learned CGC appearing for the respondents.

2. The above noted writ petitions having involved the same issues; the same were heard together and is being disposed of by this common order.

3. The challenge in the above noted writ petitions, is being noticed as under: -

In WP(C) No. 413/2017, instituted by Dr. Surendra Kumar Saikia and Mohamad Delowar Hussain, the challenge is to orders dated 29.12.2016, by which a termination notice was issued to the petitioners that their services as Deputy Project Director, CSS-ATMA, Morigaon and Deputy Project Director, CSS-ATMA, Goalpara, would stand terminated within a period of one month from the date of issue of the communication. The petitioners, therein, have also prayed for their continuance as Deputy Project Director, CSS-ATMA, till the scheme involved is in operation.

In WP(C) No. 428/2017, the writ petitioners Shri Goutam Kumar Bordoloi and Shri Sarat Chandra Phukan, have also assailed a notice dated 29.12.2016, by which their services as Deputy Project Director, SAMETI was to stand terminated within a period of one month from the date of issue of the said communication. The petitioners have also prayed for continuation of their services till the scheme in question, was in operation.

WP(C) No. 1875/2017, have been filed jointly by the petitioners in WP(C) No. 413/2017 and WP(C) No. 428/2017; and have prayed for restraining the Page No.# 8/14

respondent authorities from proceeding to initiate a process of recruitment against the post held by the petitioners therein.

The petitioners have also prayed for a direction upon the respondents to implement the decisions as arrived at in a meeting held for review of "Extension

Initiative" held on 15th and 17th February, 2016, wherein it was decided that the renewal of contract on annual of six months basis should be avoided keeping it co- terminus with the project in the interest of effectiveness and continuity of extension services in the State.

WP(C) No. 6909/2017 was also instituted by the petitioners in WP(C) No. 413/2017 and WP(C) No. 428/2017; and therein, a prayer was made for release to the petitioners their current as well as arrear salaries w.e.f., the month of January, 2017.

The petitioners herein were engaged under a centrally sponsored team namely "Support to State Extension Programmes for Extension Reforms", under Agriculture Technology Management Agency, Department of Agriculture, Assam. The said scheme was promoted by the Ministry of Agriculture and Farmers welfare, Government of India, for dedicated specialized and functionary support to take up training and extension services at State, District and Block level. The said scheme was introduced in the year 2010.

The petitioners in WP(C) No. 413/2017 were engaged as Deputy Project Director (CSS-ATMA), on contractual basis under the said scheme w.e.f., 01.06.2011. The petitioners in WP(C) No. 428/2017 similarly, were also engaged under the said scheme as Deputy Directors. While the petitioner No. 1 in WP(C) No. 428/2017 was so engaged w.e.f. 12.07.2013, the petitioner No. 2 was so engaged w.e.f. 02.06.2011. The respondent authorities by projecting that the engagement made with the petitioners were to expire on 31.03.2016; performance reports of the petitioners along with other contractual employees were called for, Page No.# 9/14

by the Department of Agriculture, Government of Assam.

Thereafter, basing on the performance reports, it is projected the services of the petitioners in the above noted cases, were extended till 31.03.2017, vide an order dated 20.05.2016. Although, the services of the petitioners were contended to have been extended up to 31.03.2017, the petitioners contend that vide an order dated 20.05.2016; the services of the petitioners were terminated by not extending their services.

The petitioners being aggrieved had approached this Court by way of instituting writ petitions being WP(C) No. 3303/2016 (instituted by the writ petitioners in WP(C) No. 413/2017) and WP(C) No. 3305/2016 (instituted by the writ petitioners in WP(C) No. 428/2017). The order dated 20.05.2016, so passed, was stayed by this Court. Thereafter, the respondent authorities arrived at a decision to recall the termination order issued in respect of all the petitioners involved in the WP(C) No. 3303/2016 and WP(C) No. 3305/2016, with further liberty being sought from the Court, to initiate fresh proceeding in terms of the contract of engagement of the petitioners. Accordingly, in view of the said development, the Co-ordinate Bench of this Court vide order dated 07.12.2016, disposed of the WP(C) No. 3303/2016 and WP(C) No. 3305/2016, by closing the petitions as having become infructuous. This Court, further granted liberty to the respondent to proceed against the petitioners by following procedure as per law.

In pursuance to the said order dated 07.12.2016, the authorities of the Agriculture Department vide order dated 29.12.2016, proceeded to recall the termination order issued to the petitioners herein, on 20.05.2016. Thereafter, the respondent authorities, vide a communication dated 29.12.2016, issued a termination notice, individually, to each of the petitioners involved in the above noted writ petitions. In the said termination notice, the petitioners were put to notice that their services would stand terminated within one month from the date Page No.# 10/14

of issue of the said communication. The petitioners on instituting the WP(C) No. 413/2017 and WP(C) No. 428/2017 respectively, this Court was pleased to stay the effect and operation of the notice of termination so issued to the petitioners. The petitioners contend that they, in terms of the interim directions passed by this Court have been continuing in their services.

4. Having noticed the background facts, leading to the institution of the above noted writ petitions, this Court would now consider the orders passed by this Court in the matters.

5. This Court, vide order dated 06.01.2023, passed in the above noted writ petitions, noticing that disputed claims had come on record in view of the fact that the authorities in the Agriculture Department, Govt. of Assam had taken a stand that the petitioners were not working after March, 2017 and therefore, their salaries were released only up to March, 2017, this Court required the Commissioner and Secretary to the Govt. of Assam in the Personnel (A) Department to cause an enquiry, giving an opportunity to the petitioners to produce any relevant materials that they may desire to produce to substantiate that they are working even after March, 2017 and also giving equal opportunity to the authorities in the Agriculture Department to produce any material/documents that they may like to produce to substantiate that the petitioners are not working after March, 2017 and thereupon pass a reasoned order on the factual determination as to whether the petitioner are working beyond March, 2017.

6. It is seen that the enquiry as directed by this Court was carried out by the authorities of the Personnel (A) Department. On conclusion of the said enquiry, a report came to be submitted in the matter. The said report was made part of the records of the present proceeding, by way of filing an affidavit dated 13.11.2024 Page No.# 11/14

by the Secretary to the Govt. of Assam, Personnel (A) Department in the proceedings of WP(C) No. 413/2017. The conclusions drawn by the enquiry officer in the matter, being relevant is extracted herein below: -

"Therefore, in view of the observations, it may be concluded that:-

1. It is a fact that the petitioners were re-engaged on contractual basis after superannuation from Government service to carry forward the extension activities of the CSS-ATMA Scheme in various districts of the State from the year 2011 (Dr. Surendra Kumar Saikia, Md. Delowar Hussain and Shri Sarat Ch. Phukan) and 2013 (Dr. Goutam Kumar Bordoloi) respectively.

2. Although, no official communication found in the documents submitted by Agriculture Department assigning the petitioners to attend trainings, meetings beyond March, 2017, the petitioners may have continued to attend meetings/trainings suo-

moto on the strength of Hon'ble High Court's order dated 29.03.2017 passed in WP(C) No. 1875/2017 wherein the Hon'ble High Court as an interim measure directed that if the ATMA scheme continues and there is no adverse findings on the performance parameters against the petitioners, their contractual service is protected.

3. But, the extension of services of contractual functionaries for an unlimited period is not permissible and as a matter of policy no person should continue in service after attaining 65 years of age. Therefore, in the light of Department of Personnel's OM no. AAP 98/2017/30 dated 18th July, 2018, which encompasses all Administrative departments of Govt. of Assam, Guideline no. 3(a), states that "the overall tenure of initial appointment of retired Govt. officials shall be maximum for 1 year and the same can be renewed annually subject to the satisfactory performance of the person so engaged. However, overall tenure of such engagement shall not exceed five years or 65 years of age , whichever is earlier ".

4 . The CSS-ATMA Scheme is an ongoing scheme of the Govt. of India and is continuing till date. It is understood that the posts of Deputy Director/Deputy Project Director, SAMETI can be occupied by Officers/Officials as decided by the competent Authorities in the Agriculture Department and not necessarily by contractual functionaries only." Page No.# 12/14

7. The conclusions drawn by the enquiry officer in the matter would go to reveal that in terms of the policy decision adopted by the Dept. of Personnel (A) vide OM bearing No. AAP.98/2017/30 dated 18.07.2018, which encompasses all administrative departments of the Govt. of Assam, it was provided that overall tenure of initial appointment of retired government officials shall be maximum for one year and the same can be renewed annually, subject to satisfactory performance of the persons so engaged. It was further stipulated in the policy that overall tenure of such engagement shall not exceed 05 years or 65 years of age, whichever is earlier.

8. Applying the policy of the Govt. of Assam with regard to the contractual appointment of govt. servant, vide the said OM dated 18.07.2018, such contractual employee are entitled to continue for a tenure of 05 years and/or 65 years, whichever is earlier. Although the age of the applicants are not disclosed in the present writ petitions, considering the date of engagement of the petitioners, baring Shri Gautam Kumar Bordoloi (petitioner no. 1 in WP(C) No. 428/2017, who was engaged on 12.07.2013, all the other petitioners were so engaged on 01.06.2011 and 02.06.2011 respectively. Accordingly, baring Shri Gautam Kumar Bordoloi, all other petitioners had completed a tenure of 05 years as on the date they were issued with the notice of termination dated 20.05.2016. However, the petitioners claimed that they have continued in their respective engagements in view of the interim directions passed by this Court, in the proceedings of WP(C) No. 413/2017 and WP(C) No. 428/2017, which interim orders continued to exist till date.

9. At this stage, this Court takes notice of a communication issued by the petitioner no. 1 in WP(C) No. 428/2017, Shri Gautam Kumar Bordoloi, on behalf of the other petitioners involved in the present proceeding to the Commissioner and Secretary to the Govt. of Assam, Agriculture Department and State Nodal Officer, Page No.# 13/14

CSS, ATMA, wherein it was contended that the petitioners had not received their remuneration w.e.f., April, 2017.

Shri Gautam Kumar Bordoloi, on behalf of himself and other petitioners had further undertaken that they are ready to leave the scheme as soon as the authorities will release to them their pending monthly remuneration.

10. I have heard the learned counsels appearing for the parties and also perused the materials placed on record. The parties have made their submissions in line with the stand of the parties noticed herein above.

11. Although, in view of the interim directions passed by this Court in the above noted writ petitions, the termination of the contractual engagement of the petitioners cannot be said to have come into effect. However, while noticing the said position, it cannot be ignored that the Govt. of Assam had adopted a policy decision with regard to the tenure of Govt. Officials, engaged on contractual basis after superannuation from their services. The said policy is contained in the OM dated 18.07.2018. In terms of the provisions of the said OM, the contractual engagement of the retired government official shall be for a maximum period of one year and the same can be renewed annually, subject to satisfactory performance of the persons concerned. However, it was stipulated that overall tenure of such engagement shall not exceed 05 years or 65 years of age, whichever is earlier.

12. It is categorically stated by the respondents that the said policy decision encompasses all administrative departments under the Govt. of Assam and accordingly, the same would also stand extended with the Agriculture Department.

13. Having considered the facts as involved in the present proceeding as well as the policy adopted by the Govt. of Assam, this Court, by balancing the equities of the parties to the proceeding is of the considered view that as an exceptional case, Page No.# 14/14

the petitioners herein, are to be deemed to have continued in their services till 31.08.2018; i.e., the date when they had submitted an undertaking that they would leave their services as soon as their monthly remuneration is clear. Accordingly, the respondent authorities would now compute the remuneration receivable by each of the petitioners till 31.08.2018 and release the same to them.

14. The arrears of remuneration receivable by the petitioners, in terms of the direction passed herein above, till 31.08.2018 be computed and released to the petitioners within a period of 3(three) months from the date of receipt of a certified copy of this order.

15. It is provided that in view of the conclusions reached by this Court herein above, the petitioners, herein, would not be entitled to any remuneration after 31.08.2018. The present order has been so passed considering the facts and circumstances as emerging in the present proceedings.

16. With the above observations and directions, the present writ petitions stand disposed of. Interim orders operating, stand vacated.

JUDGE

Comparing Assistant