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Gauhati High Court

Jainul Haque Barlaskar And 60 Ors vs The State Of Assam And 3 Ors on 22 May, 2026

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010242602015

2026:GAU-AS:7156

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

Case No. : WP(C)/4177/2015

JAINUL HAQUE BARLASKAR and 60 ORS
S/O LT. SAWKAT ALI BARLASKAR R/O VILL and P.O. SALKARAKANDI DIST.
CACHAR, 788019.

VERSUS

THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
FISHERIES DEPARTMENT, DISPUR, GUWAHATI-6.

BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH

For the Petitioner(s) : Mr. A. Chakraborty, Advocate

For the Respondent(s) : Mr. T. C. Chutia, Addl. Sr. GA, Assam
: Mr. R. Borpujari, SC, Finance

· Date on which Judgment was reserved : 21.04.2026

· Date of Pronouncement of Judgment : 22.05.2026

· Whether the pronouncement is of
the Operative Part of the Judgment : N/A

· Whether the full Judgment has been
Pronounced : Yes
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JUDGMENT AND ORDER (CAV)

Heard Mr. A. Chakraborty, the learned counsel appearing on
behalf of the Petitioners and Mr. T. C. Chutia, the learned Additional
Senior Government Advocate appearing on behalf of the
Respondent Nos. 1, 3 and 4. I have also heard Mr. R. Borpujari, the
learned Standing counsel appearing on behalf of the Respondent
No.2.

2. The present writ petition has been filed by the Petitioners
seeking a direction upon the Respondent Authorities to
regularize/provincialize the services of the Petitioners as a one-time
measure with retrospective effect by normalizing the posts with all
consequential benefits.

3. Before detailing out the facts, this Court finds it very pertinent
to take note of that the writ petition was filed in the year 2015,
and at the time when the present writ petition was taken up for
final disposal, some of the writ petitioners have already retired.

BRIEF FACTS:

4. Fish Farmers Development Agency, (for short, 'FFDA') was
constituted in Assam under the Central Sector Scheme (Freshwater
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Aquaculture) during the 5th Five-Year Plan period (1975-80). In
terms of the decision taken by the National Development Council,
the Planning Commission of India transferred the Scheme from
Central Sector to Centrally Sponsored Scheme from 1979-80
onwards with sharing expenditure on 50:50 basis between the
Central Government and the State Government concerned till 1981.
The FFDA is generally run under a particular staff pattern as per
the norms approved by the Expenditure Finance Committee in the

revised Memorandum during the 6th Five-Year Plan (1980-85)
dated 06.11.1981 and a communication dated 02.02.1982 issued
by the Director of Fisheries, Government of Assam.

5. The Government of India as well as the Government of Assam
have created various posts and this aspect would be apparent from
Annexure-I to the affidavit-in-opposition filed by the Deputy
Director of Fisheries, Assam dated 19.07.2016. In this respect, it is
pertinent to mention that a perusal of the said Annexure-I would
show that in all the 12 districts, with the approval of the Finance
Department of the Government of Assam, the posts were created,
sanctioned and/or retained. It also shows that certain posts were
created by the Government of India in 1970s in the Districts of
Kamrup and Darrang which were retained by the Finance
Department and the other posts were created in the year 1980s by
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the Finance Department, Government of Assam.

6. At this stage, it is also relevant to take note of the status of
manpower position under the development of freshwater
aquaculture under the FFDA as on 2008-2009 which is certified by
the Director of Fisheries, Assam on 16.12.2008. From a perusal of
the said document, it transpires that in the 11 Districts excluding
Karbi Anglong, there exists 166 sanctioned posts and in the district
of Karbi Anglong, there are 14 posts totaling to 180 posts. These
posts have been sanctioned and/or retained by the Government of
Assam with due concurrence of the Finance Department,
Government of Assam. Out of the said 180 posts, 115 posts have
been filled up and 65 posts were vacant. It may not be out of place
to mention that in the year 2008, although there were 23 FFDAs in
Assam, but only 12 FFDAs in the districts of Kamrup, Nagaon,
Sonitpur, Lakhimpur, Dibrugarh, Jorhat, Dhubri, Cachar, Karimganj,
Darrang, Kokrajhar and Karbi Anglong were having staff against
sanctioned posts as per the norms of the Centrally Sponsored
Scheme.

7. In the above backdrop, let this Court take note of the case of
the Petitioners. The Petitioners are staff appointed in pursuance to
a due selection process in different posts under the III Centrally
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Sponsored Scheme, "Freshwater Aquaculture" and till the date of
filing of the writ petition, all the Petitioners were rendering service
and presently, many of them continue to render service.

8. The Commissioner and Secretary, Fishery Department,
Government of Assam, had issued a notification dated 19.07.1993
thereby merging 12 posts of Chief Executive Officer in the pay
scale of Rs.1,835/- - 4,325/- per month, created under the FFDA
with the post of District Fishery Development Officer of the
concerned Districts. However, the Petitioners for reasons best
known to the Respondents were kept out of the purview of the
merger.

9. It is apposite at this stage to take into consideration a
development which took place in the year 1997. The Planning
Commission prepared a NOTE on transfer of Centrally Sponsored
Scheme to various State Governments. The said NOTE contained
wide discussions on the need of transfer of Centrally Sponsored
Schemes to the State Governments. It was mentioned therein that

during the approach to the 7th Five-Year Plan, the issue of the
transfer of Centrally Sponsored Schemes to the various
Departments of the States were raised and an expert group under
the Chairmanship of Shri K. Ramamurthy was set up to review the
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issue of transfer. Thereupon, a Committee was set up under the
Chairmanship of Sri P.V. Narasimha Rao, the then Minister of
Human Resource Development. The Committee recommended that
out of 262 Centrally Sponsored Schemes which were under

implementation at the commencement of the 7th Plan, 113
Schemes be transferred to State with resources.

10. A review of the status of the 113 Schemes to be transferred
was carried out which revealed that 68 (sixty eight) Schemes were
discontinued or had become defunct. 4 (four) Schemes were
approved as Central Sector Schemes and 15 (fifteen) Schemes
were transferred to the States and 6 (six) Schemes were yet to be
transferred. In the meeting of National Development Council held

in the year 1997 to discuss the draft approach of the 9 th Plan,
several Chief Ministers of the States reiterated their suggestion for
transfer of Centrally Sponsored Schemes to the States along with
resources, particularly in the sectors which were a part of the State
list as per the Constitution. The NOTE contained the list of
schemes to be retained and to be transferred and request was
made to the Central Ministries/Departments and the States/UT
Governments to furnish their comments. The said NOTE was
communicated to all State Governments/UT Governments vide a
letter dated 26.05.1997. A perusal of the list enclosed with NOTE
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would show that at Serial No.10, the Scheme under which the
Petitioners were appointed was mentioned "To be transferred".

11. The records also show that the Additional Chief Secretary to
the Government of Assam, Planning and Development Department
issued a communication dated 12.06.1997 to the Principal
Secretary/Commissioner and Secretary/Secretary to all
Departments asking their views pertaining to ensuing transfer of
Centrally Sponsored Scheme in terms with the aforesaid letter
dated 26.05.1997 issued by the Government of India. It was
mentioned in the said communication that since decision have
been taken by the Chief Ministers in the National Development
Council Meeting, therefore the transfer has to be effectuated. The
Departments were requested to suggest any changes in the
Schemes. It was also mentioned that if the Scheme(s) is/were to
be dropped, the Departments were required to suggest as to how
the staff created under the Scheme would be utilized or
redeployed.

12. The Director of Fisheries, Assam issued a communication
dated 24.06.1997 to the Commissioner and Secretary to the
Government of Assam, Fishery Department giving his views on the
ensuing transfer of the Centrally Sponsored Schemes. In the said
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communication, the Director of Fisheries mentioned that two
Centrally Sponsored Schemes are running in the Fishery
Department i.e. (i) Freshwater Aquaculture (FFDA) and (ii) Welfare
of Fisherman (Housing Scheme). The Director of the Fisheries
suggested that after transfer of the FFDA Scheme, the regular
absorption of the staff will be a concern for the State Department
and accordingly suggested for evolving a phase-wise program for
regularization of the staff under the FFDA. The Director of
Fisheries, however, gave a suggestion for discontinuation of the
other Centrally Sponsored Scheme, i.e. Welfare of Fisherman
(Housing Scheme) because continuation of the said Scheme could
not fetch any benefit to the State.

13. There are no materials available before this Court as to what
steps were taken pursuant to the suggestions provided by the
Director of Fisheries, Assam in the communication dated
24.06.1997. Be that as it may, the FFDA was transferred to the
State of Assam and the Petitioners herein along with others who
were rendering services in the FFDA, continued to render their
services and their payments were duly made from the coffers of
the State of Assam.

It is relevant to observe at this stage that the FFDA was
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brought within the fold of the State of Assam upon its transfer in
the year 1997 and the State of Assam continued with the FFDA
and still continues as on date. This aspect is relevant as would be
seen at a later stage of the instant judgment.

14. At this stage, it is relevant to take note of another important
development. The Finance (Budget) Department of the
Government of Assam through the Commissioner and Secretary to
the Government of Assam, Finance Department, issued a
communication dated 10.05.2005 informing all Principal
Secretary/Commissioner and Secretary/Secretary to the
Government of Assam relating to normalization of posts into the
State Plan. In that regard, proposals were sought from the various
Departments of the Government of Assam to the respective
Expenditure Control Branch of the Finance Department after
obtaining approval from the Planning and Development
Department for normalization of all posts under the State during
the Financial Year 2005-2006 for necessary concurrence. Various
conditions were mentioned which were required to be looked into
while identifying the posts to be normalized. The various terms
which have been mentioned in the said communication dated
10.05.2005 being relevant are reproduced herein under:
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"(i) Only the filled up regular posts created in prescribed time scale with
concurrence of Finance Department and not the vacant posts are to be
normalized.

(ii) While submitting proposals for normalization, it is to be ensured that
upto date retention order has been duly issued in respect of each posts
which are not permanently retained. Copies of sanctioning letter for
creation of post and latest retention (Permanent/Temporary) are to be
furnished alongwith the proposal for normalization.

(iii) Employees Identification Number/GPF account No. of each of the
incumbents against the post to be normalized is to be furnished.

(iv) Gross monthly salary of the incumbents to be furnished.

(v) Particulars furnished through the proforma at annexure-II is to be
countersigned by Sr. F.A./F.A./Sr. F.A.O./F.A.O. as the cause may be and
authenticated by the Commissioner/Secretary of the Department.

(vi) After obtaining concurrence to the normalization proposal, Administrative
Department will issue a notification indicating transfer of posts from
State plan to Non-Plan as per specimen at annexure-III.

(vii) Posts that are normalized are to be shown separately in the budget
estimate for Non-Plan for the year 2006-07."

15. The said proposals were to be submitted to the respective
Expenditure Control Branches of the Finance Department latest by
31.05.2005, so as to complete the entire process of normalization
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within 31.08.2005. The enclosure to the said document also
referred the Fishery Department at Serial No.6.

16. Before proceeding further, it is relevant to understand what
the above communication meant. For that purpose, one has to
understand the concept of normalisation of posts. For
administrative exigency, sometimes posts are created under the
Plan budget (i.e. funded through development scheme or Five Year
Plan). These Plan posts are normally considered exceptional or
temporary as they are created for a specific scheme or project.
When such posts are normalised, it becomes a part of the normal
permanent establishment of the Government. The act of
normalisation of the posts are carried out when works carried out
are recognized as a routine ongoing Government function rather
than a time bound project activity.

It is also pertinent to take note of the effect of normalisation
of the post(s). Upon normalisation, the following changes occur to
the treatment of the post(s):

(a) The salary burden shifts from the plan/ development
budget to the revenue/establishment budget.

(b) The post no longer depends on the scheme's
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continuation or plan period renewal.

(d) The post(s) survive even if the original scheme ends or
is restructured.

It is apposite also to mention that there is a fundamental
difference between the concept of regularisation and
normalisation. In case of regularisation, a temporary or a
contractual employee is converted into a permanent employee
whereas in the case of normalisation, it amounts to converting a
post from plan funding to non plan/regular establishment. In other
words, normalisation is about the budgetary character of the post
whereas regularization, it is the change of the employment status.
However, in practice, the normalisation of a post often precedes or
accompanies regularisation of the incumbent.

The understanding of the above aspect is relevant inasmuch
as the reliefs sought for in the writ petition is normalisation of the
posts held by the Petitioners with retrospective effect.

17. Moving forward, the records do not show as to whether the
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Fishery Department then submitted any proposal, taking into
account the FFDA Scheme was transferred to the State of Assam in
the year 1997 itself and had been continuing in a routine manner.
However, on 27.07.2007, the Director of Fisheries wrote a letter to
the Commissioner and Secretary to the Government of Assam,
Fishery Department submitting the proposal for normalization of
FFDA Officers and Staffs. In the said letter, it was mentioned that
there were 23 (twenty three) numbers of FFDA including 2 (two)
Hill Districts functioning in the State. Out of the 23 FFDAs, in the
12 FFDAs there were 180 number of sanctioned posts under the
State Plan since inception of the respective FFDAs and out of
which, 128 number of posts were filled up and 52 posts were lying
vacant. It was further mentioned that 100% of the salary
component of the base staff and the deputed staff are borne by
the State Government as per the guidelines in the scheme of
"Development of Freshwater through FFDA" issued by the
Government of India and the said salary component is drawn by
the Directorate of Fisheries subject to sanction by the
Administrative Department with due concurrence from the Planning
and Development Department, Finance (EC-I) Department and
Finance (Budget) Department respectively. It was also mentioned
that the total requirement of fund under the salary component
came to Rs.16.62 lakhs as on March, 2007 per month and
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Rs.199.47 lakhs for a period of one year as indicated in the L-form
statement enclosed for sanctioned posts under 12 FFDAs (including
Karbi Anglong). Additionally, it was mooted that the salary were
drawn as grants-in-aid under the Head of Account "2405-Fisheries
(Plan) 800-other expenditure III Centrally Sponsored Scheme 09 -
grants-in-aid" and the proposal was to transfer those posts for
normalization to the Head of Account, "2405-Fisheries (Non-Plan)
001-Direction & Administration 143-District Administration".

18. While the aforesaid process was initiated, in the meantime,
the Government of India issued Guidelines for the Classification of

Expenditure (plan and non-plan) for the 11 th Five-Year Plan, (2007-
12). In terms with Clause-B of the guidelines, the Committed Non-
Plan Expenditure liability is to be borne by the State Government in
respect of the State Plan and Centrally Sponsored Scheme.
Moreover, as per Clause B(vi) of the guidelines, all the grants-in-aid
up to the level attained at the end of the year 2006-07 would be
transferred to non-plan side of the Expenditure Budget from the
year 2007-08. Clause B(vi) of the guidelines being relevant is
reproduced herein under:

"B(vi) All Grants-in-aid up to the level attained at the end of the year 2006-07 will
get transferred as the non-plan side of the Expenditure Budget for 2007-
08."
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19. The records further reveal that the then Minister of Fisheries
informed the then Chief Minister of Assam that the Fishery
Department submitted a proposal to the Finance Department for
normalization of 176 number of posts which were created under
the Central Sector Scheme for the Freshwater Aquaculture through
FFDA in the Department of Fishery with due approval of the
Planning and Development Department of the Government of
Assam with the concurrence of the Finance Department so that
these employees were given their salaries regularly. It was further
mentioned that the Finance Department had suggested for
provincialization of these posts first under head "2405-Fisheries
(Non-Plan) 001-Direction and Administration, 143-District
Administration under Salary Head" during the financial year 2010-
11. In that regard, a proposal was sent to the Finance Department
again for provincialization of these FFDA posts. The Chief Minister
of Assam was requested by the Minister of Fisheries, Assam to look
into the matter sympathetically and pass necessary orders to the
Finance Department for provincialization of these FFDA posts so
that these 176 FFDA employees may get benefit.

20. The State Government however, did not take any steps and it
is under such circumstances, the Petitioners have been compelled
to approach this Court.
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21. It may not be out of place herein to observe that it is an
admitted fact that the State of Assam had normalized various posts
in different Departments of the Government and have also
regularized various persons in various Departments during this
period.

22. The records reveal that pursuant to the filing of the instant
writ petition, the Fishery Department had filed an affidavit-in-
opposition wherein also the Fishery Department which is the
Administrative Department concerned, had supported the
normalization of the posts. It is mentioned in the affidavit of the
Fishery Department that proposals for normalization of the Plan
Post of Officers and staff under FFDA were submitted in the year
2008 as well as in the year 2010. But the Finance Department had
rejected such proposals. It is also mentioned in the said affidavit-
in-opposition filed by the Respondent No.4 that the Cabinet
Memorandum for FFDA's posts under State Plan had already been
intimated to the Government for necessary sanction vide No.AF(P)
105/2007-08/5120 dated 03.09.2009.

23. When the instant writ petition was taken up on 06.01.2026,
the learned counsel appearing on behalf of the Petitioners
submitted that the materials on record would show that the
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services of the Petitioners under the FFDA have been continued by
the State Government as a routine ongoing Government function
since the last 55 years but in order to deprive the service benefits
which a regular Government servant enjoys, the normalization of
the posts held by the Petitioners have not been carried out. The
learned Standing counsel for the Finance Department submitted
that the Finance Department would like to file an affidavit-in-
opposition. This Court accordingly granted time to the Finance
Department to file the affidavit-in-opposition, though such request
was made after 9 years, as the stand of the Finance Department
would be necessary for a proper adjudication of the writ petition.

24. The Finance Department filed an affidavit on 24.02.2026
wherein there is no denial to the statements made at Paragraph
Nos. 3 to 19 of the writ petition. At paragraph No.6 of the said
affidavit-in-opposition, it was mentioned that the Finance
Department received a proposal from the Fishery Department for
normalization/provincialization of posts of Fish Farmer
Development Agency. However, on examination of the proposal,
the Finance Department regretted the same on the ground that the
FFDA is a society registered under the Societies Registration Act,
1860. At paragraph No.10 of the said affidavit-in-opposition, it was
mentioned that the proposal for regular salary of the existing FFDA
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employees is under active consideration of the Finance Department
and the Finance Department is looking into various extant norms.
Annexure-A to the said affidavit-in-opposition filed by the Finance
Department is the Office Note dated 28.06.2011 whereby the
Finance Department regretted its inability to agree to the proposal
for normalization/ provincialization of the posts of the FFDA.

25. The Petitioners filed an affidavit-in-reply on 10.03.2026
wherein it was mentioned that the State Government exercised
deep and pervasive control over the affairs of the FFDA. It was
mentioned that in each district throughout the State of Assam, a
Fish Farmers Development Agency was formed with similar
Memorandum of Association and Regulations governing such
FFDAs. In terms with the Regulations for the FFDA, the Managing
Committee is headed by the Deputy Commissioner (now District
Commissioner) who serves as the Chairman. Furthermore, the said
Regulations also stipulated that the Managing Committee would
only be constituted by the State Government.

In the affidavit-in-reply, it was contended that the Petitioners
have been rendering their services which are perennial in nature
and the fact that the Scheme had been continued by the Fishery
Department till date with due approval of the Finance Department
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leaves no manner of doubt that the services rendered by the
Petitioners are indispensable for the effective functioning of the
Fishery Department of the Government of Assam.

SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR BOTH THE
PARTIES:

26. Mr. A. Chakraborty, the learned counsel appearing on behalf of
the Petitioners submitted that the Petitioners herein were initially
appointed under the Centrally Sponsored Scheme and
subsequently, the said Scheme was transferred to the State
Government. At the time when the Petitioners were appointed,
they were appointed pursuant to a valid selection process to the
posts which were created, sanctioned and retained by the Finance
Department of the Government of Assam. Subsequent to the
transfer of the said Scheme to the State Government, the State
Government continued with the said Scheme by granting salaries
to the Petitioners at par with regularly recruited employees of the
Fishery Department. However, those employed under the FFDA
Scheme were kept under the Plan Post of State rather than
bringing them within the regular services of the State.

27. The learned counsel further drawing reference to the
communication issued by the Finance Department of the
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Government of Assam dated 10.05.2005 as regards the
normalization of post under the State Plan submitted that the case
of the Petitioners duly come within the terms and conditions
stipulated in the said communication dated 10.05.2005 as would
be apparent from Annexure-I to the affidavit-in-opposition filed by
the Respondent No.4. The learned counsel submitted that only for
the purpose of depriving the Petitioners the benefits of a regular
employment, the posts held by the Petitioners have not been
normalized to the State Plan. The learned counsel submitted that
from the affidavit of the Fishery Department which is the
Administrative Department under whom the Petitioners render their
services have been requesting the Finance Department to bring the
posts under FFDA within the Non-Plan posts of the State.

28. The learned counsel appearing on behalf of the Petitioners
referred to the judgment of the Supreme Court in the case of
Dharam Singh and Others Vs. State of U.P. and Another reported in
(2025) 8 S.C.R. 1026 as well as the order dated 18.02.2022 passed

by the Supreme Court in the case of the State of Gujarat and
Others Vs. Talsibhai Dhanjibhai Patel reported in (2022) SCC

OnLine SC 2004.

29. Mr. T. C. Chutia, the learned Additional Senior Government
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Advocate appearing on behalf of the Fisheries Department of the
State of Assam submitted that the Fisheries Department from time
to time had been submitting the proposals to the Finance
Department for provincialization/normalization. But the Finance
Department had regretted such proposals for provincialization/
normalization of the FFDA posts to the State Plan posts. The
learned Additional Senior Government Advocate submitted that as
no steps have been taken by the Finance Department resulting the
Petitioners along with the other FFDA employees still continue to
render their services in Plan posts of the State.

30. Mr. R. Borpujari, the learned Standing counsel appearing on
behalf of the Finance Department on the other hand submitted
that the FFDA is a society registered under the Societies
Registration Act, 1860 and as such, the Finance Department had
regretted the said proposal. The learned Standing counsel for the
Finance Department further submitted that these Petitioners herein
were appointed against a particular Scheme and as such, under no
circumstances they can be said to be Government servants and
therefore the question of the services rendered by the Petitioners
under the Scheme to be counted for the purpose of deciding that
they should be brought within the services of the State or entitled
to any pensionary benefits does not arise. In that regard, the
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learned Standing counsel have referred to the judgment of the
Supreme Court in the case of Dhyan Singh and Others Vs. State of
Haryana and Others reported in (2002) 10 SCC 656 and
Parmeshwar Nanda and Others Vs. State of Jharkhand through
Chief Secretary and Others reported in (2020) 12 SCC 131.

ANALYSIS AND DETERMINATION:

31. The facts as delineated hereinabove, makes it clear that the
Petitioners herein were appointed against the posts which were
created by the Government of India in 1970s as well as posts
created and sanctioned by the State Government in 1980s. A
perusal of Annexure-I to the affidavit-in-opposition filed by the
Respondent No.4 would show that all these posts have been
retained by the Government of Assam with the concurrence of the
Finance Department. At the time of the appointment, the
Petitioners were appointed in the Centrally Sponsored Scheme
"Freshwater Aquaculture", FFDA, Department of Fisheries, Assam.
In the year 1993, the Chief Executive Officers who were working
under the FFDA Scheme, their posts were merged with the post of
District Fishery Development Officer of the concerned Districts vide
a notification dated 19.07.1993. This aspect is apparent from
Annexure-III to the writ petition. However, the Petitioners were left
out.
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32. It is also very pertinent to take note of that as far back as in
the year 1997 itself, a decision was taken at the request of the
State Governments to transfer various Schemes which were a part
of the State list. Entry 21 of List-II of the Seventh Schedule
specifically refers to Fisheries. The Central Government issued a
NOTE to all the State Governments/UT Governments vide the letter
dated 26.05.1997 for their comments as to whether the various
Centrally Sponsored Schemes are required to be transferred to the
State. The Director of Fisheries vide the communication dated
24.06.1997 gave his views that the Scheme, i.e. Freshwater
Aquaculture (FFDA) was required to be retained and upon the
transfer of the Scheme, the regular absorption of the staff position
under FFDA will be a particular concern of the State Government

and the programme should be evolved during the 9 th Plan for
regularization of the staff position under the FFDA.

33. The FFDA Scheme thereupon was continued and salary was
paid to the staff including the Petitioners in the form of grants-in-
aid under the Head of Account, "2405-Fisheries (Plan) 800-other
expenditure III Centrally Sponsored Scheme 09 - grants-in-aid".

34. The Central Government further had issued certain Guidelines

for Classification of Expenditure for the 11 th Five-Year Plan in
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respect to Central Government, State Government, UTs outlay over
the period 2007-2012. In those guidelines under the caption
"COMMITTED NON PLAN EXPENDITURE", it was mentioned that
items of expenditure/outlays incurred in the current (Tenth) Plan
that were to be treated as committed non-plan expenditure. Clause
B(ii) stipulated that in case of development schemes spilling over,
the portion of the assets created or service/facilities established,
such operation and maintenance of such assets or
services/facilities are to be treated as committed non-plan
expenditure. Clause B(vi) also stipulated that all grants-in-aid up to
the level attained at the end of the year 2006-07 would get
transferred into the Non-Plan side of the Expenditure Budget for
2007-08.

35. At this stage, let this court take note of communication dated
10.05.2005 issued by the Finance Department and what proposals
the Finance Department sought for. From a very perusal of the
communication, it reveals that a policy decision was taken by the
Government to normalize all posts under the State Plan during the
Financial Year 2005-2006 and as such, proposals were invited from
various Departments. For the purpose of identification of such
posts which were to be normalized, seven conditions were
enumerated. These seven conditions have already been quoted in
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the previous segments of the present judgment. It is also relevant
to observe that out of the seven conditions mentioned, the
conditions at Serial Nos. (i) to (iv) are relevant for identification of
the posts.

At this stage, it would be relevant to analyze as to whether
the four conditions at Serial Nos. (i) to (iv) of the communication
dated 10.05.2005 stands satisfied. For that purpose, Annexure-I to
the affidavit-in-opposition filed by the Fishery Department of the
Government of Assam is relevant. A perusal of the enclosures to
Annexure-I would show that all the four conditions were met.
Therefore, the question arises as to why the exercise of
normalisation of the FFDA posts were not carried out. In fact the
issue involved in the present proceedings is not purely a case of
directing regularisation but a case of inaction on the part of the
Respondent Authorities to not normalize the FFDA posts which
were initially created on the Plan Budget to the Non-Plan Budget or
the State Plan and thereby depriving the Petitioners herein to the
benefits which a regular Government servant enjoys.

36. In the previous segments of the present judgment, this Court
dealt with the concept of normalisation of posts. Let this Court now
deal with the situation when posts are normalised from Plan sector
Page No.# 26/50

to Non-Plan sector. The circumstances are:

(A) When the Central Government stops funding a Scheme or for
that matter, when the Centrally Sponsored Scheme is discontinued
or restructured: In such a situation, the State Government is left
with posts and staff that were funded under the Centrally
Sponsored Scheme. The State then has to decide whether to
absorb those posts into the regular establishment or to completely
shut the scheme.

In the present case it would show that the FFDA was a
Central Sector Scheme initially and thereupon became a Centrally
Sponsored Scheme. It was at the instance of the State
Governments that various Schemes were transferred to the State
Governments in the year 1997. A Note was circulated by the
Central Government asking for comments from the State
Governments. The Fishery Department of the Government of
Assam vide a communication gave its views as regards the
retention of the FFDA and regularization/absorption in the regular
establishment of the State. The records reveal that though the
FFDA was retained but the posts in the FFDA even continue till
date in the Plan Sector of the State of Assam.
Page No.# 27/50

(B) When the Scheme becomes a permanent Government function:
When the activity being carried out under a plan Scheme is
recognized as an ongoing core Government function rather than a
time bound project, the posts supporting the function are
considered for normalisation.

In the above perspective, let this Court consider as to whether
the function rendered by the FFDA are a part of the ongoing core
Government function. The stand of the Administrative Department
i.e the Fishery Department of the Government of Assam is very
relevant in this regard.

(i) The records reveal that the State Government retained the
FFDA Scheme and still continues with it for the last 29 years after
the transfer of the FFDA under the State Government. In fact, the
posts of FFDA have been rendering functions since some posts
were created in 1970s and others in 1980s. There is nothing on
record to show that the State Government at any point of time had
proposed to do away with the FFDA or the services of the persons
employed under the FFDA are not required. Rather, the materials
on record would suggest that the services rendered by the persons
manning the FFDA posts are perennial in nature. In fact, the
communications which have been issued by the Administrative
Page No.# 28/50

Department from time to time would show that the services
rendered by the persons like the Petitioners, are indispensable for
the effective functioning of the Fishery Department of the
Government of Assam. In this regard, this Court finds it relevant to
take note of the communication dated 27.07.2007 issued by the
Director of Fisheries, Assam wherein a proposal was made for
normalization of the FFDA officers and staff. The relevant portion of
the said document being pertinent to issue involved herein is
reproduced herein under:

"In inviting a reference to the subject cited above, I have the hounour
to draw your kind notice that there are 23 (twenty three) nos. FFDAs including
2 (two) hill districts functioning in the state. In 12 (twelve) nos. FFDAs
including Karbi Anglong there are 180 nos. of sanctioned posts under state
plan since inception of the respective FFDAs. Out of which 128 nos. of posts
are filled up and 52 nos. are lying vacant.

In this connection it may be stated here that, the 100% of salary
component of the base staff and deputed staff are borne by the state Govt. as
per guidelines therein (copy enclosed at Annexure-A) in the scheme
"Development of freshwater through FFDA" issued by the Govt. of India and
the said salary component is drawn by the Directorate of Fisheries subject to
according sanction by the administrative deptt. with due concurrence from
P&D deptt., Finance (EC-I) deptt. And Finance (budget) deptt. respectively.
Further, it may also be stated herewith that under the present system of
releasing fund as grants-in-aid for 100% state share towards salary
component of FFDA staff is generally delayed in the stage of observing
Page No.# 29/50

formalities so far Finance and P&D deptt. are concerned causing delay in
releasing fund thereby delay in drawing and disbursing to the FFDAs in proper
time for which CEOs of FFDAs are not in a position to pay his staff timely &
regularly.

The total requirement of fund under salary component comes to
Rs.16.62 lakhs as on March'07 per month and Rs.199.47 lakhs (Annexure-B)
for a period of one year as indicated in the L-Form statement at Annexure-C
for sanctioned posts under 12 FFDAs (including Karbi-Anglong). However,
men in position are only 128 and the remaining 52 posts are lying vacant at
present (Annexure- D & E). It is proposed that on filling up of the vacant
posts, the posts under all the said 12 nos. FFDAs shall be rationalized in the
deptt. as there is no scope of creation of new posts."

(ii) The communication issued by the Director of Fisheries on
03.07.2009 to the Commissioner and Secretary to the Government
of Assam, Fishery Department which is Annexure-IV to the
affidavit-in-opposition filed by the Respondent No.4 being relevant
and hence, the contents are reproduced herein under:

"GOVERNMENT OF ASSAM

OFFICE OF THE DIRECTOR OF FISHERIES

ASSAM, GUWAHATI

No. AF(P)105/2007-08/5020 Dated Guwahati, the th June'2009

To : The Commissioner & Secreatry to the Govt. of Assam,
Fishery Deptt., Dispur, Guwahati
Page No.# 30/50

Sub : Cabinet Memorandum on transfer of posts created under Centrally
Sponsored Scheme (Plan) to State sector scheme (Plan)

Ref : Note from the Hon'ble Minister for Fisheries, Assam dtd. 17th June'09

Sir,

As per instruction of the Hon'ble Minister for Fisheries, Assam, vide note
under reference (copy enclosed) a draft Cabinet Memorandum on transfer of posts
created under Centrally Sponsored Scheme (Plan) to State sector scheme (Plan)
has been prepared. It is stated that, presently, the manpower strength of the
Department is poor which is one of the major constrains hindering timely
implementation and monitoring of various State Plan, Central sector, Centrally
Sponsored Schemes, NFDB scheme, World Bank funded schemes viz., AACP, RKVY
etc. and in expanding further activities of the department. To partially meet the
shortage of manpower of the Deptt., the 186 posts created by the Deptt. of
Fisheries, Govt. of Assam with due concurrence of Finance Department, Govt. of
Assam about 35 years back under 12 Fish Farmers Development Agencies (in 11
plain districts and 1 hill district) for aquaculture development programmes in the
District level under Centrally Sponsored Schemes (CSS) are proposed to be
transferred from CSS to State Plan.

I therefore request you kindly to take necessary steps in respect of the draft
Cabinet Memorandum for transferring of the posts as stated above.

Yours sincerely,

Director of Fisheries
Assam : Guwahati"
Page No.# 31/50

(iii) The justification given by the Director of Fisheries in the
communication dated 26.08.2010 for normalization of the plan post
of officers and staff under the FFDA which is Annexure-II to the
affidavit-in-opposition filed by the Respondent No.4 is also
relevant. The said communication is reproduced herein under:

"GOVT. OF ASSAM

DIRECTORATE OF FISHERIES

ASSAM : GUWAHATI

No. AF(S)105/2007-08/4627 dated Guwahati, the 26th August'2010

From : I. Haque, ACS
Director of Fisheries
Assam, Guwahati.

To : The Commissioner & Secreatry
to the Govt. of Assam, Fishery Department
Dispur, Guwahati

Sub : Normalization of Plan Posts of Officers & Staff under FFDA.

Ref : FISH/203/99/450 Dated 15/06/10

Sir,

With reference to the above, I have the honour to state that the CSS
schemes being implemented through FFDAs are very important schemes for
development of aquaculture in the state like Assam where there is enough
potential for aquaculture development. It needs mention here that the
officers/staff appointed under FFDAs are equally engaged like other employees of
the Department for implementation of different development schemes in the
Page No.# 32/50

districts. It is further mentioned that no plan posts were created in the department
during last 18-20 years since creation of a good number of districts, sub-division
and blocks during the period. In many districts, the offices are run/managed by
original staff of the sub-divisional office while many sub-divisional offices have to
be managed by the Sub-Divisional Officer alone. This has resulted considerable
constraint in implementation of development programmes.

The activities of the Department have increased considerably and infusion
of development fund over last few years has increased manifold (700-800%). It
may further be stated that the Department has established itself as one of the
most performing Departments of the Government of Assam and genuinely
requires a number of need based essential posts for both office and field in some
districts/sub-divisions.

The proposal for normalization of the posts created under CSS was
submitted because of essential need of the Department as indicated above. In this

connection, it may be mentioned here that vide letter No.PDPSS/2007/55 dtd 2 nd
November'2007 Govt. of Assam has informed that, Govt. of India indicated in

"Classification of Expenditure (Plan and Non-Plan) for the 11 th Five Year
Plan (2007-12)" that all expenditures connected with maintenance of existing
institutions and establishments will be treated as Non-Plan committed expenditure
(Annexure-I). Further the letter stated that all grants-in-aid upto the level
attained at the end of the year 2006-07 will get transferred to the Non-Plan side of
the expenditure budget for 2007-08. Accordingly, the proposal for normalization of
the FFDA posts were submitted to Govt. vide letter No.AF(P)105/2007-
08/46/10132 dt. 06/12/2007.

It is stated here that the posts, on normalization, will be proposed to be
rationally shifted to the districts where there is acute shortage of staff because of
which implementation of development schemes are seriously affected.
Page No.# 33/50

Under such circumstances, it is requested to take necessary steps for early
normalization of the posts under FFDAs for further improvement in performance of
the Fishery sector in the State.

Yours faithfully,

Director of Fisheries
Assam : Guwahati"

(iv) This Court also finds it relevant to take note of the request
made by the then Minister of Fisheries, Assam to the then Chief
Minister on 22.12.2010, which is Annexure-17 to the writ petition
and the same is reproduced herein under:

"No.MISF.2/2010/
December 22, 2010

Hon'ble Chief Minister, Assam

I would like to draw your kind attention to the fact that 176 number of
posts were created under Central Sector Schemes (CSS) for Fresh Water
Aquaculture through Fish Farmers Development Agency (FFDA) in the Department
of Fisheries with due approval of P&D and concurrence of Finance Department
about 25-30 years back. Besides implementation of ongoing FFDA schemes
services of these employees are also utilized for implementation of all other
development schemes of Fisheries Department. The department is running with
shortage of manpower and as such their services are very much essential.

The total annual plan fund of Fisheries Department was Rs.6-7 crore about
five years back and now the department has annual plan fund of Rs.50.00 crore
Page No.# 34/50

with a very limited manpower of its own. As such, the services of FFDA employees
are being utilized for implementation of developmental schemes. These employees
do not get their monthly salaries regularly and suffers a lot.

In view of the facts, Fisheries Department submitted a proposal to Finance
Department for normalization of these FFDA post so that they can get their
salaries regularly but, the Finance Department has suggested for provincialisation
of these posts first under Head "2405-Fisheries (Non Plan) 001-Direction and
Administration 143-District Administration under Salary Head" during the current
financial year 2010-11.

Accordingly, a proposal is being sent to Finance Department again for
provincialisation of these FFDA posts.

Hon'ble Chief Minister may kindly look into the matter sympathetically and
pass necessary orders to Finance Department for provincialisation of these FFDA
posts so that these 176 FFDA employees may get benefit before the ensuing
General Election.

(Nurjamal Sarkar)
Minister, Fisheries, Assam"

(v) It is of relevant to note that the posts in the FFDA have been
continued by the State of Assam as an ongoing regular function of
the Fishery Department of the Government of Assam. However,
unfortunately, the FFDA is still continued in the plan sector of the
Government of Assam. The reason being that the FFDA is an
agency and the said Scheme is run as a society registered under
Page No.# 35/50

the provisions of the Societies Registration Act, 1860. This Court
would deal with the reason assigned by the Finance Department,
at a later stage of the present judgment.

(C) At the end of the Five Year Plan: Historically it would be seen
when a Five Year Plan ends, the State Government reviews all plan
posts and decides which are required to be continued and
normalized into regular establishments and which ones to be
discontinued.

This aspect is seen in the guidelines issued for classification of
expenditure for the Eleventh Five Year Plan (2007-12) wherein
under the caption "Centrally Sponsored Scheme" guidelines were
laid for committed Non-Plan expenditure. The relevant clauses
have been already referred to hereinabove.

The proposals so submitted by the Fishery Department of the
Government of Assam also relies upon the said guidelines as would
be seen from the contents of the proposals submitted which have
been quoted hereinabove.

(D) When Central funding share is withdrawn: It is also important
to note that when in respect to a Centrally Sponsored Scheme, the
Centre funds a portion and the State funds the rest and the Centre
Page No.# 36/50

withdraws or reduces its shares, the State absorbs the posts
entirely into its own establishment through normalisation.

The Petitioners have categorically pleaded at Paragraph No.18
of the writ petition that the State of Assam have absorbed 1087
Nos. of posts under the Centrally Sponsored Scheme even after
their discontinuance from service vide U/O Endorsement from
Finance (Budget) Department dated 19.07.2008 to the Health and
Family Welfare Department. However, the Petitioners who were
working in the FFDA were left out. There is no denial of such
statements by the Finance Department in their affidavit, rather
they at paragraph No. 5 of their affidavit only mentioned "no
comments".

During the course of hearing, it was also brought to the
attention of this Court that those contractually appointed under
the Sarva Shiksha Abhiyan (SSA) which is a Centrally Sponsored
Scheme, the Government of Assam took a decision in the year
2024 to create 35,000 fresh vacancies for regular teachers.

37. The above circumstances analyzed are some of the
circumstances when plan posts are normalised to Non-Plan/State
Plan posts. Let this Court now deal with the reason assigned why
Page No.# 37/50

the proposals of the Fishery Department to normalize the FFDA
posts were rejected by the Finance Department of the Government
of Assam. Annexure-A to the affidavit-in-opposition filed by the
Respondent No.2 (Finance Department) is the rejection of the
proposal for normalisation/provincialisation of the posts of the
FFDA. The reason assigned is that FFDA is a society registered
under the Societies Registration Act, 1860.

38. The question arises as to whether such reason is at all tenable
or for that matter, whether the reason assigned as just to deny the
normalisation of the posts so that the State need not provide the
benefits to the persons manning the posts in the FFDA, the rights
and privileges otherwise granted to a regular Government servant.

39. In the opinion of this Court, the reason assigned by the
Finance Department to reject the proposal for normalisation is
arbitrary, unlawful, unreasonable and suffers from malice in law.
This Court opines so for the following reasons:

(A) FFDA admittedly was a Central Sector Scheme at its initiation.
Thereupon, the FFDA became a Centrally Sponsored Scheme that
too at the request of the State Government. After 1997, the FFDA
has been in absolute control of the State Government. Some posts
Page No.# 38/50

were created initially in 1970s by the Government of India and
retained by the State Government. Again in 1980s, the posts were
created by the State Government and have been retained. Merely
because of the fact that the FFDA is run in every District as a
society at the instance of the State Government would not
disentitle the posts in the FFDA to be brought under the regular
employment of the State.

(B) Secondly, the activities carried out by the FFDA are regular
Governmental functions as is endorsed by the Administrative
Department i.e. the Fishery Department. Under such
circumstances, to continue the posts in FFDA for the last 40-50
years as plan posts thereby depriving the officers and staffs
working in the FFDA from the benefits of a regular Government
servant is absolutely arbitrary.

(C) A perusal of the Regulations of one of the FFDA society would
show that the State of Assam exercises not only a pervasive
control but a complete control over the affairs of the society. Under
such circumstances to deny the benefits of normalisation on the
ground that the FFDA is a society is misconceived and goes against
the very concept of normalisation of posts.
Page No.# 39/50

40. The reasons above assigned would therefore show that the
rejection of the proposal to normalise the posts in the FFDA to
State Plan posts by the Finance Department is arbitrary,
unreasonable and suffers from malice in law. However, it is equally
important to note that how the State would administer its
Departments are absolutely within the domain of the State
Government. Interference in such respect by the Court in exercise
of the powers of judicial review would be transgressing in the
powers reserved upon the State by the Constitution. Under such
circumstances, it is the opinion of this Court that this Court cannot
issue a mandamus directing the State to normalize the posts in
FFDA and bring them within the fold of the State Plan.

41. Now, therefore, the question arises as to whether the
Petitioners who have been and/or were rendering service in the
FFDA are entitled to any relief. The materials on record as well as
the opinion rendered herein would show that the State
Government most arbitrarily and unreasonably kept the Petitioners
in Plan Posts and State Government ought to have converted the
posts held by the Petitioners to Non Plan/State Plan posts. The
materials on record also show that the Petitioners have already
rendered decades of service in the FFDA without being brought
within the fold of the regular services of the State. In this respect,
Page No.# 40/50

it is apposite to take note of the judgment of the Supreme Court in
the case of Dharam Singh (supra) wherein the Supreme Court
categorically opined that keeping persons under employment by
the State as ad-hoc or temporary for years violates the mandate of
Articles 14, 16 and 21 of the Constitution of India. Taking into
consideration the facts involved herein, this Court reproduces the
Paragraph Nos. 11, 13, 17 and 18 of the judgment in the case of
Dharam Singh (supra) herein below:

"11. Furthermore, it must be clarified that the reliance placed by the High
Court on Umadevi (Supra) to non-suit the appellants is misplaced. Unlike
Umadevi (Supra), the challenge before us is not an invitation to bypass the
constitutional scheme of public employment. It is a challenge to the State's
arbitrary refusals to sanction posts despite the employer's own
acknowledgement of need and decades of continuous reliance on the very
workforce. On the other hand, Umadevi (Supra) draws a distinction between
illegal appointments and irregular engagements and does not endorse the
perpetuation of precarious employment where the work itself is permanent
and the State has failed, for years, to put its house in order. Recent decisions
of this Court in Jaggo v. Union of India and in Shripal v. Nagar Nigam,
Ghaziabad have emphatically cautioned that Umadevi (Supra) cannot be
deployed as a shield to justify exploitation through long-term "ad hocism", the
use of outsourcing as a proxy, or the denial of basic parity where identical
duties are exacted over extended periods. The principles articulated therein
apply with full force to the present case. The relevant paras from Shripal
(supra) have been reproduced hereunder:

"14. The Respondent Employer places reliance on Umadevi (supra) to
contend that daily-wage or temporary employees cannot claim
Page No.# 41/50

permanent absorption in the absence of statutory rules providing such
absorption. However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are "illegal" and those that
are "irregular," the latter being eligible for regularization if they meet
certain conditions. More importantly, Uma Devi cannot serve as a
shield to justify exploitative engagements persisting for years without
the Employer undertaking legitimate recruitment. Given the record
which shows no true contractor-based arrangement and a consistent
need for permanent horticultural staff the alleged asserted ban on
fresh recruitment, though real, cannot justify indefinite daily-wage
status or continued unfair practices.

15. It is manifest that the Appellant Workmen continuously rendered
their services over several years, sometimes spanning more than a
decade. Even if certain muster rolls were not produced in full, the
Employer's failure to furnish such records-despite directions to do so-
allows an adverse inference under well-established labour
jurisprudence. Indian labour law strongly disfavors perpetual daily-
wage or contractual engagements in circumstances where the work is
permanent in nature. Morally and legally, workers who fulfil ongoing
municipal requirements year after year cannot be dismissed summarily
as dispensable, particularly in the absence of a genuine contractor
agreement. At this juncture, it would be appropriate to recall the
broader critique of indefinite "temporary" employment practices as
done by a recent judgment of this court in Jaggo v. Union of India in
the following paragraphs:

"22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a broader
systemic issue that adversely affects workers' rights and job
security. In the private sector, the rise of the gig economy has
Page No.# 42/50

led to an increase in precarious employment arrangements,
often characterized by lack of benefits, job security, and fair
treatment. Such practices have been criticized for exploiting
workers and undermining labour standards. Government
institutions, entrusted with upholding the principles of fairness
and justice, bear an even greater responsibility to avoid such
exploitative employment practices. When public sector entities
engage in misuse of temporary contracts, it not only mirrors
the detrimental trends observed in the gig economy but also
sets a concerning precedent that can erode public trust in
governmental operations.

.........

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

• Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

• Arbitrary Termination: Temporary employees are Page No.# 43/50

frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

• Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.""

13. As we have observed in both Jaggo (Supra) and Shripal (Supra), Page No.# 44/50

outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not "full-time" employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals.

17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.

18. Moreover, it must necessarily be noted that "ad-hocism" thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If "constraint" is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a Page No.# 45/50

constitutional discipline that should inform every decision affecting those who keep public offices running."

42. The principles laid down by the Supreme Court in the above quoted paragraphs squarely applies to the facts of the present case. In the opinion of this Court, the State Government have acted arbitrarily in keeping the Petitioners outside the regular services of the State that too without any valid reasons. There is no denial of the facts that the work rendered by the Petitioners are regular ongoing Governmental functions of the State. In fact, the Fishery Department of the Government of Assam had in fact pleaded the said aspect. Apart from that, the facts discussed and analyzed above would show that the Respondents most unreasonably discriminated the Petitioners with other similarly situated persons earlier working in Centrally Sponsored Schemes inasmuch as, those similarly situated persons have been brought within the fold of the regular Government employment. The above acts of depriving the Petitioners violates the mandate of Articles 14, 16 and 21 of the Constitution of India.

43. At this stage, this Court finds it very pertinent to take note of the submissions so made by the learned Standing counsel appearing on behalf of the Finance Department and more particularly the reference made to the judgments passed by the Page No.# 46/50

Supreme Court in the case of Dhyan Singh (supra) and Parmeshwar Nanda (supra). It is the opinion of this Court that the said judgments are not applicable to the facts of the instant case inasmuch as, though the Petitioners herein were initially appointed in the Central Sector Scheme or the Centrally Sponsored Scheme but upon the transfer of the Scheme to the State of Assam, they were continued under the absolute control of the State of Assam and they were paid from the coffers of the State Exchequer. Further to that, these Petitioners upon being continued in services rendered their services which were in the nature of regular Governmental functions of the State of Assam.

44. It is also very pertinent at this stage to mention that the State of Assam have regularized various ad-hoc, temporary employees in pursuance to the directions passed by the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka VS. Uma devi reported in (2006) 4 SCC 1 and more particularly the directions at Paragraph No. 53. However, the Petitioners who were appointed to sanctioned posts under the Scheme after due selection were left out merely on the ground that the normalization of such posts were not permissible as FFDA was run by societies registered under the Societies Registration Act, 1860. The said reason assigned, as opined above, is absolutely arbitrary, Page No.# 47/50

unreasonable and suffers from malice in law.

45. It may not also be out of place to mention that the admitted stand of the parties is that the Petitioners have been paid the salaries as received by the regular Government servants of the State of Assam. Annexure-I to the affidavit filed by the Respondent No.4 also shows that the General Provident Funds were deducted from the Petitioners. The above would therefore show that only to deprive the Petitioners certain benefits which a regular Government servant enjoys i.e. Pension, Provident Fund, Health Insurance, Paid Leave, Terminal Benefits etc. which are in the nature of severity to the employed and their family members. The deprivations to the Petitioners violates the mandate of Articles 14, 16 and 21 of the Constitution of India.

46. In view of the above discussion and analysis, it is the opinion of this Court that the Petitioners herein are entitled to appropriate directions of regularization along with consequential benefits similar to the directions so passed by the Supreme Court in the case of Dharam Singh (supra).

CONCLUSION:

47. Accordingly, the instant writ petition stands disposed of with Page No.# 48/50

the following observations and directions:

(i) The Respondents herein and more particularly the Respondent Nos.1 and 2 are jointly and severally directed to regularize the services of the Petitioners w.e.f. 27.07.2007 i.e. the date on which the proposal was submitted by the Director of Fishery for normalization of the FFDA posts to the State Plan Posts. The said exercise be carried out by creating supernumerary posts against each of the Petitioners within a period of 3 (three) months from the date of the present judgment.

(ii) It is observed and directed that while regularizing the services of the Petitioners as directed above, they should be provided with protection of their pay and allowances.

(iii) As it is the specific case of the Petitioners that the Petitioners are getting the scale of pay as is given to the regular Government employees of equal status, there shall not be any requirement of payment of any amount towards arrears upon regularisation. However, it is observed and directed that upon regularisation w.e.f 27.07.2007, the services of the Petitioners would be counted for all other service benefits viz. pension, Page No.# 49/50

leave encashment, gratuity and other terminal dues which is enjoyed by the a regular Government employee of equal status.

(iv) This Court duly notes that some of the Petitioners have in the meantime retired. They would also be entitled to all benefits as have been directed in the preceding Clauses. In addition to the above, these retired Petitioners would be entitled to pension, leave encashment, gratuity and other terminal benefits. The arrears of the same be paid within 6 (six) months of the present judgment.

(v) This Court further directs that in the circumstances, if any of the Petitioners have expired, their family members would be entitled to all such benefits which the family members of a regular Government servant enjoys of equal status appointed as on 27.07.2007.

(vi) The Commissioner and Secretary of both the Fishery Department as well as the Finance Department shall file compliance affidavits to the aforesaid directions within 8 (eight) months from the date of the present judgment.

(vii) No costs.

Page No.# 50/50

48. Before parting with the records, this Court finds it relevant to observe for the sake of clarity that as this Court had held that the rejection of the proposal by the Finance Department to normalize the FFDA to the State Plan to be arbitrary, unreasonable and suffering from malice in law, the directions issued hereinabove shall not preclude the State of Assam to convert the FFDA posts to the State Plan/Non-Plan Post, if felt necessary for administrative reasons.






                                                                  JUDGE
Bijoy Saha     Bijoy Saha
               Date: 2026.05.23
               14:15:12 +05'30'

 Comparing Assistant