B.P. Katakey, J.@mdashThe writ Petitioner in WP(C) No. 3320/2007 has filed this appeal challenging the order dated 10.12.2007 passed by the learned Single Judge dismissing the writ petition.
2. The Appellant had filed the said writ petition praying for directing the Respondents to allow her to continue and/or reinstate her as work charged typist in terms of the office memorandum dated 30.10.2001 issued by the Principal Secretary to the Government of Assam in Finance Department, contending, inter alia, that she was initially engaged as typist on 19.9.1994 for a period of 2(two) months, which was subsequently extended by another one month and thereafter vide order dated 31.10.1994 she was again engaged as work charged typist for a period of 1(one) month in the office of the Executive Engineer, Dibrugarh Electrical Division (Irrigation). According to the Appellant such period of engagement was extended by issuing various orders of extension till 1996, with the approval of the Chief Engineer, Irrigation, Government of Assam. It has further been contended that though the Government of Assam in Finance (Budget) Department, vide office memorandum dated 11.10.1995 directed all the Heads of the Department to dispense with the services of all the persons engaged as work charged employees on or after 1.4.1993, since her services were required by the Executive Engineer, an approval was sought for from the Chief Engineer, Irrigation for retention of the Appellant along with few others in service, even though she was engaged as work charged employee on or after 1.4.1993. The said approval having not been granted, the Executive Engineer, vide order dated 9.9.1996 terminated the services of the Appellant, which, however, was challenged before this Court in Civil Rule No. 5021/1996, wherein an interim order dated 8.10.1996 was passed directing the Respondents that if the Appellant was working, she shall not be removed from service until further order and she shall be allowed to work, with a further direction to pay her salary in accordance with law. The further case of the Appellant is that pursuant to such interim direction issued vide order dated 8.10.1996, the Executive Engineer, Dibrugarh Electrical Division (Irrigation) on 9.12.1996 passed an order allowing her to resume the duty with immediate effect till disposal of the Civil Rule No. 5021/1996. It is also contended that while she was serving as work charged typist, the Executive Engineer, vide order dated 28.3.2001 discontinued her service with retrospective effect, i.e., with effect from 11.9.2000. According to the Appellant the Government of Assam, thereafter, took a policy decision allowing the work charged employees engaged after 1.4.1993 and who have completed 5(five) years of continuous service as on 24.1.2001 to continue in service in the respective capacities, which has been circulated, vide office memorandum dated 30.10.2001 issued by the Principal Secretary to the Government of Assam, Finance Department. The Appellant, therefore, had filed the writ petition seeking the relief as aforesaid, based on the said office memorandum dated 30.10.2001 (Annexure-H to the writ petition).
3. The learned Single Judge, vide order dated 10.12.2007 dismissed the writ petition filed by the Appellant by holding that she having not continuously worked as work charged employee for a period of 5(five) years as on 24.1.2001, is not entitled to the benefit of said office memorandum dated 30.10.2001 issued by the Principal Secretary to the Government of Assam in Finance Department.
4. We have heard Mr. B. Chetri, learned Counsel for the Appellant as well as Mrs. B. Goyal, learned Counsel appearing on behalf of the Respondents.
5. It is the contention of the learned Counsel for the Appellant that she having been engaged as work charged typist vide order dated 31.10.1994 issued by the Executive Engineer and though, vide order dated 9.9.1996 issued by the said authority, the Appellant was sought to be terminated from service, she having been reinstated as work charged typist, vide order dated 9.12.1996 issued by the Executive Engineer pursuant to the interim direction contained in the order dated 8.10.1996 passed in Civil Rule No. 5021/1996 and she having admittedly continued at least up to 11.9.2000, with effect from, which date her services were discontinued by the Executive Engineer, vide order dated 28.3.2001, she is entitled to the benefit of the Government''s decision as reflected in the office memorandum dated 31.10.2001, as she had completed almost 6(six) years of service on 11.9.2000. According to the learned Counsel, in fact, there cannot be any retrospective discontinuance of the service of the Appellant as has been done by the Executive Engineer vide order dated 28.3.2001. The learned Counsel, therefore, submits that the Appellant is entitled to a direction as sought for in the writ petition.
6. Supporting the order passed by the learned Single Judge, the learned State counsel appearing for the Respondents has submitted that to get the benefit of the decision of the Government as reflected in the office memorandum dated 30.10.2001, two conditions are required to be fulfilled, firstly that the person concerned was engaged after 1.4.1993 and secondly such person has completed five years of continuous service as work charged employee as on 24.1.2001. In the instant case, according to the learned Counsel, it is evident from the averments made by the Appellant in the writ petition that she was initially engaged as work charged typist by the Executive Engineer, vide order dated 31.10.1994 and her services were discontinued w.e.f. 9.9.1996. vide order passed by the Executive Engineer. According to the learned State counsel pursuant to the order of interim direction issued on 8.10.1996 in Civil Rule No. 5021/1996, the Appellant was allowed to resume her duties as work charged typist w.e.f. 9.10.1996, as evident from the order passed by the Executive Engineer. The learned State counsel, therefore, submits that even assuming that there cannot be any retrospective discontinuance of the services of the Appellant w.e.f. 11.9.2000 as has been done by the Executive Engineer, vide order dated 28.3.2001 and such order of discontinuance would be effective from the date of the order, i.e., 28.3.2001, the Appellant is not entitled to the benefit of the office memorandum dated 30.10.2001, as her services as work charged typist was not continuous for a period of 5(five) years, there being gap of 3(three) months between 9.9.1996 and 9.12.1996 and from 9.12.1996 she having not completed five years.
7. It appears from the order passed by the learned Single Judge that the contention of the Appellant relating to the five years of continuous service, which is the condition precedent for giving the benefit of the office memorandum dated 30.10.2001, has not been accepted. It appears from the materials made available before this Court that though the Appellant was engaged as work charged typist vide order dated 31.10.1994, her engagement was discontinued w.e.f. 9.9.1996 by even dated order passed by the Executive Engineer. The Appellant was, however, allowed to resume her duties with immediate effect vide order dated 9.12.1996 issued by the Executive Engineer, pursuant to the interim direction contained in the order dated 8.10.1996 passed in Civil Rule No. 5021/1996. It is, therefore, evident that the Appellant was out of service from 9.9.1996 to 9.12.1996. The Appellant''s service was eventually discontinued by the Executive Engineer, vide order dated 28.3.2001 w.e.f. 11.9.2000. The said order dated 28.3.2001 discontinuing the services of the Appellant with retrospective effect, however, has not been challenged by her. Even assuming that there cannot be any retrospective discontinuance of service and such discontinuance has to be treated with effect from the date of passing of such order, in this case 28.3.2001, the Appellant had not completed the five years continuous service w.e.f. 9.12.1996, i.e., the date when she was allowed to resume the duties with immediate effect pursuant to the interim direction issued on 8.10.1996.
8. The grant of benefit of the decision of the Government as reflected in the office memorandum dated 30.10.2001 issued by the Principal Secretary to the Government of Assam in Finance Department being dependant on the fulfillment of the condition of completion of five years of continuous service as on 24.1.2001, the Appellant is not entitled to the benefit of such decision of the Government for allowing such employee to continue despite their engagement after 1.4.1993, as the Appellant, as noticed above, had not completed five years of continuous service at any point of time up to 24.1.2001.
9. In view of the above, we are of the considered view that the learned Single Judge has rightly dismissed the writ petition filed by the Appellant, which requires no interference.
10. The writ appeal is accordingly dismissed. No costs.
