WP(C) 2911/2005 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Heard Mr. R.P. Kakoti, learned senior counsel assisted by Mr. B. Purkayastha, le arned counsel for the petitioner as well as Mr. B.J. Ghosh, learned State counse l. 2. The petitioner, while was working as a casual employee in the Directorat e of Tourism, Assam, Guwahati, was appointed as a Receptionist in the Time Scale of Pay of Rs,1065 - 2095/- per month. He was so appointed by Annexure-1 order 2 1.6.1991. For a ready reference, the order is quoted below :- Subject to discharge without notice and without assigning any reason thereof th e following casual employees working in the Tourist Lodge are hereby appointed a s Receptionist in the scale of pay Rs.1065-20-1225-30-1345-EB-30-1435-40-1635-50 -2035-60-2095/- p.m. plus other allowances as admissible under the rules and pos ted against their names. 1. Shri Rupram Saikia, Tourist Lodge, Guwahati. 2. Shri Jagnath Bhagawati, Guwahati Rly Station. 3. After the aforesaid appointment as Receptionist, the petitioner continue d in his service as Receptionist. He has been continuing in the said service til l date. 4. The grievance of the petitioner is that although he was appointed as Rec eptionist in the Time Scale of Pay as mentioned in the order of appointment, but his salary in the Time Scale of Pay was stopped from July, 1993 and was paid co nsolidated pay of Rs.1200/- per month. Time to time representations made by him to the authorities did not yield any result. In the meantime, by Annexure-2 ord er dated 13.1.1998, his service was regularized in the post of Receptionist in t he Time Scale of Pay of Rs.1065 - 2095/- per month. The petitioner made series o f representations urging for treating the period from 1.7.1993 to 12.1.1998 for the purpose of increment, pensionary benefits etc., but the same did not yield a ny result. Eventually, he filed the writ petition praying for regularization of gap period from 1.7.1993 to 12.1.1998 by granting him service benefits. 5. The respondents have not filed any counter affidavit, but sent para-wise comments to the Registry vide their letter dated 22.1.2007. They have also encl osed a draft affidavit-in-opposition. As per the stand of the respondents in th e said para-wise comments and draft affidavit, although the petitioner was appoi nted regularly as Receptionist by the above quoted order dated 21.6.1991, but su ch appointment was valid for a period of 6 (six) months inasmuch as the post was sanctioned by the Government for a period of six months. Although the time to t ime retention and extension of the post was sanctioned by the Government, but ev entually in absence of further extension and retention of the post beyond 2.1.19 93, the petitioner could not be paid his salary in the Time Scale of Pay. As per the said written instructions, some of the incumbents had made a representation not to dispense with their services. Taking a sympathetic view of the matter, t he services of the incumbents including the petitioner were continued, but they could not be paid their salary in the Time Scale of Pay. Eventually, when the po sts were regularly sanctioned, the service of the petitioner along with others w as regularized by the aforesaid Annexure-2 order dated 13.1.1998. Thus, it is th e stand of the respondents that the gap period being due to non-availability of the post, the petitioner cannot claim regularization of the said period for serv ice benefits. 6. Mr. R.P. Kakoti, learned senior counsel for the petitioner submits that since the petitioner was appointed on regular basis by the above quoted order d ated 21.6.1991 and he continued to discharge his duties and functions involved i n the post of Receptionist till his service was regularized by Annexure-2 order dated 13.1.1998 irrespective of payment of salary in the Time Scale of Pay for t he said period, the petitioner cannot be deprived of other service benefits, mor e particularly, counting of service for pensionary and other retirement benefits . He has also emphasized on the need for continuity of service towards entitling the petitioner to get seniority from the initial date of appointment as Recepti onist i.e. 21.6.1991. 7. On the other hand, Mr. B.J. Ghosh, learned State counsel, upon a referen ce to the aforesaid written instructions, submits that since the petitioner coul d not be continued in service as Receptionist for the period from 1.7.1993 to 12 .1.1998, there is no question of treating the said period as a regular period of service. He submits that the respondents taking a sympathetic view of the matte r, allowed the petitioner to continue in service on casual basis at a fixed pay of Rs.1200/- per month and thereafter, when the post became available, the autho rities regularized his service. 8. I have considered the rival submissions made by the learned counsel for the parties and the entire materials on record. The petitioner was appointed by the above quoted order dated 21.6.1991. In the order, there is no mention of any temporary appointment for a specific duration. It was an order of regular appoi ntment like any other such appointment. In absence of any implication in the ord er that the appointment of the petitioner was for a specific duration, it was no t known to the petitioner that his appointment was for a limited duration. 9. Another aspect of the matter is that although the salary of the petition er in the Time Scale of Pay was stopped from 1.7.1993 and he was paid his salary at a fixed pay of Rs.1200/- per month, but the petitioner continued to discharg e his duties and functions as a regular Receptionist. It will be pertinent to me ntion here that although in the aforesaid written instructions, it is the stand of the respondents that on expiry of the post, the petitioner was allowed to con tinue in his service, but the fact of the matter is that the petitioner was not reverted back to his former status of casual employee and no order was passed to that effect. It is the specific case of the petitioner that he continued to dis charge his duties and functions in the post of Receptionist for the period in qu estion i.e. from 1.7.1993 to 12.1.1998. 10. The petitioner having been regularly appointed by the aforesaid order da ted 21.6.1991, the Annexure-2 order dated 13.1.1998 will have to be understood i n that context. Once the petitioner was appointed on 21.6.1991 without any indi cation of any temporary nature of appointment and/or casual employment and he ha ving continued to hold the post of Receptionist, the subsequent order of regular ization dated 13.1.1998 cannot obliterate his earlier service. It is in this con text, Mr. Kakoti, learned counsel for the petitioner has prayed for continuation of service of the petitioner as Receptionist from 21st June, 1991 for pensionar y and other retirement benefits. 11. If the petitioner was appointed against temporary post as Receptionist a nd his service could not be continued beyond 12th July, 1993, the authorities ou ght to have passed an order to that effect, but instead, allowed the petitioner to continue in service as Receptionist beyond the said date and thereafter, iss ued the order dated 13.1.1998 showing regularization of his service as Reception ist with extensions of services under the respondents. 12. Having regard to the aforesaid facts and circumstances, the question tha t has arisen for consideration is as to whether the petitioner is entitled to co unt his service as Receptionist for the period from 1.7.1993 to 12.1.1998. The a foresaid claim has been made by the petitioner by filing the writ petition on 8. 4.2005 i.e. after expiry of more than 7 (seven) years from the said period. Even otherwise also, having regard to the specific plea of the respondents that with out the retention and extension of the post, the petitioner could not be paid hi s salary in the Time Scale of Pay, I am of the considered opinion that no direct ion can be issued to the respondents for payment of salary to the petitioner for the said period. However, the respondents will have to count the said period fo r other service benefits like seniority, pensionary and other retirement benefit s. The pay of the petitioner will have to be fixed notionally taking his continu ous service as Receptionist from 21.6.1991 inasmuch as the petitioner continued to render his service as Receptionist from the date of his appointment on 21.6.1 991. 13. In view of the above, this writ petition is disposed of providing that t he petitioner will not be entitled to any back wages for the period from 1.7.199 3 to 12.1.1998, but the respondents will count the said period for the service r endered by the petitioner as Receptionist for the purpose of seniority and other service benefit including the pensionary and retirement benefits. The petition er will also be entitled to notional fixation of pay on that basis. 14. Writ petition is allowed to the extent indicated above, without, however , any order as to costs.