WP(C) 4985/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) 1. The petitioner who is presently serving as Assistant Engineer in the Guw ahati Metropolitan Development Authority (GMDA) has prayed for regularization of his service with effect from the date of joining in GMDA. 2. The petitioner was initially appointed as Assistant Engineer in the Muni cipal Administration Department, Government of Assam by Annexure-1 order dated 6 .10.1993. By Annexure-2 order dated 6.1.1995 his service was placed with the GMD A on part time basis with no financial implications. Pursuant to the decision of the Government and accepted by the GMDA, the petitioner joined GMDA on 10.1.199 5. Thereafter the GMDA by its Annexure-4 letter dated 5.9.1995 requested the Mun icipal Administration Department, Government of Assam to release the petitioner from the said Government Department so that he could be appointed in the GMDA. T he proposal for appointment of the petitioner on whole time basis was made in vi ew of the performance of the petitioner. The proposal was for his appointment as Assistant Engineer. 3. On the basis of the aforesaid letter dated 5.9.1995 (Annexure-4), the pe titioner was released from the Municipal Administration Department, Government o f Assam enabling him to join in the new assignment in the GMDA. He was so releas ed by Annexure-5 letter dated 21.9.1995. After such release of the petitioner fr om the Municipal Administration Department, the GMDA issued Annexure-6 order all owing the petitioner to function on full time basis. The order indicated resigna tion from service by the petitioner from the Municipal Administration Department . Thus, the services of the petitioner was procured upon his resignation from th e Municipal Administration Department and as was insisted by the GMDA itself for his release from the Department. 4. The petitioner on the basis of his appointment by the aforesaid order da ted 6.9.1995 joined the GMDA by submitting necessary joining report etc. After s uch appointment, the petitioner continued in the regular roll of the GMDA and he was granted annual increments etc. He was also given the fixation benefits. The reafter the Board approved deduction of CPF in respect of the employees mentione d in Annexure-11 minutes of the meeting of the GMDA held on 12.10.1999, which in cluded the petitioner as well. Thus the petitioner became a member of the CPF sc heme of the GMDA from 1999. By Annexure-12 document, the GMDA certified that the petitioner joined GMDA on 5.10.1995 and he would retire from service on 31.4.20 23. By Annexure-13 letter dated 3.6.1997, the petitioner made a request to the G MDA authority to regularise his service with effect from the date of joining i.e . 5.10.1995. His such representation was followed by further representation date d 24.2.2005 urging for consideration of his case for promotion. 5. By Annexure-16, the Government of Assam in the Guwahati Development Depa rtment addressed to the GMDA authority, while intimating that the said authority is under administrative control of the Department, it was requested to verify t he service record of the petitioner and to furnish recommendation for considerat ion of his case for promotion to the next higher post. It will be pertinent to m ention here that in paragraph 16 of the writ petition, the petitioner has made a statement that the employees junior to him have been regularized in their respe ctive services and that they have been provided with promotion, but discriminati on has been meted out to the petitioner. 6. The respondents have filed counter affidavit contending interalia that a t best the petitioner could claim regularization of service only with effect fro m 12.10.1999 from which date he was inducted to the CPF scheme. The plea of the petitioner that he has been discriminated in the matter of regularization of ser vice and that his juniors have been regularized in their services with further p romotional benefits has not been denied by the respondents. In fact, in the affi davit, the plea of the petitioner in paragraph 16 of the writ petition has not e ven been dealt with. However, Ms. Hazarika, learned Standing Counsel, GMDA submi ts that since paragraph 16 of the writ petition is the submission, same need not be specifically dealt with. She also submits that since paragraph 16 of the aff idavit-in-opposition deals with the submissions generally made in the writ petit ion, categorical statements are neither tenable in facts nor in law and that it cannot be said that paragraph 16 of the writ petition has not been specifically dealt with. 7. The petitioner has filed affidavit-in-reply to the affidavit-in-oppositi on filed by the respondents. In paragraph 4, while denying the plea of the GMDA that at best the petitioner’s service could be regularized with effect from 12.1 0.1999, the petitioner has indicated the case of one Sri Pulak Kalita, who was a ppointed as Assistant Engineer on 24.1.1992 and was regularized with effect from the same date. Said Sri Kalita was appointed by Annexure-X order No. 331 dated 24.1.1992 on adhoc basis for a period of three months. The gradation list pertai ning to the Assistant Engineer as on 31.12.1998 annexed to the counter affidavit reveals that said Sri Kalita, who was initially appointed on adhoc basis for a period of three months by order dated 24.1.1992 has been shown appointed with ef fect from the same date. 8. I have heard Mr. S.K. Medhi, assisted by Mr. S. Baruah, learned counsel for the petitioner as well as Ms. M. Hazarika, learned Sr. Counsel assisted by M s. A. Ajitsaria, learned counsel representing the GMDA. I have also heard Ms. R. Chakraborty, learned State Counsel representing the State of Assam. 9. The petitioner was appointed by Annexure-6 order dated 6.9.1995. Althoug h, the appointment was described as purely temporary as in the case of such appo intment in the Government Department, there is no indication that such appointme nt of the petitioner was by way of stop-gap arrangement on an adhoc basis as in the case of said Sri Kalita, who was appointed by Annexure-X order dated 24.1.19 92 on adhoc basis for a period of three months. 10. The petitioner was appointed by GMDA on the basis of his performance in the Department as part time employee. It is the GMDA, who made request to the Go vernment of Assam for his release. As per the own showing of the GMDA, the petit ioner was released from his former job and formally joined GMDA on 5.10.1995 pur suant to the appointment order dated 6.9.1995. Formal handing over and taking ov er of charge etc. was also carried out. The GMDA has also treated the petitioner at par with any other employees of the GMDA. He has been provided with annual i ncrement, pay fixation etc. He has also been inducted to the CPF scheme with eff ect from 12.10.1999. The respondents in their affidavit have also not denied the claim of the petitioner for regularization of his service. 11. The only question falls for consideration is as to whether the petitione r is entitled to get regularization of his service from his initial date of appo intment and joining i.e. 5.10.1995 and/or from the date of his induction to the CPF scheme i.e. 12.10.1999. The case of the petitioner will have to be considere d on the basis of the date of joining the service and not on the basis of he bec oming a member of CPF scheme. Irrespective of becoming a member of CPF scheme, t he service rendered by the incumbent upon his appointment by the employer cannot be obliterated. If the service of the petitioner could be regularized with effe ct from 12.10.1999 upon becoming a member of CPF scheme, it is not understood as to why the service cannot be regularized with effect from the date of joining t he service. 12. In this connection, the case of Shri Pulak Kalita has been referred to b y the petitioner, who in fact was appointed for a limited duration of three mont hs on adhoc basis. However, in the gradation list, he has been included at seria l No. 2 showing the date of appointment as 24.1.1992. On the other hand, the nam e of the petitioner has been mentioned in the said select list as Shri Jadav Go swami, BE, will enlisted after regularization of his post . Thus, while the serv ice of Sri Kalita was regularized, although was appointed on adhoc basis, the ca se of the petitioner was not considered at par with said Sri Kalita. Even otherw ise also in the order of appointment of the petitioner as Assistant Engineer, th ere is no indication that his such appointment was for limited duration. However , merely because the appointment was stated to be on temporary basis, that by it self cannot lead to the inference that he was appointed on adhoc basis. 13. As noticed above, the petitioner has been provided with all benefits adm issible to a regular employee of the authority. 14. In view of the above, the writ petition is allowed with a direction to t he respondents to consider regularization of services of the petitioner consiste ntly with the observations made above. The case of the petitioner shall be consi dered as expeditiously as possible, preferably within 3 months from the date of receipt of a certified copy of this order. Needless to say that, upon regulariza tion of the service of the petitioner, he will be entitled to all consequential benefits, if any admissible to him. 15. Writ petition is allowed to the extent indicated above. There shall be no or der as to costs.