WP(C) 1132/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE P.K.MUSAHARY Amitava Roy, J The judgment and order dated 30.9.2010 rendered by the learned C entral Administrative Tribunal, Gauhati Bench, Guwahati (for short, hereinafter referred to as ’the Tribunal’) in O.A. No. 85/2010 is under challenge in the ins tant petition. 2. We have heard Ms B Devi, learned Standing Counsel, N.F. Railways for the petitioners and Mr PP Baruah, Advocate for the respondent. 3. The basic facts necessary for the disposal of the instant petiti on are that the respondent was engaged as a substituted Emergency Peon also nome nclatured as Bungalow Peon by the petitioners on contractual basis on 23.4.2008 in the pay scale of Rs. 2550-3200/-. Though the engagement was initially for a p eriod of three months, it was extendable on the receipt of certification from hi s controlling officer. His behaviour with the immediate superiors and working ab ility having been certified to be Very Good and regular in attendance on co pletion of 120 days of service, he was by order dated 26.8.2008 of the appropria te authority conferred temporary status with effect from 21.8.2008 in terms of P ara-4-2 of the Master Circular No. E/205/RP-EMEERGENCY PEON/PC/CON dated 15/18.2 .99 (for short, hereinafter referred to as ’the Circular’) and was attached to t he Divisional Security Officer (DSO), Rangia, NF Railways. The said incumbent wa s thereafter transferred as Divisional Engineer-II, NF Railways. At the new plac e of posting he was not entitled to a Bungalow Peon. The new incumbent as DSO, R angia was posted on temporary basis and, therefore, under the relevant administr ative norms, was not entitled to a Bungalow Peon. According to the petitioners, for want of vacancy the services of the respondent were terminated by order date d 31.3.2009 with effect from 30.4.2009. The impugnment of this order of terminat ion having been upheld by the learned Tribunal vide the judgment and order impug ned herein, the petitioners seek redress. 4. In their written statement before the learned Tribunal, the peti tioners in substance while admitting the conferment of temporary status on the r espondent with effect from 21.8.2008 under the Circular, pleaded that his servic es were terminated as the incumbent as DSO, Rangia with whom he had been attache d was transferred to the post of DEM-III/Track/RNY and was not eligible to be pr ovided with a Emergency Peon as per the relevant Rules. The petitioners contende d that his replacement Sri Mrinal Kanti Dey was posted temporarily as DSO, Rangi a with effect from 3.3.2009 and as no Emergency Peon was available to a temporar y incumbent, the respondent’s services were terminated as he had by then not com pleted one year of service. According to the petitioners, on the date of termina tion of the respondent he had worked for only 343 days and the action taken was permissible under the Circular. It is noticeable from the impugned judgment and order that in course of the arguments advanced before the learned Tribunal it wa s admitted that the respondent’s conduct and quality of performance was beyond r eproach. 5. The learned Tribunal noticing that the termination of the respon dent’s service was effected on and from 30.4.2009 i.e. beyond a period of one ye ar from the date of his appointment (23.4.2008) in terms of Para-5 of the Circu lar, held it (termination of the respondent) to be unsustainable in law and on f acts. It observed inter alia that the order of termination dated 31.3.2009 per s e demonstrated the applicability of the Circular to the respondent. 6. The learned Standing Counsel, NF Railways has argued that as the Circular having regard to the service profile of the respondent was inapplicabl e to him, he not having completed one year of continuous service on the date of his termination, the learned Tribunal had fallen in error in concluding to the c ontrary. In the alternative, she has urged that as meanwhile the respondent has joined as a substituted Emergency Peon on 1.12.2010 accepting the terms and cond itions of the said appointment and has also been conferred temporary status vide Office Order dated 12.5.2011, the impugned judgment and order ought to be inte rfered with. 7. Mr Baruah has dismissed the plea of inapplicability of the Circu lar to the respondent relying on a specific reference thereto in the order of te rmination dated 31.3.2009. 8. We have duly considered the pleaded facts as well as the submiss ions advanced on behalf of the parties. That the respondent had been conferred t he temporary status under Para-4-2 of the Circular is evident from the Office or der No. EQ/227/ RN/E.Peon/138 dated 26.8.2008 of the APO/II/RNY. The order of te rmination dated 31.3.2009, as the same reveals, had been issued in terms of the same Circular. Admittedly, the respondent had been appointed as Emergency Peon o n 23.4.2008 and his services have been terminated with effect from 30.4.2009, cl early beyond a period of one year. It would be apt at this juncture to extract P ara-5 of the Circular which occupies the centre stage of the controversy. When Emergency Peon does not seek such transfer or the Officer on transfer has no eligibility to operate E/Peon at the new station where transferred or if the Officer quits N.F. Railway on retirement, death, resignation, transfer to other Railways, deputation etc. his services will be terminated with due notice unless he has rendered one year continuous service. If he has rendered one year servic e or more, whether continuous or otherwise, he will be retained in the same stat us against Group-D vacancy in the seniority unit however with eligibility for re gularisation in Group-D post only on completion of 3 years service. In case he s eeks change of category and change of station, the same can be considered subjec t to availability of vacancy and in the new unit he will be eligible for regular isation only on completion of 3 years service taking into account the previous service rendered at the old station. If he is a regular Group D employee, such t ransfer to a new station can be only made on his ’own request’ with assignment o f bottom seniority. . 9. It is apparent from the above extract that the services of a Eme rgency Peon in an eventuality as it obtains in the present case, can be terminat ed with due notice unless he has rendered one year continuous service and if he has rendered one year service or more, whether continuous or otherwise, he woul d be retained in the same status against Group-D vacancy in the seniority unit, however, with the eligibility for regularisation in a Group-D post only on compl etion of 3 years service. 10. On a conjoint consideration of the orders of conferment of tempo rary status on the respondent as well as termination of his services, we are not in a position to persuade ourselves to hold that the Circular does not apply to him. In that view of the matter, having regard to the facts and circumstances o f the case and considering in particular the time gap between the date of his ap pointment and termination, we are of the unhesitant opinion that he is entitled to the benefit of Para-5 thereof (Circular). The ultimate conclusion of the lear ned Tribunal to this effect is, thus, unassailable. The fact that the respondent had been offered an assignment as substituted Emergency Peon which he has accep ted and that on the completion of 120 days of continuous satisfactory service in that capacity he has been granted temporary status with effect from 31.3.2011, in our view, does not per se dis-entitle him to the benefit of the determination made by the learned Tribunal and affirmed by us. The plea of estoppel raised on behalf of the petitioners is unconvincing and unacceptable. 11. In the face of the findings recorded hereinabove the petition, a ccording to us, lacks in substance. It is, thus, dismissed. No costs.