WP(C) 5949/2010 BEFORE THE HON’BLE MR JUSTICE T. VAIPHEI Both these writ petitions involving a common question of the facts and o f law were heard together, and are now being disposed of by this common judgment . The petitioners in both the writ petitions are Ex-servicemen are said to have a common grievance, and are filing the writ petitions jointly. 2. The petitioners were recruited to the Assam Tea Plantation Security Forc e [’ATPSF’ for short] between 1993 and 1996 under the Ex-servicemen quota, and w ere placed under the disposal of the tea estates where deemed necessary for impa rting training to the freshly recruited persons in ATPSF. They are, however, pla ced under the administrative control of the jurisdictional Superintendent of Pol ice. The ATPSF was raised by the Government of Assam to combat the extremist act ivities in the tea estates of Assam when rampant extortion and abduction of exec utives were unleashed by militants thereby causing terror to the industry. The G overnment of Assam had, therefore, entered into an agreement with the Tea Associ ation of India to raise the force and impart adequate training to the rank and f ile for the purpose while the tea industry had agreed to bear the expenses towar ds the salaries and other benefits like ration, dress, etc. of the force. 3. The grievance of the petitioners is that despite the hazardous task assi gned to them in the course of combating militants, there were not paid the salar ies drawn by the regular members of the Assam Police Battalion. Nevertheless, th e respondents allowed promotion to the petitioners in the higher ranks such Plat oon Commander, Lance Naik, Naik and Havildar on the basis of their performance a nd selection but are never paid regular pay scales for such higher posts on par with similar rank holders of the regular force. Feeling discriminated against, t he association of the petitioners approached this Court in Civil Rule No. 1584/1 997 for regularization of their services under the Government of Assam with all service benefits. This Court by the judgment dated 22-4-2002 allowed the writ pe tition by directing the State-respondents either to give permanent status to the petitioners or, in case they did not like to continue them in the force, to reh abilitate them elsewhere. 4. Even after obtaining favourable order from this Court, no tangible benef its were given to the petitioners, which prompted them to take recourse to agita tional paths thereby inviting repressive measures from the State-respondents. Wh en such repressive measures resorted to by the State-respondents failed to curb the movement, the State-respondents ultimately adopted a Cabinet Memorandum to c reate two new battalions in the names and style of Assam Tea Plantation and Indu strial Security Force under the control of the Director General of Civil Defence and Commandant General of Home Guards, Assam (respondent 4) with the strength o f 1326 in each battalion as per the scheme depending upon the number ATPSF perso nnel found suitable, and 2571 personnel including the petitioners were thus sele cted and the Treasury Officers, Kaliabor, Nagaon and Dibrugarh were informed acc ordingly on 14-7-2009 about such appointments with the approval of Finance Depar tment. The petitioner were thereafter absorbed against the posts they were holdi ng while working in the ATPSF and have been discharging their duties in various ranks, namely Platoon Commander, Naibsubedar and Havildar but with the fixed sal ary of ‘10,224/- per month but showing them as appointed on contractual basis wi thout giving any increment or any other service benefits such as earned leave, e tc. The refusal/failure on the part of the State-respondents to grant the usual regular pay scale corresponding to their ranks despite discharging their duties in such ranks has once again become he source of resentment to them and the same is considered by them to be arbitrary, discriminatory and is in violation of Ex -Servicemen (Reservation of Vacancies in the State Service and post Class III an d Class IV) Rules, 1986. Aggrieved by this, they are again initiating this secon d round of litigations to claim the elusive regular pay scales. 5. The writ petitions are contested by the State-respondents by filing thei r affidavits-in-opposition in both the cases. The common thread which runs throu gh the two affidavits filed by them is that the petitioners were always a part o f Assam Tea Plantation Security Force till they came over to Assam Industrial Se curity Force (AISF) under the control of the respondent No. 4 and that the two b attalions came under the Assam Home Guards (Non-Gazetted) Service Rules, 1991, w hich is silent about promotion on contractual personnel. There is no provision f or annual service increment to the persons appointed on contractual basis. As pe r the scheme, the petitioners will remain in contractual service till they attai n the age of 60 years or till they are otherwise remain fit for service, whichev er is earlier whereafter the resultant vacancies will be filled up by regular Ho me Guard personnel after observing formalities under the provisions of the Assam Home Guards (Non-Gazetted) Service Rules. According to the answering respondent s, there is no question of allowing the petitioners to be brought under regular structure by granting the pay scales of the corresponding ranks of the regular p ersonnel. 6. In the affidavit-in-opposition filed by the Under Secretary to the Gover nment of Assam, Finance (EC-II) Department, it is stated that the Finance Depart ment vide the endorsement dated 8-9-2008 concurred to the proposal of the Home D epartment for creation as well as for filling up of 2,564 posts of different cat egories on different pay scales for the two battalions of the Assam Industrial S ecurity Force under the respondent No. 4 and that the personnel of the said ATPS F would be absorbed in the new two battalions of AISF by re-structuring the ATPS F pursuant to the Cabinet decision dated 28-1-2008. It is also stated therein th at by the same endorsement, the Finance Department also approved the transfer of another 88 posts of different categories from the Assam Home Guards Battalion/A TPSF to these two new AISF battalions. The deponent further states that the info rmation about filling up these 2,571 posts of different categories in the 1st an d 2nd AISF battalions by the incumbents indicated in Annexure-6 to the writ peti tion was communicated to the respective Treasuries by the Finance Department on the basis of the proposal of the Home Department. 7. In their reply affidavit, the petitioners point out that their recruitme nt was done by a central recruitment body constituted by the State-respondents. They were appointed against sanctioned posts. In their anxiety to get re-employm ent to support their families, they had to give an undertaking to the effect tha t they agreed to work in the AISF at the fixed pays on contractual basis. As the y were in dire need of government job with hardly any option available to them a t the relevant time, such undertaking had to be given by them. In other words, a ccording to the petitioners, they were hardly in a bargaining position vis-à-vis the State authorities, who are always in an advantageous position. It is thus c ontended by the petitioners that such undertakings given by them when they had n o bargaining power cannot operate as waiver, acquiescence or estoppel so as to a pproach this Court for the reliefs claimed herein. 8. Before proceeding further, I am tempted to quote the observations of thi s Court in paragraphs 8 and 9 of judgment dated 22-4-2002 in Civil Rule No. 1584 of 1997 which may offer a clue to resolving the current dispute: 8. Mr. B.J. Talukdar, learned State counsel has been emphatic in asserting that there is no Master and Servant relationship between the Stat of Assam and t he members iof the Force exists in the facts of the p[resent case. The argument advanced, taken to its logical conclusion, is that members of the Force are real ly the employees of the Tea Estate as their salaries and entitlements are being paid by the garden authorities. This question has been dealt with in the foregoi ng paragraphs from a slightly different perspective. To more specifically answer the argument advanced, the principles applicable in industrial law for determin ing the existence of a Master and Servant relationship may be conveniently refer red to. What is paramount for determination of such a relationship, is existence of a right of supervise (supervision?) and control (of?) the work done. There i s no reason why the same principles cannot be applied to normal service jurispru dence if such a precise question is raised. On application of the aforesaid test , the results are in favour of the petitioners. 9. Consequently, for the reasons alluded to in the foregoing paragraphs, th is writ petition has to be allowed. The State respondents will now examine the q uestion as to whether further continuance of the force in the future would be ne cessary and, if so, to give permanent status along with consequential time scale of pay to such members of the force who may be in service as on date. The exist ing framework under which the Force continues to operate will naturally have to undergo certain structural changes at the hands of the authority. If, however, t he continuance of the Force raises any room for doubt and speculation in the min ds of the authority, the concerned State authorities will ensure continuance of the employment of the members of the Force till such time that the Force remains in operation and simultaneously embark upon a package of phased rehabilitation of the members of the Force. The directions in favour of the members of the Forc e, as herein above, is naturally subject to their being found fit and eligible f or continuance in active service. No time limit has been fixed to compel perform ance of the obligations cast upon the State authorities by this order as this Co urt sees no reason as to why the authorities will not carry out such obligations within a reasonable time. [Underlined for emphasis] 9. Even though the aforesaid directions were issued by this Court as early as 22-4-2002, the State-respondents, after much prevarication, finally constitut ed a Cabinet Sub-Committee to examine the proposal for restructuring the Assam T ea Plantation Security Force. The Committee, as already noticed, recommended the creation of two new Battalions in the name and style of Assam Tea Plantation a nd Industrial Security Force in the line of the existing two ASRF Battalions ba sically to provide security related duties in the Tea Gardens. According to the recommendation of the Cabinet Sub-Committee, the strength of the Battalion would be 1326 posts in each of the Battalions as per the scheme depending upon the nu mber of ATPSF personnel found suitable. The services of the existing 88 personne l then serving in the Assam Home Guards (Border Wing) Battalion against the sanc tioned posts and the personnel in the ATPSF should be utilized in the two new Ba ttalions, and as a result, the number of the new posts would be 2564 in the two new Battalions. The eligibility of the ATPSF personnel would be examined by a Bo ard to be constituted by he Government and on the basis of suitability report of the Board, the selected personnel would be put through six months’ training und er the police and only after successful completion of the police training, the s uitable personnel of the ATPSF would be selected for absorption in the new Batta lion. The Sub-Committee also recommended specific pay scales for the posts of Co mmandant, 2nd-in-Command, Medical Officer, Assistant Commandant, Subedar, Platoo n commander, Havildar, Naik, Lance Naik, Constable, Followers, Pharmacist/Compou nder and Dresser and not honoraria or fixed pays. Thereafter, the State Governme nt in the Home Department issued the Notification dated 22-4-2008, the relevant portion is in the following terms: No. HMB. 32/2008/19 : The Governor of Assam is pleased to order raising of 2 (t wo) new Battalions under the name and style of :- 1. No. 3 Assam Industrial Security Force Battalion (No. 3 AISF) 2. No. 4 Assam Industrial Security Force Battalion (No. 4 AISF Bn.) to absorb the eligible personnel of the Assam Tea Plantation Security Force under permanent structure with immediate effect. The Commandant, Assam, Tea Plantation Security Force, Beltola, Guwahati shall be in charge of No. 3 A.I.S.F. Battalion till the appointment of the incum bent on regular basis. The Commandant, Assam Home Guards (Border Wing) Battalion, Beltola, Guwa hati shall be in charge of the No. 4 A.I.S.F. Battalion till appointment of an i ncumbent on regular basis. Sd/- S.C. Das, Principal Secy. to the Govt. of Assam Home Department. 10. The aforesaid notification was followed by the letter dated 14-7-2005 is sued by the Under Secretary, Finance (Budget) Department, Govt. of Assam, which said that 2571 persons have been appointed by the Commandant Ist AISF Bn. Nagaon and by Commandant 2nd AISF Battalion under the Directorate General of Civil Def ence and Commandant General of Home Guards, Assam by indicating the names of the new appointees, their designations and date of joining, etc. in the statement e nclosed therewith. Interestingly, the scales of pay or the fixed pays payable to the new appointees are conspicuous by their absence. What is significant to not e is that the Cabinet Sub-Committee had recommended payment of regular pay scale s and issue of rations to the appointees. However, the petitioners were paid and have been paid a fixed pay plus other allowance but not a regular pay scales. A typical example of the appointment order issued to the petitioner is found at A nnexure-1 to the affidavit of the respondent No. 5, which says that the appointm ent is on contractual basis at fixed pay plus other allowances as admissible und er the rules and is purely temporary and might be terminated at any time without notice. At this stage, it may recalled that even before their absorption, the p etitioners were not paid pay scales at par with similar ranks holders of the reg ular force. Aggrieved by that, they had approached this Court in C.R. No. 1584/9 7 and had also resorted to the path of agitations whereupon the State-respondent s constituted the Cabinet Sub-Committee, which, as noticed earlier, made recomme ndation for absorption of the petitioners with regular pay scales like regular f orce. Ironically, the positions of the petitioners remain the same even after th e said notification dated 22-4-2008: as the saying goes, the more things change, the more they remain the same. 11. The question which now falls for consideration is whether the petitioner s are entitled to regular pay scales? The fact that they have been continuing to discharge their duties till now eloquently demonstrates that their services are still required by the State-respondents in one way or anoher. This Court in its judgment dated Civil Rule No. 1584/97, had clearly directed that if further con tinuance of their services were found to be necessary, they should be given perm anent status along with the consequential time scale of pay to such members of t he Force who might be in service as on date. Instead of challenging the aforesai d judgment dated 22-4-2002, the State-respondents chose to honour the same by co nstituting the Cabinet Sub-Committee for examining the issue. Apparently, acting upon the recommendations of the Cabinet Sub-Committee, the State-respondents is sued the notification dated 22-4-2008 absorbing the eligible personnel of the As sam Tea Plantation Security Force including the petitioner under permanent struc ture. The term ’absorption came up for discussion, albeit in the context of the effect of inter se seniority after absorption, before the Full Bench of the Pun jab and Haryana High Court reported in Kartar Singh and others v. Sate of Punja b and others, AIR 1990 P & H 1. In his concurring judgment, Justice M.M. Punchhi (as his Lordship then was) observed thus: 39. According to the meaning found in Chamer’s 20th Century Dictionary, the word ’absorption’ means the act of absorbing and ’absorb’ means to such in; to swallow up: to imbibe: to take in: to incorporate: to take up and transform (en ergy) instead of transmitting or reflecting: to engage wholly. According to Blac k’s Law Dictionary, 5th Edition, the word ’absorption’ is explained as a term us ed in collective bargaining agreements, to provide seniority for union members, if employer’s business is merged with another. Humphrey v. Moore, 375 US 335, 84 S Ct. 363, 369. According to the Dictionary of English Law by Sweet & Maxwell t he word ’absorption’ is equal to the word ’amalgamation’. ’Amalgamation’ has bee n explained to say that this takes place where to incorporated companies or soci eties become united by one of them being merged in the other. 40. Absorption thus (does?) have the effect of sucking and imbibing into wh at is originally existing. On absorption thus an employee becomes part and part of the department absorbing him and partakes the same colour and character of th e existing employees of the department, classified as promotees, direct appointe es or transferees on the loss of his identity. If this is understood in this per spective, there is no difficulty in assigning the absorbees seniority in accorda nce with seniority R. 15. Nothing more need be added. 12. In my opinion, once the petitioners have been absorbed under permanent s tructure, they are deemed to have become members of the regular force with the e ntitlement of regular personnel with consequential time scales of pay. Any other view will be contrary to the intended consequence of the notification dated 22- 4-2008 and will also be inconsistent with the direction of this Court contained in the judgment dated 22-4-2002. You cannot take away with the left hand what yo u have given with your right hand. If that were not so, the very object of the d irection of this Court would be defeated. It will be absurd and unreasonable if the conditions of the petitioners remain the same even after the intervention of this Court and the fruits of their agitations are still frustrated. The observa tions of the Apex Court in Bhupendra Nath Hazarika v. State of Assam, (2013) 2 S CC 516 instantly come to mind: 65. We have stated the role of the State as a model employer with the fond hop e that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It shou ld always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A se nse of calm sensibility and concerned sincerity should be reflected in every ste p. An atmosphere of trust has to prevail and when the employees are absolutely s ure that their trust shall not be betrayed and they shall be treated with dignif ied fairness then only the concept of good governance can be concretised. We say no more. 13. The fact that the intention of the respondent authorities was to give pe rmanent status to the petitioners with regular time scales for the various ranks can be safely inferred from paragraph 4 of the affidavit-in-opposition filed by the finance Department, which reads thus: 4. That as regards to the statements made in paragraphs 9 to 11 of the writ petition, the deponent respectfully begs to state that the Finance Department v ide endorsement dated 08-09-2008 in Home Department’s file No. HMB.20/2008 concu rred to a proposal of Home Department for creation as well as for filling up of 2,564 (two thousand five hundred sixty four) numbers of posts of different categ ories on different scales of pay for the 2 (two) new Assam Industrial Security F orce (AISF) Battalions under the Director General of Civil Defence and Commandan t General of Home Guards for absorption of the personnel of the Assam Tea Planta tion Security Force (ATPSF) in these 2 (two) new AISF Battalions by re-structuri ng the ATPSF in pursuance of the Cabinet decision dated 28-01-2008. By this endo rsement dated 08-09-2008, the Finance Department also approved transfer of anoth er 88 (eighty-eight) number of posts of different categories from the Assam Home Guards Battalion/ATPSF to these 2 (two) new AISF Battalions. Copy of the endorsement dated 8-09-08 is annexed herewith and marked as Annexure -A. 14. Annexure-A plainly shows that the absorption of the petitioners as propo sed by the Home Department and as subsequently concurred by the Finance Departme nt obviously envisages the absorption of the petitioners in a permanent structur e with normal time scales of pay extended to members of the regular force and no t appointment on contractual basis with fixed pays. In my judgment, from a combi ned reading of the recommendation of the Cabinet Sub-Committee, the notification dated 22-4-2008 and the affidavit of the Finance Department extracted above, th e inference is irresistible and the conclusion inescapable that the respondent a uthorities have held out a promise that the petitioners will be paid time scales of pay for the respective ranks held by them and they cannot now back off from the promise held out by them. On the basis of such promise held out by the respo ndent authorities, the position of the petitioners has now been altered even tho ugh not necessarily to their prejudice or detriment. This is, therefore, a fit c ase for invocation of the doctrine of promissory estoppel. The doctrine is resta ted by the Apex Court in Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1 in the following manner: 182.2. The doctrine of promissory estoppel may be applied against the Governme nt where the interest of justice, morality and common fairness dictate such a co urse. The doctrine is applicable against the State even in its governmental, pub lic or sovereign capacity where it is necessary to prevent fraud or manifest inj ustice. However, the Government or even a private party under the doctrine of pr omissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not relevant. The government is sub ject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promis e made by it. 182.3. The doctrine of promissory estoppel is not limited in its applicatio n only to defence but it can also furnish a cause of action. In other words, the doctrine of promissory estoppel can by itself be the basis of action. 182.4. For invocation of the doctrine of promissory estoppel, it is necessa ry for the promisee to show that by acting on promise made by the other party, h e altered his position. The alteration of the position by the promisee is the si ne qua non for the applicability of the doctrine. However, it is not necessary f or him to prove any damage, prejudice or detriment because of alteration of such promise. [Underlined for emphasis] 15. It is, however, contended by Mr. BJ Ghosh, the learned State counsel, th at the petitioners, having accepted the offer made by the respondent authorities for contractual appointment with fixed pays and having already rendered their s ervices on such terms, cannot now turn around and demand that