WP(C) 3701/2008 B E F O R E HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Challenge in these two writ petitions have been made against the orders dated 05.10.05, 11.07.05 and 04.05.06 whereby and whereunder the Secretary to th e Government of Assam, Irrigation Department issued orders absorbing the petitio ners in the feeder post of Lower Division Assistant (LDA for short) in the Irrig ation Department in pursuance to the addendum issued on 11.07.05 holding that th e employees of Assam State Minor Irrigation Development Corporation Ltd., (for s hort ASMIDC Ltd.) will be absorbed in the feeder post instead of analogus vacant post as approved by the Cabinet on 25.02.04 thereby directing their claim for s eniority and promotion to the post of Head Assistant and vide order dated 04.05. 06 issued by the Executive Engineer, Nagaon Division (Irrigation) Nagaon, it was informed that petitioners’ claim from LDA to Head Assistant cannot be entertain ed as they were not entitled to claim seniority in Irrigation Department conside ring their past service in ASMIDC Ltd. The orders passed on 05.10.05 and 11.07.0 5 have been challenged by the petitioners in W.P.(C) Nos.3701/08 and 4142/08 whe reas the subsequent order dated 04.05.06 is under challenge in W.P(C) No.3701/08 alongwith the orders as indicated above. 2. Since the orders under challenge are same and the relief sought for bei ng the same, these two writ petitions are taken up for hearing together and bein g disposed of by this common judgment and order. 3. Heard Mr. RC Saikia, learned counsel appearing for the petitioners in WP (C) No. 3701/08 and Mr. B Banerjee, learned counsel appearing for the petitioner s in WP(C) No. 4142/08. Also heard Mr. BN Gogoi, learned State counsel appearing for the State respondent, Dr. B Ahmed, learned Standing counsel, Irrigation Dep artment and Mr. D Saikia, learned Standing counsel, Finance Department, Assam. N one appeared for ASMIDC Ltd., despite service of notice. 4. The brief facts of the cases are narrated hereunder: There are two writ petitioners in WP(C) No. 3701/08 who were holding the post o f Upper Division Assistant(UDA for short) in the ASMIDC Ltd whereas there are se venteen petitioners in WP(C) No.4142/08 who were holding the post of Junior Acc ountant /Accountant and Assistant Accountant under ASMIDC Ltd. under different s cale of pay. 5. The ASMIDC Ltd. was incorporated on 15.10.1980 as a public sector undert aking under the Companies Act, 1956. However the said ASMIDC Ltd was placed unde r the administrative control of the State Irrigation Department, Government of A ssam. After its functioning near about 23 years, a Memorandum of Understanding ( MoU for short) was executed on 26.03.03 between the State Government of Assam an d the Ministry of Finance, Government of India under the Medium Term Fiscal Refo rm Programme whereby decided to close down the said ASMIDC Ltd., by 31.12.03 and consequently thereupon 302 employees were given voluntary retirement from servi ce out of total strength of 564 employees leaving 262 employees of ASMIDC Ltd., whereof their future remained uncertain. 6. In view of the said situation a notification was issued on 13.5.05 by th e Secretary to the Government of Assam, Irrigation Department which is being rel evant in the case is quoted hereunder: NOTIFICATION GOVERNMENT OF ASSAM IRRIGATION DEPARTMENT : : ESTABLISHMENT BRANCH GUWAHATI: 3 NOTIFICATION Dt. Guwahati the 13th May/05 No.IGN(E)64/96/Pt.I/220: In pursuance of MOU held on 26.3.03 between Govt. of As sam and the Ministry of Finance Govt. of India conveyed vide Fin.(E-A) Deptt. Le tter. No.FEA 7/2002/196 dt. 19.6.2003 and as per approval of Cabinet dt. 25.2.04 , the following 262 Nos. of employees of (Cadre wise) ASMIDC Ltd. are hereby abs orbed against the analogous vacant posts of Irrigation Deptt. with immediate eff ect under the following terms and conditions. (1) Inter-se-seniority to the proposed absorption against the analogous vacant p osts of Irrigation Deptt. may be fixed below the existing respective cadres of I rrigation Deptt. (2) On permanent absorption the pay of the employees concerned shall be fixed un der F.R. 22(I) (b) of the FR & SRs. (3) They are entitled to pensionary benefit as admissible under the Assam Servic es (Pension) Rules, 1969, on their absorption/Apptt. in Irrigation Deptt. (4) They will have to sign an undertaking individually regarding non claim of se niority in Irrigation Deptt. for their post services rendered under the Corpn. b efore joining in Irrigation Deptt. (5) No equalization of pay will be entertained with the employees of Irrigation Deptt. (6) For regularization of services of non-regularised J/E, A/E and A.E.E. the ma tter will be taken up with the concerned Deptt. after their absorption. (7) The services will be accepted only when the NO LIABILITY CERTIFICATES FROM T HE M.D.ASMIDC LTD AND UPDATED SERVICE BOOKS WILL BE SUBMITTED to Irrigation Dept t. (8) List of 262 employees for absorption is enclosed. Places of postings of the above employees are being issued separately. This has the approval of SLEC vide their U/O No.1253/04 dated 16.03.05 a nd Fin (EC-I)Dept. concurrence vide their U/O No.FE5/114 dated 02.08.04. Sd/M.K.Das Secretary to the Government of Assam Irrigation Deptt.Ghy-3 7. Thereafter an addendum was issued on 11.7.05 by the Secretary to the Go vernment of Assam, Irrigation Department which reads as follows: GOVERNMENT OF ASSAM IRRIGATION DEPARTMENT : : ESTABLISHMENT BRANCH GUWAHATI: 3 ADDENDUM Dated Guwahati the 11h July/05 No IGN(E) 64/96/Pt-1/220: &.Please add the following terms and conditio ns as Sl. No.9 on the matter of absorption of 262 Nos. of employees of ASMIDC L td under Irrigation Deptt. already issued vide this Deptt. notification No. IGN (E)64/96/Pt-1/220 dtd.13.05.05. (9) The employees of ASMIDC Ltd will be absorbed only in the feeder posts instead of analogous vacant post of Irrigation Deptt., irrespective of the pos ts now they are holding in ASMIDC ltd. Sd/M.K.Das Secretary to the Government of Assam Irrigation Deptt.Ghy-3 8. Consequently thereupon another notification dated 5.10.05 was issued by the Secretary to the Government of Assam, Irrigation Department whereby the empl oyees of ASMIDC Ltd were posted against the vacant posts of Irrigation Deparrtme nt in the feeder posts as shown against their names below on the same terms and conditions with immediate effect and accordingly the petitioners in both the wri t petitions had joined in the post of LDA in the scale of pay of Rs. 2890-5725/- which are basically under challenge in these writ petitions. 9. Drawing the attention of the Notification dated 13.05.05 Mr. R.C. Saikia learned counsel appearing for the petitioners in W.P(C) No. 3701/08 has contend ed that the proposal for absorption in analogous posts has the approval of the C abinet dated 25.02.04 with the concurrence of the Finance department dated 02.08 .04 and approval of the State Level Empowered Committee (SLEC for short) dated 1 6.03.05. Accordingly the respondents have submitted the statements showing the c adre strength and number of vacancies to be occurred upto 31.12.02 in the Irriga tion Department for the purpose of absorption of the employees of the ASMIDC Ltd . in adhering the cabinet decision and approval dated 25.2.04 wherein at serial No.8 the existing vacancy of Head Assistant has been shown as 17 and therefore a ddendum dated 11.7.05 issued by the Secretary to the Government of Assam, Irriga tion Department absorbing them in the feeder cadre of LDA without taking the app roval of the Cabinet cannot stand in the eye of law being arbitrary, illegal wit hout jurisdiction and violative of Article 14 and 16 of Constitution of India. 10. Mr. Saikia would contend that the Notification dated 13.05.05 would show that a list was prepared for absorption of 262 numbers of different categories of employees showing analogous pay scale in the Irrigation Department whereby th e pay scale of Rs. 3940-8425/-P.M. were mentioned which they were drawing in the ir original department of ASMIDC Ltd. but the addendum issued on 11.07.05 has ch anged the entire structure of their service condition including the scale of pay fixing Rs.2890-5725/- in the feeder cadre or LDA cannot stand by superseding t he terms and conditions of Notification dated 13.05.05 by way of addendum includ ing another terms and condition at serial No.9 irrespective of terms and conditi ons included at serial Nos.1 to 8 dated 13.05.05 thereby setting at naught the N otification dated 13.05.05 violating the modalities of absorption as approved by the Cabinet which requires interference under writ jurisdiction in the intere st of public . 11. Mr. Saikia has further contended that the Secretary to the Government of Assam, Irrigation Department had not been empowered to issue such an addendum i ncluding serial No.9 whereby and whereunder the earlier Notification dated 13.05 .05 including the terms and conditions at serial Nos.1 to 8 have been given a go -by thereby changing the terms and conditions of their service in the analogous posts by demoting their service to the feeder cadre of LDA without protecting th eir scale of pay earlier drawing and the same violates all norms of service juri sprudence, which requires interference in exercise of power under Article 226 o f the Constitution of India in the public interest. 12. Mr B. Banerjee, learned counsel appearing for the petitioners in W.P.(C) No.4142/08 on the other hand, has adopted the arguments advanced by Mr. Saikia, learned counsel, save and except that there is no feeder cadre of LDA of the Ac counts personal serving in ASMIDC Ltd. Mr. Banerjee has drawn the attention of t he court the minutes of the Cabinet meeting held on 04.10.01 which would go to s how that the feeder post of Divisional Accounts Officer/Accountant is Junior Acc ountant and from Junior Accountant, the feeder posts is Assistant Accounts Offic er and the Cabinet has approved in the remark column that 26 Nos. of Accounts O fficer of ASMIDC can be accommodated against 36 Nos. of vacancies with pay prote ction in the Asstt. Accounts Officer rank In the said list, the pay scale they were drawing was shown as Rs.9075-14225/- for Divisional Accounts Officer, Rs.3 760-9400 for Junior Accountant and Rs.3508-8750/- for Assistant Accountants Offi cer whereas they have been brought back to a feeder post of LDA and posted at d ifferent places fixing their salary at Rs. 2890-5725/-, in view of addendum iss ued on 11.07.05 without concurrence of the Cabinet and the usurpation of power b y the Secretary to the Government of Assam, Irrigation Department in issuing a n addendum has no sanctity under the law and requires interference setting asid e the addendum dated 11.07.05 with a direction to absorb them in the post of Ass istant Accounts Officer which is a feeder post of the Accountant with pay prote ction in the Irrigation Department or else, it would be violative of Article 14 and 16 of the Constitution of India. 13. Mr. Banerjee has further contended that by issuing an addendum dated 11. 07.05 whereby the service conditions and the pay structure of the petitioners ha ve been changed, wherefor the entire exercise of different departments in absorb ing the petitioners in analogous post in the Irrigation Department has been allo wed to go-by, though the views of the Finance Department was obtained on 20.10. 04 and the Finance Department has accepted the proposed permanent absorption of the employees of ASMIDC Ltd against the vacant post of Irrigation Department sub ject to the approval of SLEC/Cabinet on the conditions that on permanent absorpt ion the pay of the employees concerned shall be fixed under FR 22 (1)(b) of the FRs & SRs and the past service should be counted for pensionary benefits and the PPG Department shall be consulted in this regard and accordingly the finance in cluding the SLEC has approved the cabinet decision absorbing the employees of th e erstwhile ASMIDC Ltd. to the Irrigation Department and the same thus cannot be allowed to supersede by addendum dated 11.07.05 being arbitrary, illegal, witho ut jurisdiction and violative of Article 14 and 16 of the Constitution of India and, therefore, requires interference under writ jurisdiction. 14. An affidavit-in-opposition has been filed by the Irrigation Department, Government of Assam. Relying upon the averments made therein, Dr. Ahmed, learned Standing counsel, Irrigation Department has submitted that the absorption of th e employees of ASMIDC Ltd. in the Irrigation Department in the analogous posts w ere objected by the employees of the Irrigation Department on the ground that th eir promotional avenue to the next higher cadre would be blocked if absorption o f the employees of ASMIDC Ltd. is made in analogous post and in order to sort ou t the resentment, the Secretary, Irrigation Department convened a meeting with t he representatives of different service Associations including the employees of ASMIDC Ltd. and the matter had been settled with consensus to absorb the employe es of ASMIDC Ltd. to the feeder post instead of analogous post and accordingly c onditions of absorption has been changed vide minutes of discussion held on 12.1 1.03 and therefore no grievances can be made, more so, when the written consent was obtained in this regard, the same cannot be interfered with under writ juris diction. 15. Refuting the contentions made by the petitioners in both the writ petiti ons, the Finance Department has filed two affidavits-in-opposition. As per the f irst affidavit filed by the Finance department it has concurred the absorption o f 240 numbers of ASMIDC staff out of proposed 262 numbers save and except 22 pos ts of Engineers since their absorption require APSC recommendation. In relation to 26 numbers of Accounting Staff of ASMIDC, it was decided that they would be a bsorbed against the vacant post of LDA in Irrigation Department and they shall n ot claim any pay protection as the same has been done with their prior consent. In the second affidavit which also related to the petitioners in WP (C) No. 4142 of 2008 has contended that the process was initiated for encadrement of Account s Personnel of ASMIDC Ltd. and vacancy position was also called for vide letter dated 16.11.00. However, in absence of provision for cadrement in the Service Ru les, the same is required to be placed before the Cabinet and the Personnel (B) Department is the nodal department in this regard and thus prayed for dismissal of the writ petitions. 16. In reply to the argument advanced by the counsel representing the Irriga tion Department, Mr. Saikia has argued that no written consent has been given by the petitioners in WP (C) No. 3701/08 and as the argument advanced cannot stand in the way in granting relief more so, when the consensus arrived at on 12.11.0 3 as alleged for absorption in the feeder cadre has no approval from the cabinet , the consensus arrived at on 12.11.03 cannot be acted upon in the facts and cir cumstances of the case. In support of his contentions he has referred the decisi on in Jacob M. Puthuparambil & Ors. -Vs- Kerala Water Authority & Ors. reported in (1991) 1 SCC 28. 17. On a query relating to written consent taken from the Accountant of the erstwhile ASMIDC employees, Mr. Banerjee has contended that the cabinet decision approved for absorption in the analogous post cannot be superseded by an addend um dated 11.07.05 and the written consent even if taken into account violates Se ction 23 of the Contract Act being unconscionable terms in contract of employmen t which require interference with the orders dated 11.07.05 and 05.10.05. Moreov er, the consensus arrived at on 12.11.03 and the written consent taken if accept ed as true was not accepted by the cabinet as approved on 25.02.04 and as such t he relief sought for in the writ petition requires to be allowed in the facts an d circumstances of the case. In support of his contentions, the learned counsel has relied on a decision in Central Inland Water Transport Corporation Limited a nd another -Vs- Brojo Nath Ganguly and another reported in AIR 1986 SC 1571: (19 86) 3 SCC 156. 18. Heard the learned counsel appearing for the parties. Also perused the pl eadings of the parties including the voluminous record submitted by the counsel appearing for the Irrigation Department, Government of Assam. From the pleadings set forth by the parties, the following facts emerge to be admitted, viz; - i) After a good deal of deliberations between the various Department of the Gove rnment of Assam, a Memorandum of Understanding was arrived at on 26.03.03 betwee n the Government of Assam and the Ministry of Finance, Government of India under Medium Term Fiscal Reform Programme whereby it was decided to close down the AS MIDC Ltd. by 31.12.03 and as a measure thereof 302 numbers of the employees of A SMIDC Ltd. were given voluntary retirement service out of total strength of 564 leaving 262 numbers of employees, the fate of which was left to be decided by th e Government of Assam; ii) Thereafter in pursuance of MoU held on 26.03.03 between Government of Assam and the Ministry of Finance, Government of India conveyed vide Fin.(E-A) Departm ent letter No. FEA 7/2002/196 dated 19.06.03 and as per approval of cabinet date d 25.02.04, 262 numbers of employees of (cadre wise) ASMIDC Ltd. were absorbed a gainst the analogous vacant posts of Irrigation Department on the terms and cond itions, which has already been quoted hereinabove. iii) In consequence thereof the views of the Finance (Esstt-A) Department was ta ken on 20.01.04 wherein the Finance Department gave a note that the Finance Depa rtment has no objection to the proposed permanent absorption of the employees of ASMIDC Ltd. against the vacant posts of Irrigation Department subject to the ap proval of SLEC/Cabinet on the following conditions: 1) On permanent absorption, the pay of the employee concerned shall be fixed und er FR 22(1)(b) of the FRs & SRs. 2) As regards counting of past service towards pensionary benefits etc., if any, the PPG Department shall be consulted and accordingly the Cabinet gave its appr oval on 25.02.04 for permanent absorption of the employees of ASMIDC Ltd. to the Irrigation Department after taking the approval of SLEC dated 16.03.05 and Fina nce Department gave concurrence on 02.08.04 and consequent thereupon the Notific ation dated 13.05.05 was issued as indicated above. iv) It has also been brought on record that 17(seventeen) numbers of vacancies o f Head Assistants were existing in the Irrigation Department and there was no pr edicament to appoint the petitioners in WP (C) No. 3701 of 2008 in the aforement ioned post of Head Assistants in the Irrigation Department since they were holdi ng the post of Head Assistant till their absorption in the feeder cadre of LDA v ide Notification dated 05.10.05. V) The feeder post of Account Officers in ASMIDC Ltd., was Accounts Assistant/AD A and not the LDA. The post of LDA is the feeder post of Head Assistant/Upper Di vision Assistant in the Irrigation Department. Consequently thereupon the cabine t approved holding that 26 numbers of Accounts Officers of ASMIDC can be accommo dated against 36 numbers of vacancies with pay protection in the Assistant Accou nts Officer rank which is a feeder cadre of Accounts Officers and hence the Noti fication dated 05.10.05 cannot be applied to the Accounts Officer serving in the erstwhile ASMIDC Ltd. and therefore there cannot be any justification of postin g them against the vacant post in the feeder cadre of Irrigation Department as L DA fixing their pay of Rs. 3850-5725/-. 19. Now two questions raised by the counsel representing the Irrigation Depa rtment and the Finance Department are required to be answered. The learned Stand ing counsel, Irrigation Department has pleaded that the absorption of the employ ees of the erstwhile ASMIDC Ltd. in the Irrigation Department were resented by t he employees of the Irrigation Department raising objection that absorption in t he analogous posts would be hampered on promotional avenue and to sort out this problem the Irrigation Department had convened a meeting on 12.11.03 whereby it was settled with consensus to absorb the employees of ASMIDC Ltd. in the feeder post instead of analogous post and consequently the Notification dated 05.10.05 was issued absorbing them in the feeder post. It has further been argued that subsequently the cabinet was moved for a pproval of the modification but no record is made available to the Court to the effect that modification sought for got the approval of the cabinet though the c abinet has approved for permanent absorption of the employees of ASMIDC Ltd. in the vacant posts of Irrigation Department vide its approval dated 25.02.04, cons equent whereof Notification dated 13.05.05 was issued wherein the apprehension o f the existing employees of the Irrigation Department was taken care of in the t erms and conditions No. 1 and, therefore, the argument advanced by the counsel f or the Irrigation Department falls. 20. It is noteworthy to mention herein that the Finance Department in their pleadings as well as in argument did not raise any objection relating to the per manent absorption of the petitioners in WP(C) No. 3701/08 in the analogous post of Head Assistant in the Irrigation Department save and except in the case of pe titioners in WP (C) No. 4142/08 wherein in the affidavit-in-opposition a note sh eet dated 02.08.04 (Vide Annexure-1) has been annexed which would go to show tha t 26 numbers of Accounting Staff of ASMIDC would be absorbed against the vacant posts of LDA in Irrigation Department and they will not claim any pay protection as it is being done with their prior consent which, however, contradicts of the ir own note vide note sheet dated 20.01.04 and the said note vide note sheet dat ed 02.08.04 was not placed before the cabinet prior to the approval of the cabin et. Moreover, the note sheet is an opinion expressed by the department in the da y to day official matters which cannot be acted upon, more so, when there is no feeder cadre of LDA of Accounts Officer in the Service Rules. The note sheet dat ed 02.08.04 of the Finance Department has not been approved by the cabinet in it s wisdom and therefore the argument advanced by the Finance Department is answer ed in the negative. 21. Now the question arises as to whether the written consent obtained from the Accounting Officers of the erstwhile employees of ASMIDC Ltd. in absence of approval by the cabinet can be acted upon as urged by the Finance Department. Th e answer would be no. In this regard, it would be appropriate to refer the decis ions relied upon by the counsel for the petitioners viz., Jacob M. Puthuparambil (supra) and Central Inland Water Transport Corporation Limited (supra) wherein the Apex Court has held that large scale unemployment offers a matching opportu nity to the employer to exploit the needy and the employer under such condition can dictate the terms to accept employment on take-it-or-leave- it terms offered by the employer in absence of the bargaining power in the other. Moreover, the written consent obtained from the Accounting Officers of the erstwhile ASMIDC Lt d. employees are unconscionable, unfair, unreasonable and opposed to public poli cy are void under section 23 of the Contract Act, more so, when the written cons ent taken was not approved by the cabinet as it would reveal from record produce d before the court. 22. For the foregoing reasons, both the writ petitions are allowed setting a side the orders dated 11.07.05 and 05.10.05 relating to the petitioners only in these two writ petitions thereby directing the Secretary to the Irrigation Depar tment, Government of Assam to permanently absorb the two petitioners in WP (C) N o. 3701/08 as Head Assistant