Page No.# 1/15 GAHC010249662023 2026:GAU-AS:7685 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6462/2023 DHRUBAJYOTI DUTTA S/O- LATE JITEN DUTTA, RESIDENT OF NOWBOISHA, P.O. PATIGAON, P.S. JORHAT, DISTRICT- JORHAT, ASSAM, PIN- 785101 VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HIGHER EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6 2:THE DIRECTOR OF TECHNICAL EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE JORHAT INSTITUTE OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS PRINCIPAL SOTAI JORHAT ASSAM PIN- 785010 4:THE PRINCIPAL JORHAT INSTITUTE OF SCIENCE AND TECHNOLOGY SOTAI JORHAT ASSAM PIN- 78501 Advocate for the Petitioner : MR. D BARUAH, MR. P K BORDOLOI Page No.# 2/15 Advocate for the Respondent : SC, HIGHER EDU, BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 29/05/2026 Heard Mr. D Baruah, learned counsel for the petitioner and Mr. S Das, learned Standing counsel, Department of Higher Education, Assam. 2. The petitioner in the present proceedings, has presented a challenge to an order dated 11.10.2023, by which he was held to be ineligible for being authorised the first financial upgradation benefit under the Modified Assured Career Progression Scheme, notified by the respondent authorities, vide a Notification dated 06.07.2017. 3. The facts in brief requisite for adjudication of the issues arising in the present writ petition, are noticed as under. The father of the petitioner, Jiten Dutta, while serving as an employee in the Jorhat Science College, Jorhat, had died-in-harness in the year 2003. The petitioner proximate to the time of death of his father, had submitted an application for consideration of his case for appointment on compassionate grounds. The said application was, accordingly, processed by the jurisdictional District Level Committee and thereafter, the same was placed before the State Level Committee. The State Level Committee, on consideration of the case of the petitioner, proceeded to recommend his case for appointment on Page No.# 3/15 compassionate grounds against a Grade-IV post, in its meeting held on 16.10.2009. In terms of the said recommendation of the State Level Committee, the Government in the Education (Higher) Department, vide communication dated 03.12.2009, directed the Principal, Jorhat Science College, to appoint the petitioner against a Grade-IV vacant post of 2003, available in the said college. Accordingly, the Principal, Jorhat Science College, vide order dated 10.03.2010, proceeded to appoint the petitioner as a Grade-IV employee temporarily on compassionate grounds, along with authorisation to him, a scale of pay and other allowances, as admissible under the Rules. A development had taken place, thereafter, when the Jorhat Science College was merged with the Jorhat Institute of Science and Technology, Jorhat. The authorities in the Government of Assam, Education (Higher) Department, vide a Notification dated 09.06.2010, proceeded to transfer all the existing posts with incumbents of Jorhat Science College to Jorhat Institute of Science and Technology, Jorhat, with immediate effect. It was stipulated in the said Notification dated 09.06.2010, that such transfer was without prejudice to the existing service conditions of the employees concerned. Accordingly, the petitioner’s service now came to be placed under the Jorhat Institute of Science and Technology (hereinafter, referred to as JIST for the sake of brevity). Thereafter, the petitioner continued to render his services in JIST. The respondent authorities, basing on a policy decision arrived at in this matter, proceeded vide Notification dated 30.12.2016 to declare that the administrative control of the JIST was brought under the Government of Assam, Higher Education (Technical) Department with immediate effect. It was further Page No.# 4/15 stipulated that the college would now function as a full-fledged Government Engineering College. It was also stipulated that the affairs of the college henceforth be conducted as per the Acts/Rules/Procedures of the Government of Assam. The Government of Assam, thereafter, notified the Modified Assured Career Progression Scheme, vide Notification dated 06.07.2017. The said scheme was applicable in respect of regular State Government employees and it was further stipulated that the adhoc employees/casual employees/ contractual employees/work charged employees/muster roll employees would stand exclude from its coverage. Thereafter, the Director of Technical Education, Assam, constituted a committee for examining the cases of the employees falling under the Directorate for extension to them financial upgradation benefits under the said MACP Scheme. On such consideration being made, in respect of the employees of JIST, including the petitioner, herein, he being found to be so eligible for being extended with his first financial upgradation benefit, vide an order dated 23.09.2022, the petitioner was extended with the benefits of first financial upgradation under the said scheme. The petitioner received the benefits under the said scheme, however, subsequently, vide an order dated 18.01.2023, the benefits under the financial upgradation under the MACP Scheme, was kept in abeyance till completion of a review of the eligibility of the employees of JIST to receive the same. The petitioner being aggrieved with the keeping in abeyance of the benefits under the said scheme, submitted representation before the respondent authorities. The said representations having not evoked a response, the Page No.# 5/15 petitioner instituted a writ petition before this Court, being WP(C) No. 4897/2023. A Co-ordinate Bench of this Court vide order dated 13.09.2023, noticing that a review was contemplated in the matter, proceeded to dispose of the said writ petition, directing the Director of Technical Education, Assam to conduct a review as may be advised, within a period of 1 (one) month from the date of receipt of a certified copy and to pass a final order on the entitlement of the petitioner for MACP benefits. The respondent authorities, thereafter, proceeded with the review and upon considering the matter in its second meeting held on 30.09.2023, proceeded to arrive at a conclusion that the services of the petitioner, being regularised only, w.e.f. 30.12.2016, vide issuance of an order dated 02.01.2018, he had not completed the mandated 10 years of continuous service as a Government servant for being granted the first financial upgradation benefit under the said MACP Scheme. Accordingly, the first financial upgradation benefit as granted to the petitioner, vide order dated 23.09.2022, came to be cancelled. Being aggrieved, the petitioner has instituted the present writ petition. 4. Mr. Baruah, learned counsel for the petitioner, by reiterating the facts noticed, hereinabove, has submitted that the initial appointment of the petitioner on compassionate grounds against a Grade-IV post in Jorhat Science College, was an appointment, so effected, basing on compassionate grounds. He submits that the said appointment of the petitioner had the approval of the State Level Committee. He further submits that on the date, when the petitioner was so appointed in Jorhat Science College, the same was a Government Page No.# 6/15 College and accordingly, the petitioner, on his such appointment, is to be deemed to have been a Government servant. 4.1 Mr. Baruah, learned counsel for the petitioner submits that for all intent and purpose the period of service mandated to be reckoned for grant of first financial upgradation benefit under the MACP Scheme to the petitioner must be so construed w.e.f. the date of his initial appointment against a Grade-IV post in Jorhat Science College. 4.2 Mr. Baruah, learned counsel for the petitioner submits that after the Jorhat Science College was merged with the Jorhat Institute of Science and Technology, Jorhat and the services of the petitioner being placed along with the post held by him under the control of the JIST, the petitioner continued, therein, as before with the same service conditions. 4.3 It is submitted that the JIST, at the relevant point of time, was managed by a Society constituted in the matter by the Government. He submits that with the issuance of the Notification dated 30.12.2016, JIST, having been brought under the control of the Government of Assam, Higher Education (Technical) Department, the status of a Government servant, which was attached to the petitioner on his initial appointment on compassionate grounds in Jorhat Science College, stood revived. Accordingly, he submits that the petitioner, on being again brought under the Government service, the period, with effect from the date of his initial appointment in Jorhat Science College, would be deemed to be service rendered under the Government. 4.4 Mr. Baruah, learned counsel for the petitioner submits that reckoning the said position, the respondent authorities had rightly authorized to the petitioner Page No.# 7/15 his first financial upgradation benefit under the MACP Scheme, vide issuance of an order dated 23.09.2022. 4.5 Mr. Baruah, learned counsel for the petitioner submits that on a misinterpretation of the provisions as well as the service conditions governing the petitioner’s service, the first financial upgradation benefit as granted to him under the MACP Scheme came to be kept in abeyance, vide order dated 18.01.2023. He submits that the respondent authorities on a review made had reckoned the period permissible to be construed in respect of the petitioner, for grant of benefits under the MACPS, w.e.f. the date regularization of his services was effected, i.e., w.e.f. 30.12.2016, vide an order dated 02.01.2018. Accordingly, it was held that w.e.f. 30.12.2016, the petitioner not having completed 10 years of service under the Government, he was not entitled to be extended with the first financial upgradation benefit under the MACP Scheme, notified vide Notification dated 06.07.2017. 4.6 Mr. Baruah, learned counsel for the petitioner submits that it is a settled position of law that an appointment on compassionate grounds cannot be made on temporary and/or adhoc basis and such appointment, if made, must be so made against a regular sanctioned vacant post. Accordingly, Mr. Baruah submits that initial appointment of the petitioner on being so effected on compassionate grounds must be deemed to have been so effected against a valid sanctioned post. 4.7 Mr. Baruah, learned counsel for the petitioner, further submits that in the event, there existed any irregularity in the initial appointment of the petitioner, the said irregularity was remedied vide the regularisation of his services effected vide Notification dated 02.01.2018. However, he submits that such Page No.# 8/15 regularisation would now have to relate back to 10.03.2010, when the petitioner was initially appointed on compassionate grounds. 4.8 In the above premises, Mr. Baruah submits that reckoning the period requisite for being granted the first financial upgradation benefit to the petitioner in terms of the MACP Scheme, notified vide Notification dated 06.07.2017, the petitioner had completed more than 10 years of service as on 23.09.2022, when he was so extended with the first financial upgradation benefit under the said scheme. Mr. Baruah, accordingly, submits that the order dated 18.01.2023 and the order dated 11.10.2023 would mandate an interference by this Court. 5. Per contra, Mr. Das, learned Standing counsel, Department Higher Education, appearing for the State respondent, has submitted that it is an admitted position that the petitioner along with four other employees of JIST were allowed the first financial upgradation benefits under the said MACP Scheme, vide an order dated 23.09.2022. He, however, submits that the said grant was with the further stipulation that in the event any error/shortcoming is so detected in future, the said benefit would be permissible to be so revoked. 5.1 Mr. Das, learned Standing counsel, Department of Higher Education, has submitted that the MACP Scheme mandates an employee to have rendered 10 years of regular service as a Government servant to be extended with the first financial upgradation benefits under the scheme. 5.2 It is submitted that the petitioner’s services were regularized only, w.e.f. 30.12.2016. Accordingly, as on 23.09.2022, when he was granted with the first financial upgradation benefits, the petitioner cannot be held to have completed Page No.# 9/15 10 years of regular service. It is submitted that on a review being made of the eligibility of the petitioner to receive his first upgradation benefits under the MACP Scheme, it having been found that the petitioner had not satisfied the requisite eligibility criteria for the same, the first financial upgradation benefits as granted to the petitioner came to be cancelled, vide order dated 11.10.2023, after it was kept in abeyance, vide order dated 18.01.2023. 5.3 Mr. Das, learned Standing counsel, Department of Higher Education, has further submitted that the regularisation order dated 02.01.2018, being not put to challenge by the petitioner, the same would continue to hold the field and the petitioner can be deemed to have become a Government servant only, w.e.f., 30.12.2016 and not from a date prior, thereto. 5.4 In the above premises, Mr. Das, submits that the petitioner, herein, would be entitled to receive his first financial upgradation benefits on completion of 10 years of service, w.e.f. 30.12.2016, only and accordingly, the order dated 11.10.2023, impugned in the present writ petition, would not mandate an interference from this Court. 6. I have heard the learned counsels for the parties and also perused the materials available on record. 7. The issue arising in the present proceeding is as to whether the petitioner, herein, would be entitled to reckon the period of service rendered by him, w.e.f. 10.03.2010, i.e., the date on which he was appointed on compassionate grounds, for the purpose of determining his eligibility for being granted his first financial upgradation benefits under the provisions of the MACP Scheme, notified vide Notification dated 06.07.2017. Page No.# 10/15 8. As noticed hereinabove, the petitioner, in terms of the directions issued by the Government in the Education (Higher) Department, was appointed against a Grade-IV post existing in the Jorhat Science College, after his case for such appointment on compassionate grounds was approved by the State Level Committee. 9. It is a settled position of law that appointments on compassionate grounds have to be mandatorily effected against a regular sanctioned vacant post. The claim of a person for appointment on compassionate grounds can either be rejected or be accepted as per law and once it is accepted, the appointment is to be understood to have been so made against a regular vacant sanctioned post. 10. Considering the said position, this Court would have to hold that the initial appointment of the petitioner on compassionate grounds effected vide order dated 10.03.2010 is an appointment so effected on regular basis. 11. The respondent authorities have not disputed that on the date when the petitioner was appointed on compassionate grounds against a Grade-IV post in Jorhat Science College, Jorhat, the said college was not under the Government. Rather, it is on record that the said college at the relevant point of time was a Government College. After the joining of the petitioner against the post of Grade-IV in Jorhat Science College, the employees working in Jorhat Science College were transferred to Jorhat Institute of Science and Technology (JIST), Jorhat, along with the posts held by them in Jorhat Science College. The Notification dated 09.06.2010, issued in this connection also stipulates that such transfer is without prejudice to the existing service conditions, in other words, the status of a Government servant continued to be attached to the employees Page No.# 11/15 of Jorhat Science College on their transfer to JIST and accordingly, the petitioner is to be held to have carried the status of a Government servant, during the period, he had served at JIST. The respondent authorities, vide Notification dated 30.12.2016, proceeded to declare that the administrative control of JIST was being brought under the Government of Assam, Higher Education (Technical) Department with immediate effect. 12. It was further stipulated in the said Notification dated 30.12.2016 that the JIST would come under the category of a full-fledged Government Engineering College. Accordingly, the services of the petitioner was again brought and placed under the Government and accordingly, he for all intent and purpose again continued to be a Government servant. The respondents, thereafter, vide an order dated 02.01.2018, proceeded to regularise the services of the petitioner and five others, who were at the relevant point of time serving against various posts in JIST, w.e.f. 30.12.2016. 13. It is not projected that other than the petitioner, the other appointees were also appointed on compassionate grounds, so it is the petitioner, who was initially appointed on compassionate grounds. 14. As noticed hereinabove, an appointment on compassionate grounds when affected can be so effected only against a regular sanctioned vacant post and such appointment has to be so made on regular basis. 15. To give a meaning to the regularisation effected vide the said communication dated 02.01.2018 of the services of the petitioner, w.e.f. 30.12.2016, this Court holds that the same would only be for the purpose of regularisation of any infirmity that may have crept in while effecting the initial Page No.# 12/15 appointment of the petitioner against a Grade-IV post in Jorhat Science College, vide order dated 10.03.2010. Accordingly, for all intent and purpose, the said regularisation, insofar as the services of the petitioner is concerned, could not have related back only to 30.12.2016 and the same must be construed to relate back to the date of initial appointment of the petitioner on compassionate grounds effected vide order dated 10.03.2010. Accordingly, the petitioner is held to be a Government servant, w.e.f. 10.03.2010. 16. Having drawn the said conclusions, this Court finds the petitioner to be rendering his services as a Government servant, w.e.f. 10.03.2010 and accordingly, had completed 10 years of regular service under the Government when he was considered for grant of the said benefit. Accordingly, his case is found to be covered by the provisions of MACP Scheme, notified vide Notification dated 06.07.2017, for being extended with the first financial upgradation benefits under the said scheme on completion of 10 years. Accordingly, the grant of first financial upgradation benefit to the petitioner, vide the communication dated 23.09.2022, is found to be not erroneous. 17. This Court would now consider the order dated 11.10.2023, impugned in the present writ petition. The said order, being relevant, is extracted hereinbelow: “ORDER TE(E)A-17/2019/6909. WHERE AS the second round meeting held on 30.09.2023 to review the eligibility for entitlement to the benefits under Modified Assured Career Progression Scheme (MACPS) in respect of 6 (Six) number of incumbents of Jorhat Institute of Science and Technology (JIST), Jorhat including Dhurbajyoti Borah, petitioner in W.P.(C) No.4897/2023 (Dhurbajyoti Borah Vs The State of Assam and 3 Page No.# 13/15 Ors) of the Hon'ble Gauhati High court, Guwahati-01. WHERE AS in the above mentioned review meeting held on 30.09.2023, It was unanimously decided that the aforesald 6(Six) incumbents of JIST including Dhrubajyoti Borah, petitioner in W.P. (C) No.4897/2023 are not eligible for entitlement to the benefits under MACPS In accordance the Finance (PRU) Department, Government of Assam Notification No. FPC.12/2017/74, dated 6th July 2017, as they have not completed 10 (Ten) years of regular Government service w. e. f. 30/12/2016 which is the date of regularization of their services vide Order No. ATE/134/2017/121, dated 02/01.2018. Therefore, the benefits under MACPS granted in respect of the following 6(Six) Incumbents of JIST including Dhrubajyoti Borah, petitioner in W.P. (C) No. 4897/2023 vide Order No. TE(E)A 19/2011/5366, dated 27/09/2022& TE(E)Α-19/2011/3053-61, dated 20/09/2021 are hereby cancelled:- 1. Sri Bhaben Hazarika, Pharmacist, JIST, Jorhat. 2. Sri Dhrubajyoti Borah, Supervisory Instructor, JIST, Jorhat. 3. Sri Dipak Saikia, Cashler, JIST, Jorhat. 4. Mrs. Pranati Devi, Nurse (GNM), JIST, Jorhat. 5. Sri Dhrubajyoti Dutta, Grade-IV, JIST, Jorhat. 6. Mrs. Prativa Saikia, Stenographer, JIST, Jorhat (Now posted at DTE, Guwahati-19).” 18. A perusal of the said order would reveal that the review committee as constituted in the matter had held the petitioner to be not eligible for being extended with the benefits of the first financial upgradation under the MACP Scheme only by noticing that the petitioner’s services was regularized, w.e.f. 30.12.2016 vide order dated 02.01.2018. Accordingly, basing on the consideration, the said committee held that the petitioner was not eligible for being granted his first financial upgradation benefit under the MACP Scheme as Page No.# 14/15 granted vide communication dated 23.09.2022 as he had not completed 10 years of continuous service. Accordingly, vide order dated 11.10.2023, the Director of Technical Education, Assam, proceeded to cancel the grant of such benefit to the petitioner vide communication dated 23.09.2022. 19. This Court having already concluded, hereinabove, that the petitioner’s regular service for the purpose of grant of first financial upgradation benefit under the MACP Scheme being required to be so reckoned, w.e.f. 10.03.2010, the petitioner being found to have completed more than 10 years of service as on 23.09.2022, the cancellation of the first financial upgradation benefits already granted to the petitioner is found by this Court to be erroneous. Accordingly, the order dated 11.10.2023, insofar as it concerns the petitioner, herein, stands set aside. 20. The order dated 11.10.2023, having been interfered, this Court directs the respondent authorities, more particularly, the Director of Technical Education, Assam to extend to the petitioner the benefit of first financial upgradation under the Modified Assured Career Progression Scheme, notified vide Notification dated 06.07.2017, with effect from the date on which he has completed 10 years of service, by reckoning his such service, w.e.f. 10.03.2010. Consequential orders authorizing to the petitioner his first financial upgradation benefit be issued by the respondent authorities, within a period of 2 (two) months from the date of receipt of a certified copy of this order. 21. It is provided that while computing the arrears receivable by the petitioner on grant of his first financial upgradation benefit, in terms of the directions passed, hereinabove, the amount so working out shall be released to the petitioner, after deducting any amount so drawn by the petitioner on Page No.# 15/15 account of grant to him his first financial upgradation benefit earlier. 22. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant