Page No.# 1/6 vs The State Of Assam And 4 Ors
2021 Latest Caselaw 624 Gua

                                                         Page No.# 1/6

GAHC010042802020




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)




         WP(C)/1353/2020

         DILIP BHUYAN AND 8 ORS.
         S/O- LATE GOBINDA PRASAD BHUYAN
         R/O- VILL- SANTIPUR
         P.O- MIRZA
         DIST- KAMRUP
         ASSAM
         PIN- 781125

         2: RATUL KUMAR DAS
         S/O- LATE RAJMOHAN DAS
          R/O- VILL SARUFULGURI
          P.O- AMRANGA (BARIHAT)
          DIST- KAMRUP
         ASSAM
          PIN- 781130

         3: ARJUN BARUAH
         S/O- LATE ATAHU BARUAH
         R/O- VILL- ARIKUCHI
         P.O- ARIKUCHI
         DIST- NALBARI
         ASSAM
         PIN- 781339

         4: DAMODAR DEV GOSWAMI
         S/O- LATE PRAFULLA CH GOSWAMI
         R/O- VILL- KHATIYAMARI
         P.O- JHAROBARI
         DIST- KAMRUP
         ASSAM
         PIN- 781122
                                                      Page No.# 2/6


5: BIMAL DAS
S/O- LATE MAHENDRA DAS
R/O- VILL- HAROPARA
P.O- JHAROBARI
DIST- KAMRUP
ASSAM
PIN- 781122

6: NAGEN NATH
S/O- LATE AGHANU RAM NATH
R/O- VILL- PUB NAHIRA SATRAPARA (NATHPARA)
DIST- KAMRUP
ASSAM
PIN- 78112

7: RAJIB HUJURI
S/O- MAHENDRA HUJURI
R/O- VILL AND P.O- SIKARHATI
DIST- KAMRUP
ASSAM
PIN- 781125

8: ABHAY MAZUMDAR
S/O- LATE KHARGESWAR MAZUMDAR
R/O- VILL- UTTER BANKAKATA
P.S- CHHAYGAON
P.O- NEW JARABARI
DIST- KAMRUP
ASSAM
PIN- 781314

9: MD. DIDER ALI
S/O- LATE ABDUL AZIZ
R/O- VILL- BARAKHAT
P.O- TAKURAPURA
DIST- KAMRUP
ASSAM
PIN- 782445
VERSUS

THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
POWER AND ELECTRICITY DEPTT
DISPUR
GUWAHATI- 781006

2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED
                                                                                   Page No.# 3/6

            REP. BY ITS MD
            BIJULI BHAWAN
            GUWAHATI- 781001
            3:THE GENERAL MANAGER (HR)
            APDCL
            BIJULI BHAWAN
            GUWAHATI- 781001
            4:THE DEPUTY GM (HR)
            APDCL
            BIJULI BHAWAN
            GUWAHATI- 781001
            5:THE SELECTION COMMITTEE- B
            REP. BY ITS CHAIRMAN CONSTITUTED BY APDCL
            BIJULEE BHAWAN
            GUWAHATI- 781001 FOR SELECTION OF OFFICE CUM FIELD ASSTT
            ------------
            Advocate for : MR. B D KONWAR SR. ADV.
            Advocate for : SC
            APDCL appearing for THE STATE OF ASSAM AND 4 ORS



                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        JUDGMENT

Date : 23-02-2021

Heard Mr. B.D. Konwar, learned senior counsel for the petitioners. Also heard Mr. BD Das, learned senior counsel for the respondent, APDCL.

2. The petitioners claim that they were earlier appointed as outsourced labourers/Meter Reader/Bill Dispatcher in the respondent APDCL on contractual basis and on the basis of such engagement they are presently working in various Sub-Divisional Offices under the APDCL. Without providing any further details the petitioners make a statement that they have been rendering service as such for more than 10 years.

3. An advertisement dated 14.08.2018 was issued by the respondent APDCL inviting applications from candidates who either did not have any earlier experience with the APDCL or having some experience in the power sector to fill up certain posts of Office cum Field Assistant, Sahayak and Mali. The advertisement provides that 1000 posts would be under consideration for Office cum Field Assistant, 872 for Sahayak and further 60 posts for Assistant Accounts Officer, 25 for Light Vehicle Driver and 2 for Gardener or Mali. The Page No.# 4/6

advertisement also provides the breakup of the vacancies by applying the law of reservation.

4. The respondent APDCL in their affidavit in opposition has annexed the detailed employment notice bearing MD/APDCL/HR/REC(2017-18)/2017/85/119 & 120 dated 14.08.2018, wherein it is provided that the eligibility criteria would also require an experience of having worked as contractual workers under the APDCL/AEGCL/APGCL or any other power sector PSU where they may have been engaged as Meter Reader, Sahayak etc. as the case may be, but having rendered service of not less than 5 years as on 01.04.2018.

5. We take note that although the recruitment process was for the fresh candidates as well as the candidates who earlier worked with the APDCL/AEGCL/APGCL, but the qualifications prescribed for the recruitment from the two sources are different and for the purpose of direct recruitment from the open market the qualification stipulates some higher educational qualification. But in respect of those candidates who earlier worked with the APDCL/AEGCL/APGCL the required qualification was put up at a slightly lower level. Accordingly, as a lower educational qualification has been fixed for recruitment of the experienced candidates, a further eligibility have also been put in place that they must have an experience of atleast 5 years. The petitioners participated in the selection process which ultimately culminated in the short list of candidates published by the notice dated 10.02.2020. The grievance of the petitioners is that although their names appeared in the short list of candidate dated 10.02.2020 but in order of merit their names appeared much below in the list and taking note of the number of vacancies available, they may not be offered an appointment. We have gone through the writ petition of the petitioners and do not find any averment to indicate that the process of selection is vitiated in any manner or that for some given acceptable reason the names of the petitioners ought to have been higher up in order of merit in the short list of candidates.

6. But what we take note is that in paragraph-4 of the writ petition there is a prayer by the petitioners that having worked for more than 10 years, their services are required to be regularized by the authorities. As regards the prayer for regularization, no averment has been made in the writ petition that the petitioners were appointed in any irregular manner against any sanctioned vacant posts and that they have continued to work for more than 10 years without the aid of any Court order up to the date of decision of Supreme Court in Secretary, Page No.# 5/6

State of Karnataka -vs- Umadevi & Others reported in (2006) 4 SCC 1. All that the petitioners seek for is that in the meantime they have worked for more than 10 years and therefore, are entitled to be regularized. The question of regularizing such contractual employees appointed in an irregular manner had been dealt with by the Supreme Court as well as this Court in WA 45/2014.

7. There is a decision of this Court in WP(C) 482(AP)/2011 wherein, all the relevant laws including pronouncement of the Supreme Court in Umadevi (supra), State of Punjab-vs- Jagjit Singh reported in (2017) 1 SCC 148 Nihal Singh & Ors -vs- State Of Punjab & Ors reported in (2013) 14 SCC 65 were taken into consideration.

8. This Court by relying on the provisions of the Supreme Court in paragraph-55 of Umadevi (supra) as well as Jagjit Singh(supra), Nihal Singh (supra) and Official Liquidator -vs- Dayananad & Ors reported in (2008), the following principles were culled out in the judgment dated 17.01.2017 in WP(C) 482AP/2011 which are extracted as below:-

"The employees who had been working continuously for more than ten years up to the date of the judgment in Umadevi's case i.e. 10.04.2006, without the aid and benefit of any interim order/order(s) of any Courts or Tribunals, against sanctioned posts, although appointed in an irregular manner, are entitled to be regularized as an one time measure. The exercise of one time measure is to be made department or institution wise and where appointments may have been made without any selection process, but from amongst duly qualified candidates and against sanctioned posts are to be considered as irregular appointments.

Employees engaged on a daily wage basis, and required to perform the same nature, quality and quantity of work as that of the regular employees working against sanctioned vacant posts, are entitled to a salary, at least in the minimum of the pay scale, that are paid to the regular employees.

Posts are required to be created by the State depending upon the need to employ people having regard to various functions that the State undertakes to discharge and that the posts are to be sanctioned and created by the State by a conscious choice on the basis of a rational assessment of the need. Any act on the part of the State compelling the employee to take a lesser wage and perform the same work as is being done by the regular employees, by taking advantage of its dominant Page No.# 6/6

position and the unemployment scenario prevailing in the Country, would constitute an act of exploitative enslavement, which will also be a violation of Article 21 of the Constitution of India.

A stand on the part of the State respondent authorities that such temporary employees had accepted the offered employment at a lower wage on their own volition and that they are not working against any sanctioned posts, and as such, not entitled to a regular scale of pay, or regularization, is as such, not acceptable."

9. In the instant case also as it is the claim of the petitioners that they have been working as contractual employees for more than 10 years and therefore would be entitled to the benefits as indicated in the above extracted portion of the judgment dated 17.01.2017.

10. Accordingly, the respondent APDCL is directed to consider the cases of the individual petitioners and if they are found to have been working for more than 10 years up to the judgment of Umadevi (supra) i.e. 10.04.2006 and were working against the sanctioned vacant post, an onetime measure may be made for their regularization. If any of the petitioners are found not to have worked for more than 10 years upto 10.04.2006, but have worked for more than 10 years in the meantime, the respondents may consider them for a benefit of providing them the salary atleast in the minimum pay scale that are otherwise payable to an equivalent regularly appointed employee, which again would be consistent with the directions of the Division Bench of this Court in the judgment dated 08.06.2017 passed in WA 45/2014.

11. As regards any of the petitioners who may not have satisfied the requirement of having worked continuously for 10 years, we request the respondent APDCL to also consider their case and find out a suitable economic package for them as per the acceptability of the respondent APDCL. Ordered accordingly. Interim order passed earlier stands vacated.

JUDGE

Comparing Assistant