Khagen Saikia vs The State Of Assam And 3 Ors
2021 Latest Caselaw 643 Gua

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GAHC010080722018




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

                                 Case No. : WP(C)/2847/2018

            KHAGEN SAIKIA
            S/O- LT NIREN SAIKIA, VILL- TELIA BEBEJIA, P.O. JURIA, P.S. JURIA, DIST-
            NAGAON, ASSAM, PIN-782124



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            SOCIAL WELFARE AND PROBATION DEPTT., DISPUR, GHY-6

            2:THE SECRETARY TO THE GOVT. OF ASSAM
             DEPTT. OF SOCIAL WELFARE AND PROBATION
             DISPUR
            ASSAM

            3:THE DIRECTOR OF SOCIAL WELFARE AND PROBATION
            ASSAM
             M.G.ROAD
             GHY-1

            4:THE CHILD DEVELOPMENT PROJECT OFFICER (CDPO)
             JURIA
             ICDS
             PROJECT
             NAGAON
            ASSA

Advocate for the Petitioner   : MRS. M D CHOUDHURY

Advocate for the Respondent : GA, ASSAM
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                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 24.02.2021

Heard Mrs. M.D. Choudhury, learned counsel for the petitioner and Mr. D. Nath, learned Additional Senior Govt. Advocate along with Mr. S.S. Roy, learned Govt. Advocate for the respondents.

2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner, who claims to be working in the establishment of the Director of Social Welfare, Assam w.e.f. 15.09.1995, is seeking direction from the respondents to regularize his service against the existing post of Grade-IV lying vacant at ICDS Project, Juria or against any other vacant post.

3. The learned counsel for the petitioner has referred to the documents annexed to this writ petition and it is submitted that after being engaged as a chowkidar in the office of the CDPO, Juria, ICDS Project, the petitioner has appeared in the selection process on three occasions and was successful, but the petitioner was never confirmed in his service and also his service was never regularized. It is submitted that the petitioner had filed a writ petition previously, which was registered as WP(C) 7863/2003, this Court by order dated 23.09.2003 had directed the respondent authorities not to fill up the post of Grade-IV by any person except by the selected candidates in order of merit. It is submitted that till date, the petitioner has not been informed about any reason for not appointing him despite his name appearing in the select list referred to in the order dated 23.09.2003.

4. Per contra, the learned Additional Senior Govt. Advocate has referred to the statements made in the affidavit-in-opposition and the additional affidavit-in-opposition filed by the respondent no.3 and it is submitted that in view of the decision of the Supreme Court of India in the case of Secretary, State of Karnataka & Ors Vs. Uma Devi (3) & Ors, (2006) 4 SCC 1 and the decision of this Court in the case of State of Assam Vs. Upen Das & Ors, 2017 (5) NEJ (GAU), it would not be possible for the State to regularize the service of the Page No.# 3/4

petitioner.

5. On consideration of the submissions made by the learned counsel for both sides, the Court takes notice of the statement made by the respondent no.3 in paragraph 7 of their additional affidavit-in-opposition filed on 02.02.2021, which is to the following effect:

"That the deponent begs to state that extension of the service period of the writ petitioner was a matter requiring the approval from the Government and as the service period was not extended, the writ petitioner was not entitled to any payment against his service after 31/03/1999. However, the undersigned accepts the fact of utilizing the service of the petitioner till date since expiry of his last extension and hence, is going to submit proposal to the Government shortly seeking permission to release payment to the petitioner against his service utilized till date as per rule applicable."

6. It is seen that this Court by order dated 23.09.2003 in WP(C) 7863/2003 had directed the respondent authorities not to fill up the post of Grade-IV by any person except by the selected candidates in order of merit. In the said order, the Court has recorded that although statements were made in this behalf in paragraph 8 of the writ petition, but no select list has been submitted in support of the aforesaid claim. Under such circumstances, it is not possible for the Court to accept that the merit list as referred to in the order dated 23.09.2003 would stand valid as on date. Accordingly, the Court presumes that the select list, which is referred to the said order dated 23.09.2003 in WP(C) 7863/2003 has lapsed by the passage of time. Nonetheless, in the case of Upen Das (supra), this Court after having discussed various case law involving regularization of service, had observed as follows:

"22. It is, however, heartening to learn that the State Government has agreed not to terminate the Muster Roll, Work Charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State Government to implement the measures without Page No.# 4/4

further delay. Besides this, we, in the light of decision of the Supreme Court in State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017.

23. For these reasons, we are of the view that in the fact situation of the case, Muster Roll workers, Work Charged workers and Casual workers are not entitled for regularization of their services with consequential benefits, such as, pension etc. We, accordingly, subject to our direction in paragraph 22 of the judgment, allow the appeal and set aside the impugned judgment and order dated 20.12.2013 passed by the learned Single Judge."

7. The Court is of the considered opinion that the benefits, which were extended by order passed in the case of Upen Das (supra) be also extended to the petitioner.

8. Accordingly, in light of the observations made by this Court in paragraph 22 and 23 of the case of Upen Das (supra), the Court is inclined to direct that the same protection and benefit of scale of pay, which is presently in force in terms of Notification No.FEC(II)4/2014/414 dated 03.10.2019 shall be extended to the petitioner along with other Muster Roll workers, Work Charged employees and similarly placed employees working since last more than 10 years (not in sanctioned post) w.e.f. 01.08.2017.

9. We hope and trust that the concerned respondent authorities shall do the needful so as to extend the benefit of minimum scale of pay to the petitioner w.e.f. 01.08.2017 along with arrear pay etc. preferably within a period of 4 (four) months from the date of service of certified copy of this order to the Director of Social Welfare, Assam.

10. This writ petition stands allowed to the extent as indicated above.

JUDGE

Comparing Assistant