Gauhati High Court
Sunil Kumar Das vs The State Of Assam And 6 Ors on 3 March, 2021
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GAHC010021072017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2505/2017
SUNIL KUMAR DAS
S/O SRI BINOD CH. DAS R/O WARD NO. 2, GORIPUR TOWN, NEAR
KALIBARI, PO.O. and P.S. GOURIPUR, DIST. DHUBRI, ASSAM- 783231
VERSUS
THE STATE OF ASSAM and 6 ORS.
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM,
POLITICAL B DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE SECRETARY TO THE GOVT. OF ASSAM
FINANCE FINANCE DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE SECRETARY TO THE GOVT. OF ASSAM
JUDICIAL DEPARTMENT
DISPUR
GUWAHATI -6.
4:THE SECRETARY TO THE GOVT.OF INDIA
MINISTRY OF HOME AFFAIRS
NEW DELHI.
5:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
POLITICAL B DEPARTMENT
DISPUR
GUWAHATI -6.
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6:THE ACCOUNTANT GENERAL Aand E
ASSAM
MAIDAMGAON
BELTOLA GUWAHATI -29.
7:THE MEMBER
FOREIGNERS TRIBUNAL - I
DHUBRI
P.O.
P.S. and DIST. DHUBR
Advocate for the Petitioner : MR.I H SAIKIA
Advocate for the Respondent : SC, AG
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 03-03-2021
(1) Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. D. Nath,
learned Addl. Senior Government Advocate, Assam for the respondent Nos. 1, 3 & 5 as well
as Mr. R. Dhar, learned Standing Counsel for the respondent No.6 and Mr. R. Borpujari,
learned Standing Counsel, Finance Department for the respondent No.2.
(2) The case of the petitioner in brief is that the petitioner was engaged as a Copyist on
fixed remuneration on 29.05.1999 in the Establishment of the Foreigners' Tribunal, Dhubri
and the Government under its communication dated 06.03.2007 approved the engagement of
four Copyists in different Foreigner's Tribunals, including the engagement of the petitioner.
The petitioner is currently drawing remuneration of Rs.6,000/- per month and the Member of
the Foreigners' Tribunal has allowed the Copyist to serve in a vacant post of LDA/ Typist in
the Foreigners' Tribunal on 05.05.2004, but he is not allowed to draw the regular scale of pay
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for the post of LDA/ Typist. The prayer of the petitioner is for regularization of his service and
to facilitate the benefit of regular scale of pay.
(3) Learned counsel for the petitioner submits that in terms of Para-53 of the Judgment of
the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi (3)
and Ors. reported in (2006) 4 SCC 1, which has been explained in Para-5 of the Judgment
of the Apex Court in the State of Karnataka & Ors. Vs. M.L. Kesari & Ors. reported in
(2010) 9 SCC 247, the petitioner's service should be regularized.
(4) Learned counsel for the petitioner submits that though no advertisement was issued
prior to the appointment of the petitioner and no selection process had taken place, the
petitioner's case having come within the exception to the general principle against
regularization as enunciated in Uma Devi (3) (Supra), the petitioner's service has to be
regularized in terms of the Para-53 of the Judgment of the Apex Court in the case of Uma
Devi (3) (Supra).
(5) Learned counsel for the respondents on the other hand submits that the petitioner has
categorically admitted that there was no advertisement issued for filling up the post of
Copyist, to which the petitioner has been appointed and as no selection process had taken
place, the appointment of the petitioner to the post of Copyist was illegal and not an irregular
appointment.
(6) The respondent's counsel also submits that a perusal of the appointment order of the
petitioner would show that the petitioner has been appointed by the Member of the
Foreigner's Tribunals, who is not the appointing authority as the appointing authority is the
Government and as the appointment order has been issued by a person who does not have
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the authority to appoint, the appointment order is void.
(7) The respondent's counsel also submits that though the petitioner was initially
appointed as Copyist, which is not a regular sanctioned vacant post, on a fixed remuneration
of Rs.900/- per month vide order dated 29.05.1999, the petitioner's appointment to a regular
sanctioned post of LDA/ Typist in the Foreigner's Tribunals Office, Dhubri was made only vide
order dated 05.05.2004 and that too on a fixed pay. As such, the petitioner did not have 10
years of service in a regular sanctioned post in terms of the Para-53 of the Judgment of the
Apex Court in Uma Devi (3) (Supra) and in terms of the OM dated 27.06.2013.
(8) Para-53 of Uma Devi (3) (Supra) is as follows:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not
illegal appointments) as explained in S.V. Narayanappa11, R.N. Nanjundappa12 and B.N.
Nagarajan8 and referred to in para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have continued to work for ten years
or more but without the intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be considered on merits in the
light of the principles settled by this Court in the cases abovereferred to and in the light of
this judgment. In that context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in duly sanctioned posts but
not under cover of orders of the courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wagers are being now employed. The process
must be set in motion within six months from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be reopened based on this judgment, but
there should be no further bypassing of the constitutional requirement and regularising or
making permanent, those not duly appointed as per the constitutional scheme.
Para-7 of the Judgment of the Apex Court in the State of Karnataka Vs. M.L. Kesari &
Ors (Supra) is also reproduced herein below:
7. It is evident from the above that there is an exception to the general principles
against "regularisation" enunciated in Umadevi (3)1, if the following conditions
are fulfilled:
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(i) The employee concerned should have worked for 10 years or more in duly
sanctioned post without the benefit or protection of the interim order of any
court or tribunal. In other words, the State Government or its instrumentality
should have employed the employee and continued him in service voluntarily
and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular.
Where the appointments are not made or continued against sanctioned posts
or where the persons appointed do not possess the prescribed minimum
qualifications, the appointments will be considered to be illegal. But where the
person employed possessed the prescribed qualifications and was working
against sanctioned posts, but had been selected without undergoing the
process of open competitive selection, such appointments are considered to be
irregular.
A reading of the above judgments clearly shows that the exception to the general
principles of regularization requires the employee to have worked for 10 years or more in a
duly sanctioned post, as on 10.04.2006, i.e., when the judgment in the case of Uma Devi (3)
(Supra) was announced.
9. The Additional Chief Secretary to the Government of Assam, Finance Department has
issued Office Memo No. FEC(II) 49/2010/pt-52 dated 27.06.2013, wherein regularization of
work charge, muster Roll and similarly placed workers are going to be done as a onetime
measure in pursuant to the order of the Apex Court passed in the case of State of Karnataka
Vs. Uma Devi & Ors (Supra), State of Karnataka & Ors Vs. M.L.Kesari (Supra) and the Order
dated 17.05.2006 passed by this Court in WP(C) No. 6222/2003. The onetime measure for
regularization of the workers referred to above would only be applicable to those who fulfilled
the following three conditions:-
(i) who have been working continuously for 10 years or more as on 10.04.2006
i.e. the date of passing of the judgment in Uma Devi's case without the benefit
or protection of the interim order of any Court or Tribunal.
(ii) who have been engaged against sanctioned vacant post.
(iii) who have requisite qualification to hold the post.
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10. In the present case, the facts show that though the petitioner had been initially
appointed as a Copyist, which was not a sanctioned vacant post, on a fixed pay of Rs. 900/-
per month since 29.05.1999, he was appointed to a regular sanctioned post of LDA/Typist on
a fixed pay only on 05.05.2004. The above facts clearly goes to show that the petitioner has
not worked for 10 years as on 10.04.2006 in a sanctioned vacant post, i.e. the date when the
judgment of the Apex Court in Uma Devi (3) (Supra), had been passed. Accordingly, as the
petitioner has not fulfilled the requirements for availing the benefit of paragraph No. 53 of the
judgment in Uma Devi (3) (Supra), which has been clarified in paragraph No. 7 of the
judgment of the Apex Court in M.L. Kesari & Ors. (Supra) and as per the conditions
required for regularization in terms of the Govt. Office Memo dated 27.06.2013, the prayer of
the petitioner for regularization of his service cannot be granted.
11. The further prayer of the petitioner is to grant him the benefit of a regular scale of pay.
In the case of State of Assam Vs. Sh. Upen Das & 836 Ors ., W.A. No. 45/2014, which
was disposed of by the Judgment & Order dated 08.06.2017, the Division Bench of this Court
had given a direction to pay the minimum pay scale to Muster Roll workers, Work Charged
workers and similarly placed employees working since the last more than 10 years w.e.f.,
01.08.2017 in terms of the judgment of the Apex Court in the case of State of Punjab Vs.
Jagjit Singh, (2017) 1 SCC 148. The operative portion of the Judgment & Order dated
08.06.2017, which is at paragraph No. 22 is 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
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betterment and security of the employees, in question. We, accordingly, direct the
State Government to implement the measures without 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 01.08.2017."
12. In respect of the above prayer for payment of a minimum regular pay scale, the para-
wise comments that has been given to Mr. D. Nath, learned Addl. Senior Govt. Advocate by
the Joint Secretary to the Government of Assam, Political (B) Department vide Letter No.
PLB.21/2020/47 dated 17.02.2021 states that the petitioner, as a copyist has already availed
the benefit of fixed remuneration of Rs. 15,900/- with D.A and medical allowance of Rs. 600/-
P.M in addition to all other benefits as per notification Finance (EC-II) Department's
Notification NO. FEC(II)4/2014/414 dated 3 rd October, 2019 w.e.f. 01.12.2018. The said
Notification dated 03.10.2019 shows that the fixed wages/remuneration of Rs. 15,900/- with
dearness allowance (DA) will be admissible and will undergo revision whenever pay scale
changes alongwith Medical allowance of Rs. 600/- per month, in terms of the judgment
passed in WA No. 45/2014, "State of Assam V. Sh. Upen Das & 836 Ors." The letter dated
17.02.2021 and the Notification dated 03.10.2019 and other annexures are made a part of
the record and marked as Annexure-X collectively.
13. In view of the above reasons, the petitioner's prayer for regularization is not
sustainable. The prayer for payment of pay scale having already been availed of by the
petitioner, the said prayer is infructuous.
The writ petition is accordingly disposed off.
JUDGE
Comparing Assistant
