Jagadish Das vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2955 Gua

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GAHC010122982014




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

                          Case No. : WP(C)/991/2014

         JAGADISH DAS
         S/O SRI PANIMAL DAS, R/O SATHIKUCHI, P.O. KAITHALKUCHI,
         GOBORADAL, DIST- NALBARI, ASSAM


         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GHY-6

         2:BOROLAND TERRITORIAL COUNCIL
          REPRESENTED BY CHAIRMAN
          KOKRAJHAR
         ASSAM
          PIN-783370

         3:DIRECTOR OF PANCHAYAT AND RURAL DEVELOPMENT
         ASSAM
          BOROLAND TERRITORIAL COUNCIL
          KOKRAJHAR
         ASSAM
          PIN-783370

         4:PROJECT DIRECTOR
          DISTRICT RURAL DEVELOPMENT AGENCY
          NALBARI
         ASSAM
          PIN-781335

         5:BLOCK DEVELOPMENT OFFICER
          BASKA DEVELOPMENT BLOCK
          MUSALPUR
          NALBARI
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             ASSAM
             PIN-781335

            6:SATISH CH. BORO
             S/O LT. DANDI DHAR BORO
             LDA
             BASKA DEVELOPMENT BLOCK
             MUSALPUR
             BTAD
             PIN-78137

Advocate for the Petitioner   : MS. P MITRA

Advocate for the Respondent : SC, BTC




                                     BEFORE
                    HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                          ORDER

Date : 18-11-2021

Heard Ms. Hazarika learned counsel for the petitioner. Mr. P. Nayak, learned Standing Counsel, BTC and Mr. A. Roy, learned Standing Counsel P & RD are present.

This writ petition is filed with a prayer to regularise the service of the petitioner against the Grade-III post under the office of the Block Development Officer(BDO), Baksa. The petitioner further challenges the regular selection against relating to the said existing vacancy of LDA in the office of BDO, Baksa. The case of the petitioner is that he was appointed to look after the works of "Honey Development Scheme" for a period of three months under the District Rural Agency, Nalbari on 16.3.1992. Subsequently the petitioner was entrusted the work of LDA with effect from 28.2.1997 by the said Project Director, DRDA vide communication dated 28.2.1997 against the Page No.# 3/6

vacant post of LDA of District Rural Development Agency wing. The petitioner continued to work in that status and subsequently on 1.6.2002 after completion of 5 years he was allowed to continue in the service as casual employee with a fix pay of Rs 2890/-. According to the petitioner, he continued in the service and his name was also recommended for regularisation as per policy decision of the Government that exists at that point of time for regularisation of casual workers . According to the petitioner such proposal was sent vide communication dated 17.1.2004(Annexure-6). When nothing was forthcoming the petitioner approached this court by way of writ petition No. 1257/1997. Said writ petition was disposed of on 5.5.2003 with a direction that case of the petitioner shall be considered as per the policy of the Government for regularisation within a period of four months from passing of the said order i.e. 5.5.2003. It was further directed in the said writ petition that the petitioner will be allowed to continue in his present post till such consideration under the policy is made. This court in the said judgment came to a definite conclusion which is as follows:

"It is to meet such contingencies and to resolve such cases that the government has from time to time , framed its policies for regularisation of casual employees . The policy of the government for regularizing the services of such casual employees is admittedly covered by the government circular dated 20.4.1995, which provides that all casual employees in all departments of the State, engaged prior to 1.4.1993 are to be considered for regularisation. The petitioner having been appointed in the year 1992 is within the cut off date and he has therefore, a limited legal right for consideration of his case for regularisation, which appears to have been infringed by the authority in not finalizing the same."

According to the petitioner a representation was filed before the concerned authority. The petitioner contends that though similarly situated persons were regularised by virtue of the policy decision of the Government dated 20.4.1995, the petitioner's case has not been considered . The petitioner continued to work by virtue of the aforesaid order dated 5.5.2003 with a Page No.# 4/6

legitimate expectation that the petitioner's case will be considered in due course of time. In the meantime the respondent BTC authority issued appointment order dated 18.1.2014 appointing respondent No 6 against the vacant post of LDA after a selection process. The petitioner also aggrieved by such selection, as according to her, regularisation should be done against the said vacant post and hence this writ petition was filed.

Mr. Nayak, learned counsel submits that during pendency of this writ petition there were changes of policy decision and accordingly at this stage the regularisation of petitioner by virtue of policy decision dated 20.4.1995 is not permissible inasmuch as such policy was held to be bad by a Full Bench decision of this court in the case of Jitendra Kalita Vs. State of Assam & others reported in (2006) 3 GLR 143.

It is also the contention of Mr. Nayak that subsequently there was another policy decision on the part of the Government dated 22.8.2005 wherein persons appointed prior to 1.1.1993 were decided to be regularised.

Mr. Nayak further submits that Finance Department Govt. of Assam vide communication dated 16.6.2012 took a decision not to regularise any service of muster roll and casual worker further and not to create supernumerary post. This was put under challenge before this court and coordinate Bench vide judgment and order dated 20.12.2013 passed in WP(C) 8216/2004 and other analogues matters the said notification was held to be bad. Accordingly the same was set aside and the State Government challenged such decision before the Division Bench and accordingly Division Bench vide its order dated 8.6.2017 passed in W.A 45/2014 set aside the judgment of the learned Single Judge. According, to Mr Nayak submits that as per the decision dated 16.6.2012 as aforesaid and as per the decision of the Division Bench in WA Page No.# 5/6

45/2014 the petitioner is not entitled for any regularisation.

Mr. Nayak further submits that the Govt. of Assam took a policy decision that those persons who are continuing in service for more than 10 as casual/muster roll worker, their services shall not be terminated. And it was further decided that these persons be given the salary at the minimum of the pay scale and be allowed to continue till the age of superannuation.

Accordingly Mr. Nayak submits that the prayer as made in the writ petition can not be allowed in view of the aforesaid judicial pronouncements and policy decisions.

At this stage, learned counsel for the petitioner submits that the case of the petitioner also need be considered in the light of the aforesaid policy decision, which allows to draw basic minimum scale of pay, inasmuch as, the petitioner has been continuously working. The learned counsel for the petitioner also submits that the petitioner though working continuously but he has not been paid his wages since the date of filling of the vacant post. According to the learned counsel that the petitioner has been working, he is entitled for the arrear of wages.

I have given a anxious hearing and this court is bound by the aforesaid judicial pronouncement and the policy decisions that has been upheld by the Division Bench of this Court. Therefore, in the given fact, this court can not give direction to the State authorities to regularise the service of the petitioner. But at the same time the petitioner is having a right of consideration for getting the basic minimum scale of pay as per the present policy of the Government and he has a right to get the same, if he satisfies the condition for grant of such relief.

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Therefore , this court is of the view that the respondent No. 1 shall consider the case of the petitioner, whether he is entitled for the benefit (Drawing basic minimum Scale of pay and continue till the age of superannuation) of the aforesaid policy of the Government and if after such consideration, it is found that the petitioner is entitled for such benefit , such benefit will be given thereafter. The aforesaid exercise shall be carried out by the respondent No.1 within a period of four months from receipt of the copy of this order.

So far relating to the non payment of wages, it is directed that the respondent No. 1 shall consider the claim of the petitioner and in the event it is found that the petitioner has been working as claimed, the wages shall be paid to him thereafter. This exercise also need to be carried out by the respondent No. 1 within a period of four months from receipt of the copy of this order.

With the above observation and direction this writ petition stands disposed of. However no order as to cost.

JUDGE

Comparing Assistant