Gauhati High Court
Dipali Borah vs The State Of Assam And 4 Ors on 29 November, 2021
Page No.# 1/4
GAHC010080912021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4606/2021
DIPALI BORAH
W/O- LT. LALIT CHANDRA BORAH, R/O- PERAVARI, P.O. NEW SAMAGURI,
P.S. SAMAGURI, DIST.- MAJULI, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, IRRIGATION
DEPTT., DISPUR, GHY-06
2:THE CHIEF ENGINEER
IRRIGATION
CHANDMARI
GHY-03
ASSAM
3:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GHY-29
4:THE DIRECTOR OF PENSION ND PUBLIC GRIEVANCE
ASSAM
MAIDAMGAON
BELTOLA
GHY-29
5:THE EXECUTIVE ENGINEER
JORHAT DIVISION (IRRIGATION)
DIST.- JORHAT
ASSA
Page No.# 2/4
Advocate for the Petitioner : MRS. B GOGOI
Advocate for the Respondent : SC, IRRIGATION
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 29-11-2021
Heard Ms. M. Borah, learned counsel appearing on behalf of Ms. B. Gogoi,
learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned counsel for the
respondent No. 3 and Mr. N. Upadhyay, learned counsel for the respondent Nos. 1, 2 &
5.
2. The petitioner's case in brief is that the petitioner's husband was appointed as
Night Chowkidar in the office of the respondent No. 5 on 01.11.1989. Though the
petitioner's husband name was forwarded for regularization, the petitioner's husband's
service was not regularized. The petitioner's further case is that in terms of the O.M
dated 16.06.2012, issued by the Pension & Public Grievances Department, Govt. of
Assam, the service of work charged, Muster Roll and similarly placed workers engaged
prior to 01.04.1993 and in continuous service from the date of engagement, are
entitled to have their service regularized in terms of the orders passed by the Supreme
Court.
3. The petitioner's counsel submits that the petitioner was working as Night
Chowkidar from 01.11.1989 till his death on 03.02.2008, after completing 18 years of
service. The petitioner's counsel thus submits that the service of the petitioner's
husband should be regularized by creating a supernumerary post and thereafter grant
family pension and other pensionary benefits to the petitioner.
4. Mr. S.K. Medhi, learned counsel for the respondent No. 3 and Mr. N. Upadhyay,
learned counsel for the respondent Nos. 1, 2 & 5 submit that as the petitioner's
husband service was never regularized and as he has not completed 20 years of
Page No.# 3/4
service, there is no question of granting family pension to the petitioner.
5. I have heard the learned counsels for the parties.
6. On perusing the writ petition, this Court finds that the petitioner's husband was
working as a fixed pay worker vide Office Order No. 55 dated 20.12.1991 in the office
of the respondent No. 5.
7. In the case of State of Manipur and Anr. Vs. Ksh. Moirangninthou Singh and
Ors. reported in (2007) 10 SCC 544, the Apex Court had held at paragraph 7 as
follows:
"7. We are of the opinion that in view of the Constitution Bench
Judgment of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi
and Ors., (2006) 4 SCC 1, this Court cannot direct regularization in service.
Since the Court has no power to direct regularization, it also follows that it has
no power to direct grant of benefits payable to the regular employees."
8. In the case of "State of Assam Vs. Sri Upen Das and 835 Others", WA
No.45/2014, the Division Bench of this Court set aside the orders of the Single Bench,
which in turn had set aside the Office Memorandum dated 16.06.2012 issued by the
Finance Department, Government of Assam, which stated that there shall be no
further regularization of services of Muster Roll Worker/WorkCharged employee or
similarly placed workers even if such workers were engaged prior to 01.04.1993. The
OM dated 16.06.2012 also stated that there would be no more regularization by
creating superannumery post for one day in respect of Muster Roll Worker/Work-
Charged employee who are engaged prior to 01.04.1993, but have died or had retired
on being attaining the age of superannuation.
9. Para A and B of the O.M dated 16.06.2012 states as follows:-
"A. No more regularization of services of Work-Charged, Muster Roll or
similarly placed workers can be undertaken by the State Government even if
such workers were engaged prior to 1.4.1993 and rendered continuous service
without break.
Page No.# 4/4
B. No more regularization can be undertaken by creating supernumerary
post for one day in respect of those W.C and M.R workers who were engaged
prior to 1.4.1993 but died or attained the age of superannuation after rendering
continuous services uninterruptedly."
10. The import of the judgment of the Division Bench of this Court in W.A No.
45/2014 is accordingly to the effect that the O.M dated 16.06.2012 will be a valid O.M.
The documents on record show that the petitioner had been initially engaged as a
fixed pay worker for a period of 2 months w.e.f 01.01.1992 and the engagement
period allegedly continued till his death. It is also seen that as per the letter dated
10.11.2009, issued by the Deputy Chief Engineer, Irrigation, Assam, the petitioner's
case for regularization had been rejected.
11. In the case of State of Assam Vs. Upen Das & 835 Others (supra), the
Division Bench of this Court held that Muster Roll, Work charged worker and Casual
worker were not entitled to regularization of their service and consequential
pensionary benefits such as family pension.
12. In view of the fact that the petitioner's husband service had not been
regularized and as regularization of a fixed pay worker cannot be allowed in terms of
the judgment of the Division Bench, this Court finds that the petitioner's prayer cannot
be granted.
13. In view of the above reasons, this Court does not find any ground to allow the
writ petition. The same is accordingly dismissed.
JUDGE
Comparing Assistant
