Bhubon Chandra Das vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2569 Gua

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GAHC010170362021




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

                           Case No. : WP(C)/5643/2021

         BHUBON CHANDRA DAS
         S/O LATE GOLAP DAS, R/O KURUABAHI NOGAYAN GAON, P.O.
         KURUWABAHIU SATRA, BOKAKHAT, PIN 785612, DIST. GOLAGHAT,
         ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER ND SECY. TO THE GOVT. OF
         ASSAM, IRRIGATION DEPTT., DISPUR, GUWAHATI-06

         2:THE STATE OF ASSAM

          REPRESENTED BY THE UNDER SECY. TO THE GOVT. OF ASSAM IN THE
         IRRIGATION DEPTT.
          DISPUR
          GUWAHATI 06

         3:THE COMMISSIONER AND SECY.

          FINANCE DEPTT.
          DISPUR
          GUWAHATI 06

         4:THE CHIEF ENGINEER (I)
         ASSAM
          CHANDMARI
          GUWAHATI 03
         ASSAM.

         5:THE EXECUTIVE ENGINEER
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             GOLAGHAT DIVISION
             IRRIGATION
             GOLAGHAT.

            6:THE TREASURY OFFICER

             GOLAGHAT
             TREASURY
             GOLAGHAT

Advocate for the Petitioner   : MS. B BHUYAN

Advocate for the Respondent : SC, IRRIGATION

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 27-10-2021

JUDGMENT & ORDER (ORAL)

Heard Ms. B Bhuyan, learned counsel for the petitioner, Mr. N Upadhyay, learned counsel for the respondents No. 1, 2, 4 and 5 being the authorities under the Irrigation Department of the Government of Assam and Mr. B Gogoi, learned counsel for the respondents No. 3 and 6 being the authorities under the Finance Department of the Government of Assam.

2. The petitioner was initially appointed as a Master Roll worker in the Golaghat division of the Irrigation Department in the month of May, 1991 and is serving without any break till date. By the Government Letter No. IGN(E)104/2003/198 dated 03.10.2005 and office order No. 172 dated 06.10.2005, the services of all such Master Roll workers who were engaged prior to 01.04.1993 were regularized. The petitioner being a Master Roll worker who was engaged in May 1991 ought to have been included as he was engaged prior to 01.04.1993. But there was a discrepancy in the name of the petitioner Page No.# 3/5

although the other particulars were correct in the list of Master Roll workers who were regularized. Consequent thereof, the petitioner instituted WP(C) No. 4381/2013, wherein the order dated 22.02.2019 was passed.

3. In paragraph 9 of the order dated 22.02.2019, a direction was issued to the respondents in the Irrigation Department to regularize the service of the petitioner with effect from the date on which the respondent No. 6 was regularized. It is taken note of that the petitioner is Bhubon Chandra Das and the respondent No. 6 is Bhubon Das in the said writ petition. The very aspect that there was a discrepancy in the name of the writ petitioner in the list of regularized Master Roll workers precisely lead to the situation that instead of Bhubon Chandra Das, one Bhubon Das was regularized and it is also taken note of that Bhubon Das was regularized from the year 2005. The very provision in paragraph 9 of the order dated 22.09.2019 in WP(C) No. 4381/2013 would go to show that there is a mandamus from this Court to regularize the service of the petitioner with effect from the year 2005.

4. When there is a direction of the Court to regularize the service of an employee with effect from any given particular date, it is to be understood that the regularization would also be done in a regular manner in a sanctioned vacant post where all the service benefits would be available to the employee concerned. In the instant case, purportedly in compliance of the direction of this Court, the petitioner was regularized, but against a post which did not have proper retention. Consequent thereof, retentions were issued only for given periods, where retention orders were there for a given period and for other given period, retention orders were not there and the petitioner was paid the salary and allowances only for the period for which retention orders were there.

5. In the aforesaid background, the communication dated 01.10.2020 had Page No.# 4/5

been made by the Executive Engineer, Golaghat Division Irrigation to the Chief Engineer, Irrigation, Assam stating the entire aforesaid facts narrated hereinabove with a request that as the appropriate retention orders were not issued in respect of the post where the petitioner was regularized, therefore, the salary and allowances had not been paid to him in an appropriate manner. Accordingly, in paragraph 10 of the communication dated 01.10.2020, a request was made by the Executive Engineer to the Chief Engineer to sympathetically consider the matter and do the needful to accord ex-post facto retention to one number of temporary post of Helper, which was presently being held by the petitioner Bhubon Chandra Das from 22.07.2005 to 29.02.2020 and regular retention from 01.03.2020 to 28.02.2021.

6. We do not find any infirmity or unacceptability in the proposal made by the Executive Engineer and it was incumbent upon the Chief Engineer to do the needful and pass the appropriate order. It has been brought to our notice by Mr. N Upadhyay, learned counsel that the Chief Engineer had again made a communication to the Commissioner and Secretary, Irrigation Department to the Government of Assam for doing the needful.

7. We are equally of the view that it was also incumbent on the Commissioner and Secretary in the Irrigation Department for doing the needful. If the appropriate orders are not passed for the retention, it has to be construed that the direction of this Court for regularising the service of the petitioner from the year 2005 had not been duly complied with by the respondent authorities, which may draw the ire of issuing of contempt notice.

8. Accordingly, both the Commissioner and Secretary, Irrigation Department as well as the Chief Engineer, Irrigation Department are directed to do the needful as provided in the communication dated 01.10.2020 within a period of Page No.# 5/5

one month from the date of receipt of a certified copy of this order. On the necessary order of retention being passed, all financial consequential benefits thereof be also provided to the petitioner within a period of another two months thereafter. In the meantime, the current salary and allowances be continued to be paid.

The writ petition is allowed in the above terms.

JUDGE

Comparing Assistant