Page No.# 1/5 vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1222 Gua

                                                                    Page No.# 1/5

GAHC010178012019




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

                          Case No. : WP(C)/5540/2019

         NAZRUL HAQUE LASKAR AND ANR.
         S/O- LT ABDUL KARIM LASKAR, R/O- BOALIPAR PART-III, P.O. BOALIPAR
         BAZAR, P.S. AND DIST- HAILAKANDI, ASSAM

         2: ABUL HUSSAIN LASKAR
          S/O- LT ALAUDDIN LASKAR
          R/O- VILL- ALGAPUR
          PART-I
          P.O. KALIBARI BAZAR
          P.S. ALGAPUR
          DIST- HAILAKANDI
         ASSA

         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
         FINANCE DEPTT., DISPUR, GHY-6

         2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
          DISPUR
          GHY-6

         3:THE DIRECTOR
          PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
          JURIPAR
          PANJABARI
          GHY-37

         4:THE CHIEF EXECUTIVE OFFICER
          HAILAKANDI ZILLA PARISHAD
          P.O.
          P.S. AND DIST.- HAILAKANDI
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             ASSA

Advocate for the Petitioner   : MR. M H LASKAR

Advocate for the Respondent : SC, FINANCE DEPTT.




                                     BEFORE
                      HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : --05.04.2022

Heard Mr. M.H. Laskar, learned counsel for the petitioner and Mr. R. Borpujari, learned Standing counsel, Finance Department. Also heard Mr. A. Roy, learned Standing counsel appearing on behalf of the P&RD Department.

2. Vide the order dated 29.03.2022, this Court directed the petitioner to bring on record by way of an additional affidavit the office order dated 03.01.2022. The petitioner had duly filed the said additional affidavit.

3. Further to that, this Court vide the said order also directed the Finance Department to obtain instructions as regards the Finance Department's letter dated 16.09.2021 and also to produce the same by filing an additional affidavit.

4. The counsel for the P&RD Department was also directed to obtain instructions as regards the office order dated 03.01.2022 by the next date.

5. Mr. R. Borpujari, learned counsel for the Finance Department has produced before this Court a set of instructions dated 04.04.2022 issued by the Under Secretary, Government of Assam, Finance (EC-II) Department which was addressed to the learned Standing counsel, Page No.# 3/5

Finance Department. To the said instruction, the communication FEC(II) 80/2018/156 dated 09.09.2021 which was signed on 16.09.2021, was enclosed.

6. From a perusal of the said document, more particularly the communication dated 09.09.2021, it reveals that the Finance Department has taken into consideration the judgment of the Division Bench of this Court dated 08.06.2017 in the State of Assam Vs. Upen Das & Ors. and forwarded the list of Muster Roll/Casual/Fixed Pay and similarly placed workers who were appointed under pre AFRBM/post AFRBM period received from the departments in question, since approved and duly authenticated by the Finance Department to extend the benefit of payment of the minimum pay scale to the Muster Roll/Casual/Fixed Pay etc. workers in terms with the said judgment.

7. It is the submission of Mr. R. Borpujari that on the basis of this communication dated 09.09.2021, which was signed on 16.09.2021, various departments including the P&RD Department had issued the communication dated 03.01.2022. He further submits that the petitioner has not been taken into consideration on the basis that their appointment was not based upon existing vacancies as well as without approval from the Finance Department.

8. On a perusal of the communication dated 09.09.2021, it is not known as to when, the approval of the Finance Department is required is as to whether the said approval ought to be at a time when the person is appointed or the approval has been granted at present pursuant to the judgment of the Division Bench. It further appears from a perusal of the judgment of the Division Bench in the case of Upen Das (Supra), that Page No.# 4/5

there were no contentions so raised as regards the Assam Fiscal Responsibility and Budget Management Act, 2005. On the other hand, on the basis of the policy adopted by the Government, the said judgment was being passed. Though vide the various notifications the State Government have based their decision on the basis of the said judgment in Upen Das but on the other hand, it has been categorically submitted that the judgment in Upen Das is subject to the AFRBM Act, 2005.

9. I have heard the learned counsel for the parties.

10. A perusal of the said judgment of the Division Bench passed in Upen Das (Supra), nowhere stipulates that the directions contained therein shall be subject to the AFRMB Act, 2005. It was on the basis of a specific stand being taken by the State Government 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 grounds or on the ground of criminal offence and that the State Government had also agreed to enlist such employees in health and accidental death insurance schemes which will be prepared in consultation with the State Cabinet. It was categorically directed vide the said judgment that the State Government to implement measures without further delay and taking into consideration the judgment of the Supreme Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors., (2017) 1 SCC 148 , the State Government was directed to pay minimum of the pay scale to the Muster Roll worker and similarly placed employees working since last more than 10 years (not in sanctioned post) w.e.f. 01.08.2017.

11. The State Government have neither sought for any review of the Page No.# 5/5

said judgment nor filed an appeal and as such the said directions have attained finality.

12. Under such circumstances this Court, therefore, directs the Commissioner and Secretary, Government of Assam, Finance Department to file an affidavit bringing on record the stand of the State Government, insofar as, the direction of this Court in Upen Das (Supra) to the effect that the State Government have to pay minimum of the pay scale to Muster Roll Workers and similarly placed employees working since last more than 10 years (not in sanctioned post) w.e.f. 01.08.2017 and as to whether in spite of the said directions, on the basis of the AFRBM Act, 2005, the State Government can withheld such benefits to the Muster Roll workers, Work Charged employees and similarly placed employees like the petitioners.

13. Let the matter be taken up for further consideration on 10.05.2022. A copy of the instant order be furnished to Mr. R. Borpujari, learned Standing counsel, Finance Department for due compliance.

JUDGE

Comparing Assistant