Page No.# 1/8 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 2879 Gua

                                                                   Page No.# 1/8

GAHC010172902016




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

                          Case No. : WP(C)/4893/2016

         HIRANYA HAZARIKA and ANR.
         S/O. SRI GIRI KANTA HAZARIKA, VILL. SENCHOWA, NEAR RAIL GATE
         NO.1, P.S. NAGAON SADAR, P.O. SENCHOWA, PIN-782002, DIST. NAGAON,
         ASSAM.

         2: SRI JITEN BORAH

          S/O. LT. RATI KANTA BORAH
          VILL. PATHORI
          P.S. NAGAON SADAR
          P.O. RONTHALI
          PIN-782001
          DIST. NAGAON
          ASSAM

         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, JUDICIAL
         DEPTT., DISPUR, GHY., PIN-781006, KAMRUP M DIST., ASSAM.

         2:THE REGISTRAR ADMN. CUM IN CHARGE

          CENTRALIZED RECRUITMENT
          GAUHATI HIGH COURT
          GUWAHATI
          KAMRUP M DIST.
          ASSAM
          PIN-781001.

         3:THE CHIEF JUDICIAL MAGISTRATE

          NAGAON
          P.O. NAGAON
                                            Page No.# 2/8

DIST. NAGAON
ASSAM
PIN-782001.

4:THE SUB-DIVISIONAL JUDICIAL MAGISTRATE

HOJAI
SANKARDEV NAGAR
HOJAI
DIST. HOJAI
ASSAM
PIN-782442.

5:THE S.D.J.M.

KALIABOR
DIST. NAGAON
ASSAM
PIN-782137.

6:SRI MRINMOY JYOTI BORA

S/O. LT. KONIA KANTA BORA
C/O. THE C.J.M.
NAGAON
P.O. NAGAON
DIST. NAGAON
ASSAM
PIN-782001.

7:SRI BIPUL BORA

S/O. LT. BHULA BORA
C/O. THE C.J.M.
NAGAON
P.O. NAGAON
DIST. NAGAON
ASSAM
PIN-782001.

8:SRI ATUL CHANDRA DAS

S/O. LT. SARUDHAN DAS
C/O. THE C.J.M.
NAGAON
P.O. NAGAON
DIST. NAGAON
ASSAM
                                                                         Page No.# 3/8

             PIN-782001

Advocate for the Petitioner   : MR.P K MUNIR

Advocate for the Respondent : MR.C P SHARMA R-6-8




             Linked Case : WP(C)/4733/2016

            HIRANYA HAZARIKA and ANR.
            S/O. SRI GIRI KANTA HAZARIKA
            VILL. SENCHOWA
            NEAR RAIL GATE NO.1
            P.S. NAGAON SADAR
            P.O. SENCHOWA
            PIN-782002
            DIST. NAGAON
            ASSAM.


             VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
            JUDICIAL DEPTT.
            DISPUR
            GHY.-781006
            KAMRUP M DISTRICT
            ASSAM.


            ------------

Advocate for : MR.M MAHANTA Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 10-08-2022

JUDGMENT & ORDER (ORAL) Page No.# 4/8

Heard Mr. P Mahanta, learned counsel for the petitioners. Also heard Mr. R Dhar, learned counsel for respondent No.1 being the authorities under the Government of Assam in the Judicial Department, Mr. UK Nair, learned senior counsel assisted by Mr.MP Sarma, learned counsel for the respondents No.2 to 5 being the authorities under the High Court and the establishment of the Chief Judicial Magistrate, (for short, CJM) Nagaon. Mr. SD Roy, learned counsel for the respondents No.6, 7 and 8.

2. The writ petitioners who were working as casual workers in the establishment of the Sub-Divisional Judicial Magistrate Hojai as it existed at that relevant point of time and in the establishment of Sub-Divisional Judicial Magistrate Kaliabor respectively were discharged from service as per the order dated 29.07.2016 of the learned CJM, Nagaon. By the said order all such casual employees working in the establishment of the CJM Nagaon including that of the Sub-Divisional Judicial Magistrate Hojai as it existed at the relevant point of time and the Sub-Divisional Judicial Magistrate Kaliabor were discharged by referring to a Government letter No.JDJ.579/2013/13 dated 05.10.2015 and No.JDJ.573/2013/22 dated 03.03.2016.

3. It is stated that as per the records made available by the learned senior counsel appearing for the establishment of the CJM, Nagaon, an effort was made earlier for regularizing the casual workers and accordingly a process was initiated, but as per the letter No.JDJ.579/2013/13 dated 05.10.2015 of the Deputy Secretary to the Government of Assam in the Judicial Department it had Page No.# 5/8

been informed that the "Finance (EC-III) Department has regretted their inability to accord to the proposal vide their U.O. No.1252/2015 dated 22.09.2015".

4. It is further stated that the Finance (EC-III) Department by their U.O No.455/2016 dated 29.02.2016 had informed that the engagement of the cleaning and scavenging staff are to be outsourced rather than employing the personnel concerned. Accordingly, the casual employees including the petitioners Hiranya Hazarika and Jiten Borah were also discharged. We also take note that prior to the petitioners being discharged on 29.07.2016 there is a decision of the High Court communicated vide No.HC.XXXVII- 57/2013/918/R.Cell dated 31.08.2015 of the Registrar (Admin.)-cum-In Charge, Centralized Recruitment, Gauhati High Court addressed to All District and Sessions Judges and CJMs, Presiding Officers, Principal Judges, Special Judges of the State informing that the High Court had been pleased to resolve that the services of the contingent workers working in the subordinate courts of Assam, who have completed 10(ten) or more years as on 14.08.2015 be regularised as a one time measure by the respective appointing authorities by following the order of seniority in the concerned establishment, subject to availability of vacancies in Grade IV posts. It is stated that the order of discharge dated 29.07.2016, amongst others, was in respect of 8 numbers of casual employees including the writ petitioners. It is also stated that upon receiving the decision of the High Court communicated as per the communication dated 31.08.2015, three out of the eight casual employees who were discharged on 29.07.2016 have in the meantime been regularised. But the claim of the present writ petitioners for such regularization was not given a favourable consideration. In Page No.# 6/8

the circumstance, the writ petitioners have assailed the order of discharge dated 29.07.2016 resulting in the present writ petitions.

5. Situated thus, we required the respondents in the establishment of CJM Nagaon to provide the information to the Court as to why three of the casual employees who were discharged by the order dated 29.07.2016 have in the meantime been regularized leaving out the present writ petitioners. In response thereof, Mr. UK Nair, learned senior counsel for the respondents No.2 to 5 has referred to the minutes of the Selection Board Meeting held on 20.11.2018 in the office chamber of the learned CJM, Nagaon. A perusal of the minutes of the Selection Board in paragraph 4 thereof makes it discernible that the cases of the two writ petitioners Hiranya Hazarika and Jiten Bora were not taken up for consideration for their regularization, inasmuch as, the two persons had instituted the writ petitions being WP(C)No.4733/2016 and WP(C)No.4893/2016 which was pending at that relevant point of time and accordingly the Selection Board took a view that the matter is subjudiced and therefore their claims cannot be given a consideration. In this respect, we have also gone through the order dated 26.09.2016 passed by this Court in WP(C)No.4893/2016 wherein there was an observation that "it is also made clear that in the event the respondents are going to consider regularization of workers, the case of the writ petitioners will also have to be considered."

6. The said interim provision of this Court in the order dated 26.09.2016 in WP(C)No.4893/2016 makes it explicitly clear that there is a direction to the respondents meaning thereby, the establishment of the CJM, Nagaon that if the cases of other workers are considered for regularization, it would now be Page No.# 7/8

necessary to also consider the cases of the present writ petitioners. We are unable to accept the view taken by the Selection Board in its meeting dated 20.11.2018. Firstly, if the matter is pending before the High Court and there is no interim order restraining the respondents to act or consider the claim made in the writ petitions, there does not remain any legal bar on the part of the respondent authorities from carrying forward any requirement. Secondly, it is not only that there was no legal bar, on the other hand, there was an expressed direction to the respondent authorities to also consider the claim of the petitioners for regularization if the claim of other similarly situated persons are considered. Without there being any restrain order, and, more so, on the other hand, when there is an expressed order to consider the claim of the petitioners, it would be improper not to consider the claim of violation of the legal rights of a person, merely by taking the stand that the matter is subjudice before a Court.

7. In the circumstance, we find that there is a violation of the legal rights of the petitioners for regularization as per the minutes of the Selection Board meeting dated 20.11.2018 by taking the plea that the matter is sub-judiced. Accordingly the matter is remanded back to the Selection Board in the establishment of the CJM, Nagaon to consider the claim of the petitioners for regularization as per law. However, we clarify that this is not a direction to the Selection Board to regularise the services of the petitioners, but it is a requirement to consider the claims of the petitioners for regularization as per law, if otherwise entitled.

8. Both the writ petitions stand disposed of in the above terms.

Page No.# 8/8

9. It is expected that the Selection Board would give a consideration to the claims of the petitioners as required by this order within a period of two months from the date of receipt of a certified copy of this order.

10. The records/materials produced by Mr. UK Nair, learned senior counsel for the respondents are kept as part of the records.

JUDGE

Comparing Assistant