Gauhati High Court
Ali Hussain vs The State Of Assam And 4 Ors on 5 December, 2022
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GAHC010315052019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/66/2020
ALI HUSSAIN
S/O- MD. HASAN ALI, VILL- INATHPUR, P.O- AMABARKHANA, DIST-
KARIMGANJ, ASSAM, PIN- 788712
VERSUS
THE STATE OF ASSAM AND 4 ORS
TO BE BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF
ASSAM, HEALTH AND FAMILY WELFARE DEPTT, DISPUR, GUWAHATI- 06
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI- 36
3:THE JOINT DIRECTOR OF HEALTH SERVICES
ASSAM
KARIMGANJ
P.O AND DIST- KARIMGANJ
ASSAM
PIN- 788709
4:THE SUPERINTENDING CIVIL HOSPITAL
KARIMGANJ
P.O AND DIST- KARIMGANJ
ASSAM
PIN- 788709
5:THE DEPUTY COMMISSIONER
KARIMGANJ
P.O AND DIST- KARIMGANJ
ASSAM
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PIN- 78870
Advocate for the Petitioner : MR. D HUSSAIN
Advocate for the Respondent : SC, HEALTH AND F W
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 05.12.2022
Heard Mr. D. Hussain, the learned counsel appearing on behalf of the
petitioner and Mr. B. Gogoi, the learned counsel appearing on behalf of the
respondent Nos. 1, 2, 3 and 4. I have also heard Ms. M.D. Borah, the learned
counsel appearing on behalf of the respondent No.5.
2. The instant writ petition has been filed by the petitioner challenging the
inaction of the respondent authorities in forwarding the name of the petitioner
in pursuance to the direction issued by the Director of Health Service to the
Joint Director of Health Service vide the communication dated 12.06.2019
whereby the Director of Health Service, Assam had directed the Joint Director of
Health Service to send the list of incumbents working as work-charged Master
Roll Workers and casual employees who have completed more than 10 years of
service as on 08.06.2017 but not against sanctioned vacant post.
3. It is the case of the petitioner that the petitioner was appointed on
23.06.2004 and thereupon on the basis of the order dated 12.11.2008, the
petitioner was formally appointed on contractual basis in Karimganj Civil
Hospital. The further case of the petitioner is that the petitioner thereupon was
appointed from time to time on contractual basis or as casual worker and as
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such, as the petitioner had completed 10 years, as on 08.06.2017, the name of
the petitioner ought to have been therefore forwarded. The concerned
respondent authorities having not forwarded the name of the petitioner, the
present writ petition has been filed.
4. On the other hand, Mr. B. Gogoi, the learned counsel appearing on behalf
of the respondent Nos. 1, 2, 3 and 4 has submitted that there is no material on
record that the petitioner was appointed on contractual basis or as a casual
employee in the year 2004. He further drawing the attention of this Court to the
order dated 12.11.2008 enclosed as Annexure-2 to the writ petition has
submitted that this is the first formal order being produced by the petitioner to
show that any form of appointment being given to him as a contractual or as a
casual employee. He submitted that even if this particular order is taken into
account then also the petitioner does not complete 10 years as on 08.06.2017
i.e. the date on which the judgment and order passed by the Division Bench in
Writ Appeal No.45/2014 and under such circumstances, the question of sending
the name of the of the petitioner in terms with the communication dated
12.06.2019 does not arise.
5. He further drawing the attention this Court to Annexure-3(b) i.e. the order
by which the petitioner was again appointed with effect from 01.12.2009 as a
casual employee and thereupon the petitioner was again employed on
contractual engagement as a support staff on 24.03.2015 submits that in terms
with Clause-3 of the communication dated 12.06.2019 the work-charged Master
Roll Worker had to be continuously serving without any gap period and in the
instant case, there was a gap period in that regard.
6. Upon hearing the learned counsels for the parties and taking into
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consideration the submissions made by the learned counsel for the petitioner
that the petitioner has been working since 2004 which have been denied by the
respondent authorities stating that there is no document placed on record to
show that the petitioner has been working since 2004 and further the
submission made by the learned counsel for the petitioner that the petitioner
has been working continuously which have been refuted by the learned counsel
for the respondent, this Court is of the opinion that as to whether the
petitioner's case can be considered in terms with the judgment and order dated
08.06.2017 in Writ Appeal No.45/2014 would require a fact finding enquiry.
7. Under such circumstances, this Court disposes of the instant writ petition
with a direction that the petitioner shall submit all the papers before the Joint
Director of Health Service, Assam within 30 days from today and thereupon the
Joint Director of Health Service shall examine the papers as to whether the
petitioner comes within the ambit of a Master Roll Worker working for 10 years
continuously without any gap as on 08.06.2017 and if the said authority on the
basis of the papers submitted and enquiry comes to an opinion that the
petitioner is a work-charged Master Roll Worker and/or casual employee coming
within the ambit of the judgment and order dated 08.06.2017 passed in Writ
Appeal No.45/2014, the authority concerned within a period of another 60 days
thereafter shall pass speaking order as regards the petitioner's entitlement.
8. With above observations and directions, the instant petition stands
disposed of.
9. Before concluding, this Court would like to make it clear that the
observations made herein should not be construed in any manner that there is a
direction passed upon the concerned respondent authorities i.e. the Joint
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Director of Health Service to pass an order in favour of the petitioner and the
Joint Director of Health Service shall take a decision independently on the basis
of the materials placed before him.
JUDGE
Comparing Assistant
