Page No.# 1/5 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 449 Gua

                                                                 Page No.# 1/5

GAHC010061632020




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

                           Case No. : WP(C)/2204/2020

         SHIBU CHANDRA NATH AND 2 ORS.
         S/O- LT. RASHENDRA CHANDRA NATH, R/O- VILL- BOKRIHAWAR PART-I
         (HATIAPAR), P.O. PANCHGRAM, P.S. PANCHGRAM, DIST.- HAILAKANDI,
         ASSAM, PIN- 788802

         2: KAMAR UDDIN MAZARBHUIYA
          S/O- LT. ABDUL LOTIF MAZARBHUIYA
          R/O- VILL- NIZVERNERPUR PART-I
          P.O. VENERPUR
          P.S. LALA
          DIST.- HAILAKANDI
         ASSAM

         3: NURUL ISLAM MAZARBHUIYA
          S/O- LT. ISKANDAR ALI MAZARBHUIYA
          R/O- HAILAKANDI TOWN
         WARD NO. 1
          BLOCK-C
          P.O. RATANPUR ROAD
          P.S. HAILAKANDI
          DIST.- HAILAKANDI
         ASSA

         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REP. BY THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM,
         ENVIRONMENT AND FORESTS DEPTT., DISPUR, GHY-6

         2:THE PRINCIPAL SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE (EC-II) DEPTT.
          DISPUR
          GHY-06

         3:THE SECRETARY
                                                                      Page No.# 2/5

             TO THE GOVT. OF ASSAM
             SECY. TO THE GOVT. OF ASSAM
             ENVIRONMENT AND FOREST DEPTT.
             DISPUR
             GHY-6

            4:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
            AND HEAD OF FOREST FORCE
            ASSAM
             PANJABARI
             GHY-6

            5:THE ADDL. PRINCIPAL CHIEF CONSERVATOR OF FORESTS (T)
             LOWER ASSAM ZONE
             KACHARIGHAT
             GHY-1
             KAMRUP (M)
            ASSAM

            6:THE CONSERVATOR OF FORESTS
             SOUTHERN ASSAM CIRCLE
             SILCHAR
            ASSAM

            7:THE DIVISIONAL FOREST OFFICER
             HAILAKANDI DIVISION
             HAILAKANDI
            ASSAM

            8:THE RANGE FOREST OFFICER
             PANCHGRAM RANG
             PANCHGRAM
             HAILAKANDI
            ASSA

Advocate for the Petitioner   : MR. J I BORBHUIYA

Advocate for the Respondent : GA, ASSAM


                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 10.02.2022

Heard Mr. J.I. Barbhuiya, learned counsel for the petitioners. Also Page No.# 3/5

heard Mr. B. Gogoi, learned standing counsel for the Forest Department.

2. The case projected by the three petitioners in this writ petition is that they were engaged as casual workers since March, 1993 in various field works under the Divisional Forest Officer, Haliakandi Division. It is projected that after the decision of the Supreme Court of India in the case of State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1, State of Karnataka & Ors. Vs. M.L. Kesari & Ors., (2010) 9 SCC 247 as well as the judgment and order dated 17.05.2006 passed by this Court in WP(C) 6222/2003 - Jiten Kalita Vs. State of Assam & Ors., the Finance Department had issued an Office Memorandum dated 27.06.2013 for regularization of service of the Work-Charge, Muster Roll and similarly placed workers as "one time measure" strictly in terms of the said Office Memorandum. In this regard, learned counsel for the petitioners submits that the one time measure to regularize the Work-Charge and Muster Roll workers in the Forest Department included appointees who are engaged prior to Assam Fiscal Responsibility and Budget Management Act, (AFRBM for short) as well as post AFRBM period.

3. Referring to the documents appended to the writ petition, learned counsel for the petitioners submits that the benefit of regularization of Work- Charge and Muster Roll workers by granting them fixed pay was extended only to 229 numbers of casual workers working under various divisions of the Forest Department and it is projected that 1425 persons have been left out. Referring to annexure-5 of the writ petition, it is submitted that Divisional Forest Officer, Hailakandi (respondent no.7) had issued a list of left out casual workers working prior to 01.04.1993, whose names were proposed for fixed pay benefit which includes the name of the petitioners at serial number 3, 7 and 8 thereof. Accordingly, it is submitted that in light of the decision of this Court in the case Page No.# 4/5

of State of Assam Vs. Upen Das & Ors., WA 45/2014 decided on 08.06.2017 a direction be issued to the respondent authorities to consider the case of the petitioners for granting them the benefit of fixed pay as their names have been left out from being considered pursuant to the hereinbefore referred Office memorandum dated 27.06.2013.

4. In this case, notice of motion was issued on 01.06.2020. However, no affidavit-in-opposition has been filed. The learned standing counsel for the Forest Department has submitted that he had received a written instruction and made an attempt to refer to the same. In this regard, the Court is of the considered opinion that having not filed any affidavit-in-opposition, the respondent authorities are precluded from referring to their para-wise comments as adopting of such procedure would deprive the petitioners of having knowledge of the stand taken by the respondent authorities, and they would be taken by surprize.

5. As no affidavit-in-opposition has been filed, the Court is inclined to form an opinion that this is a fit case for invoking the doctrine of non traverse to deem as if the statement made in the writ petition is not disputed by the respondents. At this stage, the learned standing counsel for the Forest Department has made a prayer to grant them 2 (two) weeks time to file affidavit-in-opposition, the said prayer is refused because the Court has already heard the matter on merit.

6. Therefore, the Court is inclined to allow this writ petition, however, by directing the respondent authorities i.e. the Principal Chief Conservator of Forests, Assam (respondent no.4) to direct the concerned Divisional Forest Officer, Hailakandi (respondent no.7) to provide him with appropriate detailed information as to the period since when the petitioners are rendering service as Page No.# 5/5

casual worker/Muster Roll Worker/Work-Charge employees under the forest division of the said authority to examine the entitlement of the petitioners for being extended the benefit of the ratio laid down in the hereinbefore referred case of Upen Das (supra). It is needless to mention that if the petitioners are found entitled to the benefit, such benefit should be extended to the petitioners.

7. The petitioners shall serve a certified copy of the order before the respondent no.4 and on receipt of the same, the respondent no.4 shall complete the entire exercise within an outer period of 2 (two) months.

8. If for any unforeseen circumstances, which is beyond the control of the respondent no.4, for which he is unable to take a decision within 2 (two) months, it would be open to the respondent no.4 to apply before the Court for extension of time by showing reasons.

9. Writ petition stands allowed to the extent as indicated above. There shall be no order as to cost.

JUDGE

Comparing Assistant