Page No.# 1/8 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 693 Gua

                                                                   Page No.# 1/8

GAHC010048612020




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

                          Case No. : WP(C)/1547/2020

         SOHIDUL ISLAM LASKAR AND 2 ORS.
         S/O MOINA MIA LASKAR, VILL-BATIRKUPA PART-II, P.O.-BATIRKUPA,
         DIST-HAILAKANDI, ASSAM, PIN-788152

         2: IZAZUR RAHMAN BARBHUIYA
          S/O SAKAT ALI BARBHUIYA
         VILL-BAKRIHAWAR
          PART-XII
          P.O.-KALIBARIBAZAR
          DIST-HAILAKANDI
         ASSAM
          PIN-788150

         3: JOHIRUL ISLAM LASKAR
          S/O SAHAB UDDIN LASKAR
         VILL-BATIRKUPA PART-II
          P.O.-BATIRKUPA
          DIST-HAILAKANDI
         ASSAM
          PIN-78815

         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         TO BE REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
         ASSAM, POWER (ELECTRICITY) DEPARTMENT, A-BLOCK, 4TH FLOOR,
         ASSAM, SECRETARIAT, DISPUR, GUWAHATI-6

         2:THE CHAIRMAN
         ASSAM POWER DISTRIBUTION COMPANY LIMITED
          BIJULI BHAWAN
          PALTANBAZAR
          GUWAHATI-01
                                                          Page No.# 2/8

            3:THE MANAGING DIRECTOR
            ASSAM POWER DISTRIBUTION COMPANY LIMITED
             BIJULI BHAWAN
             PALTANBAZAR
             GUWAHATI-01

            4:THE CHIEF GENERAL MANAGER (HRA)
            ASSAM POWER DISTRIBUTION COMPANY LIMITED
             BIJULI BHAWAN
             PALTANBAZAR
             GUWAHATI-01

            5:THE CHIEF GENERAL MANAGER (DISTRIBUTION)
             CAR
            ASSAM POWER DISTRIBUTION COMPANY LIMITED
             BIJULI BHAWAN
             PALTANBAZAR
             GUWAHATI-01

            6:THE CHIEF EXECUTIVE OFFICER
             BADARPUR ELECTRICAL CIRCLE
             CAR
            APDCL
             BADARPUR
             P.O.-BADARPUR
             DIST-KARIMGANJ
            ASSAM
             PIN-788806

            7:THE CHAIRMAN SELECTION COMMITTEE-B
            APDCL/APGCL/AEGCL
             BIJULI BHAWAN
             PALTANBAZAR
             GUWAHATI-01

            8:THE SUB-DIVISIONAL ENGINEER
             HAILAKANDI ELECTRICAL SUB-DIVISION
            ASSAM POWER DISTRIBUTION COMPANY LIMITED
             HAILAKANDI
             P.O.-HAILAKANDI
             DIST-HAILAKANDI
            ASSAM
             PIN-78815

Advocate for the Petitioner   : G UDDIN

Advocate for the Respondent : SC, APDCL
                                                     Page No.# 3/8




Linked Case : WP(C)/1549/2020

MRIGANKA DAS
S/O MANABENDRA DAS
STATION ROAD
BADARPUR
WARD NO. 1
P.O.-BADARPUR
DIST-KARIMGNAJ
ASSAM
PIN-788806


VERSUS

THE STATE OF ASSAM AND 7 ORS.
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
POWER AND ELECTRICITY DEPARTMENT
A-BLOCK
4TH FLOOR
ASSAM SECRETARIAT
DISPUR
GUWAHATI-6

2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED
REPRESENTED BY ITS CHAIRMAN
 BIJULI BHAWAN
 PALTANBAZAR
 GUWAHATI-01
 3:THE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LIMITED
BIJULI BHAWAN
 PALTANBAZAR
 GUWAHATI-01
 4:THE CHIEF GENERAL MANAGER (HRA)
ASSAM POWER DISTRIBUTION COMPANY LIMITED
BIJULI BHAWAN
 PALTANBAZAR
 GUWAHATI-01
 5:THE CHIEF GENERAL MANAGER (DISTRIBUTION)
 CAR
ASSAM POWER DISTRIBUTION COMPANY LIMITED
BIJULI BHAWAN
                                                                   Page No.# 4/8

           PALTANBAZAR
           GUWAHATI-01
           6:THE CHAIRMAN
           SELECTION COMMITTEE-B
           APDCL/APGCL/AEGCL
           BIJULI BHAWAN
           PALTANBAZAR
           GUWAHATI-01
           7:THE CHIEF EXECUTIVE OFFICER
           BADARPUR ELECTRICAL CIRCLE
           CAR
           APDCL
           BADARPUR
           P.O.-BADARPUR
           DIST-KARIMGANJ
           ASSAM
           PIN-788806
           8:THE SUB-DIVISIONAL ENGINEER
           BADARPUR ELECTRICAL SUB-DIVISION
           ASSAM POWER DISTRIBUTION COMPANY LIMITED
           BADARPUR
           P.O.-BADARPUR
           DIST-KARIMGANJ
           ASSAM
           PIN-788806
           ------------
           Advocate for : G UDDIN
           Advocate for : SC
           APDCL appearing for THE STATE OF ASSAM AND 7 ORS.



                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

Date : 28-02-2022

Heard Mr. G. Uddin, learned counsel for the petitioner and Mr. A. Baruah, learned standing counsel for the APDCL.

2. The petitioner claim that he was earlier appointed as outsourced Page No.# 5/8

Computer Assistant in the respondent APDCL on contractual basis and on the basis of such engagement he is presently working in Sub Divisional Office under the APDCL. In this case, the petitioner has produced experience certificate issued by the competent authority of the APDCL that they have been rendering service as such for more than 5 years.

3. An advertisement dated 14.08.2018 was issued by the respondent APDCL inviting applications from candidates who either have any earlier experience with the APDCL or having some experience in any power sector PSU to fill up certain posts of Office cum Field Assistant, Sahayak and Mali. The advertisement provides that 1000 posts would be under consideration for Office cum Field Assistant, 872 for Sahayak and further 60 posts for Assistant Accounts Officer, 25 for Light Vehicle Driver and 2 for Gardener or Mali. The advertisement also provides the breakup of the vacancies by applying the law of reservation.

4. The learned Standing counsel for the APDCL has submitted that in similar matters the stand of the APDCL was to the effect that the eligibility criteria require that a person must have an experience of having contractual workers under APDCL/AEGCL/APGCL or any other power sector PSU wherein he may have been engaged as Office cum Field Assistant as the case may be and must have rendered service of not less than 5 years as on 01.04.2018.

5. The Court takes note of the fact that although the recruitment process was for the fresh candidates as well as the candidates who earlier worked with the APDCL/AEGCL/APGCL, but the qualifications prescribed for the recruitment from the two sources are different and for the purpose of direct recruitment from the open market the qualification stipulates some higher Page No.# 6/8

educational qualification. But in respect of those candidates who earlier worked with the APDCL/AEGCL/APGCL the required qualification was put up at a slightly lower level. Accordingly, as a lower educational qualification has been fixed for recruitment of the experienced candidates, a further eligibility have also been put in place that they must have an experience of at least 5 years. The petitioner participated in the selection process which ultimately culminated in the short list of candidates published by the notice dated 10.02.2020. The grievance of the petitioner is that although his name appeared in the short list of candidates dated 10.02.2020 but in order of merit his name appeared much below in the list and taking note of the number of vacancies available, he may not be offered an appointment. On perusal the writ petition, the Court does not find any averment to indicate that the process of selection is vitiated in any manner or that for some given acceptable reason the name of the petitioner ought to have been higher up in order of merit in the short list of candidates.

6. But what Court takes note is that in paragraph-11 of the writ petition there is a prayer by the petitioner that having worked for more than 14 years, their services are required to be regularized by the authorities. As regards the prayer for regularization, no averment has been made in the writ petition that the petitioner was appointed in any irregular manner against any sanctioned vacant posts and that he have continued to work for more than 10 years without the aid of any Court order up to the date of decision of Supreme Court in Secretary, State of Karnataka vs. Umadevi & Ors., reported in (2006) 4 SCC 1. All that the petitioner seeks for is that in the meantime he had worked for more than 10 years and therefore, is entitled to be regularized. The question of regularizing such contractual employees appointed in an irregular manner had been dealt with by the Supreme Court as well as this Court in WA 45/2014, Page No.# 7/8

State of Assam vs. Upen Das and Ors.

7. There is a decision of this Court in WP(C) 482(AP)/2011 wherein, all the relevant laws including pronouncement of the Supreme Court in Umadevi (supra), State of Punjab vs. Jagjit Singh reported in (2017) 1 SCC 148 Nihal Singh & Ors. vs. State Of Punjab & Ors. reported in (2013) 14 SCC 65 were taken into consideration, and the following principles were culled out in the judgment dated 17.01.2017 in WP(C) 482 (AP)/2011 which are extracted as below:-

"The employees who had been working continuously for more than ten years up to the date of the judgment in Umadevi's case i.e. 10.04.2006, without the aid and benefit of any interim order/order(s) of any Courts or Tribunals, against sanctioned posts, although appointed in an irregular manner, are entitled to be regularized as an one time measure. The exercise of one time measure is to be made department or institution wise and where appointments may have been made without any selection process, but from amongst duly qualified candidates and against sanctioned posts are to be considered as irregular appointments. Employees engaged on a daily wage basis, and required to perform the same nature, quality and quantity of work as that of the regular employees working against sanctioned vacant posts, are entitled to a salary, at least in the minimum of the pay scale, that are paid to the regular employees. Posts are required to be created by the State depending upon the need to employ people having regard to various functions that the State undertakes to discharge and that the posts are to be sanctioned and created by the State by a conscious choice on thebasis of a rational assessment of the need. Any act on the part of the State compelling theemployee to take a lesser wage and perform the same work as is being done by the regular employees, by taking advantage of its dominant position and the unemployment scenarioprevailing in the Country, would constitute an act of exploitative enslavement, which will alsobe a violation of Article 21 of the Constitution of India. A stand on the part of the State respondent authorities that such temporary employees had accepted the offered employment at a lower wage on their own volition and that they are not working against any sanctioned posts, and as such, not entitled to a regular scale of pay, or regularization, is as such, not acceptable."

8. In the instant case also as it is the claim of the petitioner that he has been working as contractual employee for more than 10 years and therefore would be entitled to the benefits as indicated in the above extracted portion of Page No.# 8/8

the judgment dated 17.01.2017.

9. Accordingly, the respondent APDCL is directed to consider the case of the petitioner and if he is found to have been working for more than 10 years up to the judgment of Umadevi (supra) i.e. 10.04.2006 and was working against the sanctioned vacant post, an onetime measure may be made for hisir regularization. If the petitioner is found not to have worked for more than 10 years upto 10.04.2006, but have worked for more than 10 years in the meantime, the respondents may consider him for a benefit of providing him the salary atleast in the minimum pay scale that are otherwise payable to an equivalent regularly appointed employee, which again would be consistent with the directions of the Division Bench of this Court in the judgment dated 08.06.2017 passed in WA 45/2014, State of Assam Vs. Upen Das and Ors.

10. If the petitioner is not found having worked continuously for 10 years, we request the respondent APDCL to also consider their case and find out a suitable economic package for them as per the acceptability of the respondent APDCL.

11. The writ petition stands allowed to the extent as indicated above.

JUDGE

Comparing Assistant