Page No.# 1/7 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 694 Gua

                                                                   Page No.# 1/7

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.# 2/7

            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.# 3/7




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 28-02-2022

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

2. The petitioners claim that they were earlier appointed as outsourced "Sahayak" in the respondent APDCL on contractual basis and on the basis of such engagement they are presently working in various Sub Divisional Offices under the APDCL. In this case, the petitioners have 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 Page No.# 4/7

criteria require that a person must have an experience of having contractual workers under APDCL/AEGCL/APGCL or any other power sector PSU wherein they may have been engaged as Sahayak 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 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 petitioners 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 petitioners is that although their names appeared in the short list of candidates dated 10.02.2020 but in order of merit their names appeared much below in the list and taking note of the number of vacancies available, they 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 names of the petitioners 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-4 of the writ petition Page No.# 5/7

there is a prayer by the petitioners that having worked for more than 5 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 petitioners were appointed in any irregular manner against any sanctioned vacant posts and that they 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 petitioners seek for is that in the meantime they have worked for more than 10 years and therefore, are 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, 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 Page No.# 6/7

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 the employee 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 employmentat a lower wage on their own volition and that they are not working against any sanctionedposts, 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 petitioners that they have been working as contractual employees for more than 5 years and therefore would be entitled to the benefits as indicated in the above extracted portion of the judgment dated 17.01.2017.

9. Accordingly, the respondent APDCL is directed to consider the cases of the individual petitioners and if they are found to have been working for more than 5 years up to the judgment of Umadevi (supra) i.e. 10.04.2006 and were working against the sanctioned vacant post, an one time measure may be made for their regularization. If any of the petitioners are found not to have worked for more than 5 years upto 10.04.2006, but have worked for more than 5 years in the meantime, the respondents may consider them for a benefit of providing them 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. As regards any of the petitioners who may not have satisfied the requirement of having worked continuously for 5 years, we request the Page No.# 7/7

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