Page No.# 1/9 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 2417 Gua

                                                                Page No.# 1/9

GAHC010278412018




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

                          Case No. : WA/100/2019

         BASIRUDDIN KAZI AND 3 ORS
         S/O LATE HUSHAMUDIN KAZI, PRESENTLY A RESIDENT OF BANSKANDI,
         P.O. BANSKANDI, P.S. LAKHIPUR, DIST. CACHAR, ASSAM, PIN 788101

         2: Y.GOPESWAR SINGHA
          S/O LATE INDRA KR. SINHA
         VILL. AND P.S. PALORBOND
          P.S. LAKHIPUR
          DIST. CACHAR
         ASSAM.

         3: ABDUL LATIF CHOUDHURY
          S/O LATE ABDUL MONAF CHOUDHURY
          PRESENTLY A R/O VILL. CHANDRAPUR PART-II HARINAGAR
          PHC
          P.O. MANIPUR
          P.S. LAKHIPUR
          DIST. CACHAR
         ASSAM.

         4: MANGI SINGHA
          LATE NINGTHAW SINGHA
         VILL. BANSKANDI PART IV
          P.O. BANSKANDI
          P.S. LAKHIPUR
          DIST. CACHAR
         ASSAM

         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM, DEPTT. OF
         HEALTH AND FAMILY WELFARE, DISPUR, GUWAHATI 781006.
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            2:THE SECY. TO THE GOVT. OF ASSAM
             DEPTT. OF FINANCE
             DISPUR
             GUWAHATI 781006

            3:THE UNION OF INDIA
             REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA
             DEPTT. OF HEALTH
             NEW DELHI

            4:THE DIRECTOR OF HEALTH SERVICES
            ASSAM
             HENGRABARI
             GUWAHATI 781006

            5:THE JOINT DIRECTOR OF HEALTH SERVICES
             CACHAR
             SILCHAR

            6:THE ADDL. CHIEF MEDICAL AND HEALTH OFFICER
             CACHAR
             SILCHAR

            7:THE SUB-DIVISIONAL MEDICAL AND HEALTH OFFICER
             HARINAGAR
             PRIMARY HEALTH CENTER
             DIST. CACHAR
            ASSAM

Advocate for the Petitioner   : MR. S BANIK

Advocate for the Respondent : MR. D P BORAH

BEFORE HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 21.07.2022 Page No.# 3/9

(AM Bujor Barua, J)

Heard Mr. S Banik, learned counsel for the appellants. Also heard Mr. B Gogoi, learned counsel for the respondents in the Health and Family Welfare Department, Government of Assam.

2. The appellants herein claim that they were appointed as Male Village Health Workers from 09.04.1997 and were paid their remuneration at the rate of Rs.50/- per month up to 08.03.1983. Certain certificates of the Sub-Divisional Medical & Health Officer, Harinagar are relied upon to show that they had performed their duties as Trained Community Health Guide under the Harinagar Public Health Centre from 09.04.1979 up to 09.12.1986. The appellants also rely upon a communication dated 20.10.1986 from the Under Secretary to the Government of Assam in the Health and Family Welfare (A) Department made to the Director of Health Services Assam wherein the Government of India letter No.P18014/86 RHD dated 21.07.1986 addressed to the Chief Secretary to the Government of Assam and an interim order of the Karnataka High Court in respect of Male Health Guides were enclosed with a further request not to discontinue the Male Health Guides until further order(s).

3. The appellants also refer to a judgment dated 23.10.2017 of this Court in a series of writ petitions being WP(C)No.900/2013 and other writ petitions providing for certain entitlements of the honorarium in respect of the Health Guide Workers. Amongst the writ petitions, WP(C)No.900/2013, WP(C)No.1810/2013, WP(C)No.4172/2014, WP(C)No.813/2013 and WP(C)No.2250/2015 were in respect of Female Village Health Workers, who Page No.# 4/9

were referred as Female Attendants under the Health and Family Welfare Department. WP(C)No.948/2015, WP(C)No.947/2015 and WP(C)No.1623/2014 were in respect of Village Health Workers who were referred as Health Guide Workers under the Health and Family Welfare Department of the Government of Assam. In the said writ petitions, reference was made to a judgment dated 22.02.2000 in Civil Rule No.3073/1995 wherein there was a direction to pay a minimum wages of Rs.900/- per month from July 1998 to the Female Attendants.

4. A dispute had arisen as to whether the minimum wages of Rs.900/- per month to the Female Attendants are to be paid by the State Government or the Central Government which was finally adjudicated by the Division Bench of this Court in the relevant writ appeals along with Review Pet No.3/2012 by the order dated 26.03.2012 by arriving at a conclusion that the Female Attendants are to be paid by the State Government and later on the dispute as to who between the State Government and the Central Government would have to bear the burden can be subsequently settled between them.

5. In the aforesaid background in the judgment dated 23.10.2017, it was taken note of that the Female Attendants were voluntary workers and not Government employees and that the services of all Female Attendants under the Family Welfare Programme had been discontinued by the Government as per the order dated 17.12.2002. It was also taken note of that the Village Health Guide Scheme was discontinued w.e.f. 01.04.2002 and the minimum wages as per the directions of this Court referred above were paid to the Female Attendants for the period up to which they were in service. Accordingly in the said judgment the order dated 17.12.2012 providing for discontinuation of the Page No.# 5/9

engagement of the Female Attendants was not interfered by further providing that the Village Health Guides were not entitled to the honorarium at the prescribed rate after 01.04.2002 and also cannot claim equivalence with the Female Attendants to claim honorarium at the rate of Rs.900/-. In the said judgment there was a further direction to undertake a review with regard to the arrear honorarium from the date of engagement till the scheme for engagement was withdrawn and if it was found that there are arrears due to be paid to the Health Guides, the same shall be calculated and paid to them. It was understood that the directions in the judgment dated 23.10.2017 also covered the claim for arrear honorarium even to the Male Village Health Workers.

6. By referring to the judgment dated 23.10.2017, the appellants instituted WP(C)No.3332/2017 to raise a claim that there is a judicial pronouncement that the Village Health Guide Scheme had been discontinued from 01.04.2002 and therefore the appellants being Male Village Health Workers are entitled to an honorarium atleast at the rate of Rs.50/- per month from the year 1986 up to 01.04.2002, i.e., when the scheme was discontinued. To substantiate the claim for the honorarium from 1986 to 2002, reliance was placed on the communication dated 20.10.1986 from the Under Secretary to the Government of Assam in the Health and Family Welfare (A) Department which provided for not to discontinue the services of the Male Village Health Workers until further order(s), to indicate that the appellants continued to be engaged as Male Village Health Workers up to the year 2002.

7. In the writ petition WP(C)3332/2017 an earlier order No.HSFW/HC/2012/9044 dated 05.04.2013 of the Director of Health Services FW Assam was assailed. The relevant paragraph of the order dated 04.12.2013 Page No.# 6/9

of the Director is extracted as below:

"In the office records it is found that the Male Health Guide did not work from 01.07.1986 to 31.03.2002. The Female Health Guide were found in service upto 31.03.2002. Payment of honorarium @Rs.50/- P.M. were also paid to the Female Village Health Guide but due to discontinuation, the male Village Health Guide were not paid honorarium w.e.f.01.07.1986. As per office records it is also found in a brief note signed by the then Director of Health Services (FW), Assam on Village Health Guide Scheme, sponsored by Govt. of India

that the services of Male Village Health Guide were discontinued from 1 st July 1986 and only Female Village Health Guides were retained and worked 01.07.1986 to 31.03.2002. For proper verification to ascertain whether there was any Male Village Health Guide worked for any period during 01.07.1986 to 31.03.2002, the Additional Chief Medical & Health Officer (FW)s of the Districts under which Village Health Guides were working during the period of the existence of the Village Health Guides Scheme were requested to inform if Male Village Health Guide were actually worked for any period between 01.07.1986 to 31.03.2002 vide this Directorate letter No.HSFW/HC/52/2012/2235-57 dated 28.01.2013. The Addl. Chief Medical & Health Officer (FW)s of the districts had informed that no Male Health Guide worked for any period between 01.07.1996 to 31.03.2002."

8. A reading of the extracted portion of the order dated 05.04.2013 makes it discernible that the records maintained by the respondent authorities shows that the Male Health Guides or the Male Village Health Workers did not work from 01.07.1986 up to 31.03.2002. In the circumstance, an inquiry was conducted by making proper verification to ascertain as to whether any Male Village Health Worker worked between the period 01.07.1986 up to 31.03.2002. The result of the inquiry was that no Male Village Health Worker worked Page No.# 7/9

between 01.07.1986 up to 31.03.2002.

9. While assailing the conclusion in the order dated 05.04.2013 of the Director of Health Services, Assam which provided that no Male Village Health Worker worked between 01.07.1986 up to 31.03.2002, the only averment made in paragraph 14 of the writ petition in WP(C)No.3332/2017 is that "That the petitioners state that they are serving as Male Village Health Guide under the Respondents". Apart from the said averment, no further averment or any material had either been placed or relied upon by the appellants to demonstrate that factually they were working between the period 01.07.1986 up to 31.03.2002. The writ petition being WP(C)No.3332/2017 was dismissed by the judgment of the learned Single Judge dated 05.06.2017 by accepting the contentions of the respondents that the scheme for engagement of Male Health Guides was discontinued from 1986 and no service was taken thereafter from any Male Health Guide and therefore, the authorities had rightly declared that the claim for honorarium would not be tenable after 01.07.1986.

10. Being aggrieved by the judgment dated 05.06.2017 in WP(C)No.3332/2017 of the learned Single Judge, the present intra-court appeal is preferred.

11. Mr. S Banik, learned counsel for the appellants has raised an elaborate contention by referring to the judgment dated 23.10.2017 in WP(C) No.900/2013 and other writ petitions that there is already a judicial pronouncement to the effect that the Village Health Guide Scheme had been discontinued only with effect from 01.04.2002 and therefore, the appellants are entitled to their honorarium at the rate of Rs.50/- per month up to the date Page No.# 8/9

from which the scheme was discontinued. No further contention is raised.

12. On a pointed query to the learned counsel for the appellants as to whether any material is available to indicate that the appellants had rendered their service between the period 01.07.1986 up to 31.03.2002 so as to arrive at any conclusion against the order dated 05.04.2013 of the Director of Health Services, Assam, the answer forthcoming is that no such material is available and the claim is made only on the basis of the judicial pronouncement that the scheme of Village Health Guides was discontinued only from 01.04.2002.

13. Discontinuance of the Village Health Guide Scheme from 01.04.2002 may have entitled the Village Health Workers to have received the honorarium up to the date of discontinuance of the scheme, but the entitlement thereof to actually receive the honorarium would have to flow from a factual determination that the Male Village Health Workers actually continued to render service up to the date of discontinuance of the scheme.

14. As neither the writ petition discloses any such material that the appellants continued to render their services up to the date of discontinuation of the scheme and the learned Single Judge having arrived at a conclusion that no service of the Male Health Workers were taken after discontinuance of their engagement from 1986 and in the appeal also no material having been referred or produced, which may indicate that the appellants had actually rendered service from 1986 up to the discontinuance of the scheme, we do not find any reason to interfere with the order dated 05.06.2017 of the learned Single Judge in WP(C)No.3332/2017 and we are in complete agreement with the conclusion arrived at by the learned Single Judge in the judgment impugned and the same Page No.# 9/9

does not call for any interference.

15. As a consequence the writ appeal stands dismissed. No order as to costs.

                                      JUDGE               CHIEF JUSTICE




Comparing Assistant