Gauhati High Court
Page No.# 1/3 vs The State Of Assam And 3 Ors on 1 June, 2022
Page No.# 1/3
GAHC010084562022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3214/2022
MAMONI PAHADI @ MAMONI PAHADI MILI AND ANR
W/O- SRI MONOJ KUMAR MILI, DOJ AS MR- 01.04.1992, DATE OF
REGULARISATION- 22.07.2005, HS WITH DIPLOMA IN COMPUTER
APPLICATION AND TYPING, UNDER JORHAT PHE DIVISION, JORHAT,
ASSAM, R/O NO. 1 CHENGELIGAON, P.O. CHENGELIGAON, PS AND DIST.
JORHAT, ASSAM, PIN- 785010.
2: BOLIN SHARMA
S/O- LT. JADAV SHARMA
DOJ AS MR- 18.12.1986
DATE OF REGULARIZATION- 03.02.2005
HS WITH DIPLOMA IN COMPUTER APPLICATION AND TYPING
UNDER JORHAT PHE SUB-DIVISION
JORHAT
ASSAM
R/O- BORHOOZ GAON
PO PANICHAKUA
PS PULIBOR
DIST. JORHAT
ASSAM
PIN- 785006
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY, TO THE GOVT. OF ASSAM,
DEPTT. OF P.H.E., ASSAM CIVIL SECRETARIAT, DISPUR, GUWAHATI,
ASSAM, PIN- 781006.
2:THE CHIEF ENGINEER
P.H.E.
(WATER) ASSAM
HENGRABARI
GUWAHATI
Page No.# 2/3
ASSAM
PIN- 785001.
3:THE SUPERINTENDENT ENGINEER
P.H.E.
JORHAT CIRCLE
JORHAT
ASSAM
PIN- 785001.
4:THE EXECUTIVE ENGINEER
P.H.E.
JORHAT DIVISION
JORHAT
ASSAM
PIN- 785001
Advocate for the Petitioner : MR. A K DUTTA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 01.06.2022
Heard Mr. B. Purkayastha, learned counsel for the petitioners. Also heard Mr. D. Gogoi,
learned counsel for the respondents.
2) The petitioner's counsel submits that the selection process of promotion from
Grade-IV to Grade-III in the PHE Department was initiated on 13.08.2020, while the eligibility
criteria required for the candidates was enhanced from HSLC to Graduate in the year 2015.
He submits that the vacancies to the Grade-III posts would have to be filled up in terms of
the Rules in force at the time when the vacancies had occurred.
3) Mr. D. Gogoi, learned counsel for the respondent submits that the petitioners are all
Muster Roll Workers, whose service were regularised against posts which were made personal
to them, as can be seen from Annexure 2 (A) and 2 (B) of the writ petition. He accordingly
Page No.# 3/3
submits that the petitioners cannot be promoted to a Grade-III post as they are holding Ex-
cadre posts in Grade-IV.
4) I have heard learned counsel for the parties.
5) With regard to the question whether vacancies would have to be filled up in terms
of the Rules in force at the time when the vacancies had occurred has been settled by the
three Judges Bench of the Supreme in the Case of State of Himachal Pradesh & Ors. Vs.
Raj Kumar & Ors. in Civil Appeal No. 9746/2011, which was decided on 20.05.2022.
The Apex Court held that there is no rule of universal application that vacancies must be
necessarily filled on the basis of law existing on the date when they arose and there is no
obligation for the Govt. to make appointments as per the old rules. It further held that when
there is no statutory duty cast upon the State to consider appointments to vacancies that
existed prior to the amendment, the State cannot be directed to consider the cases. It
further held that the law laid down by the Apex Court in Y.V. Rangaiah And Ors. Vs J.
Sreenivasa Rao 1983 3 SCC 284 does not reflect the correct proposition of law and that
the judgment of Y.V. Rangaiah (Supra) was over ruled.
6) With respect to whether persons who have been regularised against personal posts
can be promoted, this Court in its Judgment and Order dated 18.05.2021 passed in WP (C)
No. 9451/2019, has held that persons regularised against personal posts do not have any
right to be promoted to a cadre post, in as much as, the posts they are holding are an ex-
cadre post.
7) In view of the reasons stated above, there being no merit in the writ petition, the
same is dismissed.
JUDGE
Comparing Assistant
