WP(C)/1257/2016
2022 Latest Caselaw 4069 Gua

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GAHC010107772016




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

                          Writ Petition (Civil) 1257/2016

                   JOYDEEP KAR
                   S/O SRI PRABAL KAR,
                   R/O BIPIN PAL ROAD, KARIMGANJ,
                   P.S. & DIST- KARIMGANJ, ASSAM

                                                            .................Petitioner
                        -Vs-

                   1) THE STATE OF ASSAM
                    REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
                    GOVERMENT OF ASSAM,
                    WATER RESOURCES DEPARTMENT, DISPUR, GHY-6
                   2) THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
                      WATER RESOURCES DEPARTMENT, DISPUR
                   3) THE CHIEF ENGINEER
                      ASSAM, WATER RESOURCES DEPARTMENT, CHANDMARI, GHY-3
                   4) THE SUPERINTENDING ENGINEER
                      HAILAKANDI, WATER RESOURCE CIRCLE, HAILAKANDI
                   5) THE EXECUTIVE ENGINEER
                      WATER RESOURCE DIVISION, KARIMGANJ,
                      DIST- KARIMGANJ, ASSAM
                   6) THE ASSISTANT EXECUTIVE ENGINEER
                      WATER RESOURCE SUB DIVISION, KARIMGANJ,
                    DIST- KARIMGANJ, ASSAM
                                                              ................Respondents

Advocates :

Petitioner              : Mr. P.K. Roy, Senior Advocate
                          Mr. S.K. Chakraborty, Advocate
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Respondents                : Mr. B. Goswami, Additional Advocate General, Assam
                             Mr. P. Kakoti, Advocate

Date of Hearing and Judgment & Order        :     21.10.2022




                             BEFORE
              HON'BLE MR. JUSTICE MANISH CHOUDHURY
                      JUDGMENT & ORDER [ORAL]

Heard Mr. P.K. Roy, learned senior counsel assisted by Mr. S.K. Chakraborty, learned counsel for the petitioner and Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Mr. P. Kakoti, learned counsel for all the respondents.

2. The petitioner has approached this Court by this writ petition under Article 226 of the Constitution of India seeking inter alia a direction to the respondent authorities to make necessary correction in his service book forthwith showing him name as Section Assistant in the establishment of the respondent no. 6 and to confer him all the service benefits including arrear salaries as Section Assistant from the date of his regularization made by order dated 07.10.2005.

3. It is the case of the petitioner that by a letter no. WR[E]143/2003/PT/181 dated 01.10.2005 issued under the hand of the Commissioner & Secretary to the Government of Assam, Water Resources Department, the Accountant General [A&E], Assam was communicated apprising the fact that the State Government had conveyed sanction for creation of 1042 nos. of posts for Work Charged and 582 nos. of Grade-IV posts for Muster Roll w.e.f. 22.07.2005 to 28.02.2006, as detailed at Annexure-A and Annexure-B of the letter in connection with regularizing the services of 1042 nos. of Work Charged employees and 582 nos. of Muster Roll workers, who were engaged prior to 01.04.1993 and were then working in their respective establishment without any interruption or break in service. The letter further contained the information that the same was issued in concurrence of the Finance Department communicated vide letter no. FEC[II]1/2005/66 dated 22.08.2005. It was further Page No.# 3/7

mentioned that those posts were personal to the incumbents concerned who were holding the posts and would be abolished as soon as the concerned incumbents relinquished their posts in any manner and those posts would not be filled up by any other persons other than the respective Work Charged/Muster Roll workers for whom the posts had been created.

3.1. It has been urged on behalf of the petitioner that subsequent to the decision of the Government to create the posts in the afore-stated manner for regularizing the Work Charged employees and Muster Roll workers, the respondent Water Resources Department prepared a list of the Work Charged employees and Muster Roll Workers who were engaged prior to 01.04.1993 and who were continuing as on 01.10.2005. By referring to a Statement containing the names of Muster Roll workers in the Water Resources Department prepared division-wise and engaged prior to 01.04.1993, it has been contended that the petitioner's name figured amongst the selection list of Work Charged employees who were working as Section Assistants. It has been contended on behalf of the petitioner that despite the decision of the Government to regularize the petitioner in the post of Section Assistant, the petitioner was regularized by an Office Order no. 154 of 2005 dated 07.10.2005, issued under the hand of the respondent no. 5 showing him as Khalashi in the Pay Scale : Rs. 2450-40-2770-EB-60- 3490-90-3670/- per month. The petitioner has submitted that he was originally engaged as Work Charged Section Assistant vide an Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/95 dated 04.12.1991 with the commensurate Scale of Pay : Rs. 1065-20-1225-30- 1345-EB-40-1605-50-2035-60-2095/- per month. As the petitioner was originally engaged as Work Charged Section Assistant by the said Office Order no. 29 of 1991-1992 dated 04.12.1991 bearing memo no. AEE/K/E/95 and sanction was conveyed by the Government for his regularization as Section Assistant by the letter dated 01.10.2005. It is contended that the petitioner is entitled to the relief sought for by this writ petition.

4. Per contra, Mr. Goswami, learned Additional Advocate General, Assam has questioned the Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/95 dated 04.12.1991. He has contended that the petitioner was engaged as Work Charged Khalashi under the establishment of the respondent no. 6 in the Scale of Pay : Rs. 900-15-1005-20-1225-30- 1435/- per month vide an Office Order no. 29 of 1991-1992 bearing memo no.

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AEE/K/E/2/A/147 dated 04.12.1991, issued under the hand of the respondent no. 6. It is his submission that after being engaged as Work Charged Khalashi in the year 1991, the petitioner was all along being paid the pay and allowances of Khalashi and he was never paid any pay and allowances entitled to a Work Charged Section Assistant till 07.10.2005. He was also not paid such pay and allowances of Section Assistant after his services were regularized pursuant to the creation of posts by the Government letter dated 01.10.2005. He has submitted that the designation, 'SA' was crept in the Statement prepared division-wise and the same, due to oversight, later on, corrected as Khalashi by issuing the formal order of regularization by the office of the respondent no. 5 vide his letter no. G-3/WC/2/2003-04-147 dated 07.10.2005. It is his further contention that after being regularized by the Office Order no. 154 of 2005 dated 07.10.2005, the petitioner was receiving pay and allowances of a regularized Khalashi only till date. It is only after a lapse of more than 10 [ten] years, the petitioner has approached this Court by this writ petition seeking the relief, mentioned above, and as such, the writ petition has also suffered from delay and laches.

4.1. It is also contended by Mr. Goswami, learned Additional Advocate General, Assam that the service book of the petitioner has been maintained right after his engagement as Work Charged employee in the establishment of the respondent no. 6 in the year 1991 and in the service book so maintained, the petitioner has been shown as a Work Charged Khalashi and increments were throughout the petitioner's engagement period also granted to the petitioner as Work Charged Khalashi only and there was no protest from the end of the petitioner regarding receipt of pay and allowances as Work Charged Khalashi till institution of the writ petition in the year 2016.

5. I have duly considered by the submissions of the learned counsel for the parties and have also gone through the documents brought on record by the parties through their pleadings.

6. As the copies of the two Office Orders - one produced by the petitioner being Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/95 and the other being Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/2/A/147 produced by the respondent Page No.# 5/7

authorities in the Water Resources Department, both dated 04.12.1991 - have been brought on the case record, this Court by an order dated 18.07.2022 directed the CID to cause an enquiry as to which of the aforesaid two engagement orders is genuine and correct as per records and submit a report before the Court. The Court asked Mr. Goswami, learned Additional Advocate General, Assam who also represents the CID to take the necessary steps to require the State CID to cause an enquiry into the matter. Pursuant to the order of the Court dated 18.07.2022, the CID caused an enquiry and submitted an enquiry report, which has been forwarded through the Superintendent of Police, CID, Assam by a letter no. CID/Cell-VII/ENQ.No.23/2022/4378 dated 09.09.2022. The substance of the enquiry report would be adverted to in the later part of this order.

7. It is relevant to note that Section Assistant is a Grade-III post whereas Khalashi is a Grade-IV post in the Works Department of the State Government and the Water Resources Department is also a Works Department. After the petitioner was engaged as Work Charged employee in the establishment of the respondent Water Resources Department in the year 1991, the service book for recording the service details of the petitioner was opened on 13.07.1994. In the first entry in the service book so opened in respect of the petitioner, it was mentioned that the petitioner was appointed as Work Charged Khalashi in the Scale of Pay : Rs. 900-15-1005-20-1105-20-1225-30-1435/- per month plus other allowances vide Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/2/A/147 dated 04.12.1991 of the Assistant Executive Engineer, Karimganj, Sub-Division [the respondent no. 6]. The service book further goes to show that the service was verified up to 31.11.1994 from the office copies and pay bill records. Similar entries of verification of service records were entered into in the subsequent years after being verified from the pay bills and office records. The service book also goes to show that the petitioner was granted increments every year on the basis of the Pay Scale of Rs. 900-15-1005-20-1105-20-1225-30-1435/- per month. All those entries in the service book of the petitioner maintained since the year 1994 do not go to substantiate the version sought to be projected by the petitioner that he was engaged as a Work Charged Section Assistant in the year 1991 by the Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/95 dated 04.12.1991. Rather, it goes to corroborate the version projected by the respondent authorities in the Water Resources Department that the petitioner was engaged Page No.# 6/7

as a Work Charged Khalashi by the Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/2/A/147 dated 04.12.1991.

8. The fact that the petitioner was originally engaged as a Work Charged Khalashi can also be discerned from the fact that after he was regularized by the office memo no. G- 3/WC/2/2003-04-147 dated 07.10.2005, the petitioner was all along being paid pay and allowances of regularized Khalashi and he continued to withdraw such pay and allowances of regularized Khalashi till the year 2016, when the instant writ petition was instituted. Thus, it can be seen that for a period of more than 10 [ten] years after his service was regularized by the Office Order dated 07.10.2005, the petitioner did not approach this Court save and except making an assertion that he submitted a representation before the respondent authorities on 09.05.2006. It has been denied by the respondents' side that that any representation dated 09.05.2006 had ever been received by any of the respondent authorities. There was no effort on the part of the petitioner after submission of such purported representation on 09.05.2006 to ventilate his grievances that he has been unjustly and arbitrarily denied the benefit of regularization as a Section Assistant. There is nothing on record regarding acknowledgement of receipt of the representation. The petitioner is also found silent about qualification required to be engaged as a Section Assistant in the year 1991 and as to whether he fulfilled the qualification to be engaged as a Section Assistant as far back as in the year 1991.

9. On perusal of the enquiry report furnished before the Court by the CID through the Superintendent of Police, CID, Assam, it is noticed that the then Assistant Executive Engineer, Karimganj, Water Resources Department viz. Sri Snehangshu Ranjan Swami who put his signature in the engagement order of the petitioner dated 04.12.1991, had denied to have subscribed his signature in the Office Order no. 29 of 1991-1992 bearing memo no. AEE/K/E/95 dated 04.12.1991. The enquiry report has further disclosed that when the petitioner was asked to produce the original copy of the engagement order, he failed to furnish the same and he stated that the original engagement order was handed over by him to the then Dealing Assistant viz. Shri Manoj Kumar Bhattacharjee [since retired]. When the said Dealing Assistant viz. Shri Manoj Kumar Bhattacharjee [since retired] was asked about the said aspect, Shri Manoj Kumar Bhattacharjee had denied the assertion made by the Page No.# 7/7

petitioner. The petitioner has also not enclosed any document which goes to reflect that he had submitted the original copy of his engagement letter to the said Dealing Assistant [since retired] under any acknowledgement. Thus, it is not possible for the Court to have a look at the original copy of the engagement letter which was purportedly issued by the Office Order no. 29 of 1991-1992 under memo no. AEE/K/E/95 dated 04.12.1991. When the materials produced by the petitioner in support of his contention that he was originally engaged as a Work Charged Section Assistant are considered in juxtaposition with the materials placed by the respondent authorities in respect of their contentions that the petitioner was originally engaged as a Work Charged Khalashi and thereafter regularized as Khalashi, this Court is of the view that corroborative materials are in support in the contentions advanced by the respondent authorities in the Water Resources Department, meaning thereby, the petitioner was originally engaged as Work Charged Khalashi. The same is substantiated by the fact that the petitioner since his engagement in the year 1991, has been receiving pay and allowances of Khalashi only and during the period from 1991 till the year 2016, the petitioner despite receiving the pay and allowances of Work Charged Khalashi till 2005 and as regularized Khalashi after 2005 till 2015, did not seriously dispute and pursue the matter which points towards acquiescence on his part.

10. In view of the above discussion and for the reasons assigned therein, this Court has found no good and sufficient reason to grant the relief sought for by the instant writ petition. Consequently, the writ petition is found bereft of any merit and the same is liable to be dismissed. The same is accordingly dismissed. No cost.

11. A copy of the enquiry report submitted by the CID be kept as a part of the record.

JUDGE

Comparing Assistant