Gauhati High Court

Page No.# 1/13 vs State Of Assam And 3 Ors on 16 September, 2022

                                                              Page No.# 1/13

GAHC010138002016




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

                           Case No. : WP(C)/7711/2016

         JADUMONI NATH and 28 ORS.
         GRADE IV EMPLOYEE, NORTH LAKHIMPUR CIVIL HOSPITAL,
         LAKHIMPUR, PERMANANTLY RESIDING AT S/O. LAKHON CH. NATH, VILL.
         ANAIGHORIA GAON, P.O. ANGERKHOWA, P.S. PANIGAON, DIST.
         LAKHIMPUR, ASSAM.


         2: SMTI BEAUTI SAIKIA
         W/O. LT. GUPAL DUTTA
         VILL. CHOUKHAM
          P.O. CHABATI
          P.S. LILABARI
          DIST. LAKHIMPUR
         ASSAM.


         3: SRI PRAFULLA DAS
          S/O. LT. HARULARA DAS
         VILL. CHOWKHAM
          MAJGAON
          P.O. CHABATI
          P.S. LILABARI
          DIST. LAKHIMPUR
         ASSAM.


         4: MRS. MOMY BORUAH
         W/O. PRADIP BORUAH
         VILL. NAKARI
         WARD NO.-1
          P.O. and P.S. NORTH LAKHIMPUR
          DIST. LAKHIMPUR
         ASSAM.
                                       Page No.# 2/13


5: MRS. JYOTI PRABHA BORAH HAZARIKA
W/O. LT. MITHARAM HAZARIKA
VILL. LALUK
 KASOJULI
 DIST. LAKHIMPUR
ASSAM.


6: SMTI MINU SING BARUAH
W/O. JUGONDRA SING
VILL. NALLCATA
 P.O. BAGALIJAN
DIST. LAKHIMPUR
ASSAM.


7: RAJUMONI BORUAH
 S/O. PRADIP CH. SAIKIA
VILL. NAKARI
WARD NO.-2
 P.O. NAKARI
 P.S. NORTH LAKHIMPUR.


8: GUNADA RAJKHOWA
 D/O. LT. BAPURAM RAJKHOWA
VILL. RAJKHOWA GAON
 P.O. AJAD
 P.S. PANIGAON
 DIST. LAKHIMPUR.


9: MRS. NIJU DEVI
W/O. MR. KHAGENDRA NATH SARMAH
VILL. CHOWKHAM
 P.O. CHABATI
 P.S. NORTH LAKHIMPUR
 DIST. LAKHIMPUR
ASSAM.


10: CHANIMAI BORA PAYANG
 S/O. INDRA BORAH
VILL. RAJGARH DAUMUKHID
 P.O. RAMPUR DEORI
 P.S. NORTH LAKHIMPUR
                                  Page No.# 3/13


11: LAMBUDHAR DUTTA
 S/O. LT. TOKESWAR DUTTA
VILL. NAKARI
WARD NO.-3
 P.O. and P.S. LAKHIMPUR
ASSAM.


12: MD. BAHARUL ALI
 S/O. MD. SONJAN ALI
VILL. SENSUWA
 P.O. ANGERKHOWA
 P.S. PANI GAON
 DIST. LAKHIMPUR
ASSAM.


13: MD. SAILEN BORAH
 S/O. LT. JUGA BORAH
VILL. CHOWKHAM
 P.O. CHABATI
 DIST. LAKHIMPUR
ASSAM.


14: NABA KANTA NATH
 C/O. MR. BOGAI NATH
VILL. BHAPATI NATH GAON
 P.O. AZAD
 DIST. LAKHIMPUR
ASSAM.


15: RAJIB HAZONG
 S/O. JAGADISH HAZON
WARD NO.-3
 P.O. and P.S. NORTH LAKHIMPUR
 DIST. LAKHIMPUR.


16: DIPALI BORA GOGOI
 D/O. DHONIRAM BORA
 NO. 1
 KOWADONGA
 P.O. and P.S. LAKHIMPUR
 DIST. LAKHIMPUR ASSAM.
                            Page No.# 4/13


17: SRI SANJAY MILI
 S/O. PRADIP MILI
VILL. GHAGAR KALA KHOWA
 P.O. MOHAIJAN
 P.S. LAKHIMPUR
 DIST. LAKHIMPUR
ASSAM.


18: SRI GOPAL DUTTA
VILL. CHOWKHAM
 P.O. CHABATI
 NORTH LAKHIMPUR
 DIST. LAKHIMPUR
ASSAM.


19: MRS. BINA KALITA
W/O. LT. MUNINDRA KALITA
VILL. and P.O. CHABATI
 P.S. NORTH LAKHIMPUR
 DIST. LAKHIMPUR
ASSAM.


20: SMTI HIRAMONI GOGOI
W/O. LT. MUHIM GOGOI
VILL. BANGALMARI
 P.O. MALEKHOLA
 DIST. DHEMAJI
ASSAM.


21: BIJUMONI GOGOI
 D/O. PRONOY KR. GOGOI
VILL. CHOWKHOM
 P.O. SABATI
 P.S. LAKHIMPUR.


22: DHIRAJ BHUYAN
 S/O. TULAN BHUYAN
VILL. KOWAPHALA
 P.O. and P.S. DHAMAJI
 DIST. DHEMAJI
ASSAM.
                                Page No.# 5/13

23: SMTI BORNALI PADUN NARAH
W/O. SRI RAJIB NARAH
VILL. DUSTIMUKH
 P.O. KHUBULIA
 DIST. DHEMAJI
ASSAM.


24: PAPRI DIHINGIA
 D/O. LT. DEBESWAR DIHINGIA
VILL. CHAKALA DALANI
 P.O. NARUWATHAN
 DIST. DHEMAJI
ASSAM.


25: SRI ROBIN GOGOI
 S/O. SRI PABITRA GOGOI
VILL. KAMAR GOAN
 P.O. and P.S. DHEMAJI
 DIST. DHEMAJI
ASSAM.


26: SRI MONUBIKASH DUTTA
 S/O. SRI PUNYA DUTTA
VILL. MATIKHULA
 P.O. MATIKHULA
 DIST. DHEMAJI
ASSAM.


27: DULUMONI DUTTA
 D/O. AKON DUTTA
VILL. MATIKHULA
 DIST. DHEMAJI
ASSAM.


28: ADITYA KOUCH
 S/O. SRI LILA KT. KOUCH
VILL. NALINIPAM
 P.O. and P.S. DHEMAJI
 DIST. DHEMAJI
ASSAM
 PIN. 787057.
                                                                       Page No.# 6/13

            29: MISS MINATI CHUTIA
             D/O. LT. DULESWAR CHUTIA
            VILL. BAKULBARI
             P.O. HOLLOWDUNGA
             P.S. GOGAMUKH
             DIST. DHEMAJI
            ASSAM


            VERSUS


            STATE OF ASSAM and 3 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY, GOVT. OF ASSAM,
            HEALTH and FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-06.


            2:DIRECTOR OF HEALTH SERVICE DEPTT.
             HENGRABARI
             GUWAHATI.


            3:SUPERINTENDENT OF NORTH LAKHIMPUR CIVIL HOSPITAL
             LAKHIMPUR
            ASSAM.


            4:SUPERINTENDENT OF DHEMAJI CIVIL HOSPITAL
             DHEMAJI
            ASSAM


Advocate for the Petitioner   : MR.K N KALITA

Advocate for the Respondent : SC, HEALTH




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                           ORDER

Date : 16-09-2022

No one appears for the petitioners on call.

2. This case had also been listed earlier. On the last date also, no one had Page No.# 7/13

appeared on behalf of the petitioners.

3. Heard Mr. B Gogoi, learned counsel for the Health Department.

4. The petitioners' case in brief is that they are ward boys/ward girls casual helper/helper/Grade-IV employees (contractual) in North Lakhimpur Civil Hospital and in Dhemaji Civil Hospital. The grievances of the petitioners are that despite working for more than 10 to 20 years, their services were not regularized. Accordingly, they had prayed to this Court for regularization of their services, within a specified time frame.

5. This Court had dismissed the above case on the ground that the petitioners being contractual workers, they were not entitled to regularization, in terms of the Division Bench judgment of this Court in W.A.No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others) , wherein the Division Bench had held that Muster Roll Workers/Work Charged Workers and similarly placed employees were not entitled for regularization.

6. Being aggrieved, the petitioners filed W.A.No. 206/2018. W.A.No. 206/2018 was allowed by setting aside the Order dated 05.12.2017 passed by the learned Single Judge, by holding that the learned Single Judge ought to have examined the matter in further detail, keeping in mind the ratio laid down by the Hon'ble Apex Court in the case of Secretary, State of Karnataka & Others Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, as well as the decision of the Division Bench of this Court rendered in W.A. No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others). The learned Division Bench held that the case of each of the appellants/writ petitioners deserved to be examined on the facts of each petitioner's case, instead of generalizing that they were contractual Page No.# 8/13

employees and therefore, not entitled to regularization.

7. As such, the writ petitioners are before this Court once again. On considering the observations made by the Ld. Division Bench in WA No.206/2018, it appears that the writ petitioners should each file separate writ petitions, as the case of each petitioner has to be examined on the facts of each petitioner's case. Be that as it may, the cases of each petitioner is being considered, keeping in view the starting point of their employment on contractual, temporary and on honorary basis.

8. There are 29 writ petitioners in this case and they have been apparently employed in different capacities on contractual/temporary basis. Out of the 29 writ petitioners, only the petitioner Nos. 21, 22, 23, 25 & 26 have annexed appointment orders, showing that they have been engaged temporarily or on contractual basis, to work in Dhemaji Civil Hospital at a fixed rate. Petitioner Nos. 21 & 22 have been engaged at a fixed rate of Rs. 3,000/- per month, while the contractual appointment of the petitioner Nos. 23, 25 & 26 is fixed at Rs. 1,500/- per month.

9. All the petitioners, except for petitioner Nos. 4, 6, 27 & 28, have annexed certificates and appointment orders, showing that they have been engaged in various capacities as temporary/contractual workers. There is nothing in the certificates annexed to show from which date they have been engaged on contractual basis and the monthly remuneration/wages to be given to them. The petitioner Nos. 4, 6, 27 & 28 have not annexed any certificate or any appointment order, to show under what capacity they have been working, in either the North Lakhimpur Civil Hospital or in the Dhemaji Civil Hospital. There Page No.# 9/13

is no averment made in the writ petition that the petitioners were appointed to their posts in pursuance to any advertisement or that they had the necessary qualification to hold the posts they were engaged in.

10. The dates from which the petitioners have been working in the North Lakhimpur and Dhemaji Civil Hospitals, as per the certificates and appointment orders annexed to the writ petition, are as follows:-

Petitioner No. 1 - Since 1st January, 2015.

Petitioner No. 2 - Since 1st February, 2011.

Petitioner No. 3 - Since 29th April, 2012.

Petitioner No. 4 - No certificate or appointment order annexed.

Petitioner No. 5 - Since 2008.

Petitioner No. 6 - No certificate or appointment order annexed.

Petitioner No. 7 - Since 15th September, 2012.

Petitioner No. 8 - Since 1996 as Honorary Female Attendant.

Petitioner No. 9 - Since January, 2008.

Petitioner No. 10 - Since July, 2012.

Petitioner No. 11 - Since August, 2009.

Petitioner No. 12 - Since 13th April, 2008.

Petitioner No. 13 - Since 1st May, 2007.

Page No.# 10/13

Petitioner No. 14 - Since 15th October, 2011.

Petitioner No. 15 - Since January, 2006.

Petitioner No. 16 - Since March, 2010.

Petitioner No. 17 - Since 18th August, 2014.

Petitioner No. 18 - Since November, 2007.

Petitioner No. 19 - Since August, 2014.

Petitioner No. 20 - Since 1st December, 2004.

Petitioner No. 21 - Since 1st April, 2016.

Petitioner No. 22 - Since 1st April, 2016.

Petitioner No. 23 - Since 4th November, 2014.

Petitioner No. 24 - Since 3rd February, 2011.

Petitioner No. 25 - Since March, 2013.

Petitioner No. 26 - Since 12th November, 2014.

Petitioner No. 27 - No certificate or appointment order annexed.

Petitioner No. 28 - No certificate or appointment order annexed.

Petitioner No. 29 - Since 26th November, 2016.

The above facts clearly show that the submission made by the learned counsel for the petitioners, with regard to the length of service of all the petitioners is a lie, inasmuch as, the writ petition had been filed on 14.12.2016.

Page No.# 11/13

11. As can be seen from the above, all the petitioners have been appointed from the year 2004 onwards, except for the petitioner No. 8, who has a certificate certifying that she has been working as a honorary female attendant in the Pediatrics OPD of North Lakhimpur Civil Hospital since 1996. The certificate is issued by one Doctor S. Talukdar on 08.02.1999.

12. The certificate showing that the petitioner No. 8 is working as a honorary female attendant states as follows:-

"To whom it may concern.

Certified that Smti Gunada Rajkhowa of Village Rajkhowa Gaon is a physically handicapped person. She has been working as a honorary female attendant in the Paediatrics 0.P.D (Room No. 5) of North Lakhimpur Civil Hospital since 1995 till date. It 1s true to the best of my knowledge.

She is sincere, laborious, honest and dutiful. She bears a good moral character. I wish her success."

13. In the case of State of Karnataka Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, which was decided on 10.04.2006, the Apex Court has held that a temporary, contractual, casual or daily wage employees do not have a legal right to be made permanent, unless they have been appointed in terms of the relevant Rules or in adherence to Article 14 & 16 of the Constitution. However, the Apex Court in paragraph No. 53 of Uma Devi (3) (supra), had directed the Union of India, the State Governments and their instrumentalities to take steps for regularization as a "one-time measure", the services of irregularly appointed persons, who had worked for 10 years or more in duly sanctioned posts, but not under the cover of the orders of the Courts or of Tribunals. Paragraph No. 53 of the judgment of the Apex Court in Uma Devi (3) (supra) was thereafter clarified by the Apex Court in the case of State of Page No.# 12/13

Karnataka & Others Vs. M.L. Kesari, reported in 2010 9 SCC 247, wherein it held that an exception to the general principles against the regularization was allowed in Uma Devi (3) (supra), if the following conditions were fulfilled.

"(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) the appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned post, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular".

14. The Government of Assam, Finance (EC-II) Department thereafter issued Office Memorandum No. FEC (II) 49 / 2010 /pt/52 dated 27.06.2013 for regularization of services of the Work Charged, Muster Roll and similarly placed workers in pursuance to the order of the Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, State of Karnataka & Others Vs. M.L. Kesari, reported in 2010 9 SCC 247 and the Gauhati High Court's Order dated 17.05.2006 in WP(C) No. 6222/2003. In the said Office Memorandum dated 27.06.2013, it was stated in paragraph No. 2 that regularization of those workers, as referred to in paragraph No. 53 of the judgment passed in Uma Devi (3)(supra) would be done as a "One time measure", subject to the employees fulfilling the following three conditions. Firstly, they should have been working continuously for 10 years or more as on 10.04.06 i.e. the date of passing of the judgement in Uma Devi's case without the benefit or protection of the interim order of any Court or Tribunal. Secondly, Page No.# 13/13

they should have been engaged against sanctioned vacant post. Thirdly, they should have requisite qualification to hold the post.

15. Paragraph No. 2 of the OM dated 27.06.2013 is reproduced as follows:-

2. The State Government will now like to take the "One time measure" for regularization of those workers as referred to in paragraph 53 of the orders in Uma Devi's case readwith M.L. Kesari's case, whereby exception was curved out to regularize all employees who fulfill the following three conditions:-

i) Who have been working continuously for 10 years or more as on 10.04.06 i.e. the date of passing of the judgement in Uma Devi's case without the benefit or protection of the interim order of any Court or Tribunal.