Bahar Uddin Laskar vs The State Of Assam And 6 Ors
2023 Latest Caselaw 8 Gua

                                                                  Page No.# 1/5

GAHC010264522022




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

                          Case No. : WP(C)/8398/2022

         BAHAR UDDIN LASKAR
         S/O. ASAID ALI LASKAR, VILL. DAKHIN MOHANPUR PT.VII, P.O. DAKHIN
         MOHANPUR, P.S. SONAI, DIST. CACHAR, ASSAM, PIN-788119.



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         DEPT. OF WOMEN AND CHILD DEVELOPMENT (EARLIER SOCIAL
         WELFARE DEPT.) DISPUR, GUWAHATI-06, ASSAM.

         2:THE JOINT SECRETARY
         TO THE GOVT. OF ASSAM
          DEPTT. OF WOMEN AND CHILD DEVELOPMENT (EARLIER SOCIAL
         WELFARE DEPT.) DISPUR
          GUWAHATI
         ASSAM.

         3:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GUWAHATI-06
         ASSAM.

         4:THE PRINCIPAL ACCOUNTANT (A AND E)

          ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-29
          ASSAM.
                                                                      Page No.# 2/5


            5:THE DIRECTOR

             WOMEN AND CHILD DEVELOPMENT
             ASSAM
             (EARLIER SOCIAL WELFARE
             ASSAM) UZAN BAZAR
             GUWAHATI-01
             ASSAM.

            6:THE DISTRICT SOCIAL WELFARE OFFICER

             SILCHAR
             DIST. CACHAR
             ASSAM.

            7:THE CHILD DEVELOPMENT PROJECT OFFICER

             LAKHIPUR ICDS PROJECT
             FULERTAL
             DIST. CACHAR
             ASSAM

Advocate for the Petitioner   : MR G BAISHYA

Advocate for the Respondent : GA, ASSAM




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                          ORDER

Date : 02.01.2023

Heard Mr. G. Baishya, learned counsel for the petitioner and Mr. A. Chakraborty, learned counsel for the respondents No. 1, 2, 5, 6 and 7, respectively being authorities under the Women and Child Development Department of the Government of Assam. Also heard Mr. R. Borpujari, learned counsel for the respondent No. 3, being the authority under the Finance Department of the Government of Assam and Ms. J. Ghosh, learned counsel for the respondent No. 4, being the Principal Accountant (A&E), Assam.

Page No.# 3/5

2. Issue notice returnable by 6(six) weeks.

3. Extra copies within 3(three) days.

4. The petitioner being a Muster Roll Worker who claims to have been appointed prior to 01.04.1993 instituted WP(C) No. 480/2005 which resulted in the order dated 19.01.2005 which is extracted as below:

"This petition has been filed for appropriate direction for regularization of the services of the writ petitioner as per government policy dated 20 th April, 1995.

This Court in a common judgment delivered in Civil Rule No.4411/1995 and other cases dealt with the question of regularization of Muster Roll Workers. The Court directed that all the Departments under the State Government are to act on the policy decision of the government to regularize/absorb the Muster Roll workers/work-charged employees appointed prior to 1.4.1993.

This petition is disposed of with a direction to the respondents to consider the case of the Writ Petitioner as per policy decision referred to above and pass appropriate orders within a period of three months from the day when a copy of this order is furnished to them."

5. A reading of the order dated 19.01.2005 in WP(C) No. 480/2005 makes it discernible that the Court had arrived at a judicial satisfaction that there is a Government policy decision dated 20.04.1995 which provided that such Muster Roll Workers who are appointed prior to 01.04.1993 are to be regularized. The Court also followed an earlier judgment in Civil Rule No. 4411/1995 that there is a policy decision of the Government to regularize/absorb the Muster Roll Workers appointed prior to 01.04.1993. In the circumstance, a direction was issued to consider the claim of the petitioner for regularization as per the policy decision referred therein that is the policy decision which was judicially accepted in that writ petition to be the Government policy dated 20.04.1995.

6. Accordingly, by the order dated 14.10.2015, the services of the petitioner as a Muster Roll Worker was regularized as per the order of the Director of Social Welfare, Assam. When the said order was sent to the Finance Department for its approval, there was an observation that there was no policy Page No.# 4/5

decision of the Government to regularize the services of any casual employees prior to 01.04.1993. Accordingly, there was a suggestion by the Finance Department that regularization of the petitioner cannot be agreed upon and that the order of regularization be declared to be null and void and the erring official who issued the appointment letter to the petitioner without approval of the Finance Department should be proceeded departmentally.

7. We are not against the suggestion to proceed departmentally against the official who had given the order of regularization but what we take note is that although the Finance Department was of the view that there was no policy decision of the Government to regularize any casual employee/Muster Roll Worker appointed prior to 01.04.1993, but by the judicial order dated 19.01.2005 in WP(C) No. 480/2005, specifically in respect of the present petitioner, a judicial view was taken that there exists a policy decision dated 20.04.1995 and accordingly a direction was issued to consider the claim of the petitioner as per the said policy and by the order of the Director of Social Welfare dated 14.10.2015, the services of the petitioner was regularized.

8. As there is a conflict between the view of the Finance Department with that of the judicially accepted view of the Court in its order dated 19.01.2005 in WP(C) No. 480/2005, specifically in respect of the present petitioner, we are of the view that a prima facie case has been made out by the petitioner against the order dated 10.11.2020 of the Joint Secretary to the Government of Assam in the Social Welfare Department in withdrawing the regularization meted to the petitioner. Further considering the balance of convenience and irreparable loss that the petitioner may suffer, the order dated 10.11.2020 of the Joint Secretary to the Government of Assam in the Social Welfare Department shall remain stayed meaning thereby, that recalling of the order of regularization of the Page No.# 5/5

services of the petitioner shall also remain stayed until further orders. The Finance Department may file their affidavit before the next returnable date specifically on the issue as to how a different view can be taken in respect of the present petitioner, when there is already a judicial view taken that there exists a policy decision dated 20.04.1995 for regularization of Muster Roll Workers who are appointed prior to 01.04.1993. We are clarifying that we require the affidavit of the Finance Department specifically in respect of the present petitioner and not the general perception of law that may otherwise prevail in the department.

List after 6(six) weeks.

JUDGE

Comparing Assistant