Page No.# 1/4 vs The State Of Assam And 6 Ors
2023 Latest Caselaw 967 Gua

                                                                      Page No.# 1/4

GAHC010026492022




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

                           Case No. : WP(C)/1229/2022

         AZIZUR RAHMAN AND 2 ORS
         S/O- LATE SOKIAT ALI @ SOKIOTULLAH SK., R/O- VILL.- JHAGRAPAR
         PART-3, P.O. JHAGRARPAR, PIN- 783325, P.S. AND DIST. DHUBRI, ASSAM

         2: HABIBUL HASAN ALOM
          S/O- SOBHAN ALI
          R/O- VILL.- JHAGRAPAR PART-3
          P.O. JHAGRARPAR
          PIN- 783325
          P.S. AND DIST. DHUBRI
         ASSAM

         3: ISRAFIL HOQUE
          S/O- LATE SOLEMAN ALI
          R/O- VILL.- ADABARI PART-2
          P.O. CHAGALCHARA
          PIN- 783324
          P.S. AND DIST. DHUBRI
         ASSAM (ALL THE PETITIONERS HAVING COMMON CAUSE OF ACTION
         AND COMMON PRAYER)

         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM, HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR,
         GUWAHATI-781006.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-781006.

         3:THE DIRECTOR OF HEALTH SERVICES
                                                                    Page No.# 2/4

              ASSAM
              HENGRABARI
              GUWAHATI-781036.

             4:THE DEPUTY COMMISSIONER
              DHUBRI
              P.O. AND DIST. DHUBRI
             ASSAM
              PIN- 783301.

             5:JOINT DIRECTOR OF HEALTH SERVICES CUM MEMBER SECRETARY
              DISTRICT HEALTH SOCIETY
              DHUBRI DISTRICT
              P.O. AND DIST. DHUBRI
             ASSAM
              PIN- 783301.

             6:THE SUPERINTENDENT DHUBRI CIVIL HOSPITAL
              DHUBRI
              DIST. DHUBRI
             ASSAM PIN- 783324.

             7:HOSPITAL MANAGEMENT SOCIETY
              DHUBRI CIVIL HOSPITAL
              REP. BY ITS CHAIRMAN-CUM-DEPUTY COMMISSIONER
              DHUBRI
              PIN- 783301
              DIST. DHUBRI
             ASSA

Advocate for the Petitioner   : MR. S ALIM

Advocate for the Respondent : SC, HEALTH


                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                             ORDER

Date : 13.03.2023

Heard Mr. S. Alim, the learned counsel appearing on behalf of the petitioners and Mr. D. Upamanyu, the learned Standing counsel appearing on behalf of the respondent Nos. 1, 3 and 6. I have also heard Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the respondent No.2 as well as Page No.# 3/4

the respondent No.5 and Ms. A. Talukdar, the learned Standing counsel appearing on behalf of the respondent Nos. 4 and 7.

Issue notice returnable on 31.03.2023.

As the respondents are duly represented by their respective learned counsels, extra copies of the writ petition be served upon them by 15.03.2023.

The case of the petitioners herein is that the three petitioners were appointed on contractual basis by the Office of the Superintendent/Member Secretary, Dhubri Civil Hospital Management Society vide the orders dated 05.03.2004, 27.02.2006 and 30.04.2007 respectively. The petitioners thereupon have been rendering the service in the Office of the Superintendent of the Civil Hospital under the Hospital Management Society since then. It is the case of the petitioners that the Division Bench of this Court in the case of State of Assam Vs. Upen Das reported in (2017) 4 GLR 493 by adopting the principles as laid down

by the Supreme Court in the case of State of Punjab and Others Vs. Jagjit Singh and Others reported in (2017) 1 SCC 148 had directed the State Government to

pay the minimum of the pay scale to Muster Roll workers, worked charged employees and similarly placed employees working since last more than 10 years (not in sanctioned post) w.e.f. 01.08.2017. However, the petitioners have not been paid the said minimum of the pay scale for which the petitioners have approached this Court.

It is the further case of the petitioners herein that the Hospital Management Society i.e. the respondent No.7 who have appointed the petitioners is nothing but an alter ego of the State Government and as such the petitioners are therefore entitled to the minimum of the scale of pay.

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On the other hand, Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance Department as well as the District Health Society submits that the Hospital Management Society are given the grants by the State and on the basis of the grants, they pay the contractual employees and under such circumstances, the question of applying the ratio in the case of Upen Das (supra) does not arise in the facts of the instant case.

Upon hearing the learned counsels, it appears that there is a debatable question. On the returnable date, this Court upon instructions and/or affidavit so filed by the respondents would take a call as to whether the case of the petitioners is covered by the judgment of the Division Bench in the case of Upen Das (supra) and/or whether the petitioners otherwise in view of the judgment in

the case of Jagjit Singh (supra) are entitled to the minimum of scale of pay.

Taking into account that there are 3 (three) petitioners and the cause of action in respect to the 3 (three) petitioners are distinct and different, the petitioners are directed to pay the deficit Court Fee.

List accordingly.

JUDGE

Comparing Assistant