Salam Uddin Khan vs The State Of Assam And 4 Ors. H
2023 Latest Caselaw 3735 Gua

                                                               Page No.# 1/9

GAHC010047152023




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

                         Case No. : WA/127/2023

         SALAM UDDIN KHAN
         S/O AFTAB UDDIN KHAN, RESIDENT OF BIDYAPARA, ALTAB UDDIN LANE,
         WARD NO. 10, DHUBRI, 783324



         VERSUS

         THE STATE OF ASSAM AND 4 ORS. H
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, POWER (ELECTRICITY)DEPARTMENT, DISPUR, GUWAHATI
         781006

         2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED

          REPRESENTED BY THE CHAIRMAN
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI 781001

         3:THE CHAIRMAN
          SELECTION COMMITTEE- B
          BIJULEE BHAWAN
          PALTAN BAZAR
          GUWAHATI 781001

         4:THE SUB DIVISIONAL ENGINEER

          DHUBRI ELECTRICAL SUB DIVISION APDCL
          LAZ
          DHUBRI
          783324

         5:THE ASSISTANT GENERAL MANAGER
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             DHUBRI ELECTRICAL DIVISION
             GAURIPUR
             DIST DHUBRI
             ASSAM 78333

Advocate for the Petitioner   : MS. T SOM

Advocate for the Respondent : SC, APDCL




                                  BEFORE
                      HONOURABLE THE CHIEF JUSTICE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                        JUDGMENT

Date : 15-09-2023

(Susmita Phukan Khaund, J.)

Heard Mr. R P Sarmah, learned Senior Counsel, appearing on behalf of the appellant.

Also heard Mr B Choudhury, learned Standing Counsel, APDCL.

2. This appeal is preferred against the Judgment and Order dated 08.08.2022, passed by

the learned Single Judge in WP(C) No. 6236/2021. The appellant, in this case is Salam Uddin

Khan. The State of Assam, the Assam Power Distribution Company Limited, the Chairman, the

Sub-Divisional Engineer (Electrical), Dhubri, the Assistant General Manager (Electrical),

Dhubri, are arrayed as respondent Nos. 1, 2, 3, 4 and 5 respectively.

3. Brief facts of this case are that the appellant was engaged as a Muster Roll Worker by

the respondents in place of one Shri Indrajit Das, since September 2012. However, neither

any appointment letter was issued nor was any agreement signed for the said appointment

and the appellant was appointed without following any recruitment process. The respondent Page No.# 3/9

No. 4, vide letter dated 25.10.2013 (Annexure-3 of the Writ Petition) communicated to the

respondent No. 5 that as the appellant was working as an outsourced Meter Reader since

September 2012, in absence of Shri Indrajit Das, and as his performance was satisfactory, he

could be appointed in place of Shri Indrajit Das. The respondent No. 5 had accordingly asked

the respondent No. 4 to submit details with address/particulars of the appellant against the

said proposal of respondent No. 4 and the same was submitted vide letter dated 05.11.2013

to the respondent No. 5. Furthermore, the respondents, more particularly, the respondent No.

2, vide employment Notice No. MD/APDCL/HR/REC(2017-18)/85/120 dated 14.08.2018,

published an advertisement for appointment to the post of Office-cum-Field

Assistant/Sahayak/Mali. As the appellant claimed to be possessed of work experience as per

the job description, he applied for the aforementioned post and upon applying, the status for

his application was shown as "Success". The written examination was conducted on

28.04.2019, but no call letter was issued to the appellant. When the appellant querried about

the written examination in the month of March, 2020, the respondents handed over a notice

dated 10.02.2020 and through that notice, the appellant learnt that the examination had

already been conducted on 28.04.2019 and the document verification was held on

24.02.2020. The respondent authorities informed the appellant that there are still sufficient

vacancies available in the department and further he was asked to continue working as

before and to stay vigilant for further advertisements to be published in the near future.

4. It is averred that the candidature of the appellant was illegally and in a clandestine

manner, rejected by the respondent authorities without issuance of a call letter. When the

appellant questioned about the reasons for not calling him for the aforementioned

examination, he was handed over a letter dated 07.12.2018 (Annexure-13), wherein, it was Page No.# 4/9

mentioned that only experienced candidates with wage payment record were allowed to sit

for the written examination. The appellant then realized that, from the first month of his

engagement as a Muster Roll Worker, the respondent authority credited his salary in the bank

accounts of his co-workers. As there was no wage payment record in his name, he was

unjustly deprived of the opportunity of regularization of his services. It was not mentioned in

the advertisement dated 14.08.2018 that, there was any requirement of wage payment

record of the applicants. Some of his colleagues have been regularized in terms of the

selection process conducted on the basis of the advertisement dated 14.08.2018 and others

are still working as muster roll workers.

5. The appellant claims that although he was discharging his duties sincerely, his salary was

not credited to his account, instead his salary was always credited to the accounts of other

co-workers, namely, Probir Sarma, Anuj Kr. Deb, Sheikh Abdullah, Munjit Hussain, Rajesh

Saha etc. As it was cumbersome to collect his salary in this manner, the appellant had

approached the respondent authorities on several occasions and submitted representations to

the respondent authorities, with prayer to credit the salary directly into his account, but his

representations were ignored by the respondent authorities. The appellant, vide letter dated

23.11.2020 (Annexure-14 of the writ petition) implored the respondent authorities for

issuance of payment voucher relating to his salary since 2012. The authorities were also

apprised of the order of the Chief General Manager (HRA), APDCL, Bijuli Bhavan to the Chief

Executive Officers of all electric circles, about the direction of this Court, allowing some

employees/workers to file application asking for payment records against their period of work

and the respective officers were directed to allow the employees/workers to inspect the

payment records and take photographs of the same, if such records are available against Page No.# 5/9

their working period. The Chief Manager (HRA) vide the same order dated 12.11.2020

directed that if no payment records are available, the employees/workers may be informed in

writing that "no payment records are available" to substantiate the claims of working in the

office, as per format at Schedule-A.

5.1. The appellant submitted another representation dated 03.03.2021, addressed to the

respondent No. 5, apprising that as services of Sri Probir Sarmah had already been

regularized, his (appellant's) salary, which used to be credited to the account of Probir

Sarmah may now be credited to his own account. All these representations and requests of

the appellant were ignored by the respondents.

5.2. Although the appellant has been continuously serving under the respondent's

department since 2012, but in the month of April, 2021, the respondent authorities abruptly

stopped paying his salary, without assigning any reasons. The appellant found out that his

salary was not being credited to any of his co-worker's account and subsequently, he was not

allotted his regular duties as a Meter Reader -cum- Bill Distributor but he was engaged in

other miscellaneous duties in the office, whereas his colleagues, namely, Sahidur Rahman,

Mostafa Hussain, Azmal Warish Mollah, Mahbubar Rahman, Golam Mosrafizur Ali Ahmed and

Rajesh Saha were still working with the respondents under Dhubri Electrical Sub-Division as

Meter Reader and they have been drawing their monthly wages. The appellant also

submitted a representation dated 03.11.2021 to the respondent No. 4, with a copy to the

respondent No. 5, but to no avail.

6. On being aggrieved, the appellant preferred a writ petition being Writ Petition (Civil) No.

6236/2021, which was dismissed vide order dated 08.08.2022.

Page No.# 6/9

7. The respondents have filed an affidavit-in-opposition, refuting the contentions. It is

submitted that as per the information received from the Sub-Divisional Engineer, Dhubri

Electrical Sub-Division, vide letter dated 02.02.2022, the appellant was not a regular

employee of Assam Power Distribution Corporation Limited (APDCL). He was never appointed

in a permanent post by the competent authority and no official record to the contrary could

be submitted by him in his defence. The appellant was engaged as a temporary outsourced

bill despatcher 'as and when required' at the fixed rate of Rs. 3/- per bill. As the appellant had

not dispatched any bills w.e.f.. April, 2021, the question of payment of wages/salary for the

said period does not arise at all.

8. It is argued on behalf of the appellant that he was continuously engaged as an

outsourced employee at the time of his appointment since the month of September, 2012. His

wages were paid into the accounts of his peers, namely, Probir Sarma, Anuj Kr. Deb, Sheikh

Abdullah, Munjit Hussain, Rajesh Saha etc. However it is admitted that the appellant was

appointed without following any recruitment process.

9. Although the appellant had applied for the post of Office-cum-Field

Assistant/Sahayak/Mali, he was not short-listed for the written examination. The appellant

who was not appointed as a regular employee was still desirous to continue his work on

contractual basis with the respondent No. 4, at par with his counterparts, namely, Sahidur

Rahman, Mostafa Hussain, Azmal Warish Mollah, Mahbubar Rahman, Golam Mosrafizur Ali

Ahmed and Rajesh Saha who are still working with the respondents and drawing their

monthly wages.

10. The learned counsel for the respondents has vehemently denied that the respondent Page No.# 7/9

authorities have abruptly stopped paying wages to the appellant w.e.f. April 2021, without

assigning any reasons. The respondents have also denied that the appellant, who was not

allotted his regular duties from April 2021, as a Meter Reader-cum-Bill Distributor, was

engaged in other miscellaneous duties in the office. It is contended that the appellant who

was hired on "as and when required basis" did not render his services and therefore no

wages were paid to him from April, 2021. He was never appointed in a permanent post by

the competent authority and no official record to the contrary could be submitted by the

appellant in support of his claim. It is also averred that the appellant was never a regular

employee of the APDCL.

11. On the other hand, it appears that the respondents are reluctant and they do not

require the services of the appellant any further.

12. We have given our thoughtful consideration to the submissions at the Bar. Admittedly

the appellant was engaged as a Muster Roll Worker without any formal appointment being

made. He was working as an outsourced Meter Reader since September, 2012 in absence of

one Indrajit Das. It is also admitted that his salary was credited to the accounts of his co-

workers. The appellant failed to agitate when he was not short-listed to appear for his

written-examination to be selected as Office-cum-Field Assistant/Sahayak/Mali. Although the

appellant has averred that his candidature for the post was illegally rejected in a clandestine

manner, he did not agitate against such action of the respondent authorities. The controversy

whirls around the fact that the services of the appellant was abruptly retrenched in the year

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despite the fact that he was continuously rendering his services since the year 2012. His

counterparts have however been regularized. We find that the appellant has failed to

substantiate the allegation of discriminatory approach by the authorities or that there was any

scheme of the Department for regularization of Muster Roll workers. The fate of the letter

dated 25.10.2013 relating to the regularization of the appellant is also not known. At present,

the appellant is willing to continue to work even on contractual basis. The appellant has

however not impleaded his co-workers as parties in the Writ Petition No. 6263/2001 as well

as in this appeal. Nothing has been brought on record to show how the appellant has been

prejudiced by not being treated at par with his counterparts. It is not clear under what terms

and on what basis the appellant's salary was deposited in his co-workers bank accounts and

not credited to his own account without any protest being raised. Without any material being

placed on record, this issue cannot be considered in this appeal.

13. The appeal fails as the appellant has failed to bring on record in what manner he has

been prejudiced by an act which is alleged to be arbitrary and in violation of statutory

provisions or Constitutional mandate. Appellant has also failed to substantiate if any of his

legally enforceable right has been violated by the respondents. The prayer of the appellant is

opaque and vague.

14. It has been appositely held by the learned Single Bench that the appellant's prayer for a

direction to be issued to the respondents to allow him to continue on contractual basis is not

sustainable, in as much as no legally enforceable right of the appellant has been violated by

the respondents, in not engaging the services of the appellant any further. There was nothing

to show as to who replaced the appellant by way of contractual engagement.

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15. In the wake of the discussions made hereinabove, we find no infirmity in the order

passed by the learned Single Judge and, hence, the writ appeal fails and the same is

dismissed as being devoid of merits.

15.1. The learned Single Bench has observed that:-

"In the event, the respondents are in need of the petitioner's services on 'as and when

required' basis, the respondents may consider the case of the petitioner."

16. It would thus be expected of the respondents to give preference to the appellant while

making any fresh selection or appointment for the post of Daily Wager or Work Charged

Employee or Muster Roll in future vacancies.

17. No order as to costs.

                                         JUDGE               CHIEF JUSTICE




Comparing Assistant