Page No.# 1/12 vs The State Of Assam And 8 Ors
2023 Latest Caselaw 3894 Gua

                                                                 Page No.# 1/12

GAHC010205772023




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

                          Case No. : WP(C)/5579/2023

         NIBON CHANDRA DAS AND 27 ORS
         S/O LATE NONIGOPAL DAS KHALASI, R/O VILL-HILARA COLONY, P.O.-
         KALAIN, DIST-CACHAR, ASSAM, PIN-788814

         2: BIMAL CHANDRA DAS
          S/O LATE NIBARAN DAS
          KHALASI
          DATE OF JOINING 01.01.1987
          UNDER SILCHAR PHE DIVISION-II
          R/O VILL- NETAJI PALLI TULARGRAM PART-II
          P.O.-SONAIMUKH
          DIST-CACHAR
         ASSAM
          PIN-788119

         3: MD. RAHIM UDDIN LASKAR
          S/O LATE HARUN RASHID LASKAR
          KHALASI
          DILCHAR PHE- DIVISION-I
          DOJ-08.07.7987
          R/O VILL- WEST JARAILTALA
          P.O.-JARAILTALA BAZAR
          DIST- CACHAR
         ASSAM
          PIN-788127

         4: MURLIDHAR YADAV
          S/O LATE BIMAL GOALA
          KHALASI
         VILL AND P.O.-CHHOTA MAMDA
          DIST-CACHAR
         ASSAM
          PIN-788126
                                      Page No.# 2/12

5: ASHU TANTI
 S/O LATE NAKUL TANTI
 KHALASI
 DIVISION-II SILCHAR
VILL AND P.O.-DEWAN T.E.
 DIST-CACHAR
ASSAM
 PIN-788802

6: BIDHAN LASKAR
 S/O LATE BHANU KUMAR LASKAR
 KHALASI
 R/O CHANDRAPUR
 P.O.-BHAKATPUR
 DIST-CACHAR
ASSAM
 PIN-788005

7: MD. ARJU RAHMAN BARBHUIYA
 S/O LATE SAFIQUR RAHMAN BARBHUIYA
 KHALASI
VILL-BERENGA PART-I
 P.O.-BERENGA
 DIST-CACHAR
ASSAM
 PIN-788005

8: SANJIB DAS
 S/O LATE SUKHAMOY DAS
 KHALASI
 R/O NATIONAL HIGHWAY
 NEAR NP BHAWAN
 P.O.-KALPANA TRADING
 SILCHAR
 DIST- CACHAR
ASSAM
 PIN-788005

9: BANIPADA SARMACHARJEE
 S/O LATE RAMESH CH SARMACHARJEE
 KHALASI
 R/O TARAPUR E AND D COLONY
 SHIBBARI ROAD
 SILCHAR
 DIST-CACHAR
ASSAM
 PIN-788003
                                  Page No.# 3/12

10: SMTI TAPASHI BHATTACHARJEE
W/O LATE SAMUAL KASHYAP
 KHALASI
 CHENCOORI ROAD
 MADHYASHREE LANE
 BYE LANE NO.1
 HOUSE NO. 29
 SILCHAR
 DIST- CACHAR
ASSAM
 PIN-788004

11: MANGAL CHANDRA DAS
 S/O LATE ISHAN CHANDRA DAS
 R/O KHELMA PART-III
 P.O.-SADIRKHAL
 DIST- CACHAR
ASSAM
 PIN-788815

12: DIPAK KUMAR DEB
 S/O LATE GOPAL CHANDRA DEB
 KHALASI
 RONGPUR
 SHANTIPARA
WARD NO. 5
 SILCHAR
 CACHAR
ASSAM
 PIN-788009

13: RATHINDRA CHANDRA ROY
 S/O LATE SASHINDRA CH ROY
 KHALASI
 R/O KHELMA PART-I
 P.O.-GUMRAH BAZAR
 DIST-CACHAR
ASSAM
 PIN-788815

14: GURU CHARAN KURMI
 S/O LATE GOPAL KURMI
 KHALASI
 R/O ASHRAM ROAD
 BILPAR
 P.O.-RANGIRKHARI
 SILCHAR
 DIST-CACHAR
                                     Page No.# 4/12

ASSAM
PIN-788005

15: MD. ZAKIR HUSSAIN LASKAR
 S/O LATE HAZI ABDUL LATIF LASKAR
 KHALASI
 R/O VILL- KRISHNAPUR
 NIJJOYNAGAR
 P.O.-KRISHNAPUR
 DIST- CACHAR
ASSAM
 PIN-788126

16: NILKANTA ROY
 S/O LATE BROJENDRA ROY
 KHALASI
 R/O VILL-KALINAGAR PART-I
 P.O.-DALU
 DIST- CACHAR
ASSAM
 PIN-788101

17: SAMSUL ALOM BARBHUIYA
 S/O SIRAJ UDDIN BARBHUIYA
 R/O VILL- NIZ LEVERPUTA
 P.O.-SADIRKHAL
 DIST- CACHAR
ASSAM
 PIN-788815

18: BIDYADHAR HAZAM
 S/O LATE RAM SWARUP HAZAM
 KHALASI
 R/O VILL AND P.O.-CHOTOJALENGA
 DIST- CACHAR
ASSAM
 PIN-788014

19: MEHBUB HUSSAIN BARBHUIYA
 S/O LATE MATHIR ALI BARBHUIYA
 KHALASI
 R/O VILL-GANIRGRAM
 P.O.-MOHADPUR
 DIST-CACHAR
ASSAM
 PIN-788025

20: SWAPAN CHANDRA ROY
                                           Page No.# 5/12

S/O LATE SUDHIR CHANDRA ROY
R/O VILL AND P.O.-CHUTTAJALENGA PART-II
DIST-CACHAR
ASSAM
PIN-788014

21: MD. BILAL UDDIN LASKAR
 S/O LATE ARBESH ALI LASKAR
 KHALASI
 R/O VILL AND P.O.-CHANDRAPUR
 DIST-CACHAR
ASSAM
 PIN-788001

22: NAZRUL HOQUE BARBHUIYA
 S/O SUNAHAR ALI BARBHUIYA
 KHALASI
VILL-BURIBAIL PART-I
 P.O.-GONIRGRAM
 CACHAR
ASSAM
 PIN-788025

23: L NILMOHAN SINGHA
 S/O LATE GOBINDA SINGH
 KHALASI
 R/O VILL- SUNDARI PART-III
 P.O.-SUNDARI
 DIST- CACHAR
ASSAM
 PIN-788001

24: MD. AKBAR HUSSAIN MAZUMDER
 S/O LATE FAIZUL BARI MAZUMDER
 KHALASI
 R/O BERENGA PART-I
 P.O.-BERENGA PART-II
 DIST-CACHAR
ASSAM
 PIN-788005

25: SUJIT CHANDRA DAS
 S/O LATE SUNESH CHANDRA DAS
 KHALASHI
 R/O VILL- TULARGRAM PART-II
 P.O.-SONAIMUKH
 DIST- CACHAR
ASSAM
                                                        Page No.# 6/12

PIN-788001

26: BROJESWAR NATH
 S/O LATE BROJENDRA CHANDRA NATH
 KHALASI
 R/O VILL- SALGANGAR PAR
 P.O.-NORSHINGPUR
 DIST- CACHAR
ASSAM
 PIN-788115

27: MD. SALIM UDDIN LASKAR
 LATE KHALIL UDDIN LASKAR
 KHALASHI
 R/O VILL- DAKHAIN MEHERPUR PART-VII
 P.O.-DAKHIN MEHERPUR
 DIST- CACHAR
ASSAM
 PIN-788014

28: MD. AMADUL HAQUE CHOUDHURY
 S/O LATE SIDDQUE AHMED CHOUDHURY
 KHALASI
 R/O SARALKHA ROAD
WARD NO. 2
 P.O.-SETTLEMENT ROAD
 MAIZDHI
 DIST-KARIMGANJ
 PIN-788712. PETITIONER NO. 28 HAS COMMON ADDRESS OF
CORRESPONDENCE C/O SRI BIMAL CHANDRA DAS
VILL- NETAJI PALLI TULARGRAM PART-II
 P.O.-SONAIMUKH
 DIST- CACHAR
ASSAM
 PIN-78811

VERSUS

THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPARTMENT OF PUBLIC HEALTH ENGINEERING, ASSAM
CIVIL SECRETARIAT, DISPUR, GUWAHATI, ASSAM, PIN-781006

2:THE CHIEF ENGINEER
 PUBLIC HEALTH ENGINEERING (WATER) ASSAM
 HENGRABARI
 GUWAHATI
ASSAM
                                   Page No.# 7/12

PIN-781036

3:TEH ADDITIONAL CHIEF ENGINEER
 PHE
 BARAK VALLEY ZONE
 SILCHAR
 GUNGUR
 DIST- CACHAR
ASSAM
 PIN-788014

4:THE SUPERINTENDING ENGINNER
 PHE
 CACHAR CIRCLE
 MEHERPUR
 SILCHAR
 CACHAR
ASSAM
 PIN-788014

5:THE SUPERINTENDING ENGINEER
 PHE
 HAILAKANDI CIRCLE
 HAILAKANDI
ASSAM

6:THE EXECUTIVE ENGINEER
 PUBLIC HEALTH ENGINEERING
 SILCHAR DIVISION-I
 HOSPITAL ROAD
 SILCHAR
 DIST-CACHAR
ASSAM
 PIN-788005

7:THE EXECUTIVE ENGINEER
 PUBLIC HEALTH ENGINEERING
 SILCHAR DIVISION-II
 SMC ROAD
 GHUNGOOR
 SILCHAR
 DIST-CACHAR
ASSAM
 PIN-788015

8:THE EXECUTIVE ENGINEER
 PUBLIC HEALTH ENGINEERING
 HAILAKANDI DIVISION
                                                                       Page No.# 8/12

             DIST-HAILAKANDI
             ASSAM

            9:THE EXECUTIVE ENGINEER
             PUBLIC HEALTH ENGINEERING
             KARIMGANJ DIVISION
             SETTLEMENT ROAD
             DIST-KARIMGANJ
            ASSA

Advocate for the Petitioner   : MR B D DAS

Advocate for the Respondent : SC, P H E




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

22.09.2023

1. No one appears for the petitioners, though Mr. A.K. Dutta, learned counsel for the petitioners had appeared in the morning, praying for adjournment of this case. The same was not allowed by this Court. Further in terms of the Notification dated 20.02.2023 issued by the Gauhati High Court, adjournment requests are to be submitted one day in advance along with No Objection endorsement from the opposite party, which has not been done. Ms. M. Kalita, learned counsel appears for all the respondents.

2. The petitioners' case is that they were initially engaged as Khalasis/Peon in the Public Health Engineering Department on Muster Roll basis. Thereafter the petitioners' services were regularized by the Government.. The counsel Mr. A.K. Dutta had been asked by this Court in the morning, as to whether the regularisation of the services of the petitioners had been made personal to their Page No.# 9/12

post, to which he had replied in the affirmative. However, the petitioners have not annexed any order showing regularisation of their service. The Office Memo No. EC(I)452/99 dated 28.12.1999 issued by the Secretary to the Government of Assam, Finance Department (Page-73) and the Office Order No.130/2003- 2004 (Page-81) issued by the Executive Engineer (PHE), Silchar Division No.II, Silchar shows that the regularisation of Muster Roll Workers had been done against posts made personal to them and that the posts would be abolished with the cessation of their services.

3. The prayer of petitioners herein is that they may be promoted to Grade- III post.

4. Ms. M. Kalita, learned counsel for the PHE Department submits that in terms of the Division Bench judgment of this Court passed in Dilip Talukdar & Others vs. State of Assam & Others, reported in 2017 (2) GLT 135, the petitioners cannot be promoted to a Grade-III post, as the posts held by the petitioners are ex-cadre post. She submits that the fact situation in the above case of Dilip Talukdar (supra) is similar to the fact situation in this case.

5. The present issue has already been decided by this Court in WP(C) Nos. 2416/2014, 3116/2014 and 4254/2014. The petitioners, who were regularized Muster Roll/Work charge workers in the WaterResource Department, Govt. of Assam filed WP(C) 2416/2014 (Sri Dilip Talukdar and 21 Others vs State of Assam and 5 Others) where they challenged their reversion to their original posts after being promoted. WP(C) 2416/2014 was disposed off by a Co-

Page No.# 10/12

ordinate Bench of this Court on 16.03.2015, holding that when regularization of a Grade-IV Muster Roll/Work-charge worker has been done against a personal post, the post held by those persons would be outside the cadre of Grade-IV post, i.e., an ex-cadre post. Unless a person who is holding an ex-cadrepost is en-cadred into a cadre post, which is a feeder cadreto a higher cadre post, the person holding the personal postcannot be promoted to a higher cadre post. This Court thereafter dismissed the writ petition filed by the petitioners.

WP(C) No. 3116/2014 was with regard to the claim of thepetitioners therein for promotion from Grade-IV post to the post of Section Assistant, which is a Grade-III post.The petitioners who were in the Water ResourceDepartment, Govt. of Assam had been regularized againstposts which were made personal to them and which were to be abolished as soon as the incumbent relinquished the post in any manner. This Court, after having discussed the manner of regularization of the petitioners therein and keeping in view the Office order dated 25.11.2013, issued by the Commissioner & Special Secretary to the Govt. of Assam, Water Resource Department held that the petitioners were not entitled to promotion to the post of Section Assistant and as such, hadex- to be reverted back, as the post held by them were ex-cadre post and as such, they could not be promoted to aregular post.

6. Being aggrieved, the writ petitioners in WP(C) No.2416/2014 and WP(C) No. 3116/2014 thereafter filed appeals, vide W.A. No. 124/2015 & 111/2016 which is reported in 2017 2(GLT)135,"Dilip Talukdar & Others v.State of Assam & Others."

The Division Bench dismissed the appeals on the ground that a claim for promotion from a person holding an ex- cadre post was not legally tenable.

Page No.# 11/12

The Division Bench held that promotion in the Department can be considered only from eligible employees in the feeder cadre post and the writ petitioners being outside the cadre, they could not have any enforceable rights for promotion, particularly when the regularization order itself stipulates that they are regularized in a post personal to them. The extract of the order passed by the Division Bench in the case of DilipTalukdar and 21 Others, 2017(2) GLT 135,which is at paragraph 12 is re-produced below:

"12. We have seen the reasons recorded by the learned Judge for the impugned verdict and find that the posts against which the writ petitioners were regularized were never added to the notified cadre in the department. Yet no plea was advanced for en-cadrement of the posts held by the affected parties. The promotion in the department can be considered only from the eligible employees in the feeder cadre and the writ petitioner being outside of the cadre, cannot have any enforceable right to claim promotion, particularly when, the regularization. order itself stipulates that they are regularized in posts personal to them. Such temporary creation of post cannot automatically add to the cadre strength of the department and claim for promotion from a person holding an ex- cadre post, is not legally tenable. Therefore we see no basis to take a different view in the matter than the one taken by the learned Single Judge, in dismissing the cases".

7. Thus, in Dilip Talukdar (supra), the Division Bench of this Court has held that promotion to a higher rank can be considered only from the feeder cadre and not from an ex-cadre post. In the case before me, I find that the petitioners who are Muster Roll Workers have had their services regularized against posts, which were made personal to them, similar to the fact situation in the case of Dilip Talukdar (supra).

Page No.# 12/12

8. In view of the present case being a covered case, in terms of the judgment of this Court and the Division Bench of this Court in Dilip Talukdar (supra), the petitioners who are holding ex-cadre posts, cannot be considered for promotion to Grade-III cadre post. Accordingly, there being no merit in the writ petition, the same is dismissed.

JUDGE

Comparing Assistant