Page No.# 1/ vs The State Of Assam And 4 Ors
2025 Latest Caselaw 2820 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 4 Ors on 4 February, 2025

Page No.# 1/11

GAHC010133422021




                                                             2025:GAU-AS:1202

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

                          Case No. : WP(C)/4321/2021

            KAMALI BARO @ KAMALI BORO
            W/O LATE RABIN BARO @ RABIN BORO
            VILLAGE SURADI AKHRA, PO SURADI, DIST NALBARI, ASSAM, 781340



            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REPRESENTED BY THE COMMISSIONER AND SPECIAL SECRETARY TO
            THE GOVT. OF ASSAM, PUBLIC WORKS (ROADS) DEPARTMENT, ASSAM
            SECRETARIAT, DISPUR, GUWAHATI 781006, ASSAM

            2:CHIEF ENGINEER

            PUBLIC WORKS DEPARTMENT(ROADS) CHANDMARI
            GUWAHATI 781003
            ASSAM

            3:EXECUTIVE ENGINEER

             PUBLIC WORKS DEPARTMENT
             NALBARI DISTRICT TERRITORIAL ROAD DIVISION
             NALBARI
             781335
            (EARLIER KNOWN AS EXECUTIVE ENGINEER PUBLIC WORKS
            DEPARTMENT
             NALBARI ROAD DIVISION NALBARI)

            4:ASSISTANT EXECUTIVE ENGINEER

             PUBLIC WORKS DEPARTMENT DHARMAPUR TERRITORIAL SUB
            DIVISION AT CHAMATA 781306
            (EARLIER KNOWN AS ASSTT. EXECUTIVE ENGINEER
 Page No.# 2/11

             PUBLIC WORKS DEPARTMENT CHAMATA RURAL ROAD SUB DIVISION)

            5:PRINCIPAL SECRETARY
            TO THE GOVT. OF ASSAM
             FINANCE DEPARTMENT
            ASSAM SECRETARIAT
             DISPUR
             GUWAHATI 78100

Advocate for the Petitioner   : MR. N K KALITA, MR. R D BHUYAN,MS E B GOGOI

Advocate for the Respondent : SC, PWD, SC, FINANCE

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral) Date : 04.02.2025

Heard Mr. N. K. Kalita, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Standing Counsel, PWD (Roads) representing the respondent nos. 1, 3 & 4 and Mr. P. Nayak, learned Standing Counsel, appearing for the respondent nos. 2 & 5.

2. The petitioner, by way of instituting the present proceeding has prayed for a direction upon the respondent authorities to release to her family pension and other pensionary benefits, by treating the Muster Roll services, rendered by her husband, to have been regularized.

3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under:-

The husband of the petitioner was engaged as a Muster Roll worker in the establishment of the Executive Engineer, PWD (Roads), Nalbari, vide an order dated 11.03.1987. Such engagement of the petitioner was so made pursuant to a vacancy caused due to the death of his father-in-law.

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It is projected in the writ petition that the services of the petitioner was regularized by the respondent authorities, vide an order dated 07.10.2005 and it is projected that in the list of Muster Roll workers so regularized, the name of the husband of the petitioner figured at Serial No. 63. The husband of the petitioner, in pursuance to his services being regularized, was being paid his remunerations in the regular scale of pay. However, on account of the fact that the respondent authorities had come to a conclusion that the services of the husband of the petitioner was not regularized vide the order dated 07.10.2005; but, it was the services of one Rabin Boro, son of Tumbha Boro, who was so regularized, the pay of the petitioner in the regular scale of pay was stopped and he was reverted as a Muster Roll worker and was receiving his wages in the said capacity.

It is projected in the writ petition that the respondent no. 3 had made communications with the respondent authorities for continuation of the husband of the petitioner in his service as a regularized Muster Roll worker; however, the same was not considered by the departmental authorities. Subsequently, the husband of the petitioner died in harness on 07.12.2018. On account of the fact that the service of the husband of the petitioner was held to have been not regularized, the petitioner has been denied her family pension and other pensionary benefits pursuant to the death of her husband, in harness.

The approaches made by the petitioner before the respondent authorities for releasing to her family pension and other pensionary benefits having not evoked any response, the petitioner has instituted the present proceeding.

4. Mr. N. K. Kalita, learned counsel for the petitioner, by reiterating the facts noticed herein above, by referring to a report submitted in the matter by the respondent no. 3 on 19.09.2013, contended that in the establishment of the respondent no. 3, there were three Muster Roll workers engaged prior to 01.04.1993 having the identical name 'Rabin Boro'. The name of the husband of Page No.# 4/11

the petitioner was reflected in the said communication as being son of 'Medo Boro'. It is further contended that the said report, further proceeds to hold that the services of one 'Rabin Boro' son of 'Tumbha Boro' was not included in the proposal put up for regularization of services of Muster Roll workers engaged under the respondent no. 3. However, pursuant to his death, it had come to light that against the same post, two persons were drawing their salaries. It was further highlighted by the learned counsel for the petitioner that as per the said report, it was the services of the husband of the petitioner, who was then working under Chamata Rural Road Sub-Division, which was regularized against Serial No. 63 of the list as appended to the order dated 07.10.2005. It was further contended that the report highlights the name of the husband of the petitioner was deleted from the list of regularized Muster Roll worker on account of a mistake occasioning in the matter.

5. Mr. Kalita, learned counsel for the petitioner, submits that in view of the contentions so made in the said report of the respondent no. 3 dated 19.09.2013, there would exist no further doubt as to the fact that it was the services of the husband of the petitioner, which was regularized and not that of the other 'Rabin Boro' son of 'Tumbha Boro'. Mr. Kalita, in view of the above position, submits that the husband of the petitioner was entitled to draw his salary in the regular scale of pay till the date of his death and thereafter, the petitioner herein, was entitled to draw family pension and pensionary benefits.

6. Per contra, Mr. R. Dhar, learned Standing Counsel, PWD, submits that under the respondent no. 3, there were three Muster Roll workers having identical name "Rabin Boro". Mr. Dhar, submits that the date of engagement of all the three Muster Roll workers having identical name "Rabin Boro", were different. Mr. Dhar, by referring to the date of appointment of 'Rabin Boro' son of 'Tumbha Boro', which is contended to be on 11.09.1987, has submitted that in the list of Muster Page No.# 5/11

Roll workers regularized vide order dated 07.10.2005, at Serial No. 63, it is the name of 'Rabin Boro' son of 'Tumbha Boro', which finds mention and not that of the husband of the petitioner, herein, who was so engaged on 11.03.1987. Accordingly, it is submitted that the services of the husband of the petitioner was not regularized vide the order dated 07.10.2005. It is further submitted that vide the order dated 07.10.2005, services of two Muster Roll workers having the same name 'Rabin Boro', came to be so regularized and their names were so placed at Serial No. 63 and 157 of the list annexed to the order dated 07.10.2005.

7. Mr. Dhar, learned Standing Counsel, in response to the queries raised by this Court as to how the identity of the persons having the identical name 'Rabin Boro', whose names find mention in the list annexed to the order dated 07.10.2005 can be determined, has contended that the said persons having the identical name 'Rabin Boro' were identified with reference to the dates of their respective engagement, which has been given against their names in the said list appended to the order dated 07.10.2005. By referring to the list, more particularly, the name at Serial No. 63 and 157, Mr. Dhar has contended that the date of engagement of the persons having similar name 'Rabin Boro', so finding mention in the said list, happens to be 01.09.1987 and 09.05.1990. The date of engagement of the husband of the petitioner is contended to be 11.03.1987. Accordingly, it is submitted by Mr. Dhar, learned counsel that the name of the husband of the petitioner did not find mention in the list so annexed to the order dated 07.10.2005; and accordingly, it cannot be deemed that the services of the husband of the petitioner was so regularized along with other Muster Roll workers so working under the establishment of the respondent no. 3.

8. Mr. Dhar, learned Standing Counsel, with regard to the report so submitted by the respondent no. 3 dated 19.09.2013, has submitted that the said report, on examination, was found to have not highlighted the actual facts and accordingly, Page No.# 6/11

the same was not accepted by the departmental authorities. It is submitted that the husband of the petitioner was treated as a regularized employee, however, on detection of the fact that his services were not so regularized, the respondent authorities, vide communication dated 04.07.2016, directed that the payment of wages/remuneration of the husband of the petitioner would be at the rate admissible to a non-regularized Muster Roll worker. It is submitted by Mr. Dhar, the said communication dated 04.07.2016 was implemented in the case of the husband of the petitioner; however, he had during his lifetime not disputed the said position. In view of the above position, Mr. Dhar, learned Standing Counsel submits that the reliefs claimed by the petitioner in the present writ petition would not call for a consideration by this Court.

9. Mr. P. Nayak, learned Standing Counsel PWD, by referring to the affidavit filed in the matter by the respondent no. 2 has submitted that in pursuance to the directions passed by this Court vide order dated 12.01.2024, on enquiry, it was revealed that the husband of the petitioner had submitted three numbers of birth certificates and in all the said certificates, the name of the father of the husband of the petitioner was so recorded as 'Medo Boro'. It is submitted by Mr. Nayak, learned counsel that in the writ petition, the petitioner has projected the father of her husband to be one 'Matiram Boro'. Accordingly, it is submitted that existence of the husband of the petitioner, who is actually the son of 'Matiram Boro', does not find mention in the records of the department as a Muster Roll worker. The husband of the petitioner, in his service records, was known as the son of 'Medo Boro', who actually was his father-in-law. Mr. Nayak, has submitted that in view of the materials available on record, disputed questions of fact having come to the forefront, this Court would be pleased not to entertain the present writ petition.

10. I have heard the learned counsels appearing for the parties and also Page No.# 7/11

perused the materials available on record.

11. The petitioner, in the writ petition had projected that her husband was the son of late 'Matiram Boro'. The husband of the petitioner admittedly, was engaged as a Muster Roll worker in pursuance to the death of his father-in-law 'Medo Boro', vide an order dated 11.03.1987. The date of engagement of the husband of the petitioner as a Muster Roll worker is not disputed by the parties to the proceeding. It is seen that the respondent authorities, in pursuance to a policy so framed in the matter had taken up the cases of Muster Roll workers, working in the establishment of the respondent no. 3 for regularization of their services. Accordingly, the names of Muster Roll workers found eligible for having their services regularized being approved by the Government in the PWD, the respondent no. 3 vide order dated 07.10.2005, proceeded to regularize the services of all such Muster Roll workers found eligible for regularization of their services. The names of the Muster Roll workers, regularized in their services vide the said order dated 07.10.2005, figures in a list so annexed to the said order dated 07.10.2005.

12. A perusal of the said list would reveal that there exist two Muster Roll workers having the identical name 'Rabin Boro', whose services were so regularised. The first of such person with the name 'Rabin Boro' figures at Serial No. 63 and his date of joining in the department has been reflected against his name as '01.09.1987'. The second person with the same name 'Rabin Boro' figures at Serial No. 157 of the said list and his date of joining in the department has been reflected as '19.05.1990'.

13. As noticed herein above, the date of initial engagement of the husband of the petitioner as a Muster Roll worker in the department was on 11.03.1987. It is seen from the materials brought on record that the services of the husband of the petitioner was also held to be regularized in terms of the said order dated Page No.# 8/11

07.10.2005 and his service book was also opened. A copy of the service book has been brought on record by the petitioner and therein, it is seen that the name of the father of the husband of the petitioner was recorded as late 'Medo Boro' and the husband of the petitioner was being authorized his pay and allowances in the regular scale of pay. However, it is seen that pursuant to the death of one 'Rabin Boro' son of 'Tumbha Boro', whose services was also regularized in terms of the order dated 07.10.2005, it was detected that against the said single post, two persons were drawing salaries. Accordingly, on detection of the said anomaly, the respondent no. 3 submitted a report on 19.09.2013 before the respondent no. 2 and therein, projected that 'Rabin Boro' son of 'Tumbha Boro' was not included in the list of Muster Roll workers as put up for regularization of their services and it was the name of only the husband of the petitioner and one 'Rabin Boro' son of 'Nabin Boro', which were so put up before the departmental authorities for regularization of their services. It is further submitted that the person figuring at Serial No. 63 of the list of regularized Muster Roll worker as annexed to the order dated 07.10.2005, was the husband of the petitioner herein. Accordingly, it was requested in the said report that the annual retention in respect of the husband of the petitioner be issued, facilitating him to continue enjoy the benefits of regularization of his services.

14. It is seen from the materials brought on record that the said report as submitted by the respondent no. 3 was, on examination, rejected by the departmental authorities. The departmental authorities, in the present proceeding has contended that the identification of the persons whose names have been included in the list of Muster Roll workers annexed to the order dated 07.10.2005 is so made by referring to the dates of their respective engagement as set out against their respective names in the said list. It is contended that the persons with the name 'Rabin Boro', figuring in Serial No. 63 of the said list, was shown to have been engaged as a Muster Roll worker w.e.f., 01.09.1987. Basing on the Page No.# 9/11

said data, it is being projected that the husband of the petitioner having not being so engaged w.e.f., 01.09.1987, but being so engaged w.e.f., 11.03.1987, it cannot be held that it is the name of the husband of the petitioner that figures at Serial No. 63 of the said list. Accordingly, it is contended in the present proceeding by the departmental authorities that the husband of the petitioner was treated as a regularized employee on a mistaken notion of the matter.

15. Given the projections so made by the departmental authorities in the matter and also given the yardstick applied i.e., the date of engagement, for identification of the persons so included in the list of Muster Roll workers whose services were regularized vide the order dated 07.10.2005, this Court, cannot proceed to hold that the said yardstick so applied is erroneous.

16. Accordingly, by applying the said yardstick i.e., the date of engagement in the department, it cannot be concluded that it is the name of the husband of the petitioner which is included at Serial No. 63 of the list of regularised Muster Roll workers, annexed with the order dated 07.10.2005.

17. It is projected in the writ petition that the husband of the petitioner was reverted as a Muster Roll worker sometime in the year 2013; however, it is found that the husband of the petitioner had not instituted proceedings, assailing such action on the part of the respondent authorities till his death. A writ petition although contended to have been filed, the same was withdrawn. Accordingly, the steps taken by the departmental authorities in respect of the husband of the petitioner not having been assailed and the same being permitted to hold the field till the date of death of the husband of the petitioner, the petitioner herein, now cannot be permitted to assail the said position, more so, when the contentions raised by the petitioner and the respondent authorities give rise to disputed questions of fact.

18. One further thing which comes to the notice of this Court is that in the Page No.# 10/11

service record of the husband of the petitioner, he has been stated to be the son of one late 'Medo Boro', and the said position, continued to hold the field till the preparation of his service records. It was only in the year 2014 that the respondent no. 3 vide a communication dated 15.09.2014, had directed the respondent no. 2 to carry out an enquiry in view of the fact that in the school certificates as produced by the husband of the petitioner, the name of his father was recorded as 'Medo Boro', however, in the order by which he was so initially engaged as a Muster Roll worker, it was seen that 'Medo Boro' was his father-in- law. The said position continued to hold the field till the date of death of the husband of the petitioner. The above position is further evident from the affidavit filed in the matter by the respondent no. 2, wherein the various school certificates produced by the husband of the petitioner was brought on record.

19. A perusal of the said school records goes to reveal that the name of the father of the husband of the petitioner was recorded therein, as late 'Medo Boro'. Accordingly, a dispute also arises as to whether; it is the husband of the petitioner who is the son of 'Matiram Boro', was actually working as a Muster Roll worker in the establishment of the respondent no. 3. However, in view of the conclusions reached by this Court herein above, that the services of the husband of the petitioner was not regularized and it was the services of one 'Rabin Boro' son of 'Tumbha Boro', which were so regularized vide the order dated 07.10.2005, this Court would not proceed further to examine the contentions so raised by the respondent authorities with regard to the name of the father of the husband of the petitioner, recorded in his school certificates.

20. At this stage, it is to be noted that although the husband of the petitioner was projected to be engaged as a Muster Roll worker prior to 01.04.1993, his services not having been regularized, even if the disputed questions of fact coming to the forefront in the matter is ignored, no direction at this stage can be Page No.# 11/11

issued for grant of ex-post facto approval for regularization of the services of the husband of the petitioner.

21. In view of the conclusions reached herein above by this Court and also considering that disputed questions of fact has come to the forefront, this Court is of the considered view that the writ petition is devoid of any merit and accordingly, the same stands dismissed. However, there would be no order as to costs.

JUDGE

Comparing Assistant