Abdul Jalil vs The State Of Assam And 3 Ors
2025 Latest Caselaw 3171 Gua

Gauhati High Court

Abdul Jalil vs The State Of Assam And 3 Ors on 14 February, 2025

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GAHC010004412014




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

                           Case No. : WP(C)/90/2014

         ABDUL JALIL
         S/O LT. SOBAHAN ALI KHAN, VILL. and P.O. JOYBHUM, P.S. GOALPARA, AT
         PRESENT WORKING AS CASUAL MUSTER ROLL WORKDER KHALASI AT
         JOYBHUM WATER SUPPLY SCHEME UNDER RESPONDENT NO.4, DIST-

GOALPARA

VERSUS

THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF PHED, DISPUR, GHY-6

2:THE SECRETARY TO THE GOVT. OF ASSAM PHED DISPUR GHY-6

3:THE CHIEF ENGINEER PHE ASSAM GHY-36

4:THE EXECUTIVE ENGINEER PHE GOALPARA DIVISION GOALPARA

5:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM

FINANCE DEPARTMENT DISPUR Page No.# 2/11

GUWAHAT

Advocate for the Petitioner : MR.A ROSHID, MR.A MOBARAQUE

Advocate for the Respondent : GA, ASSAM, SC, P H E,MR. P N GOSWAMI

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral)

Date : 14.02.2025

Heard Mr. A. Roshid, learned counsel for the petitioner. Also heard Mr. R. R. Gogoi, learned Standing counsel for the Public Health Engineering Department, representing the respondent nos. 1 to 4 and Mr. P. Nayak, learned Standing Counsel, Finance Department, representing the respondent no. 5.

2. The petitioner, by way of instituting the present proceeding, has assailed a communication dated 10.02.2006, by which the regularization of his services came to be cancelled. The petitioner has also presented a challenge to a Speaking Order dated 29.10.2013, by which the claim of the petitioner for being continued as a regularized employee, came to be rejected.

3. The petitioner, herein, was initially engaged as a Muster Roll Workerin the month of July, 1985, in the establishment of the Executive Engineer, PHE, Goalpara Division, i.e. the respondent No. 4. The petitioner contends that he was working regularly in the said capacity up to November, 1988. The petitioner, thereafter, was involved in a Criminal case, which was so instituted against him on 12.10.1988. The police, on completion of the investigation, had submitted a Charge-sheet in the matter and the case was registered as Sessions Case No. 2(G)/1990, under Sections 148/302 of the IPC. On completion of the trial of the matter, the learned Sessions Judge, Goalpara, vide Judgment dated 30.08.1993, proceeded to hold the Page No.# 3/11

petitioner to be not guilty of the charge so framed against him and proceeded to acquit him from the same. After acquittal of the petitioner from the said case, he, after a long lapse of time, submitted a representation dated 03.03.2002, before the respondent no. 4 praying for his engagement as a Muster Roll Worker. The respondent no. 4, vide his communication dated 13.03.2002, directed the Assistant Executive Engineer, PHE, Goalpara Sub-Division Goalpara, to engage the petitioner as a Muster Roll Worker with immediate effect.

4. The State respondents having formulated a scheme for regularization of the services of Muster Roll Workers engaged prior to 01.04.1993, the case of the petitioner was also considered for regularization of his services. Thereafter, the services of the petitioner came to be so regularized vide an order dated 15.10.2005 as a Khalasi Grade-IV w.e.f. 22.07.2005, issued by the respondent no.

4. In the list of Muster Roll Workers so regularized, the name of the petitioner figured at Serial No. 82. On regularization of the services of the petitioner, he was extended with the benefits so available to a regular employee. Thereafter, the Finance Department, on a re-scrutiny made of the service particulars of the Muster Roll Worker/Work Charged Employees regularized in their services, proceeded to hold that the services of the petitioner was not mandated to be so regularized inasmuch as, the petitioner herein, was not in continuous engagement as a Muster Roll Worker since the date of his initial engagement. Accordingly, vide a communication dated 10.02.2006, the regularization so effected in case of the petitioner and other similarly situated persons were directed to be cancelled and they were required to be continued as Muster Roll Workers.

5. The petitioner, being aggrieved by the cancellation of his regularization of services, approached this Court by way of instituting a writ petition being WP(C) No. 3641/2007. This Court, vide order dated 31.05.2013, on noticing the issues arising in the matter, was pleased to dispose of the said writ petition with a Page No.# 4/11

direction to the petitioner to file a fresh representation before the Commissioner & Secretary to the Govt. of Assam, Finance Department as well as to the Commissioner & Secretary to the Govt. of Assam, Public Health Engineering Department. The said authorities were also directed to dispose of the representations submitted by the petitioner by way of issuing a Speaking Order. Thereafter, the petitioner, in terms of the directions passed by this Court vide the said order dated 31.05.2013, submitted a representation dated 28.10.2013, before the respondent authorities. The said representation submitted by the petitioner was considered and the Commissioner & Secretary to the Govt. of Assam, Finance Department vide a Speaking Order dated 29.10.2013, proceeded to reject the claim of the petitioner so made therein. Being aggrieved, the petitioner has instituted the present proceeding.

6. Mr. A. Roshid, learned counsel for the petitioner has submitted that the petitioner was initially engaged as a Muster Roll Worker w.e.f. July, 1995. Although the petitioner was not rendering services as a Muster Roll Worker after November, 1988, on account of the fact that he was involved in a criminal case, however, the petitioner being acquitted from the charges so framed against him in the said criminal case by the learned Trial Court, vide Judgment dated 30.08.1993, the said period of engagement of the petitioner would be required to be considered to be continuous for the purpose of considering his case for regularization of his services. Mr. Roshid, had further submitted that the respondent authorities, on considering the service particulars of the petitioner were pleased to regularise his services as a Khalasi, vide issuance of an order dated 15.10.2005. Mr. Roshid, learned counsel has further submitted that the petitioner on his acquittal in the said criminal proceeding so instituted against him, had approached the respondent no. 4 for praying for re-engagement in his services. The respondent no. 4, on considering the prayer so made by the petitioner was pleased to direct for his re- engagement as a Muster Roll Worker. Accordingly, Mr. Roshid, submits that the re-

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engagement of the petitioner coupled with the fact that he was acquitted in the criminal case so instituted against him, the period during which he was not in a position to discharge his duties, would be required to be condoned and reckoned for the purpose of regularization of his services. Mr. Roshid, learned counsel has further submitted that the respondent authorities, on a detailed examination of the service particulars of the petitioner had approved the name of the petitioner for regularization of his services and accordingly, vide the order dated 15.10.2005, the services of the petitioner was regularized by the respondent no. 4 as a Khalasi (Grade-IV). Mr. Roshid, has submitted that the respondent authorities having allowed the re-engagement of the petitioner as a Muster Roll Worker w.e.f. 13.03.2002 and considering the fact that the petitioner was prevented from discharging his duties on account of the fact that he was involved in a criminal case, the respondent authorities could not have thereafter, basing on the same materials, arrived at a conclusion that the petitioner's engagement as a Muster Roll Worker being not continuous, he would not be entitled to have his services regularized and accordingly, proceeded to cancel the regularization so effected in respect of the petitioner herein. Mr. Roshid, has further submitted that the Speaking Order dated 29.10.2013, does not appreciate the facts and circumstances so existing in the case of the petitioner in a proper perspective and has proceeded to uphold the cancellation of the regularization of the petitioner on an assumption that the petitioner had willfully remained away from his duties as a Muster Roll Worker.

7. Per contra, Mr. P. Nayak, learned Standing Counsel representing the respondent no. 5 has submitted that the petitioner had not discharged his duties as a Muster Roll Worker w.e.f. November, 1988 to 13.03.2002 without any intimation to the departmental authorities. It is further submitted that the petitioner was acquitted from the criminal case so instituted against him by the Trial Court vide the Judgment and Order dated 30.08.1993. It is submitted that Page No.# 6/11

after his acquittal, the petitioner had approached the respondent no. 4 after prolonged delay, praying for re-engagement as a Muster Roll Worker by way preferring the representation dated 03.03.2002. It is submitted that the absence of the petitioner w.e.f. 01.09.1993 till 03.03.2002 has not been explained by the petitioner and the said period of absence by the petitioner cannot be contended by the petitioner to be on account of the criminal case so instituted against him. Mr. Nayak, learned Standing Counsel in the above premises has submitted that it cannot be held that the petitioner was in continuous engagement as a Muster Roll Worker in the establishment of the respondent no. 4 and accordingly, his case was not called upon to be so considered for regularization. Mr. Nayak, learned Standing Counsel by referring to the Speaking Order dated 29.10.2013, has submitted that, therein the reason assigned by the petitioner for his absence, was duly considered and after considering the same, the decision was so arrived at that the petitioner did not have continuous engagement as a Muster Roll Worker and accordingly, he was not eligible to be so considered for regularization in his services.

8. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

9. The petitioner herein was engaged as a Muster Roll Worker in the month of July, 1985 and continued in his services as a Muster Roll Worker till November, 1988. Thereafter, the petitioner had not attended his duties on account of the fact that he was involved in a criminal case, which was under trial. The Trial Court, on conclusion of the trial vide Judgement and Order dated 30.08.1993 had acquitted the petitioner from the charges so framed against him. W.e.f. November, 1988 till August, 1993, the absence of the petitioner from his engagement as a Muster Roll Worker can be justified on the ground of pendency of criminal case against him however, after being acquitted from the criminal charges vide the Judgment and Order dated 30.08.1993, there is no material brought on record to demonstrate Page No.# 7/11

that the petitioner had approached the respondent authority praying for re- engagement as a Muster Roll Worker. It is seen that the petitioner had approached the respondent no. 4 only by way of a representation dated 03.03.2002, praying for his re-engagement as a Muster Roll Worker. The said representation of the petitioner was favourably considered and the respondent no. 4 vide communication dated 13.03.2002, had directed for re-engagement of the petitioner.

11. It is also seen that in the writ petition, the petitioner had only contended that during the period w.e.f. November 1988 to 13.03.2002, he was not allowed to work on account of pendency of a criminal case however, the criminal case so instituted against the petitioner had concluded with his acquittal in the month of August, 1993. The petitioner, on an approach being made by him was re-engaged as a Muster Roll Worker w.e.f. 13.03.2002 and he was thereafter, working on continuous basis in the said capacity. In the year 2005, when the cases of similarly situated Muster Roll Worker/Work Charged Employee were considered for regularization of their services, the case of the petitioner was also so considered and on approval of the Government being received for his regularization, the respondent no. 4 vide order dated 15.10.2005, proceeded to regularize the petitioner in his services as a Khalasi (Grade-IV) w.e.f. 22.07.2005. The petitioner accordingly, joined his services as a regular Khalasi and was drawing his pay and allowances as authorized against the said post. However, it is seen that the Finance (EC-II) Department had carried out a review of the service particulars of the persons working at Muster Roll Worker/Work Charged Employee and whose services were regularized in the year 2005. On such re-verification of the service particulars, it was found that the petitioner did not have a continuous service as a Muster Roll Worker w.e.f. November 1988. The petitioner admittedly, having a gap in the service rendered by him as a Muster Roll Worker w.e.f. November, 1988 till 03.03.2002, the petitioner was held to be not entitled for having his such services regularized. Accordingly, regularization so effected in the case of the petitioner was Page No.# 8/11

cancelled and he was permitted to continue in his services as a Muster Roll Worker.

12. In pursuance to the directions passed by this Court, vide order dated 31.05.2013, in WP(C) No. 3641/2007, the Commissioner & Secretary to the Government of Assam, Finance Department, considered the representations so submitted in the matter by the petitioner. On consideration of the case of the petitioner vide a Speaking Order dated 29.10.2013, the claim of the petitioner for being continued as a Muster Roll Worker was rejected. The conclusions reached in the said Speaking Order dated 29.10.2013, being relevant is extracted herein below:-

"1. The petitioner Shri Abdul Jalil was under trial during the period November, 1988 to August, 1993 and he was acquitted from all charges holding not guilty vide Judgement dated 30.08.1993 of Learned Session Judge, Goalpara. Hence, the absence period from Nov. 1988 to Aug. 1993 in respect of the petitioner Abdul Jalil has been decided to be treated as on duty by Government for no fault of him.

2. The whereabout of the petitioner, Abdul Jalil from 30.8.1993 to 3.3.2002 were not known to the Government. The petitioner, Abdul Jalil did not make any correspondence with the Goalpara PHE Division, Goalpara during the period from 30.8.1993 to 3.3.2002. Petitioner himself has admitted his absence from 1998 to 2002 on the grounds of taking care of his father and this is not a justified ground for being absence from duty for such a long period from Aug. 1993 to March, 2002. Hence, it is hereby ordered not to treat the absence period from 30th August, 1993 to 13th March, 2002 as on duty in respect of the petitioner, Abdul Jalil.

3. Since the petitioner, Abdul Jalil, a Muster Roll worker was not in. continuous service since his engagement, it is hereby decided that his regularisation order. which was cancelled by Finance Department vide letter No.FEC (II) 61/2005/59, dated 10.2.2006 cannot be restored/revoked.

4. The petitioner, Abdul Jalil was re-engaged as muster Roll Labour with-effect from14.3.2002. Since he is not holding any sanctioned post and since he has not completed 10 years of continuous services as on 10.4.2006, he is not eligible for regularization in service in terms of Government decision communicated vide O.M. No. FEC (II) 49/2010/Pt/52, dated 27.6.2013 read with the orders of the Hon'ble Supreme Court of India in Uma Devi's case and in, M.L. Kesari's case mentioned above."

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13. A perusal of the conclusions so reached in the Speaking Order dated 29.10.2013, would go to show that reasons advanced by the petitioner for the period of his absence were duly considered. On such consideration, the respondent authorities held that the period of absence of the petitioner w.e.f. November 1988 till 30.08.1993 was on account of no fault on his part inasmuch as, there was a criminal case pending against him in the matter.

14. With regard to the period of absence of the petitioner w.e.f. 30.08.1993 till 03.03.2002, it was contended that the petitioner had justified his said period of absence only on the ground that he was taking care of his father. The said ground as assigned, was held to be unjustifiable and accordingly, the long period of absence from 30.08.1993 till 03.03.2002 was held to be not condonable. Basing on the said conclusions, it was held that the petitioner was not in continuous service as a Muster Roll Worker and accordingly, the cancellation of his regularization vide the communication dated 10.02.2006, would not be called to be revoked.On perusal of the said conclusions, this Court is of the considered view that the reasoning as assigned therein, to hold that the petitioner was not in continuous service as a Muster Roll Worker being not erroneous, would not call for any interference. Accordingly, the order dated 29.10.2013, in the considered view of this Court would not require any interference.

15. Having drawn the above conclusions that the petitioner was not in continuous engagement as a Muster Roll Worker and the period of his absence atleast w.e.f. 30.08.1993 to 03.03.2002, being not permissible to be condoned, the cancellation of the regularization of the services of the petitioner, would call for no interference.

16. The petitioner having been permitted to continue as a Muster Roll Worker, it has now to be examined as to the emoluments and service benefits that the petitioner would be required to be so authorized. The said aspect of the matter is Page No.# 10/11

no longer res integra and a Division Bench of this Court in the case of State of Assam Vs Upen Das, reported in (2017) 4 GLR 493 accepting the policy adopted by the State Government to not terminate the services of Muster Roll Worker/Work Charged Employees and similarly placed employees who have been working since the last more than 10 (ten) years (not in a sanctioned post) till their normal retirement, except on disciplinary ground or on the ground of commission of criminal offences, proceeded to direct the State Government to implement the said measures without further delay and further directed the State Government to pay the minimum of the pay scale to the Muster Roll Worker/Work Charged Employees and similarly situated employees working since more than 10 (ten) years (not in a sanctioned post) w.e.f. 01.08.2017. The conclusions so drawn by the Division Bench of this Court in Paragraph-22 of the decision in Upen Das (supra) being relevant is extracted herein below:-

"22. It is, however, heartening to learn that the State Government has agreed not toterminate the Muster Roll, Work Charged and similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State Government to implement the measures without further delay. Besides this, we, in the light of decision of the Supreme Court in State of Punjab v. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017."

17. Accordingly, applying the decision of this Court in the case of Upen Das(supra) to the facts of the present case, it is directed that the respondent authorities would now extend to the petitioner, the benefits so flowing from the Page No.# 11/11

said decision and he would be authorized with the minimum scale of pay w.e.f. 01.08.2017, inasmuch as, even if the engagement of the petitioner as a Muster Roll Worker is held to be effective from 13.03.2002, he had completed more than 10 years of service as on 01.08.2017 and would be entitled to the benefits so flowing from the decision of Division Bench of this Court in the case of Upen Das(supra).

18. In view of the above conclusions, while the prayer of the petitioner for being continued as a Regular employee is rejected, the respondent authorities are directed to extend to the petitioner the benefits flowing from the decision of the Division Bench of this Court in the case of Upen Das(supra) and the said benefits would be so entitled to be extended to the petitioner w.e.f. 01.08.2017. The arrears of the wages now required to be so authorized to the petitioner, would be computed by the respondent authorities and released to the petitioner within a period of 3(three) months from the date of receipt of a certified copy of this order.

19. With the above observations and directions, the writ petition stands disposed of.

JUDGE

Comparing Assistant