Citation : 2025 Latest Caselaw 3587 Gua
Judgement Date : 28 February, 2025
Page No.# 1/18
GAHC010012692020
2025:GAU-AS:2096
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/661/2020
KAMOLESH DAS AND 10 ORS.
S/O- PRONOBESH SHIL, R/O- GAURIPUR, W/NO. 2, P.O. AND P.S. GAURIPUR,
DIST.- DHUBRI, ASSAM.
2: SHAHAJAHAN RAHMAN
S/O- AFIZUR RAHMAN
R/O- VILL. CHAGALCHORA PT.- 3
P.O. CHAGALCHORA
P.S.- DHUBRI
DIST.- DHUBRI
ASSAM.
3: RABINDRA NATH SARKAR
S/O- LT. RAMANI KANTA SARKAR
R/O- GAURIPUR
W/NO.-2
P.O. AND P.S. GAURIPUR
DIST.- DHUBRI
ASSAM.
4: GOPI BASFORE
S/O- CHOTE BASFORE
R/O- POLICE RESERVE
DHUBRI
P.O. AND DIST.- DHUBRI
ASSAM.
5: SHYAM PRAKASH BASFORE
S/O- LT. PRANESH BASFORE
R/O- GAURIPUR
W/NO.- 4
P.O. ANDP.S. GAURIPUR
DIST.- DHUBRI
ASSAM.
Page No.# 2/18
6: ABDUL KHALIL
AMZAD ALI SHEIKH
R/O- VILL. KISMAT HASDAHA PT-4
P.S. AND DIST. DHUBRI
ASSAM.
7: AROTI BASFORE
W/O- RANJIT BASFORE
R/O- HOSPITAL QUARTER CAMPUS
P.O. JHAGRARPAR
P.S. DHUBRI
DIST.- DHUBRI
ASSAM.
8: MOBASHIR ALOM
S/O- TAZUDDIN AHMED
R/O- BIDYAPARA PT-2
COLLEGE ROAD
P.S. AND DIST.- DHUBRI
ASSAM.
9: RAJU BASFORE
S/O- LT. BABUL BASFORE
R/O- GARIKHANA ROAD
DHUBRI
P.O.
P.S. AND DIST.- DHUBRI
ASSAM.
10: AMINUR RAHMAN PRADHANI
S/O- ACHIM UDDIN PRADHANI
R/O- VILL. DEBOTTAR HASDOHA PT-6
P.S. AND DIST.- DHUBRI
ASSAM.
11: MEHENYARA BEGUM
D/O- MOKBUL HUSSAIN
R/O- VILL. AND P.O. JHAGRARPAR
P.S. AND DIST.- DHUBRI
ASSAM
VERSUS
THE UNION OF INDIA AND 9 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HEALTH AND
FAMILY WELFARE, NIRMAN BHAWAN, NEW DELHI- 110001.
Page No.# 3/18
2:THE DIRECTOR GENERAL (PH)
DIRECTORATE GENERAL HEALTH SERVICES
GOVT. OF INDIA
NIRMAN BHAWAN
NEW DELHI- 110011.
3:DEPUTY DIRECTOR ( ADMINISTRATION)
DIRECTORATE GENERAL OF HEALTH SERVICES
GOVT. OF INDIA
NIRMAN BHAWAN
NEW DELHI- 110011.
4:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT.OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY.-06.
5:THE JT. SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY.- 781006.
6:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY.-36.
7:THE DY. COMMISSIONER
DHUBRI
P.O. AND DIST.- DHUBRI
ASSAM
PIN- 783301.
8:JT. DIRECTOR OF HEALTH SERVICES CUM MEMBER SECY.
DIST. HEALTH SOCIETY
DHUBRI DISTRICT
P.O. AND DIST. DHUBRI
ASSAM
PIN- 783301.
9:THE SUPERINTENDENT
DHUBRI CIVIL HOSPITAL
DHUBRI
P.O. AND DIST. DHUBRI
ASSAM
PIN- 783324.
Page No.# 4/18
10:HOSPITAL MANAGEMENT SOCIETY
DHUBRI CIVIL HOSPITAL
REP. BY ITS CHAIRMAN-CUM-DY. COMMISSIONER
DHUBRI
P.O. AND DIST. DHUBRI
ASSAM
PIN- 783301
Advocate for the Petitioner : MR. S ALIM, MR. A Z AHMED (P-1,2,8,10),MR. L R MAZUMDER
(P-1,2,8,10),MR. A T SIKDER,MR. B HUSSAIN,MR. A H AHMED
Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM,SC, HEALTH
Linked Case : I.A.(Civil)/2302/2023
RAJU BASFORE and 2 ORS.
D/O. SRI KSHIREN NATH
VILL. BAKAITARI
P.O. BAKAITARI
DIST. GOALPARA
ASSAM.
2: AROTI BASFORE
W/O RANJIT BASFORE
R/O HOSPITAL QUARTER CAMPUS
P.O. JHAGRAPAR
P.S. AND DIST. DHUBRI
ASSAM
PIN 783324.
3: GOPI BASFORE
S/O CHOTE BASFORE
R/O POLICE RESERVE
DHUBRI
P.S. AND DIST. DHUBRI
ASSAM
PIN 783324.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE SECYRETARY TO THE GOVT. OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
Page No.# 5/18
NIRMAN BHAWAN
NEW DELHI- 110011
2:THE DIRECTOR GENERAL (PH)
DIRECTORATE GENERAL OF HEALTH SERVICES
GOVT. OF INDIA
NIRMAN BHAWAN
NEW DELHI- 110011
3:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY-36
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-DY. COMMISSIONER
DHUBRI
P.O. AND DIST.- DHUBRI (ASSAM)
PIN- 783301
------------
Advocate for : MR. S ALIM Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : WP(C)/7189/2015
SMT. UPAMA NATH and 16 ORS.
Page No.# 6/18
D/O. SRI KSHIREN NATH VILL. BAKAITARI P.O. BAKAITARI DIST. GOALPARA ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS REP. BY THE SECY. TO THE GOVT. OF ASSAM DEPTT. OF HEALTH DISPUR GHY.-06.
------------
Advocate for : MR.M HUSSAIN Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : WP(C)/654/2020
MOFIZUL HOQUE S/O- DULU SHEIKH R/O- VILL- MAJERCHAR P.O. FULIMARI DIST. DHUBRI ASSAM 783301.
VERSUS
THE UNION OF INDIA AND 9 ORS.
REP BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NIRMAN BHAWAN NEW DELHI- 110011
2:THE DIRECTOR GENERAL (PH) DIRECTORATE GENERAL HEALTH SERVICES GOVT. OF INDIA NIRMAN BHAWAN NEW DELHI- 110011.
3:DEPUTY DIRECTOR ( ADMINISTRATION) Page No.# 7/18
DIRECTORATE GENERAL OF HEALTH SERVICES GOVT. OF INDIA NIRMAN BHAWAN NEW DELHI- 110011.
4:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT.OF ASSAM HEALTH AND FAMILY WELFARE DEPTT.
DISPUR GHY.-06.
5:THE JT. SECY. TO THE GOVT. OF ASSAM HEALTH AND FAMILY WELFARE DEPTT.
DISPUR GHY.-06.
6:THE DIRECTOR OF HEALTH SERVICES ASSAM HENGRABARI GHY.-36.
7:THE DY. COMMISSIONER DHUBRI P.O. AND DIST. DHUBRI ASSAM PIN- 783301.
8:JT. DIRECTOR OF HEALTH SERVICES CUM MEMBER SECY. DIST. HEALTH SOCIETY DHUBRI DISTRICT P.O. AND DIST. DHUBRI ASSAM PIN- 783301.
9:THE SUPERINTENDENT DHUBRI CIVIL HOSPITAL DHUBRI P.O. AND DIST. DHUBRI ASSAM PIN- 783324.
10:HOSPITAL MANAGEMENT SOCIETY DHUBRI CIVIL HOSPITAL REP. BY ITS CHAIRMAN-CUM-DY. COMMISSIONER DHUBRI P.O. AND DIST. DHUBRI ASSAM PIN- 783301.
Page No.# 8/18
------------
Advocate for : MR. S ALIM Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 9 ORS.
Linked Case : WP(C)/2188/2021
SHIMA AHMED D/O- SADAT AHMED R/O- VILL- AYRANJONGLA PART-3 P.O. A.M.CO. ROAD PIN- 783323 P.S. AND DIST.- DHUBRI ASSAM
VERSUS
THE UNION OF INDIA AND 9 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NIRMAN BHAWAN NEW DELHI- 110011
2:THE DIRECTOR GENERAL (PH) DIRECTORATE GENERAL OF HEALTH SERVICES GOVT. OF INDIA NIRMAN BHAWAN NEW DELHI- 110011
3:DY. DIRECTOR (ADMINISTRATION) DIRECTORATE GENERAL OF HEALTH SERVICES GOVT. OF INDIA NIRMAN BHAWAN NEW DELHI- 110011
4:THE STATE OF ASSAM REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM HEALTH AND FAMILY WELFARE DEPTT.
DISPUR GHY-06
5:THE JOINT SECRETARY TO THE GOVT.OF ASSAM HEALTH AND FAMILY WELFARE DEPTT.
DISPUR GHY-06 Page No.# 9/18
6:THE DIRECTOR OF HEALTH SERVICES ASSAM HENGRABARI GHY-36
7:THE DY. COMMISSIONER DHUBRI P.O. AND DIST.- DHUBRI ASSAM PIN- 783301
8:JOINT DIRECTOR OF HEALTH SERVICES CUM MEMBER SECRETARY DISTRICT HEALTH SOCIETY DHUBRI DISTRICT P.O. AND DIST.- DHUBRI (ASSAM) PIN- 783301
9:THE SUPERINTENDENT DHUBRI CIVIL HOSPITAL DHUBRI DIST.- DHUBRI (ASSAM) PIN- 783324
10:HOSPITAL MANAGEMENT SOCIETY DHUBRI CIVIL HOSPITAL REP. BY ITS CHAIRMAN-CUM-DY. COMMISSIONER DHUBRI P.O. AND DIST.- DHUBRI (ASSAM) PIN- 783301
------------
Advocate for : MR. S ALIM Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 9 ORS
BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Petitioners : Shri TJ Mahanta, Sr. Advocate in (WP(C)/661/2020);
Shri S Alim, Advocate in (WP(C)/7189/2015, IA(C)/2302/2023 in WP(C)/7189/2015, WP(C)/654/2020 Page No.# 10/18
WP(C)/2188/2021);
Shri AZ Ahmed, Advocate in (WP(C)/661/2020).
For the Respondents : Shri DP Borah, SC, Health & FW Deptt.
Assam.
Date of Hearing : 25.02.2025.
Date of Judgment : 28.02.2025.
JUDGMENT & ORDER
All these writ petitions pertain to the broad issue of a claim for salaries of the staff of Burn Unit of the Dhubri Civil Hospital and also their continuation in service. Since the issue in all these cases is almost identical, the same are taken up for analogous hearing and are being disposed of by this common judgment and order.
2. As per the facts projected, a Memorandum of Understanding (MoU) was entered into by the State and the Central Government on 25.10.2020. The said MoU was on the issue of establishment of Burn Units in the Gauhati Medical College and Hospital and Civil Hospitals of Dhubri and Nagaon. The cause of action in these cases pertains to the Burn Unit of the Dhubri Civil Hospital.
3. Pursuant to the said MoU, a recruitment process was initiated for inducting various staff on contractual basis. Accordingly, an advertisement was issued by the Hospital Management Society, Dhubri for recruitment of certain staff on Page No.# 11/18
contractual basis. The case of the petitioners is that they participated in the said selection process and were inducted in various posts. It is, however not in dispute that such appointments were on contractual basis.
4. The grievance of the petitioners, as has been indicated above is with regard to the non-payment of their salaries since 31.03.2021. So far as the petitioners in WP(C)/7189/2015 are concerned, out of 17 of them, 3 have also filed an application, being IA(C)/2302/2023 for payment of salaries from August, 2016.
5. I have heard Shri TJ Mahanta, learned Senior Counsel assisted by Shri AZ Ahmed, learned counsel for the petitioners in WP(C)/661/2020 and Shri S Alim, learned counsel for the petitioners in WP(C)/7189/2015, IA(C)/2302/2023 in WP(C)/7189/2015, WP(C)/654/2020 and WP(C)/2188/2021. I have also heard Shri DP Borah, learned Standing Counsel, Health and Family Welfare Department, Assam.
6. Shri Mahanta, learned Senior Counsel for the petitioners has submitted that the Burn Unit was created in the concerned Dhubri Civil Hospital as an essential part of public interest pertaining to medical assistance. Such Unit was opened in, amongst others, the Dhubri Civil Hospital vide an MoU of the year 2010. By drawing the attention of this Court to the MoU between the State and the Central Government, it is submitted that certain commitments of the State Government were recorded which are part of the MoU. As per the commitments, the State Government was to take over the responsibility for maintaining the
Burn Unit after the end of XI th Five Year Plan i.e. 31.03.2012. The State Government was also to take over the liability of the staff recruited on Page No.# 12/18
contractual basis at the end of XI th Five Year Plan. The State was also required to create regular posts against the sanctioned contractual positions by the end
of the XIth Five Year Plan so as to have a smooth continuation of the burn care services. It is submitted that only for the reasons that the building of the Dhubri Civil Hospital was dismantled, services have been discontinued though no formal orders of discontinuation have been served. Though the learned Senior Counsel has candidly admitted that after 31.03.2021, their services have not been able to be utilized effectively, it is not because of the fault of the petitioners and therefore, their claim for salaries and continuation in service is justified. It is also submitted that except for Dhubri, the other two Burn Care Units at Nagaon Civil Hospital and Gauhati Medical College and Hospital are in operation.
7. Shri Mahanta, learned Senior Counsel has also drawn the attention of this Court to IA(C)/384/2021 which was disposed of by this Court on 26.03.2021. It is submitted that vide the aforesaid order, the order dated 22.09.2020 issued by the Department during the pendency of the writ petition was stayed. It was, however, observed that the order would not stand as a bar for the competent authority to abolish the posts in which the petitioners were appointed.
8. Shri Alim, learned counsel for the petitioners in the other writ petitions has reiterated that so far as 3 nos. of petitioners out of 17 in his case are concerned, they have not received their salaries from August, 2016. In this regard, he has referred to the IA(C)/2302/2023 filed in WP(C)/7189/2015 wherein he has also annexed Attendance Register of those 3 petitioners, namely, i) Raju Basfore, ii) Aroti Basfore and iii) Gopi Basfore.
Page No.# 13/18
9. Per contra, Shri Borah, learned Standing Counsel, Health Department has submitted that the projection made in the writ petitions, on facts is not correct. It is submitted that while it is correct to contend that an MoU was entered into on 25.10.2010 to have Burn Units at Dhubri, Nagaon and Guwahati, the recruitment of the petitioners at the Dhubri Civil Hospital was on contractual basis and done by the Hospital Management Society and not by the Department. He has submitted that subsequently, the Dhubri Medical College and Hospital has been established as a result of which, the Dhubri Civil Hospital was closed down and the building itself was dismantled as the services which were provided by the erstwhile Dhubri Civil Hospital are now being provided by the Dhubri Medical College and Hospital in a much larger and better manner. He has denied the submissions made on behalf of the petitioners that the Burn Unit in the Nagaon Civil Hospital is still functioning. He submits that even the Nagaon Burn Unit in the Civil Hospital has been discontinued and further notwithstanding such discontinuation, the same is not relevant to the present case inasmuch as at Dhubri, a full-fledged hospital in the form of Dhubri Medical College and Hospital has been established which is giving all treatments to the public.
10. So far as the issue of salary is concerned, he has submitted that the Government had passed an order on 22.09.2020 and pursuant to the said directive, the contractual services of the petitioners were discontinued and till such period of discontinuation i.e. 31.03.2021, the salaries have been paid. By drawing the attention of this Court to the affidavit-in-opposition filed by the Health Department on 09.05.2024, the learned Standing Counsel has submitted that the Civil Hospital building was demolished for construction of the Dhubri Page No.# 14/18
Medical College and Hospital and the project under which the petitioners were inducted was a pilot project in which, there was no sanctioned post and the induction in service was done by the Hospital Management Society that too, on contractual basis. By referring to the averments made in paragraph 6, learned Standing counsel has submitted that an amount of Rs.1,14,45,000/- (Rupees one crore fourteen lakhs and forty five thousand) only was sanctioned for the salaries which has been duly paid and there is no outstanding.
11. The learned Standing Counsel has also referred to the affidavit-in- opposition filed by the Director, Health Services on 25.10.2024 and by drawing the attention of this Court to paragraph 3 thereof, he has submitted that in March, 2014, the Burn Unit was started in terms of the advertisement made by the Hospital Management Society for contractual services. He has submitted that the Hospital Management Society is itself not in existence today and there is absolutely no scope for regularization of services of the petitioners which were under a project which is not in existence.
12. Coming to the aspect of the order dated 26.03.2021, passed in IA(C)/384/2021, the learned Standing Counsel has submitted that the said order was passed, as by that time, no affidavit-in-opposition could be filed. He has, however, submitted that the order itself had made it clear that there would be no bar for abolition of the post. It is submitted that the action taken by the respondent authorities were in public interest and no injustice has been caused to the petitioners as their very induction in service was on contractual basis and no amount of salary is pending.
Page No.# 15/18
13. So far as the IA(C)/2302/2023 filed by the three applicants out of 17 petitioners in WP(C)/7189/2015 is concerned, the learned Standing Counsel has submitted that as per the records available and annexed to the affidavit-in- opposition in the other writ petition i.e., WP(C)/661/2020, the details of the payment made to the three applicants, namely, i) Raju Basfore, ii) Aroti Basfore and iii) Gopi Basfore in their respective bank accounts have also been given.
14. The rival submissions have been duly considered and the materials on record have also been carefully examined.
15. It is not in dispute that the induction of the petitioners in service was on contractual basis in a project which was initiated as per an MoU of 2010 to have Burn Units in three different locations in the State of Assam. It is also to be made clear that since the present dispute is in connection with the services rendered in the erstwhile Dhubri Civil Hospital, it is not necessary to go into the aspect of the Units at Nagaon Civil Hospital and the Gauhati Medical College and Hospital. In any case, so far as the Nagaon Civil Hospital is concerned, the learned Standing Counsel, Health Department has informed that even the same has been discontinued.
16. Be that as it may, the project in question as per which the Burn Unit in the Dhubri Civil Hospital was opened was a pilot project and the induction was done on contractual basis by the Hospital Management Society. It, however transpires that subsequently pursuant to a policy decision, the Dhubri Medical College and Hospital was established leading to abolition of the Dhubri Civil Hospital. It is also on record that the building of the erstwhile Dhubri Civil Hospital was Page No.# 16/18
demolished to make way for the construction of the Dhubri Medical College and Hospital. There is nothing on record put by the petitioners with regard to any endeavour made by them for their recruitment in the newly constructed Dhubri Medical College and Hospital and their claim is confined to the aspect of continuation/ regularization of their services and also payment of salaries. It is not in dispute that till 31.03.2021, the salaries of the petitioners have been paid, except 3 nos. of applicants in IA(C)/2302/2023 of connected WP(C)/7189/2015. There has been a candid disclosure by the learned Senior Counsel for the petitioners that after the said date, there was no existing premises of the Dhubri Civil Hospital where the petitioners could have rendered their services.
17. The decision to induct the services of the petitioners is an outcome of the MoU of 2010 pursuant to which, the Hospital Management Society had recruited the petitioners on contractual basis. The said project itself was a pilot project. The decision to have a larger and better medical facility through the Dhubri Medical College and Hospital cannot be found fault with. Such decision automatically led to discontinuation of the Dhubri Civil Hospital and the building itself was dismantled which is an admitted position. Under those circumstances, the claim of the petitioners does not appear to be justified either for regularization of their services or for payment of their salaries post 31.03.2021. Regularization in service cannot be claimed as a matter of right, more so when the induction in service of the petitioners were not by a recruitment process initiated by the Department but by the Hospital Management Society under the particular project. As indicated above, there is nothing on record or any averment to show that the petitioners were not given a fair opportunity in the recruitment process of similar services in the Dhubri Medical College and Page No.# 17/18
Hospital. As regards the order dated 26.03.2021 passed in IA(C)/384/2021 is concerned, the same clearly appears to have been passed as no affidavit was filed by the Department and the affidavits were filed subsequently on 09.05.2024 and 25.10.2024.
18. So far as the claim of 3 nos. of applicants, namely, i) Raju Basfore, ii) Aroti Basfore and ii) Gopi Basfore in IA(C)/2302/2023 is concerned, while the applicants claim that they have not been paid their salaries from August, 2016, the learned Standing Counsel has submitted that all salaries up-to 26.03.2021 have been paid. He has also placed on record the communications, including bank details of the 3 nos. of applicants where the salary amounts have been credited. Be that as it may, the same being a disputed question of facts, this Court cannot enter into the merits to adjudicate the same. However, it is provided that the aforesaid 3 nos. of applicants, namely, i) Raju Basfore, ii) Aroti Basfore and iii) Gopi Basfore may submit representations for pending salaries, if any, which, in any view cannot exceed 31.03.2021. The respondents may enquire as to whether the services of these 3 nos. of applicants were utilized for the period claimed and if on such verification, it is found that the services of the aforesaid 3 nos. of applicants were indeed utilized and the salaries have not been paid, such salaries to be released to them in accordance with law. the inquiry may be done within a period of a month from the date of receipt of the representation along with a certified copy of this order and dispose of the same by a Speaking Order.
19. In view of the aforesaid facts and circumstances and the observations made, this Court does not find that the petitioners have made out a case for any Page No.# 18/18
interference and the writ petitions, including the IA stand dismissed.
20. Dismissal of the writ petitions as well as the IA, however would not come
into the way of the observations made so far as the 3 nos. of applicants in
IA(C)/2302/2023 is concerned.
JUDGE
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