Gauhati High Court
Musleh Uddin Ahmed vs The State Of Assam And 3 Ors on 29 January, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
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GAHC010105562024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2957/2024
MUSLEH UDDIN AHMED
S/O SIRAJ UDDIN
VILL- KAOIMAURI
P.O. KAOIMARI
DIST. NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
PWD, DISPUR, GUWAHATI-06.
2:THE CHIEF ENGINEER
PWD (ROADS)
ASSAM
CHANMDARI
GUWAHATI-03.
3:EXECUTIVE ENGINEER
PWD
KALIABOR ROAD DIVISION
JAKHLABANDHA
4:EXECUTIVE ENGINEER
PWD (ROADS) NAGAON
ASSA
Advocate for the Petitioner : MR. Y S MANNAN, MD IMRAN,MD R ISLAM,MS F
HUSSAIN,MR S M ABDULLAH P
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Advocate for the Respondent : SC, PWD, GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
29.01.2025
Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. P.
Nayak, learned Standing Counsel for the PWD Department, Assam.
The petitioner before this Court has limited grievance before this Court.
The petitioner was appointed in the year 1984 as a Work Charged Section
Assistant under the Executive Engineer, PWD (Roads) Nagaon East Division.
Pursuant thereto petitioner appeared and successfully cleared in the final
examination of Section Assistant Training Course of 2002-2003 (35 th batch). The
petitioner was thereafter by order dated 29.09.2004 accommodated and allowed
to draw the salary at the scale of pay prescribed plus other allowances with
retrospective effect and was also designated as sub-Engineer Gr. II (W/C cadre)
as per the ROP Rule 1983 subject to reversion without any notice. By the said
order it was also mentioned that this arrangement is purely temporary and liable
to be reverted at any time without assigning any reason therefore. Subsequent
to the order permitting the petitioner to work as sub-Engineer Gr.II he came to
be regularized in the post of the Work Charged Section Assistant on 01.10.2005.
Thereafter, the petitioner continued to render his service as sub-Engineer Gr.II
and had approached the authorities on numerous occasions to pray for
regularization of his services as sub-Engineer Gr.II. On 13.10.2023 the
Additional Chief Engineer (P) PWD Roads addressed a communication to the
Deputy Secretary, Government of Assam PWRD Audit Branch, Dispur, Guwahati-
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6, whereby a request was made to take necessary action towards regularization
of the services of Work Charged sub-Engineer Gr.II to regular sub-Engineer Gr.II
in respect of the writ petitioner who is rendering service under the Office of
Executive Engineer PWRD, Nagaon, Barhampur & Rupohihat Territorial Road
Division. The learned counsel for the petitioner submits that in spite of the
interdepartmental communications issued by the Office of the Additional Chief
Engineer (P) PWD roads, no order has been passed regarding the regularization
of the services of the petitioner and in the cadre of sub-Engineer Gr.II. Being
aggrieved he approached this Court.
The respondents have filed their affidavit contesting the case of the
petitioner. In paragraph 7 of the affidavit there is an averment that pursuant to
the judgment dated 08.06.2017 passed in Writ Appeal No. 45 of 2014 (Upen
Das Vs. Government of Assam and Ors.) as well as in terms of the Finance
Department's Office Memorandum No. FEC (II) dated 16.06.2012 since the
regularization of the petitioner as a Work Charged Section Assistant was against
a personal post only, such employees appointed for regularized against such
personal posts are not entitled to get promotion to the next higher rank, as
personal posts are Ex-cadre posts only and the post get abolished as soon as
the incumbent employee gets retired or expired.
It is submitted by the learned State Counsel that in view of the Finance
Department's Office Memorandum as well as in terms of the judgment and
order passed in Writ Appeal No. 45 of 2014, the claim of the petitioner for
regularization in the post of sub-Engineer Gr.II cannot be considered. The
learned State Counsel however, has fairly submitted that the effective order of
the department in this regard is not enclosed to the affidavit. He however,
submits that he may be permitted some time to complete his instructions in this
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regard.
Having heard the learned counsel for the parties and upon perusal of the
pleadings available on record, this Court is of the view that since the petitioner
has already approached the department and also in view of the
interdepartmental communication dated 13.10.2023 whereby the Additional
Chief Engineer (P) PWD Roads requested the Deputy Secretary to the
Government of Assam, PWD, Audit Branch, Dispur, Guwahati to take necessary
action towards regularization of service from Work Charged sub-Engineer Gr.II
to Regular sub-Engineer Gr.II in respect of the writ petitioner, the department is
required to consider the same and pass effective orders thereof. The averment
made in paragraph 7 of the affidavit filed by the respondent does not reflect any
such order having been passed by the competent authority in the department.
Under such circumstances, this Court is of the considered view that the
writ petition can be disposed of at this stage with a direction to the respondent
authorities, more particularly to the respondent No.1, Secretary to examine the
claims of the writ petition in the light of the request made by the Additional
Chief Engineer (P) PWD Roads to the Deputy Secretary and pass appropriate
orders in the same matter.
If in the meantime, any such order has already been passed, a copy of the
same be served on the writ petitioner. If no such orders are passed, then the
respondent department is directed to examine the matter and pass appropriate
speaking order within a period of 60 days from the date of receipt of the
certified copy of this order and a copy thereof will be served on the writ
petitioner.
With the above observations writ petition stands disposed of.
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JUDGE
Comparing Assistant
