Alauddin Ali vs The State Of Assam And 3 Ors
2025 Latest Caselaw 7341 Gua

Gauhati High Court

Alauddin Ali vs The State Of Assam And 3 Ors on 16 September, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                            Page No.# 1/8

GAHC010197402024




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

                               Case No. : WP(C)/4901/2024

           ALAUDDIN ALI
           S/O- LATE MOYAB ALI, R/O- VILLAGE- ENATPUR, P.S. AND DISTRICT-
           KARIMGANJ, PIN- 788712, RETIRED PLUMBER, PUBLIC HEALTH
           ENGINEERING DIVISION, KARIMGANJ



           VERSUS

           THE STATE OF ASSAM AND 3 ORS
           TO BE REPRESENTED BY SECRETARY TO THE GOVERNMENT OF ASSAM,
           PUBLIC HEALTH ENGINEERING DEPARTMENT, DISPUR, GUWAHATI-
           781006

           2:COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
            FINANCE DEPARTMENT
            DISPUR
            GUWAHATI- 781006

           3:CHIEF ENGINEER
            PUBLIC HEALTH ENGINEERING DEPARTMENT
            HENGRABARI
            GUWAHATI- 781036

           4:EXECUTIVE ENGINEER
            PUBLIC HEALTH ENGINEERING DIVISION
            KARIMGANJ- 78871

Advocate for the Petitioner : MR. N H MAZARBHUIYAN, MR R I BHUYAN,MS. L
WAJEEDA,MR. M H SAIKIA

Advocate for the Respondent : SC, P H E, SC, P H E,MR. R BORA,SC, FINANCE
                                                                         Page No.# 2/8


                                  BEFORE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                      ORDER

16.09.2025

Heard Ms. L Wajeeda, learned counsel for the petitioner. Also heard Mr. I Borthakur, learned Standing Counsel, PHE Department.

2] The writ petitioner was engaged as work charged Khalashi under the Executive Engineer, Public Health Engineering Division, Hailakandi. The petitioner has rendered continuous service without any break, however, his service was not regularized. The petitioner retired from service on 31.08.2020. The petitioner's primary grievance is that his claim for grant of pension has not been considered.

3] It is submitted on behalf of the writ petitioner that he having rendered continuous services and have put in several years in service work charged employee and he has been given the regular scale of pay, his service should be deemed to have been regularized and consequently, he is entitled to pension.

4] The learned counsel for the petitioner has relied on the Judgment of the Apex Court rendered in Tulsibhai Dhanjibhai Patel Vs. State of Gujarat (Special Civil Application No. 20185/2018) as well as the Judgment of the Co-ordinate Bench rendered in W.P.(C) No. 1777/2015 (Habib Ali Barbhuiya Vs. State of Assam & Ors). Relying on the Judgments, the learned counsel for the petitioner submits that the Apex Court as well as this Court has considered the continuous length of service of the petitioner for considering them to be eligible for grant of pension.

5] Referring to Rule 31 of the Assam Pension Rules, it is submitted that Rule Page No.# 3/8

31 provides that a person will be entitled to pension if these three conditions are fulfilled, namely, Firstly, that the service must be under Government; Secondly, the employment must be substantive and permanent; Thirdly, that the servant must be paid by Government: Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled,- (i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and (ii) in individual cases and subject to such conditions as he may think fit to impose in each case, allow service rendered by an officer to count for pension, are satisfied.

6] The learned counsel for the petitioner submits that having rendered continuous service for more than 30 years and having been granted the regular scale of pay, the petitioner must be held to be substantive and permanent employment. He was being paid the regular scale of pay by the Government and his services are under the Government. The learned counsel submits that since the three conditions prescribed under Rule 31 is fulfilled, there is no reason why the petitioner should not be granted the benefit of pension under the Assam Services (Pension) Rules, 1969. His prayer having been rejected for not being considered by the respective Department, he is before this Court praying for suitable orders from this Court. He has also relied on a Judgment of a Co-ordinate Bench rendered in Habib Ali Barbhuiya (supra) in support of his contention.

7. Per contra, Mr. I. Borthakur, learned Standing Counsel, PHE Department disputes the contentions of the learned counsel for the petitioner. He submits that the petitioner do not fulfill the conditions under Rule 31 of the Pension Rules. No doubt, he was working as work charged employee and his salaries were paid by the Government but it cannot be held that he had rendered Page No.# 4/8

service in regular capacity. He further submits that the issue that work charged employees are not entitled to pension have already been decided by a Division bench of this Court in a Judgment rendered in State of Assam Vs. Upen Das & Ors [W.A No. 45/2014], reported in 2020 (5) GLT 605. He submits that in view of the law laid down by the Upen Das (Supra), the claims of the petitioners who are work charged employees cannot be accepted.

8] The learned counsel for the parties have been heard. Pleadings on record have been carefully perused. The Judgments placed by the learned counsel for the petitioner have been carefully perused. The Judgment in Upen Das(Supra) has considered the question whether work charged employees are entitled to pension or not and the Court has answered accordingly that they are not entitled to pension. The relevant paragraphs are extracted below:

"16. It is in this background, we shall examine whether the respondents who are working as Muster Roll/Work Charged employees prior to 1.4.1993 can be considered for regularization in the light of exception carved out in paragraph 53 of the decision in Umadevi case. For ready reference, paragraph 53 is reproduced as under:-

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but t here should be no further by passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

21. Lastly, the respondents have cited decisions of the Supreme Court in Nihal Singh vs. State of Punjab, (2013) 14 SCC 65, Malathi Das vs. Suresh, (2014) 1 3 SCC 249 and Yashwant Arjun More vs. State of Maharashtra, (2014) 13 SCC 264 to convince us that Page No.# 5/8

even after Umadevi case, the Supreme Court has directed for regularization even by creating posts although the employees were not working on sanctioned posts. But these decisions are on different facts and the Supreme Court itself has held that the ratio decidendi of Umadevi case was not applicable to them. In the case of Nihal Singh vs. State of Punjab (supra), Special Police Officers were appointed under Section 17 of the Police Act to meet the law and order problem. The appointments of Special Police Officers were made in accordance with the statutory procedure contemplated under the Act, but their services were not being regularized on the ground that there were no sanctioned posts. The Supreme Court held that since the initial appointments of such Special Police Officers was made legally under a statute, it cannot be categorized as irregular much less illegal appointment and therefore the principles laid down in Umadevi case were not applicable. It is in this fact situation the Supreme Court directed t he State Government to absorb the Special Police Officers by creating necessary posts. Besides this, in Nihal Singh the Supreme Court was not dealing with the issue of regularization of Muster Roll/Work Charged employees like the respondents. In Malathi Das vs. Suresh (supra) the Supreme Court in a Contempt Petition me rely directed the authorities to comply with the order of the High Court to regularize the employees. The High Court order for regularization was admittedly passed and affirmed by the Supreme Court much prior to the decision of Umadevi. The decision of Umadevi was thus clearly not applicable in the case of Malathi Das. In Yashwant Arjun More vs. State of Maharashtra (supra) also non salaried copyists were working in the Revenue and Forest Department of the Government of Maharashtra continuously for 10 or more years and they could not apply for regularization because neither the required examination was held by the Department nor the Staff Selection Board was constituted. The State Government therefore to overcome its lapse decided to absorb such non-salaried copyists on available vacant posts subject to their making applications and holding required educational qualifications. The Supreme Court took note of the fact that non-salaried copyists were victims of the lapse of State Government and held that the ratio of judgment in Umadevi cannot be invoked for denying them the benefit of decision of the Stat e Government to absorb them through a selection process. In the case at hand, there is no provision of holding examination of the respondents by any Selection Board for the purposes of their regularization and hence, the State Government cannot be blamed for any lapse. Hence, the decisions cited by the respondents do not help them.

22. It is, however, heartening to learn that the State Government has agreed not to terminate 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 a s 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 vs. 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 i n sanctioned post) with effect from 1.8.2017.

23. For these reasons, we are of the view that in the fact situation of the case, Muster Roll workers, Work Charged workers and Casual workers are not entitled for Page No.# 6/8

regularization of their services with consequential benefits, such as, pension etc. We, accordingly, subject to our direction in paragraph 22 of the judgment, allow the appeal and set aside the impugned judgment and order dated 20.1 2.2013 passed by he learned Single Judge."

9] In the Judgment of the Co-ordinate Bench although all other Judgments have been considered, it is seen that the Judgment in Upen Das (Supra) has not been referred to or considered. The Judgment of the Upen Das(Supra) was rendered on 08.06.2017 and the Co-ordinate Bench had rendered the Judgment on 05.04.2022. Accordingly, the Judgment of Upen Das(Supra) having been rendered earlier is binding on the Co-ordinate Bench as well as on this Court.

10] In view of the decision of the Division Bench, the Judgment of the Coordinate Bench cannot be held to be binding on this Court.

11] In so far as the Judgment relied upon by the Apex Court in Tulsibhai Dhanjibhai Patel(Supra) is concerned, it is seen that there the question of applicability of Rule 25 of the Gujarat Pension Rules were considered. Rule 25 of the Gujarat Pension Rules provides as under:

"Rule-25. Qualifying Service : Subject to the provisions of these rules, qualifying service of a Government employee, means and includes, -

(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include -

(a) service in non-pensionable establishment,

(b) service paid from contingencies,

(c) service rendered in daily rated establishment,

(d) actual periods of break in service if any, between spell of service,

(e) service prior to resignation, removal or dismissal,

(f) service as an apprentice,

(g) service on fixed pay basis, and

(h) service on contract basis.

(ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more,

(iii) ..... to (ix) ...."

12] However, Rule 31 of the Assam Services (Pension) Rules provides as Page No.# 7/8

under:

"31. The service of an officer does not qualify for pension unless it conforms to the following three conditions Firstly, the service must be under Government; Secondly, the employment must be substantive and permanent;Thirdly, the servant must be paid by Government: Provided that the Governor may, even though either or both of conditions (1) and (2) above are not fulfilled,-

(i) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension, and

(ii) (ii) in individual cases and subject to such conditions as he may think fit to impose in each case, allow service rendered by an officer to count for pension."

13] There is no specific provision that pension would be otherwise available for temporary or work charged employees who had rendered continuous services for long years under the Assam Services Pension Rules, 1969 unlike in the Gujarat Pension Rules. Under such circumstances, this Judgment will not be applicable in the facts of the case.

14] The learned counsel for the petitioner has also not urged before this Court that notwithstanding the Judgment of the Upen Das(Supra) subsequent Judgment of the Apex Court have been rendered where the Apex Court has laid down a ratio which will override the ratio laid down in Upen Das (Supra). No attempt has been made to distinguish the facts of the case of Upen Das(Supra) as with the facts of this case save and except that in Upen Das(Supra), the claim was for grant of minimum scale of pay whereas the present writ petitioner does not have such prayer as he was already granted his regular scale of pay.

15] Be that as it may, a specific issue was raised before the Division Bench of this Court in Upen Das (Supra) as to whether Muster Roll Workers/ Work charged employees are entitled to pension. This has been negated by the Judgment of the Division Bench of this Court in Upen Das(Supra). The same is Page No.# 8/8

therefore binding on this Court. The learned counsel for the petitioner has also placed before this Court an order passed in respect of other similarly situated worked charge employees who have been considered to be eligible for grant of pension by the Department. Copy of such order is available in this writ petition. The respondents did not file any affidavit in response to such averments nor have they disputed the correctness of the order issued by the competent department.

16] Under such circumstances, this Court is of the view that if other worked charge employees working in other or similarly situated departments are extended the benefit of pension then the case of the writ petitioner may also be considered for grant of such benefits by the Government.

17] With the above observations, the writ petitions stands disposed of.

JUDGE

Comparing Assistant