[Cites 17, Cited by 0]
Gauhati High Court
WP(C)/5328/2021 on 30 January, 2026
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010162542021
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 5328/2021
1. Shri Promod Chandra Kakati
Age 63 Years, S/O Late Bishnu Ram Kakati
R/O Village-Atkupara P.O & P.S- Boko,
District-Kamrup, PIN 781123, Assam
2. Shri Chandradhar Rabha
Age 61 Years, S/O Late Ghanashyam Rabha
R/O Village & P.O- Rajapara, P.S- Palasbari,
District- Kamrup, PIN-781120, Assam
3. Shri Pulin Bihari Ojha
Age 61 Years, S/O Late Gangadhar Ojha
R/O Village & P.O- Sundaridia,
District- Barpeta, PIN-781314, Assam
4. Shri Uddhab Pathak
Age 62 Years, S/O Late Golok Pathak
R/O Village & P.O- Bangshar, P.S- Sualkuchi,
District- Kamrup, PIN-781103, Assam
5. Shri Bishnu Ram Das
Age 63 Years, S/O Late Dadhi Ram Das
R/O Village & P.O & P.S- Hajo,
District- Kamrup, PIN-781120, Assam
6. Syed Lutfulla Ahmed
Age 63 Years, S/O Late Majahar Hussain
R/O Village- Hajo Fakirtola P.O & P.S- Hajo,
Page 1 of 43
District- Kamrup, PIN-781102, Assam
7. Md. Abdur Rezzaque
Age 62 Years, S/O Late Bosir Sheikh
R/O Village- Mankashar Bepari Para,
P.O & P.S- Mankachar, District- Mankachar,
PIN-783131, Assam
8. Rejina Begum
Age 61 Years, D/O Late Jafar Ali
R/O Village- Murara, P.O. & P.S.- Rangia (Ward No. 3)
District- Kamrup, PIN-781354, Assam
9. Shri Lohit Chandra Saloi
Age 61 Years, S/O Late Chandi Ram Saloi
R/O Village- Kekenikuchi, P.S- Rangia,
P.O- Moranjana, District- Kamrup,
PIN-781381, Assam
10. Shri Satya Nath Deka
Age 63 Years, S/O Late Gopal Chandra Deka
R/O Village- Namsala, P.O & P.S- Sarthebari,
District- Barpeta, PIN-781307, Assam
11. Shri Hare Krishna Das
Age 61 Years, S/O Late Kashi Ram Das
R/O Village- Kalbari, P.O- Bhawanipur,
District- Barpeta, PIN-781352, Assam
12. Shri Girindra Talukdar
Age 61 Years, S/O Late Gopal Talukdar
R/O Village- Barkulhati, P.O- Kalag,
District- Nalbari, PIN-781351, Assam
........Petitioners
-Versus-
1. The State of Assam
Represented by the Chief Secretary to the
Government of Assam, Dispur, Guwahati-781006
2. The Commissioner & Secretary to the
Government of Assam
Public Works Department (Roads/ Building), Dispur,
Guwahati-6
Page 2 of 43
3. The Commissioner & Secretary to the
Government of Assam, Finance Department,
Dispur, Guwahati-6
4. The Commissioner and Secretary to the
Government of Assam, Pension and Public
Grievance Department, Dispur, Guwahati-6
5. The Accountant General (A&E), Assam,
Maidamgaon, Beltola, Guwahati-29
6. The Executive Engineer, PWD, Guwahati, Roads
Division, Guwahati-1
7. The Assistant Executive Engineer, PWD,
Palashbari Territorial Road Sub-Division, Mirza
8. The Executive Engineer, PWD Border Road
Construction Division, Mankachar
9. The Executive Engineer, PWD, Badarpur B.R.C
Division, Badarpur
10. The Executive Engineer, Rangia Road
Division, Rangia
11. The Assistant Executive Engineer, PWD
Hajo Rural Road Division, Hajo.
12. The Assistant Executive Engineer, PWD
Guwahati East Road Sub-Division, Guwahati
13. The Assistant Executive Engineer, PWD,
Guwahati West Road Sub-Division, Guwahati
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioners :Mr. P.K. Goswami, Sr. Advocate
Assisted by Mr. M. Das, Advocate
Mr. A. Das, Advocate
Advocate for the respondents :Mr. P. Nayak, Addl. Advocate General, Assam
Date on which Judgment was reserved : 28.10.2025
Date of Pronouncement of Judgment : 30.01.2026
Whether the pronouncement is of
the Operative Part of the Judgment : No
Whether the full Judgment has been
Pronounced : Yes
JUDGMENT AND ORDER (CAV)
Heard Mr. P.K. Goswami, learned Senior counsel assisted by Mr. M.
Das and Mr. A Das, learned counsel for the petitioners. Also heard Mr.
P. Nayak, learned Addl. Advocate General, Assam for the respondents.
2. The petitioners were appointed as Work Charged workers
initially for a fixed period and subsequently they continued to render
services till their superannuation without any break. They were
appointed on a monthly scale of pay requiring crossing of efficiency
bar. The petitioners from their date of initial engagements till
superannuation had been discharging their duties which are
performed by any regular Employee in Grade-III or Grade-IV posts
under the control of the respective Executive Engineers.
3. It is the case projected by the petitioners that they were not
appointed against any specific work or project and their services were
utilized against works which were regular and perennial in nature.
According to the petitioners, they have rendered more than 20 years
of continuous services till their dates of superannuation and therefore
in terms of the Office Memorandums dated 12.09.1996 and
06.09.2003, all temporary government employees who have retired
from service under the Government of Assam fulfilling the criteria of
not less than 20 years of continuous service were eligible for pension
from 01.09.1982 onwards without the requirement of permanency
against permanent post under the Government of Assam for usual
pensionary benefits under the Assam Services (Pension) Rules 1969
(hereinafter referred to as "the Rules of 1969").
4. It is contended on behalf of the petitioners that as per the
prevailing procedure, the petitioners were recruited and had thereafter
continued to render their services as work charged employees till the
dates of superannuation. Pursuant to their engagement, the
petitioners were transferred from one place to another within the zone
and they had rendered their services with dedication and sincerity to
the satisfaction of all concerned. The department opened service roll
of the petitioners to record the various deposits and increments.
Subsequently the petitioners were informed by the department of
their respective dates of superannuation. Upon being intimated about
their dates of superannuation, the petitioners contacted the relevant
offices for their dues as far as pension is concerned, the petitioners
were informed that they were not entitled to any pension. Being
aggrieved, they preferred a representation dated 23.06.2024 praying
for grant of pension. In terms of their respective dates of
superannuation, petitioners accordingly superannuated on those
dates. However, their prayer for grant of pensionary benefits did not
evoke any response from the department and no pensionary dues
were paid to the petitioners
5. The learned Senior counsel appearing for the petitioners submits
that the petitioners were engaged as Muster Roll/Work Charged
employees and were drawing regular scale of pay and their service
rolls were also opened. They rendered service for more than 20 years
without any break. Therefore they fulfilled all the conditions
prescribed under Rule 31 of the Pension Rules, 1969 and were
consequently entitled for being paid their pensionary benefits. The
learned Senior counsel furthermore submitted that by Office
memorandums dated the 12.09.1996 and 06.09.2003, all temporary
government employees who have rendered Services of not less than
20 years and have superannuated thereafter are entitled to be
granted pension from 01.09.1982 onwards without the requirement of
condition of permanency against a permanent post under the
Government of Assam.
6. The learned Senior counsel submits that when there are Office
Memorandums dated 12.09.1996 and 06.09.2003 respectively issued
by the State Government already in place whereby the temporary
employees who have completed more than 20 years of service would
be entitled for pension without the need for permanency, the
respondents are duty bound to consider the claims of the petitioners
and release their pensionary benefits. Pressing the Judgment of the
Apex Court rendered in Prem Singh Vs. State of Uttar Pradesh,
reported in (2019) 10 SCC 516, the learned senior counsel for the
petitioners submits that, in the said judgment, the Apex Court
specifically ordered that temporary or casual employees who had
rendered continuous service for several years and have completed the
requirement of the period of service for being entitled for their claims
of pension were regularised by the specific orders passed by the Apex
Court in the said judgment. He submits that although there was an
attempt to dilute this direction in a subsequent judgment rendered in
Uday Pratap Thakur and Anr. Vs. State of Bihar and Ors, reported in
2023 SCC OnLine SC 527. The Apex Court again in State of Odisha
and Ors. Vs. Sudhansu Sekhar Jena, reported in 2025 SCC OnLine SC
385 reiterated the directions passed by the Apex Court in Prem Singh
(Supra) on the ground that the judgment rendered in Prem Singh
(Supra) was by a Larger Bench of three Hon'ble Judges of the Apex
Court and this view cannot be overruled by a Smaller Bench of two
Hon'ble Judges as have been sought to be done in Uday Pratap
Thakur(Supra). The learned Senior Counsel therefore submits that the
petitioners being similarly situated like the persons before the Apex
Court in Prem Singh (Supra), a mandamus is required to be issued by
this court directing regularization of the respondents for the purposes
of grant of the pensionary benefits to which they are entitled to. The
learned Senior counsel further refers to the Judgment rendered by the
Apex Court in Shripal & Anr. Vs. Nagar Nigam, Ghaziabad, reported in
2025 INSC 144 and Vinod Kanjibhai Bhagora Vs. State of Gujarat &
Anr, reported in 2024 0 INSC 100 as well as Rajkaran Singh & Ors. Vs.
Union of India & Ors, reported in 2024 0 Supreme (SC) 684 and
Dharam Singh & Ors. Vs. State of U.P & Anr., reported in 2025 INSC
998.
7. Referring to all these judgments rendered by the Apex Court,
the learned Senior counsel strongly urged before the Court that where
the employees concerned have consistently put in services of more
than two decades and without any break and the respondents have
extracted services out of the State employees like the petitioners, then
their entitlement to pensionary benefits cannot be denied on the
ground of their conditions of service at the time of initial employment.
He therefore submits that the government cannot be allowed to
exploit citizens like the petitioners by extracting services an employing
people to do work similar to those rendered by people in regular
service and thereafter denied their pensionary benefits on the ground
that they are temporary or casual or work charged employees and
therefore not entitled to pension.
8. Mr. P. Nayak, learned Addl. Advocate General, Assam for the
respondents-State strongly opposes the submissions made by the
Petitioner counsel. It is submitted that the reliance by the learned
senior counsel for the petitioners on the judgment of Prem Singh
(Supra) is misplaced inasmuch as in Prem Singh (Supra), the services
of the litigants before the Apex Court were already regularized.
However, in the present case, the petitioners were never regularized.
There was no claim made at any point in time to regularize their
services. It is submitted that under Rule 31 of the Assam Services
(Pension) Rules, 1969, the three conditions prescribed therein must be
satisfied and in order that person be entitled for payment of pension.
Referring to Rule 31, learned counsel submits that the pension Rules
itself clearly prescribe that for a person to be eligible for pension
under the said Rules, the employment must be substantive and
permanent. There is no dispute that the petitioners have never been
substantively and permanently appointed or absorbed under the
Department. They were engaged as work charged or Muster Roll
workers and have continued to render their services as such without
being regularized as regular employees under the Department.
Therefore, the petitioners not having fulfilled Rule 31 of the Rules,
their claims for regularization of services as prayed for cannot be
entertained and should be rejected. He further submits that the
reference to the Office Memorandums dated 12.09.1996 and
06.09.2003 are specifically in respect of temporary employees. The
learned Addl. Advocate General, Assam submits before the Court that
for any employment under the Government whether permanent or
temporary, the same requires a precondition to be satisfied, that is
the availability of a post, whether on permanent retention or for
temporary purposes. In so far as the petitioners are concerned, there
were no posts to which they were engaged. Petitioners were never
engaged against vacancies available under Grade-III or Grade-IV
posts under the Department. They were engaged as Muster Roll
and/or the Work Charged Employees. The term Muster Roll or Work
charged denotes that their employment is in respect of a specific
project or execution of work undertaken by the Department. The fact
that they rendered several years of service would not ipso facto confer
them any right for pension as they were never regularized in their
services. The prayers made in the writ petition clearly reflect that this
writ petition is for a direction for grant of pension by deeming the
disemployees to be regular employees. Therefore, there is no dispute
that the petitioners were never regularized nor have they urged
before this Court that they had represented for regularization of their
services before the Department as no such pleadings are available in
the writ petition. They were well aware of their conditions of service
as Muster Role or Work Charged employees pursuant to their
engagement as such. The petitioners knew that besides the salary
and/or the wages that they are entitled to, they will have no claim for
pension as they are not engaged or appointed as regular employees
under the Rules governing the services of the PWD Department. The
learned Addl. Advocate General, Assam further submits that while the
petitioners have referred to and relied upon the judgment of Prem
Singh (Supra) but the same would not be applicable in the facts of the
present proceedings inasmuch as the petitioners have not been able
to show the manner and the process under which they were recruited
in service. There was no selection process undertaken as prescribed
under any Rule or Office Memorandum at the time when they were
initially engaged as Muster Roll or work charged employees. He
further submits that while the Apex Court in the judgment of Prem
Singh (Supra) sought to distinguish the mandates prescribed under
Secretary, State of Karnataka & Ors Vs Umadevi & Ors, reported in
(2006) 4 SCC 1. It is submitted before this Court that Umadevi
(Supra) laid down three conditions as specified in the said judgment
of the Apex Court. Referring to the Judgment of Umadevi (Supra) at
Paragraph-53, the State counsel submits that the ratio in Umadevi
(Supra) laid down that the Union or the State government and their
instrumentalities should take steps to regularize as a one-time
measure the services of irregularly appointed employees who have
worked for 10 years or more in duly sanctioned posts but not under
the covers of the orders of the Courts or the Tribunals and should
further ensure that regular recruitments are undertaken to fulfill those
vacant sanction posts that are required to be filled up in cases where
temporary employees or daily wagers are now being employed. The
Apex Court, however, gave protection to the regularization already
made were not required to be reopened on the basis of the judgment.
The learned State counsel therefore submits that there are three
conditions which will have to be satisfied before any direction for
regularization can be issued by the Court. The first is that the
employees must be irregularly appointed, not illegally appointed; they
must have rendered more than 10 years of service and their services
must have been in respect of sanctioned posts. Referring to the
judgment of Prem Singh (Supra), he submits that although the Apex
Court issued an order regularizing the employees before the Apex
Court, it is not clear from the judgment as to whether these three
conditions were satisfied by the employees. He therefore submits that
it is perhaps the Apex Court subsequently in Uday Pratap Thakur
(Supra) sought to clarify the conclusions arrived at in Prem Singh
(Supra) which however were overruled by Sudhansu Sekhar Jena
(Supra).
9. The learned Addl. Advocate General, Assam also presses into
service the judgment of Division Bench of this Court rendered in State
of Assam Vs. Upen Das, reported in (2017) 4 GLR 493. He submits
that the question of regularization of Muster Roll workers and Work
Charged Workers came up before this Court earlier while the Single
Bench allowed the writ petitions directing regularization of such
workers. In the appeal filed by the State, the Division Bench of this
Court allowed the appeal interfering with the directions of the Single
Bench and negated the claims of the respondents before the Division
Bench towards their entitlement for regularization. It is submitted that
the Division Bench accepted the submissions of the State that the
Muster Roll workers would be entitled to minimum scale of pay to
those workers who had worked for more than 10 years (not in
sanction post) and including benefits in health, accidental and death
insurance schemes. These were made available to all Muster Roll,
Work Charged and similarly placed employees working since the last
more than 10 years (not in sanction posts) till their normal retirement,
except on disciplinary ground or on ground of criminal offenses. He
further submits that on that basis the Division Bench categorically
dismissed the writ appeal interfering and setting aside with the
Judgment and Order dated 20.12.2023 passed by the learned Single
Judge. The Division Bench categorically held that Muster Roll workers,
work charged workers and casual workers are not entitled for
regularization of their services with consequential benefits such as
pension etc. He submits that this judgment still is a good law as no
further appeals have been preferred by the respondents and therefore
the judgment is a binding precedent before this Court and in view of
the categorical finding by a Division bench of this Court that Muster
Roll workers and Work charged employees are not entitled to
regularization, the claim of the writ petitioners are required to be
rejected and the writ petition be dismissed. He further submits that
there is no denial by the writ petitioners that the writ petitioners were
also not beneficiaries of the directions contained in Upen Das (Supra).
If that be so, then having accepted the benefits in terms of the
judgment rendered in Upen Das (Supra), the petitioners cannot now
be permitted to turn around and claim regularization and other
consequential service benefits like pension etc.
10. The learned Senior counsel for the petitioners in rejoinder
submits that the treatment meted out to the petitioners has always
been that of a regular employee. It is submitted that the judgment of
the Apex Court in Umadevi (Supra) does not decide on the entitlement
to pension of Muster Roll and work Charged employees. He submits
that the ratio in Umadevi (Supra) is towards the claim of regularization
where the initial appointments were illegal or irregular. Such is not the
case in the present proceedings as submitted by the learned Senior
counsel. He submits that the petitioners were subjected to the
procedure which was followed at the relevant point in time by the
department at the time of their initial engagement. They were given
regular scale of pay and their service roles were also made available.
Their superannuation was intimated to the petitioners. On the date
when the petitioners superannuated, they were released from services
by issuance of specific orders, copies of which are enclosed to the writ
petition. He therefore submits that for all practical purposes the writ
petitioners, although initially engaged as Muster Roll and Work
Charged workers were always given the status of regular employees
and therefore reference to the judgment of the Apex Court in
Umadevi (Supra) by the respondents cannot non-suit the petitioners in
respect of their claims for grant of pension. He further submits that
the Apex Court in recent judgments rendered in Jaggo Vs. Union of
India and Ors, reported in 2024 SCC OnLine SC 3826; Vinod Kumar
and Ors Vs. Union of India and Ors, reported in (2024) 9 SCC 327;
Vinod Kanjibhai Bhagora Vs. State of Gujarat and Anr, reported in
2024 0 Supreme (SC) 115; Rajkaran Singh and Ors. Vs. Union of India
and Ors, reported in 2024 SCC OnLine SC 2138; Shripal and Anr. Vs.
Nagar Nigam, Ghaziabad, reported in 2025 SCC OnLine SC 221 and
Dharam Singh and Ors. Vs. State of U.P and Anr, reported in 2025
SCC OnLine SC 1735, the consistent view of the Apex Court in respect
of the claims of the of Muster Roll workers that where the employees
have rendered long and continuous years of service, their status at
the time of initial employment cannot be a ground to reject their
claims for pension. They are required to be treated as regular
employees and are therefore entitled for pension. Referring to the
Judgment in Jaggo (Supra), the learned Senior counsel submits that
the Apex Court held that the decision in Umadevi (Supra) does not
intend to penalize the employees who have rendered long years of
service fulfilling ongoing and necessary functions of the State or its
instrumentalities. The judgment in Umadevi (Supra) sought to prevent
backdoor entries and illegal appointments that circumvent the
constitutional requirements. However, where the appointments are
not illegal but possibly irregular and where the employees have served
continuously against the backdrop of sanctioned functions for a
considerable period, the need for a fair and human resolution
becomes paramount. Referring to the judgment rendered in Dharam
Singh (Supra), the learned senior counsel submits that in the
judgment references were made to Jaggo(Supra), Shripal(Supra) and
it was emphatically held that Umadevi (Supra) cannot be deployed as
a shield to justify exploitation through long term "adhocism", the use
of outsourcing as a proxy, or denial of basic parity where identical
duties are exacted over extended periods. He therefore submits that
under such circumstances, this writ petition is required to be allowed
and the respondents be directed to release the pensionary benefits
due to the petitioners by treating their services to be regular service
rendered under the respondents.
11. The learned counsel for the parties have been heard. Pleadings
available on record have been carefully perused. The judgments
referred to by the learned counsel for the parties before the Court
have also been carefully noted.
12. At the outset, it is necessary to refer to the chart which forms a
part of the writ petition reflecting the various dates of engagement of
the petitioners and their dates of superannuation. The same are
extracted below:
Sl No. Name Date of Appointment Date of Superannuation Division
1. Pramod Ch. Kakati 30.11.1993 30.09.2018 South Kamrup T R
2. Chandradhar Rabha 30.05.1994 01.01.2021 South Kamrup T R
3. Pulin Bihari Ojha 31.05.1994 30.04.2019 PWD Guwahati East
4. Duhab Pathak 30.05.1994 31.12.2019 Jalukbari T R
5. Bishnu Ram Das 25.05.1994 30.09.2019 Jalukbari T R
6. Md. Latfulla Ahmed 28.02.1994 30.04.2018 Jalukbbari T R
7. Md. Abdur Rejjaque 12.03.1994 31.07.2019 E.E, Patarkandi & Ratabari
8. Rejina Begum 01.06.1994 31.03.2021 E.E., Rangia T R
9. Lohit Ch. Saloi 29.06.1996 31.03.2021 E.E. Rangia T R
10. Satya Nath Deka 04.03.1994 31.03.2018 E.E., Rangiya T R
11 Hare Krishna Das 01.06.1994 29.02.2020 Dispur T R
12 Girindra Talukdar 31.05.1994 31.01.2021 West Guwahati T R
13. From the pleadings, it is seen that the copies of their initial
engagement are enclosed as Annexure-A series which reflects that
the petitioners' name therein were engaged as work charged Section
Assistants in the scale of pay plus other allowances as admissible
under the Rules under the respective divisions of the PWD. The
appointment order also reflects that this appointment is purely
temporary and may be terminated without notice. Similar orders
have been issued on various dates in respect of all the writ
petitioners which are collectively enclosed as Annexure-A Series. In
some of the Engagement orders, the engagements were also shown
to have been issued on promotion. Although the petitioners had
categorically averred in the writ petition and also the submissions
before the Court that they were engaged through a due process as
was followed by the Department for engagement of persons like the
writ petitioners. However, no such office orders or communications
issued to the petitioners have been enclosed to the writ petition. The
petitioners are also intimated individually about their dates of
appointment and by office orders were released from services on the
date of their superannuation. The foundation towards their claims
made in the present proceedings appears to be from the judgment of
the Apex Court rendered in Prem Singh (Supra). In paragraph-36 of
Prem Singh (Supra), the question before the Apex Court in Prem
Singh (Supra) was whether services rendered as Work charged can
also be taken into consideration for counting the services rendered
by the employees before the Apex Court towards the pensionary
benefits pursuant to their regularization. In the bunch of cases
before the Apex Court, there appears to be some employees who
although rendered long years of services were never regularized and
therefore since the Apex Court had already had held in the judgment
that the shortfall in the services rendered by the petitioners pursuant
to regularization towards their claim of pensionary benefits cannot be
used as a ground to deny their pensionary benefits and consequently
the services rendered during the tenure as Muster Roll or Work
charged employees ought to be counted while calculating their
requirement of services under the Rules for pensionary benefits. The
Apex Court having concluded as such further went on to hold that in
respect of those employees who continued to render services without
being regularized even after rendering more than two decades of
services, were also entitled to pension by issuing a direction that
such employees be treated to be regular employees. This view of the
Apex court was sought to be explained subsequently in Uday Pratap
Thakur (Supra). In Uday Pratap Thakur (Supra), the Apex Court
explained that the court in Prem Singh (Supra) was considering the
validity of Rule 3(8) of the U.P Retirement Benefit Rules 1961, under
which the entire service is rendered as Work charged was not to be
counted for qualifying services for pension. To that, the Apex court
has held that after rendering services as Work charged for number of
years in the Government Establishment Department denying the said
employees the pension on the ground that they have not completed
the qualifying service for pension would be unjust, arbitrary and
illegal and therefore the apex court had held that the services
rendered as work charged shall be considered and counted for
qualifying services. The Apex court clarified that it did not observe
and hold that the entire service rendered as work charged shall be
considered and counted for quantum of pension and therefore the
decision of the Apex court in the case of Prem Singh (supra) was
restricted to the counting of service rendered as work charged for
qualifying service for pension. Subsequently in Sudhanshu Shekhar
Jena (Supra), two Hon'ble Judges of the Apex Court overruled the
views rendered in Uday Pratap Thakur (Supra) whereby an attempt
was made to explain the conclusions arrived in Prem Singh (Supra).
Their Lordships in Sudhanshu Sekhar Jena (Supra) held that the
interpretation by the Apex court in Uday Pratap Thakur (Supra)
regarding the three Judge Bench decision in Prem Singh (Supra)
does not appear to be correct as the three Judge Bench has been
quite unambiguous in asserting that the entire period of service of
work charged employees has to be counted for pension.
14. Be that as it may, what is clear from these judgments is that in
Prem Singh(Supra), the moot question before the apex court was the
interpretation of Rule 3(8) of the U.P Retirement Benefit Rules of
1961 and the apex Court accordingly rendered its decision
interpreting the Rule in Prem Singh (Supra) and subsequently in
Uday Pratap Thakur (Supra) which has been further interpreted in
Sudhansu Sekhar Jena (Supra) reiterating the view already
expressed in Prem Singh (Supra). In the present case there is no
challenge or interpretation sought to be made to the Assam Services
(Pension) Rules, more particularly Rule 31. The case projected by the
petitioners is with regard to their claims in respect of two office
memorandums. For clarity, Rule 31 of the Pension Rules and the
Office Memorandums dated 12.09.1996 and 06.09.2003 are extracted
below:
"31. Conditions to qualifying service. - 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
nonGazetted 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."
"GOVERNMENT OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR
No. PPG(P) 196/92/35 dated Dispur, the 12th September, 1996
OFFICE MEMORENDUM
Subject: The pensionary benefit to the State Government
Pensioners/Family pension holders.
In the Govt. of Assam circular issued under office Memorandum
No. FMP.48/83/40 dtd. 10-8-63 of Finance (APF) Deptt. A temporary
Govt. employee, who retires after rendering temporary service of not
less than 20 years under the Government without being confirmed in
any post is to be allowed the pensionary benefits as available to a
retiring confirmed Government employee either on attaining the age of
superannuation or on his being declared to be permanently
incapacitated for further Government service by the appropriated
medical authority. The said O.M came into force with effect from 01st
September, 1982.
The Governor of Assam is now pleased to clarify that all temporary
Government employees who have retired from the service under the
Governor of Assam fulfilling the criteria of not less than 20 (twenty)
years of continuous service will be eligible for pension from 01st
September, 1982 onwards. This is, however, subject to the condition
that they satisfy all conditions other than the condition of permanency
against permanent posts under the Govt. of Assam for usual pensioner
benefit under the Assam Services (Pension) Rules, 1969. This benefit
not be admissible to any retirees who retire from service with
retirement benefits under CPF Rules.
Sd/P.C Sarma
Commissioner & Secy. to the Govt. of Assam
Pension & Public Grievances Department,
Dispur"
"GOVERNMENT OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPARTMENT
DISPUR: : GUWAHATI:: 6
OFFICE MEMORENDUM
No. PPG(P) 196/92/61 dated Dispur, the 6th September, 2003
In continuation of this Deptt. O.M NO. PPG.(P)196/92/35 dated 12-9-
96, it is reiterated that said O.M. clearly lays down that a Govt. Servant
rendering 20 years of continuous Service without being confirmed shall
be eligible for pensionary benefits. The focus is on 20 years of
continuous service. After rendering 20 years of Service if the Govt.
servant is superannuated or incapacitated or dead is no ** rood point.
Any confusion in this regard is against the spirit of the O.M. referred to
above.
It is therefore, clarified that pensionary benefit as contemplated in
the above O.M shall be admissible to a Govt. Servant who died after
rendering 20 years of Continuous Service. Other terms and conditions
for eligibility of Pension shall remain shall as usual.
Sd/A. Ahmed
Secretary. to the Govt. of Assam
Pension & Public Grievances Department"
15. Referring to Rule 31, it is clear that there are three conditions
which are required to be fulfilled by Government employee in order
to claim eligibility towards grant of pension. Under the said Rules,
the conditions of qualifying service to grant of pension are that the
service must be under government; the employment must be
substantive and permanent and the service must be paid by the
government.
From a plain reading of the Office Memorandum dated
12.09.1996, it is apparent that these office memorandums are in
respect of temporary government employee who retires after
rendering temporary service of not less than 20 years under the
Government without being confirmed in any post are to be allowed,
all pensionary benefits as available to a retiring confirmed
government servants employee. This was followed by the
subsequent Office Memorandum dated 6th of September 2003.
16. The petitioners have placed strong reliance on these Office
memorandums to submit that these office memorandums cover the
cases of the petitioners as they are also temporary government
employees, who have rendered services of more than two decades
and are therefore entitled to be conferred with the pensionary
benefits in terms of the said Office Memorandums. The claim of the
writ petitioners that these Office Memorandums are still subsisting
has also not been specifically disputed by the respondent authorities.
The respondent authorities, however, dispute the applicability of
these OMs on the ground that these OMs covered temporary
government employees only and that the writ petitioners are not
government employees, much less temporary government
employees. Therefore, these OMs will have no application in respect
of the claims made by the writ petitioners. In this context, it is it
would be apposite to examine the judicial definition of a post/ Civil
Post. In State of Assam Vs. Kanak Chandra Dutta, reported in AIR
1967 SC 884, it was held that the "post" is an office or a position
created and sanctioned by the Government. A person holds a civil
post when he is appointed to such a post under the control of the
government and his remuneration is paid by the government.
Therefore, a temporary or a support staff employee may also hold a
civil post if the post is created by the State, the duties are connected
with the state affairs, the government has the right to appoint and
dismiss them and their pay is drawn from public funds. The Apex
Court held that the term "civil post" appears in Articles 309 to 311 of
the Constitution of India, but there is no specific definition as to what
a civil post is. However, Article 311 distinguishes a civil post from
members of the civil services and the defence. Therefore, it can be
interpreted that a civil post is one which is connected with the civil
administration of the Union or the State as opposed to the defence
post or a post under the judiciary. In the context of the present
proceedings, there are no materials available before the court which
show that the petitioners engagements or appointments were in
temporary or casual nature against any sanctioned posts. The
respondents have maintained that there were no sanction posts
against which the petitioners were appointed or engaged, to which
contention the petitioners although dispute, but have not been able
to support their contentions by placing or referring to any materials
available before the Court. Therefore, from the above discussion, it is
clear that for a person to be employed in the government service, it
is necessary that the service must be engaged by the government to
a post which is sanctioned and the remuneration of the pay or the
salary of such an employee is made out of public funds. The Rules
governing the services of the PWD do not define the term Muster
Roll or work Charged. The cadre reflected under the Rules also do
not reflect posts under the category of Muster Roll or Work Charged.
The term Muster Roll or work charged, however, is found under the
PWD Code. From a perusal of the relevant provisions under the PWD
Code, it can be gainsaid that a Muster Roll is the nature of an
employment where the employee is granted wages generally on a
daily basis and the tenure of the employment is on a need basis
which may or may not continue depending upon the requirement of
the Department. The Work charged employee on the other hand, is
an employee who is charged with a particular work or works under a
particular scheme and the tenure of the employment of a work
charged employee continues till the currency of the said scheme.
Although not specifically prescribed under the PWD Code, it appears
to the court that the remuneration of the salary payable to Muster
Roll or work charged is attributed to the scheme or the project under
which they are employed. The concept under which the Muster Roll
or the work charged employment was initiated under the PWD
Manual was perhaps because of the nature of works undertaken by
the Works Department across the state in urban as well as remote
rural areas and most of these works are labor intensive and the
employment of labor for a successful completion or execution of the
work is indispensable. Perhaps at the time when the PWD manual
was published, the execution of works were on specific projects
which were time bound and dependent on the availability of funds
supplied by the State or the Union. However, with the passage of
time and the demands of works required to be executed, the nature
of the schemes and the works required to be executed by the PWD
also underwent substantial changes. Various divisions or
establishments under the PWD were perhaps in consistent need of
manpower and therefore the employees were engaged on Muster
Roll or work charged basis. Therefore, in the scheme of the PWD
Manual, for engagement of Muster Roll or Work Charged employees,
no creation of any post whether temporary or permanent is
conceived of. The employees are engaged depending on the
requirement of the work to be undertaken and executed by the
Department and/or outsourced by the department and once the work
was executed, the engagement of the employees were expected to
be not extended or continued further. However, for reasons best
known to the Department, it appears to the court at least insofar as
the present proceedings are concerned, that the petitioners were
continued to be regularly engaged as Muster Roll or work charged
employees. Their service rolls were opened. The service particulars
were inserted. They were given regular scale of pay and their
increments. If their services were necessary and required by the
Department, it was incumbent on the Department to submit
necessary proposals to the appropriate departments in the
government for creation of specific posts for absorption,
regularization of the petitioners. But it appears to the court that such
steps were never taken up by the respondent department and no
such proposals were ever forwarded to the Department and the writ
petitioners continued to render their services as Muster Roll or Work
Charged employees till they finally superannuated from their
services. It is also evident from the materials before the court that
there was no claim made by the petitioners during their continuation
of their services for regular absorption. It is only after the petitioners
superannuated that they filed a representation dated 23.06.2021
with a prayer for grant of pension.
17. From a conjoint reading of the PWD Service rules, the PWD
Manual and the Assam Services Pension Rules it is to be understood
that for employment under the government, there must be a post
sanction either as temporary or permanent. Unless such a post is
sanctioned, there cannot be a claim for regularization without there
being any such vacant posts available. While it was open to the PWD
Department to submit adequate proposals for creation of posts for
absorption of the writ petitioner, and although no such proposals
were ever submitted, however, in the absence of any sanctioned
vacant posts available for absorption or regularization of the writ
petitioners, the claims of the petitioners for regularization of their
services cannot be considered by the Department. The projections
sought to be made by the petitioners that the services rendered by
the petitioners since their initial dates of engagement had the
trappings of a regular service cannot be accepted in view of specific
avernments made in Paragraph-4 of the writ petition that the
petitioners from their dates of engagement to the dates of
superannuation had been discharging the duties performed by any
regular employee and in Grade-III or Grade-IV posts under the
control of the respective Executive Engineers. Therefore, it is clear
that the petitioners are aware that their initial engagement in service
were temporary and not against any sanctioned posts. It is also not
clear to this Court, in the absence of any befitting materials, as to
why no claim for regularization was ever made by the petitioners
during the currency of their services as Muster Roll or Work Charged
employees. Under such circumstances, the claim of the writ
petitioners that the Office Memorandums which are applicable to
temporary government servants are also applicable to the petitioners
cannot be accepted. In view of the above discussion, for any
employment under the government to render an employee to be a
member of the government service, the employment must be against
sanctioned vacant post whether of temporary or permanent status.
No such asseverations are made by the petitioners in their pleadings.
Therefore, the claim of the petitioners that the benefit under the
Office Memorandums are to be extended to the petitioners to confer
their pensionary benefits cannot be accepted in view of the above
discussions. It is the view of the Court that notwithstanding the
power reserved for the Governor of the State to exempt a
government employee from satisfying one or any of the conditions
under Rule 31 of the Pension Rules of 1969, the claim of the
petitioners towards any pensionary benefits must be preceded by
steps undertaken by the Department towards regularization. In the
absence of any steps taken by the Department towards
regularization of the writ petitioners, their services rendered as Work
Charged or Muster Roll cannot be ipso facto be considered to be
rendered or deemed to be rendered in regular capacity and as a
consequence whereof they would be entitled to the pensionary
benefits. This court also cannot be oblivious of the judgment
rendered by a division bench of this court in Upen Das (Supra) where
the claims of Muster Roll workers and work charged employees for
regularization stood negated with the Government conceding that
they will be granted regular scale of pay and also extend benefits of
health and accidental and death insurance scheme. The division
bench of this court in the said judgment categorically rejected the
claims of the respondents therein by setting aside and interfering
with the judgment rendered by the learned single judge and held
that Muster Roll workers and Work Charged Employees are not
entitled to towards regularization save and accept the benefits
granted by the Division Bench as referred to in Paragraph 22 of the
said Judgment. The relevant paragraphs 22 & 23 are extracted
below:
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 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 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 in 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 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 20.12.2013 passed by the learned
Single Judge.
18. It is also clear that this judgment has attained finality as on
date as the parties before this court have not placed any material to
show that the judgment has been subjected to further scrutiny and
interfered with or read down by any higher forum. Under such
circumstances, since the judgment of the Division bench rendered in
Upen Das (Supra) is also in the context of the claims of regularization
and consequential benefits like pension of Muster Roll and Work
Charged employees, it is a binding precedent on this court. Similar
views have also been expressed by other Co-ordinate benches by
placing reliance on the judgment of Upen Das (Supra).
19. Under such circumstances, the scope of reopening or re-
examining the claims of the petitioners towards grant of pensionary
benefits of Muster Roll and work Charged employees cannot be
undertaken by this court at this stage. Judicial discipline demands
that the views of the Division Bench expressed in Upen Das (Supra)
are required to be followed unless it is shown to the court that the
same has been subsequently interfered with.
20. The Judgments in Jaggo (Supra); Shripal (Supra) and other
Judgments relied upon which are rendered by the Apex court will
have to be understood in the context of the facts and circumstances
of each of these cases.
21. In Prem Singh (Supra), the question involved before the Apex
Court was whether Rule 3(8) of the U.P. Retirement Benefit Rules,
1961 (in short "the 1961 Rules") and Regulation 370 of the Civil
Services Regulations of Uttar Pradesh should be struck down having
regard to the fact that the Apex Court has upheld the decision
regarding pari materia provision enacted in the State of Punjab which
excluded computation of the period of work-charged services from
qualifying service for pension. The Apex Court has affirmed the
decision of the High Court of State of Punjab and Haryana rendered
in Kesar Chand v. State of Punjab. The matter was considered by a
larger Bench and that is how the matter came before the Apex Court.
In Prem Singh (Supra), the appellant was appointed as a welder in
the year 1965 in a work-charged establishment (Ram Ganga River
Valley Project, Kalagarh). He was transferred from one place to
another and thereafter ultimately the Selection Committee
recommended for regularisation of his services. His services were
regularised on 13-3-2002 and was posted as pump operator in the
pay scale of Rs 3050-4590 in the regular establishment. He
superannuated on 31-1-2007. Then he filed a writ petition in the
High Court on 31-7-2008 to count period spent in the work-charged
establishment as qualifying service under the Rules of 1965. The
High Court directed for submission of a representation which
accordingly was filed but was met with rejection on 12-12-2008. Yet
another representation filed also met with the same fate vide order
dated 23-3-2009. The writ petition and special appeal was dismissed
by the High Court.
The Apex Court upon considering the matter and the Rules
concerned read down the provisions of Rule 3(8) and held that
services rendered even prior to regularisation in the capacity of work-
charged employees, contingency paid fund employees or non-
pensionable establishment shall also be counted towards the
qualifying services if such services are not preceded by temporary or
regular appointment in a pensionable establishment. The Apex Court
also considered the cases of some of the employees who have not
been regularised in spite of having rendered the services for 30-40
years whereas they have been superannuated. The Apex Court held
that as they have worked in the work-charged establishment and not
against any particular project, their services ought to have been
regularised under the Government instructions and even as per the
decision of this Court in State of Karnataka v. Umadevi (3), reported
in (2006) 4 SCC 1. Upon consideration of the directions of the Apex
Court in Umadevi (Supra), the Apex Court in Prem Singh (Supra)
directed that the service of these employees who were not
regularized in spite of have worked for 30-40 years against work
charged establishment are to be treated as a regular one and they
shall be entitled to received pension as if they have retired from
regular establishment.
22. This Judgment was subsequently sought to be explained by the
Apex Court in Uday Pratap Thakur (Supra). The Apex Court sought to
limit the conclusions in the Prem Singh (Supra) more particularly in
respect of the conclusions regarding the directions towards treating
those employees who had rendered 30-40 years of service without
being regularized to be also eligible for pension.
23. However, a still later Judgment rendered by the Apex Court in
Sudhansu Sekhar Jena (Supra) overruled the conclusions of the Apex
Court in Uday Pratap Thakur (Supra) while trying to limit the
conclusions in Prem Singh (Supra). The relevant paragraph of the
Judgment is extracted below:
13. In our respectful opinion, the above interpretation by the two Judge
Bench of this Court regarding the three Judge Bench decision in Prem
Singh (supra) does not appear to be correct as the three Judge Bench
has been quite unambiguous in asserting that the entire period of
service of the work-charged employees has to be counted for pension.
24. In Shripal (Supra), the Apex Court was considering an appeal
arising out of the final Judgment and Order dated 01.03.2019 passed
by the High Court of Allahabad. The High Court was considering the
legality of two conflicting sets of awards passed by the Labour Court,
Ghaziabad--one set allowing reinstatement of some workmen with
partial back wages, and another set denying relief altogether to other
similarly placed workmen. The Apex Court on the facts of this case
found that the appellants were continuously discharging in
Horticultural and maintenance duties and engaged as Gardeners
(Malis) since the year 1998. The grievances of the workmen were
that there was no formal appointment letters and they were
persistently denied minimum wages, weekly offs, national holidays,
and other statutory benefits. Before the Apex Court, it was urged on
behalf of the Department that daily wage and temporary employees
cannot claim permanent absorption in the absence of statutory Rules
providing such absorption and by placing reliance from the Judgment
of Umadevi (Supra). The apex Court held that the Judgment in
Umadevi (Supra) distinguishes between appointments that are
"illegal" and those which are "irregular," and the latter being eligible
for regularization if they meet certain conditions. The Apex Court
held that Umadevi (Supra) cannot serve as a shield to justify
exploitative engagements persisting for years without the Employer
undertaking legitimate recruitment. The relevant paragraph of the
Judgment is extracted below:
"14. The Respondent Employer places reliance on Umadevi (supra) to
contend that daily-wage or temporary employees cannot claim permanent
absorption in the absence of statutory rules providing such absorption.
However, as frequently reiterated, Uma Devi itself distinguishes between
appointments that are "illegal" and those that are "irregular," the latter
being eligible for regularization if they meet certain conditions. More
importantly, Uma Devi cannot serve as a shield to justify exploitative
engagements persisting for years without the Employer undertaking
legitimate recruitment. Given the record which shows no true contractor
based arrangement and a consistent need for permanent horticultural staff
the alleged asserted ban on fresh recruitment, though real, cannot justify
indefinite daily-wage status or continued unfair practices."
25. In Jaggo (Supra), the Apex Court has held as under:
"22. The pervasive misuse of temporary employment contracts, as
exemplified in this case, reflects a broader systemic issue that adversely
affects workers' rights and job security. In the private sector, the rise of
the gig economy has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job security, and
fair treatment. Such practices have been criticized for exploiting workers
and undermining labour standards. Government institutions, entrusted
with upholding the principles of fairness and justice, bear an even greater
responsibility to avoid such exploitative employment practices. When
public sector entities engage in misuse of temporary contracts, it not only
mirrors the detrimental trends observed in the gig economy but also sets
a concerning precedent that can erode public trust in governmental
operations. .........
25. It is a disconcerting reality that temporary employees, particularly in
government institutions, often face multifaceted forms of exploitation.
While the foundational purpose of temporary contracts may have been to
address short-term or seasonal needs, they have increasingly become a
mechanism toevade long-term obligations owed to employees. These
practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees engaged for work that is
essential, recurring, and integral to the functioning of an institution are
often labelled as "temporary" or "contractual," even when their roles
mirror those of regular employees. Such misclassification deprives workers
of the dignity, security, and benefits that regular employees are entitled
to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently dismissed
without cause or notice, as seen in the present case. This practice
undermines the principles of natural justice and subjects workers to a
state of constant insecurity, regardless of the quality or duration of their
service.
• Lack of Career Progression: Temporary employees often find themselves
excluded from opportunities for skill development, promotions, or
incremental pay raises. They remain stagnant in their roles, creating a
systemic disparity between them and their regular counterparts, despite
their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly resort to
outsourcing roles performed by temporary employees, effectively
replacing one set of exploited workers with another. This practice not only
perpetuates exploitation but also demonstrates a deliberate effort to
bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often
denied fundamental benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure spans decades. This
lack of social security subjects them and their families to undue hardship,
especially in cases of illness, retirement, or unforeseen circumstances."
26. In Vinod Kanjibhai Bhagora (Supra), the Apex Court held that
pension scheme floated by the Government form a part of delegated
beneficial legislation and should be interpreted widely subject to such
interpretation not running contrary to the Pension Rules. The
relevant paragraph of the said Judgment is extracted below:
"17. It is well settled that pension scheme(s) floated by the State
Government form a part of delegated beneficial legislation; and ought to be
interpreted widely subject to such interpretation not running contrary to the
express provisions of the Pension Rules. Furthermore, it would be relevant to
underscore that the Government is a model employer; and ought to uphold
principles of fairness and clarity."
27. A perusal of these judgments discussed above reveal that in all
these cases before the Apex court, the question was essentially of
discrimination between other similarly situated employees and the
appellants before the Apex Court. While other similarly situated
employees were granted the benefit of regularization and/or pension.
The employees before the Apex court in each of these cases were
denied or deprived of the same benefit. Under these circumstances,
the apex court had interfered with the actions or inactions of the
respondent departments directing those benefits as specified in these
judgments to be granted to these employees before the apex Court.
28. However, what is to be noticed in these judgments is that the
apex court has consistently held that the initial employment or the
status of their initial employment cannot be a ground to deprive
employees who have rendered continuous and long years of services
the pensionary and retiral benefits. The apex court has also
explained that the ratio in Umadevi (Supra) was with regard to
curtailing illegal and irregular and/ backdoor employment and
subsequent regularization without conforming to the constitutional
mandates.
29. The apex Court in these Judgments as discussed above has
categorically held that the ratio in Umadevi (Supra) is not to be
understood to be a judgment in respect of depriving pensionary
benefits for employees who have rendered continuous and long
years of services. The consistent view of the apex court in these
Judgments have opened a new dimension in service jurisprudence in
respect of claims and grant of pension and other retiral benefits of
employees working under the Union or the State or their
instrumentalities. While the earlier judgments rendered by the apex
Court as for instance in Prabhu Narain and Ors. Vs. State of U.P and
Ors., reported in (2004) 13 SCC 662 had clearly held that claims of
regularization and consequential retiral benefits cannot be
entertained in the absence of proper procedure for recruitment and
also the engagements or employments being against sanction posts;
the recent judgments, as discussed above has taken a serious note
of the exploitation of the citizens working or rendering long and
consistent years of services under the Government departments and
who are ultimately deprived of pension.
30. As far as in D.S. Nakara and Ors. v. Union of India, reported in
(1983) 1 SCC 305, the apex court has held that pension is neither a
bounty not a matter of grace depending upon the sweet will of the
employer, nor an ex gratia payment. It is a payment for the past
service rendered. It is a social welfare measure rendering socio-
economic justice to those who in the hey-day of their life ceaselessly
toiled for the employer on an assurance that in their old age they
would not be left in lurch. Pension as a retirement benefit is in
consonance with and furtherance of the goals of the Constitution.
The most practical raison d'etre for pension is the inability to provide
for oneself due to old age. It creates a vested right and is governed
by the statutory rules such as the Central Civil Services (Pension)
Rules which are enacted in exercise of power conferred by Articles
309 and 148(5) of the Constitution.
31. Therefore, taking note of the judgments recently rendered by
the apex Court in Jaggo (Supra), Sripal (Supra) and other
Judgments, it is clear that the apex Court has highlighted this
consistent exploitation of employees under government departments
who are compelled to render services for consistent and long periods
without their cases being taken up or considered for regularization.
Therefore, the Apex Court has clearly laid down that initial
employment status shall not be used as a bar or a restriction towards
the entitlement of the pensionary and retiral benefits of such
employees. While Upen Das (Supra) had categorically held that
Muster Roll and work charged employees are not entitled to
pensionary or retiral benefits save and accept the benefits specifically
mentioned in paragraph 22 of the said judgment and which
judgment has been also followed by co-ordinate benches as
discussed in preceding paragraphs hereinabove, the ratio in Upen
Das (Supra) does not restrict the Government to examine the plight
of the petitioners and other similarly situated persons and formulate
a scheme for grant of financial benefits as a one-time measure or
periodically as it deems proper, in lieu of pension, in view of the law
laid down by the Apex Court and taking into consideration the long
and continuous years of services rendered by each of the writ
petitioners and which position has not been disputed by the
respondents on facts.
32. In view of the recent judgments rendered by the Apex Court
which is a pointer to the fact that that extraction of services by the
State or its instrumentalities of these employees for consistent and
long periods of time and who are also performing jobs or duties
which are otherwise performed by similarly situated persons in their
regular employment, this Court while rejecting the contentions of the
writ petitioners for grant of pensionary benefits under the Assam
Services Pension Rules 1969 in view of the specific law laid down by
Division Bench of this Court in Upen Das (Supra), the Court considers
it appropriate in the facts and circumstances of this case to mould
the relief prayed for and to direct the Government to undertake
appropriate exercises to formulate a scheme for grant of financial
benefits to the writ petitioners and other similarly situated persons in
lieu of pensionary benefits, which needless to say will be made
available to such employees only after proper verification by the
respective Departments. This direction of this Court shall be carried
out forthwith by the respondent No. 1 who shall constitute a
committee headed by an Officer in the rank of an Additional Chief
Secretary of the State. The other members should be competent
officers from the Concerned Works Department, the Finance
Department, the Personnel Department and the Department of Law.
This Committee will examine the modalities and formulate a scheme
which will then be placed before the appropriate level in the
Government for due implementation. The Chief Secretary of the
State will ensure compliance of this direction and the Committee
shall within three months formulate the scheme.
33. With this above observation, writ petition stands disposed of.
No order as to cost.
JUDGE
Comparing Assistant
