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Gauhati High Court · body

1996 DIGILAW 262 (GAU)

Mdkhalekulzaman v. State of Assam and Ors.

1996-12-12

N.CHOWDHURY

body1996
JUDGMENT AND ORDER The subject matter in this writ petition relates to the employment market where supply is in abundance whereas the public offer to sustain the employment have become scarce. This case speaks about the familiar state of affairs in this part of the land centring on Muster Roll worker/labourer. 2. The petitioner in the instant case was initially appointed on 20.4.93 vide office order No. 13/1993-94. The order of appointment itself is cited below : "Office Order No. 13 of 1993-94. Md Khalekul Zaman, S/o Md. Ahmed Ali (retired SA) Vill: Muslimghopa, PO Sipajhar, Dist Darrang (Assam) is hereby temporarily appointed as HRLabourer on humanitarian grounds for 3 (three) months only from the date of joining in the service and placed under Mangaldai PWD Road SuDivision. This is as per instruction contained in the letterNo.RBEB.17190/Pt/59 dated 12.8.92 received from the Under Secretary to the Govt of Assam, PWD..." The aforesaid order of appointment was extended from time according to the petitioner and his last extension was issued vide Memo No.399-403 dated 30.4.94 whereby he was appointed as a Work Charged Section Assistant for a period of 3 (three) months from the date of joining in the post against the resultant vacancy caused due to retirement of his father in the scale of pay of Rs. 1,065 -2,095 PM plus other allowances as admissible under the rules. The order seems to have been passed in pursuance of a communication sent by the Under Secretary to the Govt of Assam Public Work Department vide No.RBEB.171/90/Pt/59 dated Dispur the 12th August, 1992. From the appointment letter if further transpires that the Executive Engineer communicated the order of appointment to the Under Secretary to the Govt of Assam, PWD Department for favour of approval in pursuance of the letter dated 12.8.92. From the facts narrated in this writ petition, it appears that the petitioner's father Md. Amzed Ali had been working as a Section Assistant and who retired from service on 31.8.92. As far back as on 24.6.92 petitioner's father Md. Amzed Ali submitted an application before the respondent No. 1 narrating the problem of the family, which would attain serious proportion on his retirement. From the application it reveals that Md. Amzed Ali rendered 30 years of service in the Department. From the said application it also reveals that one serious accident took place to the person of in the Md. From the application it reveals that Md. Amzed Ali rendered 30 years of service in the Department. From the said application it also reveals that one serious accident took place to the person of in the Md. Amzed Ali in 1985 while he was on duty (election duty) which caused a great set back in the family. The said application was forwarded by the Under Secretary to the Govt of Assam PWD Department vide communication referred dated 12.8.92 as referred to earlier. The Under Secretary in his turn forwarded the application to the Executive Engineer, PWD, Mangaldai Road Division and as per the direction he requested the Executive Engineer to consider the prayer of the petitioner's father on humanitarian ground from his end as per Govt rules and procedures against existing vacant post and as a sequal to the aforesaid communication petitioner was first appointed vide office order No. 13/93-94 dated 20.4.93. The petitioner along with 6 (six) others while working in this fashion received the impugned order vide No.MR/1/1168/74 dated 16.11.95 issued under the signature of Assistant Executive Engineer, PWD, Dalgaon Road Division terminating the services of those 7 (seven) persons including that of the petitioner. From the aforesaid termination letter it is apparent that the order of termination or retrenchment from service was passed by the respondents in pursuance of the Finance Department letter No.65/95/1, dated 11.10.95 duly communicated vide Commissioner and Special Secretary to the Government of Assam, PWD Department letter No.RBEB/272/94/10, dated 13.10.95 and DC, Darrang (Mangaldai) Darrang's letter No.MLD 14/92/88, dated 16.10.95 and the instruction given by the Executive Engineer. 3. Mr.C. Baruah learned counsel for the petitioner has drawn my attention to a communication of the PWD Department bearing No.ADT.98/77/Pt-l 1/21 dated 18.8.78. By the aforesaid communication the Chief Engineer, PWD (R & D), was intimated about the Govt decision to provide for employment to one direct descendant of the PWD Department such as Work Charged Staff, Muster Roll Labourers and other Grade IV employees, if found suitable and satisfy the prescribed requirement for the joagainst the resultant vacancy on account of the retirement or in case of demise before retirement of aforesaid category of the employee. By the aforesaid instruction the Chief Engineer, PWD (R & D) was also intimated that the above principle would be applicable to the direct descendant of the Section Assistant subject to the condition that such descendant has requisite qualifications. Accordingly the Chief Engineer, PWD was directed that he may employ one of the direct descendant from the above category of employees in the resultant vacancies occuring on account of retirement or demise before retirement or personnel working in the Department after proper verification if such descendant approached the department seeking employment. Mr. Baruah, learned counsel for the petitioner therefore submits that the appointment of the petitioner was made in terms of the policy laid down by the State Govt in respect of the direct descendants of the lower category of employees in the PWD Department. According to Mr. Baruah, the office memo of the Govt of Assam issued by the Govt of Assam vide letter dated 11.10.95, the basis on which the impugned order of termination is rested, is not applicable in the instant case. Mr. Baruah, learned counsel for the petitioner further submits that in the matter of public employment the authority must act justly, fairly and in terms of the procedure prescribed by the Department which are in-conformity with the Constitution of India. Mr. Baruah with a view to substantiate the points raised by him referred to decision of this Court in H. Samusing & others vs. State of Manipur & others reported in 1995 (1) GLJ 109. 4. Mr. Sk Muktar, learned counsel for the respondents on the other hand submits that State Govt is facing acute situation in the matter of employment for regularisation of the ad hoc/Muster Roll employees. The Govt is fully aware of the situation and accordingly the State Govt from time to time issued various instructions. Mr. Muktar accordingly brought my attention to the earlier communication of the Finance Department bearing No.FC (III)/24/92/5 dated Dispur, the 12th March, 1993, No.ADT/92/93/2 dated Dispur the 19th April, 1993, Memo No.BW.18/93/2A dated the 16th April, 1993 issued by the Commissioner, Finance Department. By the aforesaid communications the Finance Department brought to the notice to the concerned Department about the large scale appointment of the casual worker in various departments causing serious affect on the State Exchequer and accordingly by the aforesaid communications the Departments were so advised to stop recruitment of casual worker forthwith. Mr. By the aforesaid communications the Finance Department brought to the notice to the concerned Department about the large scale appointment of the casual worker in various departments causing serious affect on the State Exchequer and accordingly by the aforesaid communications the Departments were so advised to stop recruitment of casual worker forthwith. Mr. Sheikh also brought my attention to the communication of the State Govt vide No.ABP.176/91/Pt-l/188 dated Dispur the 20th April, 1995. The full extract of the communication along with the explanation vide No.ABP.176/91/Pt-l/213 dated Dispur, the 13th October, 1995 are extracted below : ...No.ABP.176/91/Pt-l/188 dated Dispur the 20th April, 1995 From : Shri Arunadoy Bhattacharyya, LAS Chief Secretary to the Govt of Assam. To : All Commissioners and Secretaries/Secretaries to the Govt of Assam. Sub: Regularisation of services of Work Charged and Muster Rolls workers. Ref: This Departments letter No.ABP.64.90/13 dated 24.9.90. Sir, I am directed to say that for regularisation of services of work charged and Muster Roll workers State Government have issued instruction from time to time to all concerned. It has, however, been brought to the notice of the State Government by the Sodou Asom Karmachari Parishad that in spite of State Government's instructions, no action for regularisation of the. services of such workers has been taken by the certain Departments. Besides, it has also been represented that such workers are also not getting their wages regularly. It is, therefore, reiterated that all concerned Departments should take necessary action in consultation with the Finance Department for early regularisation of the services of such workers who were engaged in service prior to 1.4.93 and also to take steps for payment of their wages regularly. Further, while taking steps for regularisation of the services of work charged and Muster Roll workers, the Department concerned must ensure with proper justification and evidence that only the case of those workers who were entertained before 1.4.93 are considered for regularisation in consultation with the Finance Department. It has also been decided that in case of any violation of the Government direction or manipulation of records by any official or Department, appropriate action will be taken against the officer concerned for such violation or manipulation of records. It has also been decided that in case of any violation of the Government direction or manipulation of records by any official or Department, appropriate action will be taken against the officer concerned for such violation or manipulation of records. Yours faithfully Sd/- Chief Secretary to the Govt of Assam..." "GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL : PERSONNEL (B) DISPUR: GUWAHATI No.ABP.176/91/Pt-l/213 dated Dispur, the 13th October, 1995 From : Shri Arunadoy Bhattacharyya, IAS Chief Secretary to the Govt of Assam. To : All Commissioners and Secretaries/Secretaries to the Govt of Assam. Sub: Regularisation of services of work charged and Muster Roll workers. Sir, In inviting a reference to this Department's letter No.ABP.176/91/Pt-l/188 dated 20.4.95 on the subject quoted above, I am directed to say that the following proviso shall be inserted after the first paragraph of the said letter. "Provided that such workers were not discharged/terminated/disengaged on or before 20.4.95...." 5. The State Govt through the communications vide Memo No.DW.65/951A dated Dispur the 11 th October, 1995 only reiterated the policy of the State Govt and reminded the Department about the existing ban against fresh engagement of work charged persons and Muster Roll workers on or after 1.4.93. The recruitment of persons in public services, generation of employment and cancellation or abolition of posts vests on the State Govt. It is the employer alone who is competent to lay down the rules or norms of appointment. Judicial review, in the matter of administrative decision is only permissible to uphold the Constitution and to ensure rule of law and take care of the fact that administrative authority acts within its bound justly, fairly and in consonnance with the equality clause as enjoined in Article 14 and 16 of the Constitution of India. The duty of the Court for that matter is also to judge as to whether the employer has taken undue advantage on the hardship and misery of the employees. Where an individual employee is kept for a prolonged period as an ad hoc employee without regularising the post by taking advantage of the situation, to uphold rule of law, the Court of law can intervene in such a situation by judicial review. It may also be kept in mind that the recruitment and c regularisation of service involves a financial burden and it is for the executive authority to take care of the finance. It may also be kept in mind that the recruitment and c regularisation of service involves a financial burden and it is for the executive authority to take care of the finance. The State has many other obligations apart from taking care of the employment sector and therefore it would always be hazardous proposition for issuing directions for regularisation of employees. From the executive for regularisation of the services of the employees subject to fulfilment of norms therefore no arbitrariness or illegality is discernable. In the present case however it appears that Govt thought it fit to appoint the petitioner on the ground specified in the appointment letter in conformity with its circular dated 18.8.78 that if the circular still holds the field and there are posts to absorbe the petitioner, it will be for the authority concerned to consider the case of the petitioner subject to the fulfilment of the norms along with the persons similarlysituated. If the policy laid down in the said circular holds the field and was very much operative in 1993, when the petitioner was first appointed there cannot be any justification in not giving the benefit of the circular, unless opposed by the recruitment rules. On the facts situation it is left to the authority concerned to consider the case of the petitioner in the light of the existing policy of the PWD Department. Subject to the observation made above it is expected that the respondents shall take appropriate steps to dispose of the case of the petitioner as early as possible preferably within three months from the receipt of the certified copy of this order. With the above direction, petition is disposed of. No costs.