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2015 DIGILAW 1223 (GAU)

Sailendra Kr. Borah v. State of Assam

2015-09-21

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. P.P. Baruah, learned counsel for the petitioners and Ms. R. Deka, learned Standing Counsel, PWD (Roads). By filing this petition under article 226 of the Constitution of India, petitioners seek a direction to the respondents for regularization of their services in the Office of Executive Engineer, PWD (R & B), Mechanical Division, Tezpur (respondent No. 4). 2. 23 petitioners have joined together and have instituted the present common proceeding seeking the relief as indicated above. 3. Pleaded case of the petitioner is that they were engaged as Muster Roll Workers in the PWD under respondent No. 4 on various dates from 1983 onwards but all of them were so engaged prior to 1993. By a series of departmental orders passed in the year 1993 and thereafter, engagement of the petitioners was upgraded to Work Charged Jogali. In the orders appointing the petitioners as Work Charged Jogali which have been placed on record as annexure-A series to the writ petition, petitioners were shown promoted as Work Charged Jogali which is a post in Gr-IV. Since then, petitioners are working as Work Charged Jogali. Though they have been paid salary in the pay scale of Jogali, their services have not been regularized. Representations submitted by the petitioners for regularization of service have not received any consideration of the authority. 4. Aggrieved, present writ petition has been filed. 5. Contention of the petitioners is that they are now working as Work Charged Jogali in the regular establishment of respondent No. 4 admittedly for more than 10 years, in some cases even for more than 20 years. Petitioners are working continuously and without any break, without the aid or assistance of any order of the Court or service tribunal. Further contention is that petitioners are rendering service against valid sanctioned posts. They have the eligibility to hold such posts. Therefore, there is no impediment in regularizing the service of the petitioners. 6. Respondent No. 4 has filed affidavit. Stand taken in the affidavit is that Finance Department, Govt. of Assam is a necessary party and in the absence of the Finance Department, no relief can be granted to the petitioners. They have the eligibility to hold such posts. Therefore, there is no impediment in regularizing the service of the petitioners. 6. Respondent No. 4 has filed affidavit. Stand taken in the affidavit is that Finance Department, Govt. of Assam is a necessary party and in the absence of the Finance Department, no relief can be granted to the petitioners. While admitting that petitioners were initially engaged as Muster Roll Workers and thereafter as Work-Charged Jogali, respondent No. 4 however contends that discharge of service by the petitioners as Work Charged Jogali are not against any valid and vacant sanctioned posts. Regularization of service of the petitioners could not be considered because of ban imposed by the Government from time to time. It is however admitted that Finance Department has issued Office Memorandum (OM) dated 27.06.2013 for regularization of Work Charged and Muster Roll Workers who fulfill the following three conditions: 1. Those who have been working continuously for 10 years or more as on 10.04.2006 i.e. the date of delivery of judgment in the case of Uma Devi, 2. Those who have been engaged against sanctioned vacant posts, and 3. Those who have the requisite qualification to hold the concern posts. While on the one hand it is admitted that petitioners are being paid their regular salary as per budget proposal submitted by the Department, on the other hand, it is contended that for regularization of the service of the petitioners 23 numbers of regular vacant posts would be required but at present there are only 3 vacancies in Gr-IV under respondent No. 4. 7. Petitioners have filed reply affidavit wherein it is reiterated that petitioners fulfill all the three conditions for regularization. It is contended that petitioners have been engaged against sanctioned vacant posts. It is stated that Govt. of Assam in the PWD had informed the Chief Engineer, PWD on 26.08.1980 about creation of 2681 temporary posts for bringing work charged employees working in the PWD to the regular cadre. From the various departmental communications, it would be evident that engagement of the petitioners as Work Charged Jogali are against vacancies in sanctioned posts created on 26.08.1980. Departmental proposals submitted in this regard would also bear out the correctness of the stand taken by the petitioners particularly the proposal submitted by respondent No. 4 himself on 04.11.2009. 8. From the various departmental communications, it would be evident that engagement of the petitioners as Work Charged Jogali are against vacancies in sanctioned posts created on 26.08.1980. Departmental proposals submitted in this regard would also bear out the correctness of the stand taken by the petitioners particularly the proposal submitted by respondent No. 4 himself on 04.11.2009. 8. After filing of this affidavit by the petitioners, another affidavit has been filed by respondent No. 4 wherein it is again stated that without the concurrence of the Finance Department, PWD has no authority to regularize the service of the petitioners. It is stated that only for the purpose of payment of salary to the petitioners, it has been shown that petitioners are working against sanctioned vacant posts, sanctioned on 26.08.1980 but in reality, there are only three vacancies in the post of Jogali. 9. Mr. Baruah, learned counsel for the petitioners submits that stand taken by the answering respondent is contradictory. Official documents as placed on record would go to show that petitioners are rendering service as Work Charged Jogali against sanctioned vacancies because of which they have been paid their salary in the pay scale of Jogali. Had the petitioners not been working against sanctioned vacancies, payment of salary in the pay scale would not be permissible and possible. PWD has failed to submit the proposal for regularization of the service of the petitioners in a proper and convincing manner and now they are trying to bring in the Finance Department to bail them out of the present situation. He submits that petitioners are qualified and have the eligibility to hold the post of Jogali in the PWD, besides rendering continuous service in the PWD for more than 10 years as on the date of the judgment in Uma Devi's case. Besides they had not approached the Court or Tribunal earlier and their continuous service is not on the basis of any order of the Court or Tribunal. Therefore, petitioners fulfill all the criteria for regularization and in such circumstances denial of regularization to the petitioners would be unjust and unfair and thus violative of Article 14 of the Constitution of India. 10. Per contra, Ms. Therefore, petitioners fulfill all the criteria for regularization and in such circumstances denial of regularization to the petitioners would be unjust and unfair and thus violative of Article 14 of the Constitution of India. 10. Per contra, Ms. R. Deka, learned Standing Counsel, PWD submits that while other contentions of the petitioners like being in continuous service and having eligibility to hold the post of Jogali may be correct, it is however not correct to contend that petitioners are working against valid sanctioned posts as respondent No. 4 has made it abundantly clear that there are only three vacancies in Grade-TV in his establishment against 23 petitioners. On good faith and to ensure that petitioners receive their salary, respondent No. 4 had included regular salary of the petitioners in the yearly budget proposals by showing them as working against sanctioned vacancies. This was done only to ensure that petitioners receive their monthly salary regularly. Nothing more should be read into it. Therefore, the claim of the petitioners may not be tenable, she submits. 11. Submissions made by learned counsel for the parties have received the due consideration of the Court. 12. At the outset, the judgment of the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1 may be referred to. The Hon'ble Supreme Court in the said decision has deprecated the practice of regularizing the services of temporary, contractual, casual, daily wage and other ad hoc categories of employees on the ground of long continuance of service. While holding as impermissible any such course of action, the Hon'ble Supreme Court has carved out an exception in case of irregular appointments as distinct from illegal appointments. In the case of irregular appointments of duly qualified persons against duly sanctioned vacant posts where the appointments have continued for 10 years or more but without the intervention of orders of the Courts or tribunals it was held that the State and their instrumentalities should take steps to regularize the service of such employees as one time measure. This exception so carved out is mentioned in paragraph 53 of the judgment, which is quoted hereunder for ready reference:- "53. One aspect needs to be clarified. This exception so carved out is mentioned in paragraph 53 of the judgment, which is quoted hereunder for ready reference:- "53. 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 one-time 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 regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 13. In the case of State of Karnataka & Ors. Vs. M.L. Kesri & Ors., reported in (2010) 9 SCC 247 , the Supreme Court explained the exceptions carved out in paragraph 53. It has been held that as a matter of fact after Uma Devi's case Government or its instrumentalities are required to take steps to regularize the service of those who fulfill the three conditions mentioned in Uma Devi. Explaining the term "one time measure" it was held that this one time exercise should be continued till such time all the employees who are entitled to be considered in terms of paragraph 53 of Uma Devi are so considered. 14. Explaining the term "one time measure" it was held that this one time exercise should be continued till such time all the employees who are entitled to be considered in terms of paragraph 53 of Uma Devi are so considered. 14. The Finance Department, Government of Assam in its OM dated 27.06.2013 had stated that the State Govt. would like to take up the "one time measure" for regularization of services of those workers who fulfill the criteria laid down in paragraph 53 of Uma Devi. It was stated that those Work Charged, Muster Roll and other categories of workers who fulfill the following three conditions would be considered for regularization as part of "one time measure". As already noticed, the three criteria/conditions are as under:- 1. Those who have been working continuously for 10 years or more as on 10.04.2006, 2. Those who have been engaged against sanctioned vacant posts, and 3. Those who have requisite qualification to hold the posts. 15. In a recent decision in the case of Amarkant Rai Vs. State of Bihar (Civil Appeal No. 2835 of 2015 decided on March 13, 2015), the Hon'ble Supreme Court has explained the rationale behind the exception carved out in para 53 of Uma Devi. According to the Apex Court, the objective was to permit regularization of such appointments which are irregular but not illegal and to ensure security of employment of those persons who had served the State Government and their instrumentalities for more than ten years. In the said decision reference has been made to the case of Nihal Singh Vs. State of Punjab reported in (2013) 14 SCC 65 where the Supreme Court applying the ratio of Umadevi directed absorption of the Special Police Officers in the services of the State of Punjab. In that case it was held that there was clear existence of the need for creation of the posts for absorption of the appellants and failure to do so was an arbitrary action (inaction) on the part of the State. In that case it was held that there was clear existence of the need for creation of the posts for absorption of the appellants and failure to do so was an arbitrary action (inaction) on the part of the State. While acknowledging that creation of posts necessarily means additional financial burden on the exchequer of the State and allocation of finances being no doubt within the exclusive domain of the legislature, however in the facts of that case it was found that creation of new posts would not create any additional financial burden on the State as the various banks at whose disposal the services of each of the appellants was made available had agreed to bear the burden. Accordingly, the direction for absorption was issued. 16. In the light of the aforesaid legal position, the case of the petitioners may now be examined. 17. From the above, it is evident that to come within the ambit of the "one time measure" as envisaged in Uma Devi and explained in M.L. Kesri the above three conditions would have to be fulfilled. In so far condition Nos. 1 & 3 are concerned, there appears to be no dispute to the claim made by the petitioners. Contention of the petitioners to have rendered continuous service of more than 10 years as on 10.04.2006 and having the requisite qualification to hold the post of Jogali and Assistant Blacksmith in the case of petitioner No. 11 is not disputed. It is also not disputed that petitioners have been so working without the benefit or protection of any interim order of any Court or Tribunal. The only bone of contention is regarding engagement of the petitioners against sanctioned vacant posts. 18. While petitioners contend that they are working against sanctioned vacant posts, respondent No. 4 would contend that they are not so working and in fact there are only three sanctioned vacancies in Grade-IV in his establishment as on date as against 23 petitioners but it is an admitted position that petitioners are being paid monthly salary in the pay scale of Jogali and in case of petitioner No. 11 in the pay scale of Assistant Blacksmith with grade pay and annual increments. Question for consideration is whether payment of salary in the pay scale of Jogali and Assistant Blacksmith for years together would be possible in the absence of sanctioned vacancies? Question for consideration is whether payment of salary in the pay scale of Jogali and Assistant Blacksmith for years together would be possible in the absence of sanctioned vacancies? In the proposal submitted by respondent No. 4 as far back as on 04.11.2009 giving details of sanctioned posts in his establishment, number of post sanctioned in the cadre of Assistant Blacksmith was shown as one and number of posts sanctioned in the cadre of Mechanical Helper (Jogali) was shown as 22, total 23, all shown as filled up. These posts are being held by the petitioners and accordingly those have been shown as filled up. In the remarks column it was mentioned that these posts were created vide No. ADT/186/77/144 dated 26.08.1980. As against the above 23 posts, three workers were shown engaged drawing fixed pay. As a matter of fact, a statement was also annexed to the proposal showing the names of all the petitioners holding the said vacant sanctioned posts with pay scale, annual increments etc. 19. Therefore, despite protestations by respondent No. 4 to the contrary, it is quite evident that petitioners are being paid in the pay scale of Jogali and Assistant Blacksmith which is a clear indication of the fact that they were working against valid sanctioned posts. In the course of hearing, learned counsel for the petitioners has also placed before the Court, details of the sanctioned posts in the establishment of respondent No. 4 for the year 2013-14 prepared by respondent No. 4 which also discloses 22 posts of Mechanical Helper (Jogali) held by the petitioners and one post of Assistant Blacksmith held by petitioner No. 11. Respondent No. 4 has also prepared a statement showing the particulars of the petitioners and the pay scale drawn by them as on March, 2012 including grade pay. Therefore, the above is a clear indication of the fact that petitioners are working against valid sanctioned posts carrying a definite pay scale with grade pay and annual increments. Moreover, as in the case of Nihal Singh, regularization of service of the petitioners would not create any additional financial burden on the State. 20. Therefore, the above is a clear indication of the fact that petitioners are working against valid sanctioned posts carrying a definite pay scale with grade pay and annual increments. Moreover, as in the case of Nihal Singh, regularization of service of the petitioners would not create any additional financial burden on the State. 20. In the light of the above and considering the materials on record, Court is of the unhesitant view that petitioners have made out a case for regularization of their service as part of the "one time measure" as per decision in para 53 of Uma Devi and as explained in M.L. Kesri. The ratio of the decision in Nihal Singh would also be applicable in the case of the petitioners. Therefore, it would be the duty of the PWD to submit proposal before the Finance Department, Govt. of Assam for its sanction in terms of OM dated 27.06.2013 for regularization of the service of the petitioners. Ordered accordingly. This shall be done within a period of 4 (four) months from the date of receipt of a certified copy of this order. Writ petition is accordingly allowed. No costs.