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Gauhati High Court · body

2015 DIGILAW 775 (GAU)

Seema Karmakar v. State of Assam and ors.

2015-06-18

UJJAL BHUYAN

body2015
Ujjal Bhuyan, J.:-- By filing this petition under article 226 of the Constitution of India petitioner seeks quashing of order dated 28.12.2004 and further seeks a direction to the respondents to issue order of re-instatement with back wages. 2. Case of the petitioner is that he was appointed as jeep driver on 30.1.1999 by the Executive Engineer, PWD (Roads), Barpeta Division in a regular vacancy. Pursuant to the said order, petitioner joined and started discharging his duty for which he was paid his salary. By order dated 13.4.1999 passed by the Executive Engineer appointment of the petitioner was cancelled on the ground that the appointment was not made by observing the required formalities. 3. Petitioner approached this court by filing WP(C) No.1925/1999. This court by order dated 7.9.2000 allowed the writ petition by quashing the cancellation order dated 13.4.1999. However, the Executive Engineer was given liberty to issue show cause notice to the petitioner in which case the petitioner was also be at liberty to seek personal hearing if he so desired. It was further observed that if the Executive Engineer found that petitioner's appointment was not liable to be cancelled, he should pay the petitioner back wages for the period from the date of cancellation of his appointment and continue to pay the wages of the petitioner till such time he would continue in service. 4. With the grievance that in spite of the order of this court he was not re-instated in service, petitioner approached this court again by filing WP(C) No.5734/2003 which was allowed vide order dated 10.6.2004. A perusal of the order dated 10.6.2004 would show that the departmental counsel had placed the written instructions before the court which stated that appointment of the petitioner was neither illegal nor irregular and that the vacancy in which he was appointed was a regular one. Steps were taken to obtain approval of the State Level Empowered Committee to facilitate re-instatement of the petitioner in the said post. In view of the clear admission of the respondents as to the legality and validity of the appointment of the petitioner, this court directed the PWD authorities to take all essential steps to ensure that petitioner was reinstated in his post at the earliest. In view of the clear admission of the respondents as to the legality and validity of the appointment of the petitioner, this court directed the PWD authorities to take all essential steps to ensure that petitioner was reinstated in his post at the earliest. It was clarified that petitioner would be deemed to be in service without any break and that he would be entitled to service seniority and consequential service benefits. Regarding payment of back wages, that was left to the discretion of the PWD authorities. 5. However, instead of reinstating the petitioner as directed by this court, the Executive Engineer passed the impugned order dated 28.12.2004 appointing the petitioner afresh as jeep driver under his Division. 6. In a parallel development, one employee appointed along with the petitioner, Md. Manu Ali (appointed as Carpenter), also faced similar situation. He was appointed as Carpenter by the Executive Engineer, PWD (Roads), Barpeta Division in like manner on 30.1.1999 which appointment was cancelled also like the petitioner on 13.4.1999. He had approached this court by filing WP(C) No.2408/1999. This court by order dated 4.5.2005 allowed the writ petition by quashing the cancellation order dated 13.4.1999. Like the initial case of the petitioner, similar liberty was granted to the respondents in the case of Md. Manu Ali. 7. By order dated 25.1.2006, the Executive Engineer re-engaged Md. Manu Ali as Carpenter. By a subsequent order dated 15.6.2011, back wages for the period from 14.4.1999 to 24.1.2006 was granted to the said Md. Manu Ali by treating him to be in continuous service. 8. In the light of the aforesaid development, petitioner moved this court again in WP(C) No.5143/2012 which was disposed of on 19.10.2012 by directing the respondents to take a decision in the matter in terms of the order of this court dated 10.6.2004 passed in WP(C) No.5734/2003. Thereafter, the Executive Engineer passed a speaking order dated 5.4.2014 justifying fresh appointment granted to the petitioner and holding that since he did not serve the Department from 13.4.1999 till his joining he will not be entitled to back wages as claimed by him. 9. In the affidavit filed by respondent No.4, i.e., the Executive Engineer PWD (Roads), Barpeta Rural Road Division, it is admitted that back wages have been released to Md. 9. In the affidavit filed by respondent No.4, i.e., the Executive Engineer PWD (Roads), Barpeta Rural Road Division, it is admitted that back wages have been released to Md. Manu Ali by treating him to be in continuous service as per order dated 4.5.2005 passed in WP(C) No.2508/1999 and accordingly re-engagement order was issued to him. However, in the case of the petitioner, stand taken is that since the petitioner did not serve the Department during the period from 13.4.1999 till 28.12.2004 he was not be entitled to salary for the said period. However it is admitted that this court had held that the petitioner would be deemed to be in service without break and would be entitled to service seniority and consequential service benefits. 10. Heard Mr. G. Uzir, learned counsel for the petitioner and Ms. R. Deka, learned standing counsel, Public Works Department (PWD) (Roads) for the respondents. 11. Submissions made have been considered. After hearing learned counsel for the parties and on perusal of the documents on record, this court finds that petitioner is similarly placed like the said Md. Manu Ali. Both of them were appointed on 30.1.1999 by the Executive Engineer in similar manner and their appointments were cancelled on 13.4.1999 in similar fashion. Both of them had approached this court by filing writ petitions which were allowed. Orders passed in both the case are identical. 12. Additionally, in the case of the petitioner, in the second round of litigation, it was clearly held by this court that the appointment of the petitioner was neither illegal nor irregular. It was further held that he was appointed against a regular vacancy. This court directed that the petitioner should be re-instated in service with all service benefits including consequential seniority except back wages which was left to the discretion of the authority. 13. When discretion is vested in an authority such discretion is required to be exercised in a reasonable, fair and rational manner. There cannot be any discrimination while exercising such discretion between two similarly situated persons. In a case of this nature, where the initial appointment was found to be legally valid and cancellation was found to be illegal, court is of the considered opinion that the principle of "no work no pay" will have no application. Moreover, the respondents have not applied the said principle in the case of Md. In a case of this nature, where the initial appointment was found to be legally valid and cancellation was found to be illegal, court is of the considered opinion that the principle of "no work no pay" will have no application. Moreover, the respondents have not applied the said principle in the case of Md. Manu Ali who has been paid his back wages. 14. Accordingly and in the light of the above, order dated 28.12.2004 passed by the Executive Engineer PWD, Barpeta Road Division is interfered with to the extent that it should be construed to be an order of re-instatement. In other words, petitioner shall be deemed to be in continuous service w.e.f. 30.1.1999. 15. In view of what has been discussed above, petitioner would be entitled to back wages for the period from 13.4.1999 till his reinstatement on 28.12.2004. The said amount shall be paid to the petitioner within a period of 4 months' from the date of receipt of a certified copy of this order. 16. Respondent Nos.3 and 4 shall be responsible for compliance of this order. 17. Writ petition is accordingly allowed but without any order as to cost.