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2018 DIGILAW 1414 (GAU)

Raju Singha v. State of Assam

2018-09-21

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Heard Ms. N. Saikia, the learned counsel for the petitioners in both the writ petitions and Mr. B. Gogoi, the learned counsel appearing for the respondent Finance Department. Also heard Mr. N. Goswami, the learned State counsel appearing for State Public Works Department and Ms. A. Neog, the learned counsel appearing for the Dima Hasao Autonomous Council. 2. The subject matter in both the writ petitions being similar and identical, they are taken up together and being disposed of by this common Judgment and Order. 3. In W.P(C) No.3469 of 2015, the writ petitioner was appointed as Work Charge Section Assistant vide Office Order No. 18 dated 20.05.1994 by the respondent No. 5 in the Pay-scale of Rs. 1055-2090 per month. The petitioner was initially appointed for a period of three months but was extended from time to time till his services was continued until further orders vide Office Order No. 79 dated 17.08.2002. The petitioner approached the respondent authorities for regularization of his service by submitting representations from time to time. On 01.10.2010, the respondent No. 5 forwarded the representation of the petitioner to the respondent No. 2 informing him that they were two vacant post of Regular Section Assistant available under the Haflong Division of the Public Works Department. Thereafter, the petitioner again on 26.05.2015 submitted a representation before the Under Secretary to the Government of Assam, Public Works Department (Establishment Branch) through proper channel seeking regularization of his service against one post of Regular Section Assistant which according to him was lying vacant due to the retirement of the incumbent. However, as the petitioner was not considered despite having served for about 21 years, he has filed the present writ petition. 4. In W.P(C) No. 3782 of 2018, there are 8 (eight) writ petitioners in all and they were appointed as Work Charged and Muster Roll Laborers under the establishment of the Executive Engineer, Public Works Department (R&B) Haflong Division since the year 1991-1995. It is their grievance that although they have rendered their services sincerely since their initially appointment, they have not been considered for regularization of their service till date. Having no alternative, they have approached this Court seeking a direction to the respondent authorities concerned for their regularization. 5. Appearing for the petitioners Ms. It is their grievance that although they have rendered their services sincerely since their initially appointment, they have not been considered for regularization of their service till date. Having no alternative, they have approached this Court seeking a direction to the respondent authorities concerned for their regularization. 5. Appearing for the petitioners Ms. N. Saikia, the learned counsel submits that the petitioners are entitled to be considered for regularization of their services in view of the decision of the Apex Court in Secretary, State of Karnataka and Others. Vs. Uma Devi and Others., (2006) 4 SCC 1 . The learned counsel by referring the paragraph No. 53 of Uma Devi submits that the Apex Court held that those employees who have rendered more than 10 (ten) years of service in their appointed post and are duly qualified and working in a sanctioned post have to be considered for regularization of their services. Similarly, the present petitioners have been appointed against regular sanctioned post and have been working more than 20 years in their appointed post and therefore, a direction may be given to the respondent authorities concerned to consider them for regularization of their service. 6. Appearing for the Finance Department, Mr. B. Gogoi, the learned counsel by referring to the affidavit-in-opposition filed by the respondent No. 3 on 30.09.2015 submits that as per the decision of the Apex Court, only those employees whose appointments are irregular and not illegal can be considered for regularization subject to them fulfilling the requirements mentioned in paragraph No.53 of Uma Devi. The Finance Department accordingly, issued instruction to all the departments and establishments vide Office Memorandum issued under Memo No. FEC (II) 49/2010/PT/52 dated 27.06.2013 for taking necessary steps as one time measure to regularize the services of Work Charge and Muster Roll Employees who have rendered 10 years of continues service as on the date of judgment passed in Uma Devi i.e., 10.04.2006. He submits that a number of writ petitions were filed before this Court, challenging the decision of the State Government more particularly, Office Memorandum dated 16.06.2012, wherein it was provided that no more regularization will be considered even if the engagement of such employees was made prior to 01.04.1993. He submits that a number of writ petitions were filed before this Court, challenging the decision of the State Government more particularly, Office Memorandum dated 16.06.2012, wherein it was provided that no more regularization will be considered even if the engagement of such employees was made prior to 01.04.1993. The writ petitions were allowed by this Court by setting aside the impugned Office Memorandum Dated 16.06.2012 and directing the State Government to take steps for regularizing Work Charge and Muster Roll employees who were engaged prior to 1993. The decision of the writ Court was put to challenge before a Division Bench of this Court through Writ Appeal No. 45/2014 (State of Assam Vs. Upen Das). The writ appeal was disposed of vide Judgment and Order dated 08.06.2017 by holding 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. Therefore, the petitioners herein also cannot claim regularization of their services. 7. Without further entering into the controversy, it may be noticed that the law laid down by the Apex Court in the case of Uma Devi holds the field as on date. The conditions which are laid down in order to be considered for regularization are given at paragraph No. 53 of the Judgment. The exception curved out to regularize the services of employees in the said Judgment was applied by the State Government through Office Memorandum Dated 27.06.2013. A copy of the Office Memorandum is produced by Mr. B. Gogoi, the learned counsel for the Finance Department. The operative portion of the Office Memorandum i.e., paragraph No. 2 may be reproduced herein below for ready perusal:- "The State Government will now like to take the "One Time measure" for regularization of those workers as referred to in paragraph 53 of the Orders in Uma Devi's case read with M.L. Kesari's case, whereby exception was curved out to regularize all employees who fulfill the following three conditions:- (i) Who have been working continuously for 10 years or more as on 10.04.2006 i.e. the date of passing of the judgment in Uma Devi's case without the benefit or protection of the interim order of any Court or Tribunal. (ii) Who have been engaged against sanctioned vacant post. (iii) Who have requisite qualification to hold the post." 8. (ii) Who have been engaged against sanctioned vacant post. (iii) Who have requisite qualification to hold the post." 8. From a perusal of the Office Memorandum abstracted above, it can be seen that the condition precedent for being considered for regularization as was held by the Apex Court in Uma Devi read with State of Karnataka and Others. Vs. M.L. Kesari, (2010) 9 SCC 247 is stipulated. Such being the position, I am of the considered opinion that the petitioners in the given facts and circumstances of the case are entitled to be considered for regularization subject to their fulfillment of the conditions stipulated in the Office Memorandum as abstracted above. 9. In view of above, the writ petitions are disposed of with a direction to the respondent authorities to consider the case of the petitioners in terms of the Office Memorandum dated 27.06.2013 within a period of 3 (three) months from the date of receipt of a certified copy of this Order. Regularization of the petitioners will however be subject to the availability of vacancies and verifications as may be found necessary by the respondent authorities. 10. No cost.