JUDGMENT AND ORDER : 1. Heard Mr. R Mazumdar, learned counsel for the petitioners. Also heard Mr. S.P. Choudhury, learned Government Advocate appearing for the respondent Nos. 1, 5 and 9 as well as Mr. P Nayak, learned Standing counsel, Finance Department appearing for the respondent Nos. 6, 7, and 8. 2. Both these writ petitions having common cause of action and the relief’s sought being similar are being disposed of by this common judgment. 3. The petitioners are serving as Tax Collectors, LDA, Peon/chowkidar in different panchayats and Zila Parishads in the Districts of Jorhat, Majuli and Lakhimpur. The petitioners are aggrieved by the order dated 03.12.2015 and 21.11.2015 passed by the Additional Chief Secretary to the Government of Assam, Panchayat and Rural Development Department whereby the cases of some of the petitioners were rejected for regularization. 4. Four writ petitioners had approached this Court by filing WP (C) No. 992/2014 praying for regularization of their services. The said writ petition was disposed of by order dated 30.03.2015 and the relevant portions are extracted hereunder :- "31. Coming back to the main prayer of the petitioners, petitioners have categorically stated that their claim for regularization/provincialisation has received approval of various departments at various stages and the same is now in the process of finalization in file No. PDA 9/2001/53. This statement of the petitioners has not been controverted or denied by the respondents. It has also not been stated by respondent No. 4 in his affidavit whether the petitioners are working against any sanctioned post or not. Allowing the petitioners to continue in service as casual employees for more than 20 years at a stretch and thereafter providing them fixed monthly wages @ Rs. 4,500/- is certainly not a fair treatment extended to the petitioners. As already noticed above, the Assam Panchayat Employees (Provincialisation) Act, 1999 has been enacted specifically to provincialise the services of employees working in the Panchayats at all levels. As discussed above, the purpose of this Act is to strengthen and make the Panchayats more effective so that they can discharge their constitutional duties. 33. As already noticed above, the Assam Panchayat Employees (Provincialisation) Act, 1999 has been enacted specifically to provincialise the services of employees working in the Panchayats at all levels. As discussed above, the purpose of this Act is to strengthen and make the Panchayats more effective so that they can discharge their constitutional duties. 33. Having regard to the above and considering all aspects of the matter, respondents, more particularly respondent No. 1, is directed to finally decide the case of the petitioners as processed in File No. PDA 9/2001/53, keeping in view the provisions of the Assam Panchayat Employees (Provincialisation) Act, 1999 and the observations made above. Consequent to the directions passed by this Court in WP (C) No. 992/2014 by the order dated 30.03.2015 aforementioned the impugned orders dated 03.12.2015 and 21.11.2015 were passed. 5. Mr. R. Mazumdar, learned counsel for the petitioners submits that the impugned orders dated 21.11.2015 and 03.12.2015 were passed without taking into proper consideration the directions passed by this Court and instead the concerned authority had taken into consideration the provisions of section 140 (1) of Assam Panchayat Act, 1994 (hereinafter the Act of 1994) . He also submits that the respondents had taken a ground that the petitioners were engaged by the Panchayat Body and Secretary and not by the competent authority. Further, it was held that the engagement of Grade-III and Grade-IV staff for different Gaon Panchayats, Anchalik Panchayats and Mahkuma Parishads was to be made in terms of the provisions of the Act of 1994 and the Assam Panchayat (Administrative) Rules, 2002 (hereinafter the Rules of 2002) . 6. Learned counsel submits that the Act of 1994 come into effect from 06.05.1994. The petitioners were appointed sometime in the year 1982 onwards. Therefore, the Act of 1994 cannot have retrospective effect and the respondents could not have relied upon the provisions of the Act 1994 or the Rules of 2002. It is also submitted that the petitioners have been working continuously for more than 10 years and that they were engaged against sanctioned vacant posts with requisite qualifications at the relevant point of time when they were engaged. 7. It is also submitted that the petitioners have been working continuously for more than 10 years and that they were engaged against sanctioned vacant posts with requisite qualifications at the relevant point of time when they were engaged. 7. Learned counsel for the petitioners has also drawn the attention of the Court to the communication dated 11.12.2000 written by the Director, Panchayat and Rural Development, Assam to the Commissioner and Secretary to the Government of Assam, RD Department wherein it has been clearly stated that the petitioners are working against sanctioned vacant posts. Thereafter, the case of the petitioners were cleared by the State Level Empowered Committee (SLEC) and the same was conveyed in the file noting of the Panchayat of RD (A) Department on 21.08.2001 to regularize the services of thirty nine work charge and Muster Roll employees of Grade-III and Grade-IV categories who are engaged prior to 01.04.1993 under the P & RD Department. The matter was put up before the Finance Department which gave its concurrence for regularization of services of 39 Nos. of Muster Roll workers engaged prior to 01.04.1991 against the existing vacant post of Grade-III and Grade-IV categories on 19.10.2001. 8. It is submitted that this process was made in file No. PDA 9/2001. The same was projected before this Court in WP (C) No. 992/2014 and therefore, this Court after taking into consideration the facts and circumstances of the matter had directed the respondents to finally decide the case of the petitioners as processed in file No. PDA 9/2001. However, the respondent No.3 while considering the case of the petitioners therein as directed by this Court in the order dated 30.03.2015 had however, proceeded on a misconstrued and misconceived direction, thereby rejecting the case of the petitioners by the impugned orders dated 21.11.2015 and 03.12.2015. He, therefore, submits that the impugned orders dated 21.11.2015 and 03.12.2015 be set aside and the matter be remanded back to the respondent No.3 to take a fresh decision for reconsideration of the matter and dispose of the same by a speaking order. 9. Mr. S.P. Choudhury, learned Government Advocate on the other hand submits that the petitioners were engaged by the Panchayat Body and not by the Competent authority and they were not appointed/engaged against sanctioned vacant posts. 9. Mr. S.P. Choudhury, learned Government Advocate on the other hand submits that the petitioners were engaged by the Panchayat Body and not by the Competent authority and they were not appointed/engaged against sanctioned vacant posts. Further, he submits that the State Government cannot create post to regularize the services of Muster Roll workers as none of them are working against sanctioned posts. It was on a consideration of this aspect of the matter that the respondent No.3 had rightly passed the impugned orders dated 21.11.2015 and 03.12.2015 rejecting the case of the petitioners for regularization. He, therefore, submits that there is no merit in the writ petition and the same should be dismissed. 10. Mr. P. Nayak, learned Standing counsel, Finance Department while endorsing the submission made by the learned Government Advocate, Assam, also submits that the case of the petitioners cannot be considered for regularization more particularly, when they are not engaged/appointed against sanctioned post and that the case of the petitioners would be covered by the decision of a Division Bench of this Court passed in the case of State of Assam Vs. Upen Das (WA 45/2014) wherein the Hon’ble Division Bench had accepted the policy of the State Government not to terminate the Muster Roll work charged and similarly placed employees working for more than 10 years (not in sanctioned post) till their normal retirement. It is submitted that in the said judgment and order no directions were passed for regularization. He submits that the case of the present petitioners will also be covered by the said judgment of the Hon’ble Division Bench and therefore, no direction for regularization can be issued. 11. Learned Standing counsel, Finance Department has also placed reliance in the case of WP (C) No. 1934/2015 wherein the respondents were given the liberty to take recourse to either of three options including the decision in Upen Das (Supra). 12. This court has considered the submissions forwarded by the learned counsel appearing for the parties 13. The impugned order dated 21.11.2015 and 03.12.2015 challenged in both the writ petitions has been considered by this Court. The relevant portions of the order dated 03.12.2015 and 21.11.2015 are extracted herein below : "In view of the above, the following observations has been made in respect of the aforesaid petitioners by Commissioner, Panchayat of Rural Development, Assam:- 1. The impugned order dated 21.11.2015 and 03.12.2015 challenged in both the writ petitions has been considered by this Court. The relevant portions of the order dated 03.12.2015 and 21.11.2015 are extracted herein below : "In view of the above, the following observations has been made in respect of the aforesaid petitioners by Commissioner, Panchayat of Rural Development, Assam:- 1. All the aforesaid petitioners were engaged by the Panchayat body/GP Secretary but they are not competent to appoint/engage the aforesaid petitioner. 2. All the aforesaid petitioners were not engaged as per the provision of section 140 (1) of Assam Panchayat Act, 1994 and no prior approval was taken from the Government prior to engagement of the petitioners. 3. Engagement of Grade-III & Grade-IV staff for Zilla Parishad/Anchalik Panchayat and Gaon Panchayat, should be made as per provision laid down in the Assam panchayat Act, 1994, U/S 140 (1) and as per Assam Panchayat (Administrative) Rules, 2002, but in the instant case this procedure was not followed. 4. The aforesaid petitioners are not covered under the Finance Department O.M FEC (II) 49/2010/Pt/52 dated 27.06.2013 (Annexure-VII). The Finance Department O.M. No. FEC (II) 49/2010/Pt/52 dated 27.06.2013 in Para-2 of the OM contemplates following three conditions for regularization:- a. Those who have been working continuously for 10 years or more as on 10.04.2006. b. Those who have been engaged against sanctioned vacant post. c. Those who have requisite qualification to hold the post. In view of the above facts and circumstances the petitioners in the instant case WP© No. 992/2015 cannot be regularized." 14. A perusal of the orders dated 21.11.2015 and 03.12.2015 clearly indicates that the rejection of the case of the petitioner for regularization was on the ground that they were not appointed by the competent authority and they were not engaged as per the provisions of the Act of 1994 and the Rules of 2002 and that they were not covered by the Office Memorandum dated 27.06.2013 issued by the Finance Department. In so far as the Act of 1994 and the Rules of 2002 are concerned, this Court is of the consider opinion that the respondents cannot take recourse to the said Act of 1994 and Rules of 2002 inasmuch as they came into force much after the petitioners were engaged as Muster Roll employees i.e. 1992 but prior to 01.04.1993. 15. 15. Further, with regard to the contention that the petitioners were not appointed by the competent authority, this Court is of the consider opinion that such appointments/ engagements were within the knowledge of the respondents and in fact, they have taken a decision to regularize the case of the petitioners in file No. PDA 9/2001. This would clearly demonstrate that the respondents had the knowledge about the same but had instead taken a decision to regularize the petitioners. Further, taking into consideration the action of the respondents and also the facts of the present case, in the considered opinion of this Court, the appointment of the petitioners cannot be termed as illegal but to be irregular. This view has also been taken in the case of Amarkant Rai Vs. State of Bihar and Others, reported in (2015) 8 SCC 265 . In so far as the Office Memorandum 27.06.2013 issued by the Finance Department is concerned, this Court is also of the considered opinion that the same cannot cover the case of the petitioners inasmuch as, the same cannot be given retrospective effect. Be that as it may, the petitioners fulfill all the requirements that are envisaged in the O.M dated 27.06.2013. The contention of the respondents that the petitioners were not appointed to sanction post is belied by the communication dated 11.12.2000 written by the director, Panchayat and Rural Development and addressed to the Commissioner and Secretary to the Government of Assam, Panchayat and RD Department wherein it is clearly indicated that the petitioner are working against sanctioned vacant posts. This communication is annexed to the Additional affidavit filed by the petitioner No.1 in WP (C) No. 902/2017 as Annexure A series at page 9. 16. The file noting of file No. PDA 9/2001 has also been annexed to the additional affidavit filed by the petitioner No.1. Therein, the noting of the Panchayat and RD (A) Department has conveyed the clearance of the SLEC to regularize the services of 40 (fourty) work charge and Muster Mull employers of Grade-III and Grade-IV categories who were engaged prior to 01.04.1993 under P & RD Department. The said noting was made on 28.01.2001. Thereafter, in the same file, the Finance Department gave its concurrence for regularization of the services of 39 Nos. of MR workers engaged prior to 01.04.1993 against the existing vacant post of the Grade-III and Grade-IV categories on 19.10.2001. The said noting was made on 28.01.2001. Thereafter, in the same file, the Finance Department gave its concurrence for regularization of the services of 39 Nos. of MR workers engaged prior to 01.04.1993 against the existing vacant post of the Grade-III and Grade-IV categories on 19.10.2001. In the list where concurrence was given by the Finance Department, the names of the petitioners appears therein. 17. Considering the process that has taken place in file No. PDA 9/2001 and also taking into consideration, the grounds taken by the respondent No.3 in the impugned orders dated 21.11.2015 and 03.12.2015 for rejecting the case of the petitioner for regularization, this Court is of the concerned opinion that the respondent No.3 had not considered the case of the petitioner in its proper perspective while passing the same. Accordingly, the orders dated 21.11.2015 and 03.12.2015 are set aside. The matter is remanded back to the respondent No.3 to reconsider the case of the petitioner afresh taking into consideration, the process that has taken place in file No. PDA 9/2001 and thereafter pass a speaking order in accordance with law. Let such exercise be taken and completed within a period of 1 (one) month from the date of receipt of a copy of the order of this Court by the respondent No.3. Till the speaking order is passed by the respondent No.3 in terms of this Courts order, the respondents are directed not to fill up the posts held by the petitioners in terms of the advertisement dated 21.12.2017. 18. With the above observations and directions, these writ petitions are disposed of.