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2025 DIGILAW 446 (GAU)

Paban Mena S/o Ananta Mena v. State of Assam

2025-03-13

SANJAY KUMAR MEDHI

body2025
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The approach to this Court under Article 226 of the Constitution of India is with the following relief: “In the premises aforesaid, it is therefore prayed that your Lordship would be graciously pleased to admit this petition, call for the record, issue a Rule calling upon the Respondents to show cause as to why – A writ in the nature of certiorari/Mandamus and / or any other appropriate Writ shall not been issued to set aside and quashed the impugned order dated 21.09.2017 issued by Commissioner of Industries & Commerce, Assam Udyog Bhawan, Bamunimaidam, Guwahati-21 and further direction may be issued for reconsidering/re.engaging the petitioner and to regularize of his service and after perusal of the records make the Rule absolute and/or pass such further order/ orders as your Lordships may deem fit and proper. -And- Pending, disposal of the Rule Your Lordship be further pleased to direct the Respondents to consider the case of the petitioner for regular appointment against vacant approved post of L.D. Assistant at Cottage Industries Museum Sankardev Kalakhetra, Panjabari, Guwahati and not to fill up the said post till disposal of the case.” 2. There is a chequered history in this case, including history of litigations. The facts projected in a nutshell is that the petitioner was appointed as an L.D. Assistant on 06.05.1995 by the Director of Industries and was posted in the Office of the H.D.R.C. at Ambari. The said appointment was on ad hoc basis on a fixed payment of Rs.900/- per month and for a tenure of 3 months. It however appears that the arrangement was extended from time to time and the last extension was up to 31.08.1999. As the service of the petitioner was not extended, he had approached this Court for the first time by filing WP(C)/3322/2000, which was disposed of vide order dated 05.09.2002 directing the respondent authorities to consider the case of the petitioner. In terms of the said order, a communication was issued by the Director of Industries and Commerce to the Commissioner of Industries and Commerce on 27.03.2003, making recommendation in favour of the petitioner. Thereafter, the petitioner had approached this Court with the second writ petition by filing WP(C)/2702/2005, which was disposed of on 16.12.2008. In terms of the said order, a communication was issued by the Director of Industries and Commerce to the Commissioner of Industries and Commerce on 27.03.2003, making recommendation in favour of the petitioner. Thereafter, the petitioner had approached this Court with the second writ petition by filing WP(C)/2702/2005, which was disposed of on 16.12.2008. This Court had however observed that since for the last more than 9 years, the petitioner was not in service, the regularization aspect was not possible. It was further held that while the petitioner was a Matriculate, the required qualification for a Grade-III post was Higher Secondary with Typewriting. This Court had accordingly observed that Mandamus cannot be issued and it was left open for the authorities to consider the case. 3. In the meantime, vide communication dated 29.04.2013, issued by the Government, the Commissioner, Industries and Commerce was asked to send a proposal in the Sankardev Kalakhetra for accommodating the petitioner. Subsequently, on 19.09.2013, the Government informed the Commissioner, Industries and Commerce regarding the grant of approval to fill up the vacancy with a further observation that so far as the petitioner is concerned, weightage for his experience as well as condonation of his age could be considered. As no further action was taken, the petitioner had approached this Court for the third occasion by filing WP(C)/3886/2017, which was disposed of by this Court vide order dated 23.06.2017 directing the respondents to take a final decision in terms of the proposal dated 19.09.2013. Pursuant to the aforesaid direction, the case of the petitioner was taken up and was rejected vide the order dated 21.07.2017. It is the legality / validity of this order which has been questioned in this writ petition. 4. I have heard Shri G. Uddin, learned counsel for the petitioner. I have also heard Shri A. Kalita, learned Standing Counsel, Industries and Commerce Department. 5. Shri Uddin, learned counsel for the petitioner has submitted that though the initial appointment was on an ad hoc basis and for a particular tenure, the same was extended from time to time and the last extension was up to 31.08.1999. He has also submitted that vide the communication exchanged between the Government and the Commissioner of Industries and Commerce, the case of the petitioner was directed to be considered even by giving due weightage for the experience he had gained and also for condonation of age. He has also submitted that vide the communication exchanged between the Government and the Commissioner of Industries and Commerce, the case of the petitioner was directed to be considered even by giving due weightage for the experience he had gained and also for condonation of age. He submits that the proposal for filling up the post in the Sankardev Kalakhetra was mooted vide the communication dated 29.04.2013 and was also further recommended by communication dated 19.09.2013. He submits that in view of such facts and circumstances, the approach of the authorities in rejecting the case of the petitioner vide the impugned order dated 21.09.2017 is unreasonable and arbitrary. It is also submitted that till the filing of the writ petition, the concerned post in the Sankardev Kalakhetra was still vacant and the petitioner can be accommodated in the said vacancy. 6. Opposing the writ petition, Shri Kalita, learned Standing Counsel, Industries and Commerce Department has referred to the affidavit-in- opposition filed on 27.01.2022. He has submitted that though, in the writ petition, there is reference to the earlier writ petitions, the orders passed therein have not been annexed. It is submitted that the said orders would have a material bearing in the adjudication of the present case. 7. Referring to the order dated 16.11.2008, passed in the second writ petition, namely, WP(C)/2702/2005, the learned Standing Counsel has submitted that this Court has taken into consideration the aspect of lack of minimum eligibility qualifications of the petitioner which is Higher Secondary with diploma in Type Writing. This Court had also observed that the petitioner was not in service for the last 9 years and therefore, the question of regularization of his service would not arise. Learned Standing Counsel has submitted that after such observation which had attained finality, there is, in fact, no requirement for further adjudication. The learned Standing Counsel has also referred to an Office Memorandum dated 16.06.2012 and has contended that as per the same, the exercise of regularization was discontinued. It may be mentioned that the said Office Memorandum dated 16.06.2012 was the subject matter of a number of writ petitions which culminated in WA/45/2014 in which the decision of the Government was upheld, however, with certain observations of grant of minimum pay scale and medical facilities. 8. It may be mentioned that the said Office Memorandum dated 16.06.2012 was the subject matter of a number of writ petitions which culminated in WA/45/2014 in which the decision of the Government was upheld, however, with certain observations of grant of minimum pay scale and medical facilities. 8. By drawing the attention of this Court to the impugned order dated 21.09.2017, the learned Standing Counsel has submitted that in the said order, the relevant factors have been taken into consideration and the conclusion arrived at is strictly in accordance with the law. It is accordingly submitted that the writ petition is devoid of any merits and liable to be dismissed. 9. The rival submissions have been duly considered and the materials placed before this Court have been carefully examined. 10. The initial appointment of the petitioner as LDA was vide order dated 06.05.1995. The order itself makes it clear that the appointment was on ad hoc basis at a fixed pay of Rs.900/- per month and was for tenure of 3 months. The communication dated 20.01.2000 annexed to the petition would however indicate that the services of the petitioner was extended from time to time and the last extension was up to 31.08.1999. The communication also indicates that the extensions were done with a day’s break. It is not in dispute that from 31.08.1999 the petitioner is not in service. 11. The order dated 16.12.2008 passed by this Court in WP(C)/2702/2005 instituted by the petitioner has already laid down that the question of regularization of the services of the petitioner cannot arise as at that time itself the petitioner was out of service for the last 9 years.Apart from the fact that the said order has attained finality, there are other factors which are required to be taken into consideration while dealing with the present challenge qua the order dated 21.09.2017. The impugned order dated 21.09.2017 has been passed pursuant to the direction of this Court passed in the fourth writ petition being WP(C)/3886/2017. Vide the impugned order, it has been laid down that there is no provision for appointing or regularizing any master roll/ work charge / temporary workers against sanctioned Government post. 12. The impugned order dated 21.09.2017 has been passed pursuant to the direction of this Court passed in the fourth writ petition being WP(C)/3886/2017. Vide the impugned order, it has been laid down that there is no provision for appointing or regularizing any master roll/ work charge / temporary workers against sanctioned Government post. 12. This Court has also noticed that on 16.06.2012, an Office Memorandum was issued by the Government which has been annexed to the affidavit-in-opposition whereby the regularization of services were discontinued and as observed above, the vires of the said Office Memorandum was upheld by a Hon’ble Division Bench of this Court in WA No. 45/2014 vide judgment dated 08.06.2017 [ The State of Assam Vs. Upen Das ]. 13. The law regarding regularization has been settled by a catena of judicial pronouncements and the landmark case in this field is Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors., ( 2006) 4 SCC 1 where the following aspects have been laid down: “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 paragraph 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 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 regularise as a onetime 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 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. 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 by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 14. Apart from the petitioner not fulfilling the requirements as laid down in Umadevi (supra), in the instant case, the aspect of regularization in service cannot arise at all as admittedly the petitioner is not in service since the year 1999 and in the meantime, almost a quarter of a century has passed. This said aspect was already observed and laid down by this Court in the order dated 16.12.2008 passed in the WP(C)/2702/2005. 15. In view of the aforesaid facts and circumstances, this Court is of the opinion that no relief can be granted to the petitioner and accordingly the writ petition stands dismissed. 16. Interim order dated 14.03.2018 stands vacated. 17. No order as to costs.