LawyerServices Judgment - Mahammed Ali v/s State of Assam

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Court Case No Date of Judgment
High Court of Assam Civil Rule 1113 Of 1998 01-07-1999
Judge(s)
THE HONOURABLE JUSTICE W.A. SHISHAK
Parties
Mahammed Ali v/s State of Assam
Advocate(s)
For the Appearing Parties: R.C. Saikia, J.I. Borbhuyan, T.C. Chutia, Advocates.
Equivalent Citation(s)
1999 (3) GAULJ 49
1999 (3) GauLT 23
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Suresh Prasad Singh Versus Union of India Shillong Bench Michel Lyngdoh Versus Managing Committee, Sacred Heart Boys' H.S.School, Shillong Shillong Bench Michel Lyngdoh Versus Managing Committee, Sacred Heart Boys' H.S.School, Shillong

judgement - W.A. SHISHAK J.(1.) Heard Mr R.C. Saikia learned counsel for the petitioners and Mr T. Chutia learned Govt.. Advocate Assam.(2.) These five writ petitioners were engaged as muster roll labourer sometime in 1978-79. except the petitioner No. 5 Sri Pradip Kumar Das who joined on 31.1.90. While serving as muster roll labourers the question of regularisation of their services was considered and in this regard the Under Secretary to the: Govt. of Assam PWD addressed a letter to the Accountant General on 31 st March/84 to the following effect:I am directed to convey the sanction of the Governor of Assam to the creation of 4628 Nos. of Temporary Posts of Labourers in the Scale of pay of Rs. 370-5-420-490/- p.m. (in respect of 66 Divisions only) as shown in Annexure-I for a period upto 28.2.85 for bringing to the regular cadre with effect from 1.3.84 the Muster Roll Labourers Working in the P.W.Department who have completed minimum 15 (fifteen) years of continuous service in the Department. The expenditure will be debitable to the respective work/Head of Accounts in which the Muster Roll Labourers were engaged. No new Muster Roll Labourers shall be engaged without the concurrence of Finance. This issues with the concurrence of Finance (EC.II) Department vide their U/O.No. EC.II.872/84 dt. 29.3.84.(3.) The writ petitioners are from Mangaldoi. Number of posts of labourers shown against Mangaldoi Division is 246. Office Order No. 207 of 1993-94 was issued on 27.12.93 confirming the services of 109 persons. The order reads:In pursuance of Addl. Chief Engineer PWD (Roads) (Planning) Assam's No. CEE/ 67/88/73 dt. 4.11.92 the following Regular Ml R Labourers of this Division who have already completed minimum 5 years of regular service are hereby confirmed in the post with effect from 1.9.93 in the scale of pay Rs.. 900-15- 1004-20-1105-EB-20-1225-30-1435-plus other allowances sanctioned by the Govt. of Assam from time to time.(4.) At this stage Mr Saikia learned counsel for the petitioners submits that the persons whose services were confirmed after their services were regularised earlier by the order dated 27.12.93 were in fact junior to the writ petitioners. The learned Govt. Advocate submits that as muster roll labourers these 109 persons named in Annexure-II were in fact engaged earlier than the writ petitioners. On careful perusal of this order however it is apparent that it is an order of confirmation after these 109 persons had served for five years after the order of regularisation. It appears regularisation in respect of these 109 persons had been issued on completion of 15 years as muster roll labourers and it is the yardstick in this regard.(5.) On 28 th March '97 office order No. 239 of 1996-97 was issued and it reads: In pursuance to Govt. sanctioned conveyed vide letter No. ADT/161/79/415 dtd. 31.3.84 No. ADT/161.79 PT-III/35 dated. 13 12.90 and No. ADT.119/92/45 dtd. 28.2.95 against this division the casual MR. Labourers as per list attached herewith who have completed 15 (fifteen) years continuous service or more as on 28.2 97 are brought to regular cadre under W/C establishment in the scale of pay of Rs.900-15-1005-20-EB-1225-30-1435/- per month with effect from 1.3.97 and until further orders. The expenditure is debitable to the Head of A/c 3054 RandB etc. This order is purely temporary and subject to cancellation without any notice and assigning any reason thereof.(6.) Another letter was written to the Under Secretary to the Govt. of Assam PWD on 19th Dec. 97 by the Executive Engineer PWD Mangaldoi Road requesting the State Govt. to approve regularisation of persons who were engaged as muster roll labourers against the respective areas particularly of those persons who had completed not Jess than 15 years as muster roll labourers.(7.) On 10th February 98 another office order No 192 of 1997-98 was issued and the same reads:As per instruction conveyed vide Under Secy. PWD Assam (Audit Branches No ADT. 210/94/34 dated 1.12.97 and Secy. RW.D. Assam Dispur's No. ADT 210/94/36 dated 22.1.98 the office order No. 239 of 1996-97 and No. 97 of 1997-98 issued vide this office No. E/394/C/12G29-113 dated 28.3.97 and No. E/394/C/7027-8117 dated 10.9.97 respectively for regularisation of MR. Labourers is hereby cancelled and this will come into effect from 1.2 98 and until further orders. This is also as per term and condition of the last para of the aforesaid office orders. However Fresh proposal is being sent for favour of approval.(8.) Mr Saikia learned counsel for the petitioners submits that the impugned order of cancellation is not sustainable firstly because after the services of the writ petitioners were regularised by Office Order No. 239 of 1996-97 dated 28th March '97 allowing them to enjoy regular scale of pay some right had already been accrued to them and such right cannot be taken away by a subsequent order in the manner sought for to be done in the present case. The writ petitioners had already enjoyed the fruits of the office order referred to above for over a year and in fact one annual increment had already been allowed in the regular pay scale described in this regard and secondly it is also submitted that the impugned order of cancellation is not sustainable inasmuch as it violates the principle of natural justice. It is the case of the writ petitioners that no opportunity whatsoever was given to them of being heard before such drastic action of cancellation was taken by the authority concerned.(9.) Mr Chutia learned Govt. Advocate submits that proposal for approval has been forwarded to the State Govt. and the same is awaited. It is therefore submitted that the writ petitioners are still continuing though not in a regular manner and their cases will certainly be considered by the State Government and regularisation will come as a matter of course when the financial position improves. However the fact that proposal has been sent up is clearly reflected even in the impugned order of cancellation. According to the learned Government Advocate the order of cancellation was issued as the order of regularisation was issued without the concurrence of the Finance Department.(10.) It is submitted by Mr Saikia learned counsel for the petitioners that the petitioners will retire within few years on superannuation and therefore unless their services are regularised they will not get any pensionary benefit upon retirement. Obviously the writ petitioners have put in 20 or more years of service continuously to the State Government.(11.) It will only be fair and reasonable if the services of the petitioners are regularised. Indeed regularisation was issued in respect of the writ petitioners and they had actually enjoyed the fruits of regularisation by receiving the regular pay and allowances for more than one year. They will certainly feel aggrieved if such benefit that had already been accrued to them is snatched away without giving any notice to them. The present case relates to persons of the lowest rung. They cannot go for any other means of livelihood except the one for which they are engaged.(12.) In view of the facts stated above I am of the opinion that the order of cancellation is not fair and therefore it is not sustainable.(13.) In the result this petition is allowed. The impugned order of cancellation dated 10th February '98 is set aside.