Bhubon Chandra Das vs State Of Assam And 5 Ors

Heard Ms. B. Bhuyan, learned counsel for the petitioner and Mr. R. Borpujari, learned Standing Counsel, Finance Department appearing for the respondent No. 2 and 5. Mr. N. Upadhayay, learned Standing Counsel, Irrigation Department appearing for respondent Nos. 1, 3 and 4. None appears for the respondent No. 6.

The case in brief is that the petitioner was engaged as muster roll worker w.e.f. 01.05.1991 under the establishment of the respondent No. 4 i.e., the Executive Engineer, Golaghat (Irrigation). Pursuant to the decision taken by the State Cabinet, the Finance Department sanctioned the creation of posts for regularizing muster roll workers who were engaged prior to 01.04.1993 vide Memo No. FEC(H)1/2005/66 dated 22.08.2005. Accordingly, the Irrigation department vide communication dated 3.10.2005 under Memo No. IGN(E)-104/2003/198-B conveyed the creation of post to the Accountant General, Assam. Amongst the list of the names of the muster roll workers to be regularized, the name of one Sri Bhuban Das (Respondent No.6) was given against the serial No. 49. According to the petitioner, the name was wrongly reflected and in fact, it should have been his name instead since all other particulars i.e. date of entry in the service, date of birth and the date of retirement was that of the petitioner. Consequently, the service of Sri Bhuban Das was regularized vide office order No. 172 dated 06.10.05 (Annexure-D) w.e.f. 22.07.2006. By the said office order, it was provided that the posts would be personal to the incumbents concerned and will be abolished as and when the person concerned relinquishes the post in any manner.

According to the petitioner, he being unaware of this fact approached this Court for his regularization by filing WP(C) No. 4133/2007. The writ petition was then disposed of on 22.01.2009 in terms of the decision rendered by a Full Bench of this Court in Jitendra Kalita & Ors. Vs. State of Assam & Ors. reported in 2006 (2) GLT 654. In the said case, it was held that the regularization of muster roll and worked charge employees engaged prior to 010.4.1993 as provided by the Office Memorandum dated 20.04.95 was not a valid policy decision of the State Government. As for those already regularized, in view of the human factor involved, the same will not be disturbed.

It is the pleaded case of the petitioner that on account of the mistake committed by the respondent authorities concerned, the petitioner is deprived of regularization in service. The petitioner was initially not aware in this fact but when he became aware, he submitted a representation to the respondent No.4 on 02.09.2010 (Annexure F) and pursuant to his representation, the respondent No. 4 on 11.01.2012 wrote to the Chief Engineer Irrigation (respondent No. 3) stating that altogether 85 muster roll workers were regularized as per the proposal submitted by the Golaghat Sub-Division and the name of the petitioner was one amongst them. However, inadvertently, the name of the respondent No. 6 which was similar was reflected instead. Therefore, it was suggested that necessary instructions may be issued for regularizing the service of the petitioner. Thereafter, when the matter was brought to the notice of the State Government in the Irrigation Department, the Under Secretary (E) to the Government of Assam, Irrigation Department vide communication dated 06.09.2012 (Annexure 1) wrote to the Chief Engineer of Irrigation to submit a verification report. The Chief Engineer Irrigation Department on his part wrote to the Executive Engineer, Golaghat Division (Irrigation) vide his letter dated 06.12.2012 to furnish requisite information as reflected by the Under Secretary concerned. Accordingly, the Executive Engineer on his part vide communication dated 12.12.2012 wrote to the Executive Engineer informing him that a detailed information for regularization of the service of the petitioner was already submitted on 11.01.2012 but he however again sent the particulars as was sought and a copy of the communication was also given to the Under Secretary to the Govt. of Assam, Irrigation Department. However, as no further steps were taken, the petitioner being aggrieved has filed the present writ petition.

Ms. B. Bhuyan, learned counsel submits that the petitioner initially was not aware of the fact that the benefit of regularization was wrongly given to the respondent No. 6 instead of him but no sooner he came learn about the mistake committed, he submitted a representation before the respondent No.4 on 02.09.2010 which however, did not receive any fruitful consideration despite the respondents being aware of the fact that respondent No. 6 was wrongly regularized instead of the petitioner. Ms. B. Bhuyan, draws attention of the Court to the letter dated 03.10.2005 (Annexure-C) wherein, the name of Respondent No. 6 is reflected at serial No. 49. However, in the column against the date of engagement, date of birth and date of retirement, the details given are all that of the writ petitioner's. Under the circumstance, she submits that a direction may be given to the respondent authorities to regularize the service of the petitioner w.e.f. 22.07.2006 i.e. the date on which the service of the similarly situated persons have been regularized with all consequential benefits.

The learned counsel Mr. N. Upadhaya appearing for respondent No. 1 by referring to the affidavit-in-opposition filed on 14.07.2014 by the respondent No. 1 submits that since the name of the petitioner was not in the approved list of the Finance Department, he was not regularized. He however submits that the department took all the steps on their part to rectify the error committed. In fact, the name of one Mr. Mogbul Hussain appeared in two places i.e. at serial No. 3 and serial No. 37 and perhaps it was for this reason that the name of the petitioner was erroneously dropped. A proposal was nevertheless sent to the Finance Department on 8.5.2007 thereafter on 28.12.08 in file No. 293/2006 but the same never returned to the Irrigation department. Subsequently, the Finance Department vide Office Memorandum No. 16.06.2012 has prohibited regularization of muster roll employees. Mr. Upadhay, learned counsel, therefore, submits that under the circumstance the department is not in a position to consider regularization of the petitioner's service.

Mr. R. Borpujari, learned Standing Counsel appearing for the Finance Department submits that the case of the Jitendra Kalita & Ors. (Supra) rendered by the Full Bench of this Court clearly held that there should not be any regularization in terms of the Office Memorandum dated 24.02.1995. He submits that subsequently, a Division Bench of this Court in the case of State of Assam Vs. Upen Das & Ors. reported in 2017(4) GLR 493 also held that the casual employees do not have the right to claim regularization. He also submits that the petitioner may have been erroneously not regularized at the relevant time but it is now too late in the day to regularize him in service in view of the various judicial pronouncements. Under the circumstances he submits that the writ petition be dismissed.

I have considered the submissions of the learned counsel for the parties and have perused the materials available on record. The State Government as may be noticed has taken a policy decision to regularize those muster roll workers who are engaged continuously prior to 01.04.1993 and this policy while being implemented, the name of the petitioner was also proposed by the Irrigation Department. However, due to inadvertence, the name of the petitioner was wrongly reflected in the proposal and consequently, respondent No. 6 got the benefit of regularization instead. The writ petitioner being unaware of this fact filed a writ petition in the year 2007 which was disposed of on 22.01.2009. After the disposal of the writ petition, he came to learn about the error committed. Therefore, he submitted a representation before the respondent No. 4 on 02.09.2010. The petitioner subsequently filed the present writ petition in the year 2013. As can be seen from the enclosed list to the proposal submitted by the respondent No.3, except for the difference in the name of the petitioner, all the particulars are that of the petitioner himself. Indisputably, on account the error, the respondent No.6 got the benefit of regularisation. The issue regarding regularization of muster roll employee is settled now as rightly pointed out by Mr. R. Borpujari learned the learned counsel in view of the Full Bench decision in Jitendra Kalita & Ors. (Supra) and Upen Das & Ors. (Supra). However, the fact remains that the regularization of the respondent No.6 was effected prior to the decision made by the Full Bench of this Court and the name of the respondent No.6 having been wrongly reflected in place of the petitioner, I am of the considered view that the aforementioned decisions should not be a bar to grant relief to the petitioner. In that view of the matter, I am of the opinion that under the unusual facts and circumstances, the error committed by the respondent authorities should be rectified.

In the result, I am inclined to allow the writ petition by directing the respondent authorities to grant the petitioner regularization of his services w.e.f. the date the respondent No. 6 was regularized. However, in view of the long passage of time, the petitioner will not be entitled to the entire arrear salaries but only w.e.f. the date of filing of this writ petition i.e. 26.07.2013 which should adjusted to the wages he has already received. His pay prior to 26.07.2013 shall be notionally fixed only. Further, having regard to the fact that the respondent No.6 has been enjoying the benefit of regularization for a long time now, it is deemed proper that his regularization be not disturbed.

Writ petition accordingly stands disposed of. No cost.