Madhab Deka And 3 Ors vs State Of Assam And 6 Ors

Sudhanshu Dhulia, CJ

The matter is taken up through video conferencing.

Heard Mr. K.N. Choudhury, learned senior counsel for the appellants. Also heard Mr. D. Saikia, learned Advocate General, Assam, appearing for the

respondents.

This writ appeal has been filed by the petitioners against the judgment & order dated 18.05.2021 passed by the learned Single Judge in WP(C)

No.8072/2019.

The case of the petitioners in short is that most of the petitioners were recruited in the late 80’s and 90’s as Muster Roll workers and Work

Charge employees and their services were subsequently regularised on 26.10.2005 by Government order, as “Khalasiâ€. They were subsequently

given temporary promotion to the next higher post of Section Assistant in the year 2010, but later they were to be reverted on the post of Khalasi, as

their appointment to the post of Khalasi was not on regular vacancies and these posts were called as “personal postsâ€​.

Subsequent to the show cause notice being given to the petitioners, the same was challenged before the learned Single Judge of this Court. The writ

petition did not find favour of the learned Single Judge on various grounds but primarily on the ground that even earlier the view taken by the learned

Single Judge of this Court in the similar matter was that since the very birth of the petitioners in the cadre of Khalasi was illegal inasmuch as it was

not an appointment against any posts and, more importantly, it was not done in accordance with law inasmuch as there was no vacancies advertised,

no procedure adopted, such persons are not liable to be promoted to the next higher post inspite of regularisation of their services. Presently, the

situation is that the petitioners are working on the posts of Section Assistant and are now liable to be reverted.

Mr. K.N. Choudhury, learned senior counsel for the petitioners has submitted that there is nothing like a personal post in law. At best the salary which

can be given to an employee can be categorised as a personal salary. Moreover, in any case, even though initially the appointment of the petitioners

would have been irregular but had been subsequently regularised in the year 2005 and in case they are not to be considered for promotion to the next

higher posts, it would be violative of the fundamental rights under Articles 14 and 16 of the Constitution of India inasmuch as at least a consideration

for promotion is a fundamental right.

Mr. D. Saikia, learned Advocate General, Assam, on the other hand, would oppose this argument on various grounds including that it is clearly against

the law laid down by the Constitution Bench of the Hon’ble Apex Court in the case of Secretary, State of Karnataka & Ors. -Vs- Uma Devi &

Ors. (3), reported in (2006) 4 SCC 1 and several other decisions and the petitioners have absolutely no right for promotion, considering their very

nature of induction.

On these rival submissions, however, as this matter cannot be heard finally today but purely on considerations of the fact that the petitioners had been

working as Section Assistants since 2010, even though by way of a temporary promotion, and more importantly they had been getting salary on the

post of Section Assistant, we make a limited intervention at this stage. The petitioners shall continue to be given salary of Section Assistants until

further orders of this Court. However, they would presently have no lien on the posts of Section Assistant. The Department concerned shall be at

liberty to take the work from the petitioners, as the contingency demands the work of a Section Assistant or that of a Khalasi. The petitioners will duly

abide by the same, till the matter is heard on its merit.

List for final hearing on 4th August, 2021.