Bipul Das and 8 Ors v. The Govt. of Assam and 3 Ors

ORDER

21.06.2023.

¶1Heard Mr. J. Sarma, learned counsel for the petitioners. Also heard Mr. N. Upadhyay, learned Standing Counsel for the Irrigation Department representing the respondent Nos. 1, 3 and 4 and Mr. B. Gogoi, learned Standing Counsel for the Finance Department representing the respondent No. 2.

¶2The present writ petitioners were Muster Roll Workers posted in Mangaldai Irrigation Division. Their services were regularized in the year 2005. Subsequently, the Executive Engineer, Mangaldai Division by an order dated 02.11.2018, released the petitioners from service with effect from different dates as given in the individual order dated 02.11.2018, on the ground that the petitioners have attained superannuation on that day on attaining the age of 60 years. Page No.# 4/7

¶3It is the claim of the petitioners that such course of action is misconceived inasmuch as such order has been issued on the basis of wrong date of birth recorded in their order of regularization whereas their actual date of birth is different.

¶4Mr. Upadhyay, learned Standing Counsel for the Irrigation Department has submitted that in view of such dispute, an Enquiry was conducted by the employer department and after enquiry, it was found that in fact, the date of birth of the petitioners were wrongly recorded in the order of regularization and on the basis of such date of birth entered, the petitioners were asked to go on superannuation calculating the age of 60 years on the basis of such date of birth entered into the order of regularization. Therefore, on the basis of such enquiry, a corrigendum has been issued by the Government of Assam in the Department of Irrigation on 14.06.2023 correcting the date of birth. Such corrigendum issued is quoted herein below:- "CORRIGENDUM Dated Dispur, the 14th June, 2023. No. IGN-14018/137/2023-ESTT/58: Please read the respective Dates of Birth in respect of the following regularized Master Roll Workers under erstwhile Mangaldai Division (Irrigation), Mangaldai now renamed as Mangaldai-Dalgaon-Sipajhar Division (Irrigation), Mangaldai, as in column 'B' of the table below instead of those in column 'A' which got inadvertently mentioned in the Govt. Regularization Order Vide No. IGN(E)/104/2003/198, dtd. 03.10.2005. This is issued on the basis of HSLC/ School certificates of the concerned employees, duly verified from SEBA/ concerned school authorities/ Inspectors of Schools and in Page No.# 5/7 cancellation of earlier Corrigendum issued vide No. IGN(E)/74/2018/288 dated

29.04.2022. SL No. Name of employee A Date

of

Birth recorded in the Govt. regularization order B (Date of birth as corrected)

¶1Shri

Upen

Saharia, Khalashi

12.02.1958

07.07.1960

¶2Shri Pradip Ch. Kalita, Helper

01.01.1959

01.01.1961

¶3Shri Basundhar Deka, Khalashi

18.10.1957

02.10.1965

¶4Sri Phukan Ch. Deka, Khalashi

01.01.1957

02.03.1960

¶5Shri Bipul Das, Chowkider

01.03.1958

01.03.1969

¶6Shri Girish Das, Helper

14.04.1958

07.08.1970

¶7Shri Mahendra Das, Helper 02.02.1958

30.11.1973

¶8Shri Upen Das, Helper

01.03.1957

01.01.1969

¶9Shri

Suleman

Ali, Chowkider

10.08.1958

30.04.1975 Shri Dimbeswar Deka, Helper

13.06.1957

13.06.1959

Page No.# 6/7 Sd. (D. roy chowdhury) Under Secy.(E) to the Govt. of Assam Irrigation Department, Dispur".

¶5Out of the aforesaid 10 persons, except the person at Sl. No. 2 and Sl. No. 4 are the petitioners herein. Even on the basis of corrected date of birth, the petitioner Nos. 6 and 7 whose names are reflected at Sl. No. 1 and Sl. No. 10 otherwise had attained the age of superannuation.

¶6In the aforesaid view of the matter, this Court is of the considered opinion that the petitioner Nos. 6 and 7 whose names are reflected at Sl. No. 1 and Sl. No. 10, respectively shall be entitled for their arrears of salary from the date of their release on the basis of impugned order dated

02.11.2018 till their date of retirement in terms of the aforesaid communication dated 14.06.2023.

¶7The principle of no work no pay could not be applicable in the considered opinion of this Court in the given case for the reason that it was not the fault of the petitioners that they were out of job but for the miscalculation of age by their employer, therefore, they cannot be deprived of the aforesaid back wages/ salary.

¶8So far relating to the other petitioners, in view of the aforesaid determination be taken back to their service and they also be paid their back wages/ salary from the date of their release on the basis of the impugned order dated 02.11.2018 till their reinstatement in service on the basis of corrected date of birth in terms of the aforesaid communication dated 14.06.2023. Page No.# 7/7

¶9It is also made clear that if the petitioner Nos. 6 and 7 are entitled for pensionary benefit, same be calculated on the basis of their actual date of retirement on the basis of correction made by the aforesaid communication dated 14.06.2023. The respondent authorities be paid the back wages/ salary to the petitioners within a period of six months from the date of serving a copy of this order before the employer.

¶10With the aforesaid, this present writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010105722020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3119/2020o BIPULoDASoANDo8oORS.o S/O-oLATEoBENGAoDAS,oR/O-oVILLoUPPERoKURUA,oP.O-oKURUA,oP.S-o SIPAJHAR,oDIST-oDARRANG,oASSAM 2:oGIRISHoDAS oS/O-oLATEoMUKUTAoDAS oR/O-oVILL-oRANGAMAHAL oP.O-oRANGAMAHAL oP.S-oNORTHoLAKHIMPUR oDIST-oKAMRUPo oASSAM oR/O-oVILL-oUPPERoKURUA oP.O-oKURUA oP.S-oSIPAJHAR oDIST-oDARRANG oASSAM 3:oMAHENDRAoDAS oS/O-oLATEoDHARANIoDAS oR/O-oVILL-oUPPERoKURUA oP.O-KURUA oP.S-oSIPHAJHAR oDIST-oDARRANG oASSAM 4:oUPENoDAS oS/O-oLATEoLALIToDAS oR/O-oVILLoJALJALI oP.O-oDWARKUCHI oDIST-oKAMRUP oASSAM 5:oMD.oSULEMANoALI oS/O-oLATEoOSIMUDDINoSEIKH PageoNo.#o2/7 oR/O-oVILL-ALIKASH oP.O-oGHANSMALI oP.S-oKHARUPETIA oDIST-oDARRANG oASSAM 6:oDIMBESWARoDEKA oS/O-oLATEoANANDIoRAMoDEKA oR/O-oNO.1oAMGURI oP.O-oAMGURI oDIST-oDARRANG oASSAM 7:oPETITIONERo7oISoDELETED oASoPERoORDERoDATEDo25.10.2021oPASSEDoINoIA(C)/1463/2021. 8:oUPENoSAHARIAH oS/O-oLATEoPURNAoRAMoSAHARIA oR/O-oVILL-oGADHIAPARA oP.O-oCHAPAICHOWKA oP.S-oMANGALDAI oDIST-oDARRANG oASSAM oPIN-o784145 9:oBASUNDHARoDEKA oSONoOFoLATEoCHAMAKoCH.DEKA oRESIDENToOFoVILLAGE-oGAKHIRoKHOWAPARA o P.O.-oJANARAMCHOWKA o P.S.-oMANGALDAI oDIST-oDARRANG oASSAM.o PIN-o784145o VERSUSo THEoGOVT.oOFoASSAMoANDo3oORSo REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVToOFoASSAM,o IRRIGATIONoDEPTT,oDISPUR,oGUWAHATI-o06 2:THEoPRINCIPALoSECRETARY oTOoTHEoGOVToOFoASSAM oFINANCEoDEPTT oDISPUR oGUWAHATI-o781006 Page No.# 3/7 3:THE CHIEF ENGINEER IRRIGATION DEPTT ASSAM CHANDMARI GUWAHATI- 781003 4:THE EXECUTIVE ENGINEER MANGALDAI DIVISION (IRRIGATION) P.O- MANGALDAI DIST- DARRANG ASSA Advocate for the Petitioner : MR. J SARMAH Advocate for the Respondent : SC, IRRIGATION BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY