Islamuddin Ahmed and 12 Ors v. The State of Assam and 3 Ors

ORDER Date : 19-12-2023 Heard Mr. C. Deka, learned counsel appearing for the petitioners. Also heard Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam, appearing for respondent nos. 1, 2 and 4 as well as Mr. P. Nayak, learned Standing Counsel, Finance Department, Assam, appearing for respondent No. 3. From the case projected in the writ petition, it appears that the 13 petitioners herein were all engaged as Casual Workers some 25 to 40 years back. Out of the 13 petitioners, 11 of them are serving as Grade-IV casual employees whereas, 2 are working as Grade-III casual employees. They are presently drawing consolidated wage of Rs. 9,000/- per month. After the decision of the Division Bench of this Court, rendered in the case of State of Assam Vs. Sri Upen Das & Ors. (WA 45/2014), notification dated 03.10.2019 was issued by the Finance Department providing for payment of "minimum of the Pay Scale" of Rs. 15,900/- with DA and Medical Allowances to the Casual employees. The Government of Assam, through the Finance Department, had also issued Notification dated 09.10.2017 directing all the Administrative Departments to forward the lists of casual employees within

31.10.2017. Accordingly, list of casual workers was forwarded by the different administrative departments. Upon receipt of the proposals/lists from the various departments, the Finance Department had approved the lists of 13,821 casual workers for payment of "minimum of the Pay Scale". However, the cases of the 13 petitioners herein could not be considered as there was a delay in forwarding the names by the Administrative Department, i.e. the Social Welfare and Probation Department. The stand of the Finance Department is that by the time the requisite particulars of these candidates reached the Finance Department, the "sunset clause" had come into play w.e.f. 16.09.2021, as a result of which, no further list of casual employees could be Page No.# 6/8 processed by the Finance Department. Mr. C. Deka, learned counsel for the writ petitioners submits that the names of the present petitioners had figured in the original list of casual employees prepared by the Social Welfare Department, containing 48 names in total, which was also forwarded to the Finance Department on 07.07.2021, i.e. before the "sunset clause" came into play. However, the Finance Department had called for certain clarifications from the Social Welfare Department with regard to the petitioners. There was undue delay in furnishing such clarifications/information, as a result of which, the petitioners were left out from being considered for extending the benefit of the "minimum of the Pay Scale", which was already extended to a large number of similarly situated casual employees. Contending that it is a clear case of discrimination being meted out to the petitioners for no fault of their own, Mr. Deka submits that if there was delay on the part of the departmental authorities in furnishing the necessary information pertaining to the petitioners, the petitioners cannot be held responsible for the same. From the counter-affidavit filed by the Finance Department, the stand of the departmental authorities is apparent, which is available in paragraph 8 thereof and the same is reproduced herein-below for ready reference:- "As regards the instant proposal, Social Welfare Department submitted their proposal in the year 2021 in File No. SWD.167/2021 but without the prescribed checklist. Vide endorsement dated 04.10.2021, Social Welfare Department was first requested to re-submit the proposal along with all information as per Finance Department's letter No. FEC (II) 4/2014/356 dated 09.10.2017 along with proper justification for submission of proposal since it was submitted after a gap of so many years. It may be stated that the Social Welfare Department submitted their proposal along with Checklist/annexures vide File No. SWD. 167/2021 dated 03.01.2022 for minimum of the pay scale of 45 numbers of such incumbents. The proposal was received after sunset clause was incorporated by the Finance Department vide letter dated 16.09.2021." Mr. P. Nayak, learned Standing Counsel, Finance Department, submits that the Finance Department has been receiving a large number of additional lists of casual Page No.# 7/8 workers even after processing the final list prepared and submitted by the departments and, therefore, it was not possible for the authorities in the Finance Department to continue to accept such additional lists. The learned Standing Counsel, Finance Department, however, submits in his usual fairness that although the list containing the names of the writ petitioners had been forwarded to the Finance Department before the "sunset clause" came into play, their names were left out only because the additional information sought for from the department of Social Welfare got delayed. Similar is the stand of Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam. After considering the pleadings of the respondent authorities and after going through the materials available on record, what transpires is that there is no dispute about the fact that the writ petitioners herein are working as casual workers under various administrative departments of the Government of Assam and they are also entitled to the benefit of "minimum of the Pay Scale" as per the direction passed by the Division Bench of this Court in the case of Upen Das (supra). Aaccordingly, their cases were duly processed by the departmental authorities. However, it appears that due to some communication gap and/or delay in furnishing additional information, as called for by the Finance Department, the petitioners were deprived of receiving the benefit of "minimum of the Pay Scale", which was extended to several other similarly situated casual employees. Having worked for more than 25 to 40 years as casual employees and being entitled to the benefit of "minimum of the Pay Scale", as applicable to casual workers as per the judgment of the Division Bench rendered in the case of Upen Das (supra), the petitioners cannot be deprived of the benefit of such "minimum of the Pay Scale" merely because there was some delay on the part of the department of Social Welfare in furnishing the additional information, as sought for by the Finance Department. It is not the case of the respondent authorities that the petitioners are not entitled to receive the benefit of "minimum of the Pay Scale". Page No.# 8/8 Moreover, as has been noted above, it appears that the names of the writ petitioners were forwarded before the onset of the "sunset clause". Even otherwise, introducing the "sunset clause" is a matter of governance and a measure of internal administration adopted by the Finance Department. Therefore, the same cannot take away the rights that might have accrued in favour of the writ petitioners under the Constitution and the laws framed there-under. Situated thus, this Court is of the unhesitant opinion that the petitioners cannot be denied the benefit of "minimum of the Pay Scale" merely on the ground that there was delay in furnishing additional information by the Administrative Department. Whether the claim of the petitioners to receive the benefit of "minimum of the Pay Scale" is valid or not is entirely a different matter, which will obviously be subject to proper scrutiny by the concerned departmental authorities by applying the same standard as was applied in the cases of other similarly situated casual employees. For the reasons stated hereinabove, this writ petition succeeds and is hereby allowed. The respondent authorities are directed to consider the cases of the 13 writ petitioners herein for granting the benefit of "minimum of the Pay Scale" with effect from the date on which other similarly situated casual workers have been given the benefit. The aforesaid exercise be carried out and completed as expeditiously as possible, but not later than 90 (ninety) days from the date of receipt of a certified copy of this order. It is made clear that this order will remain confined only to the 13 writ petitioners, who are before this Court. With the above observations and directions, the writ petition stands disposed of. JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010200402022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6832/2022o ISLAMUDDINoAHMEDoANDo12oORSo S/OoMD.oTAHERoALI,oR/OoVILL-oBATSOR,oP.O.-BETSOR,oP.S.-BELSOR,oDIST-o NALBARI,oASSAM,oPRESENTLYoWORKINGoASoCHOWKIDER,oCASUALo EMPLOYEEoINoTHEoBARKHETRIoICDSoPROJECT,oNALBARI 2:oSAYEDURoRAHMAN oS/OoLATEoHAIDARoALI oR/OoVILL-oBALSOR oP.O.-BELSOR oP.S.-BETSOR oDIST-oNALBARI oASSAM oPRESENTLYoWORKINGoASoCHOWKIDER oCASUALoINoTHEoOFFICEoOFoTHEoDSWO oNALBARI 3:oSAJIBURoRAHMANoBARBHUIYA oS/OoAZIRoUDDINoBORBHUYAN oR/OoVILL-MAHERPUR oP.O.-MAHERPUR oDIST-CACHAR oASSAM oWORKINGoASoSWEEPERo(CASUAL)oINoTHEoOFFICEoOFoTHEoD.P.O. oCACHAR 4:oNARAYANoCHANDRAoBARUAH oS/OoLATEoKANDARAoBARUA oR/OoVILL-oKANLORA oP.O.-BARGHUR oP.S.-KOLONI oDIST-oNAGAON oASSAM oPRESENTLYoWORKINGoASoNIGHToCHOWKIDAR oCASUALoINoTHEoOFFICEoOFoTHEoD.S.W.O. PageoNo.#o2/8 5:oDULANoSUKLABAIDYA oS/OoLATEoNANDAoSUKLABAIDYA oR/OoVILL-JOYPUR oNATUNoBAZAR oP.O.-JOYPUR oRAJBAZAR oDIST-CACHAR oASSAM oPRESNTLYoWORKINGoASoNIGHToCHOWKIDERo(CASUALoEMPLOYEE)oINo THEoOFFICEoOFoTHEoRAJABAZARoI.C.D.S.oPROJECT oCACHAR oASSAM 6:oSMTIoSARASWTIoRABIDAS oW/OoLATEoLASMANoRABIDAS oR/OoVILL-PAILAPAUR oP.O.-PAILAPUR oP.S.-LAKHIPUR oDIST-oCACHAR oASSAM oPRESENTLYoWORKINGoASoSWEEPERo(CASUALoEMPLOYEE)oINoTHEo OFFICEoOFoTHEoLAKHIPURoI.C.D.S.oPROJECT oCACHAR oASSAM 7:oJAKIRoHUSSAIN oS/OoLATEoABDULoSATTAR oR/OoVILL-SRIKONA oP.O.-SRIKONA oP.S.-SILCHAR oDIST-CACHAR oASSAM oPRESENTLYoWORKINGoASoNIGHToCHOWKIDER o(CASUAL)oINoTHEoOFFICEoOFoTHEoSALCHAPARAoI.C.D.SoPROJECT oCACHAR oASSAM 8:oBIRESWARoKALITA oS/OoLATEoMEGHOoRAMoKALITA oR/OoVILL-oUDAYPUR oP.O.-JONAI oP.S.-JONAI oDIST-oDHEMAJI oASSAM oPRESENTLYoWORKINGoASoCASUALoEMPLOYEEoINoTHEoMORKONGo I.C.D.S.oPROJECT oDHEMAJI PageoNo.#o3/8 9:oRAJKUMARoCHETRI oS/OoLATEoMANoBAHADURoCHETRI oR/OoVILL-oCHANDMARI oP.O.-TEZPUR oWARDoNO.o19 oP.S.-LALMATI oDIST-oSONITPUR oASSAM oPRESENTLYoWORKINGoASoLOWERoDIVISIONoASSISTANT-CUMoTYPISTo (CASUAL)oINoTHEoOFFICEoOFoTHEoNAWBAICHAoI.C.D.S.oPROJECT oLAKHIMPUR 10:oJAGANNATHoBAYAN oS/OoLATEoBAHADURoBAYAN oR/OoVILL-CHAMARIA oP.O.-CHAMARIA oP.S.-BOKO oDIST-KAMRUP oASSAM oPRESENTLYoWORKINoASoGRADE-IVoCHOWKIDARoINoTHEoOFFICEoOFoTHEo I.C.D.S.oPROJECT oCHAMARIA 11:oMD.oABULoHUSSAINoSARKAR oS/OoLATEoAZIZoALI oR/OoVILL-BARKALIAZAR oP.O.-BIYASPARA oP.S.-CHIPAJHAR oDIST-DARRANG oASSAM oPRESENTLYoWORKINGoASoCHOWKIDARoUNDERoTHEoBALWADIoCENTRE oMANGALDOI 12:oSATYABANoDAS oS/OoLATEoNAGENoDAS oR/OoCHAMARIAoSATRA oP.O.-CHAMARIA oP.S.-BOKO oDIST-oKAMRUP oASSAMoWORKINGoASoGRADE-IVo(CHOWKIDER)oUNDERoTHEoCHAMARIAo I.C.D.S.oPROJECT 13:oJIBESWARoGOGOI oS/OoLATEoDHANESWARoGOGOI oR/OoVILL-NAoLOLHOW oP.O.-NAOBOISHA oP.S.-LAKHIMPUR Page No.# 4/8 DIST-LAKHIMPUR ASSAM WORKING AS GRADE-IV NIGHT CHOWKIDE VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GUWHATI-781006, P.O.-ASSAM SACHIVALAYA, P.S.- DISPUR, DIST- KAMRUP (M), ASSAM 2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM SOCIAL WELFARE DEPARTMENT ASSAM SECRETARIAT DISPUR P.O.-ASSAM SACHIVALAYA P.S.-DISPUR GUWAHATI-781006 DIST- KAMRUP (M) ASSAM 3:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT ASSAM SECRETARIAT DISPUR P.O.-ASSAM SACHIVALAYA P.S.-DISPUR GUWAHATI-781006 DIST- KAMRUP (M) ASSAM 4:THE DIRECTOR SOCIAL WELFARE AND PROBATION ASSAM M.G. ROAD UZANBAZAR GUWAHATI-781001 DIST- KAMRUP (M) ASSA Advocate for the Petitioner : MR. CHARAN DEKA Advocate for the Respondent : GA, ASSAM Page No.# 5/8 BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM