Nibon Chandra Das and 27 Ors v. The State of Assam and 8 Ors

ORDER

22.09.2023

¶1No one appears for the petitioners, though Mr. A.K. Dutta, learned counsel for the petitioners had appeared in the morning, praying for adjournment of this case. The same was not allowed by this Court. Further in terms of the Notification dated 20.02.2023 issued by the Gauhati High Court, adjournment requests are to be submitted one day in advance along with No Objection endorsement from the opposite party, which has not been done. Ms. M. Kalita, learned counsel appears for all the respondents.

¶2The petitioners' case is that they were initially engaged as Khalasis/Peon in the Public Health Engineering Department on Muster Roll basis. Thereafter the petitioners' services were regularized by the Government.. The counsel Mr. A.K. Dutta had been asked by this Court in the morning, as to whether the regularisation of the services of the petitioners had been made personal to their Page No.# 9/12 post, to which he had replied in the affirmative. However, the petitioners have not annexed any order showing regularisation of their service. The Office Memo No. EC(I)452/99 dated 28.12.1999 issued by the Secretary to the Government of Assam, Finance Department (Page-73) and the Office Order No.130/2003-2004 (Page-81) issued by the Executive Engineer (PHE), Silchar Division No.II, Silchar shows that the regularisation of Muster Roll Workers had been done against posts made personal to them and that the posts would be abolished with the cessation of their services.

¶3The prayer of petitioners herein is that they may be promoted to Grade-III post.

¶4Ms. M. Kalita, learned counsel for the PHE Department submits that in terms of the Division Bench judgment of this Court passed in Dilip Talukdar & Others vs. State of Assam & Others, reported in 2017 (2) GLT 135, the petitioners cannot be promoted to a Grade-III post, as the posts held by the petitioners are ex-cadre post. She submits that the fact situation in the above case of Dilip Talukdar (supra) is similar to the fact situation in this case.

¶5The present issue has already been decided by this Court in WP(C) Nos. 2416/2014, 3116/2014 and 4254/2014. The petitioners, who were regularized Muster Roll/Work charge workers in the WaterResource Department, Govt. of Assam filed WP(C) 2416/2014 (Sri Dilip Talukdar and 21 Others vs State of Assam and 5 Others) where they challenged their reversion to their original posts after being promoted. WP(C) 2416/2014 was disposed off by a Co-Page No.# 10/12 ordinate Bench of this Court on 16.03.2015, holding that when regularization of a Grade-IV Muster Roll/Work-charge worker has been done against a personal post, the post held by those persons would be outside the cadre of Grade-IV post, i.e., an ex-cadre post. Unless a person who is holding an ex-cadrepost is en-cadred into a cadre post, which is a feeder cadreto a higher cadre post, the person holding the personal postcannot be promoted to a higher cadre post. This Court thereafter dismissed the writ petition filed by the petitioners. WP(C) No. 3116/2014 was with regard to the claim of thepetitioners therein for promotion from Grade-IV post to the post of Section Assistant, which is a Grade-III post.The petitioners who were in the Water ResourceDepartment, Govt. of Assam had been regularized againstposts which were made personal to them and which were to be abolished as soon as the incumbent relinquished the post in any manner. This Court, after having discussed the manner of regularization of the petitioners therein and keeping in view the Office order dated 25.11.2013, issued by the Commissioner & Special Secretary to the Govt. of Assam, Water Resource Department held that the petitioners were not entitled to promotion to the post of Section Assistant and as such, hadex-to be reverted back, as the post held by them were ex-cadre post and as such, they could not be promoted to aregular post.

¶6Being aggrieved, the writ petitioners in WP(C) No.2416/2014 and WP(C) No. 3116/2014 thereafter filed appeals, vide W.A. No. 124/2015 & 111/2016 which is reported in 2017 2(GLT)135,"Dilip Talukdar & Others v.State of Assam & Others." The Division Bench dismissed the appeals on the ground that a claim for promotion from a person holding an ex-cadre post was not legally tenable. Page No.# 11/12 The Division Bench held that promotion in the Department can be considered only from eligible employees in the feeder cadre post and the writ petitioners being outside the cadre, they could not have any enforceable rights for promotion, particularly when the regularization order itself stipulates that they are regularized in a post personal to them. The extract of the order passed by the Division Bench in the case of DilipTalukdar and 21 Others, 2017(2) GLT 135,which is at paragraph 12 is re-produced below: "12. We have seen the reasons recorded by the learned Judge for the impugned verdict and find that the posts against which the writ petitioners were regularized were never added to the notified cadre in the department. Yet no plea was advanced for en-cadrement of the posts held by the affected parties. The promotion in the department can be considered only from the eligible employees in the feeder cadre and the writ petitioner being outside of the cadre, cannot have any enforceable right to claim promotion, particularly when, the regularization. order itself stipulates that they are regularized in posts personal to them. Such temporary creation of post cannot automatically add to the cadre strength of the department and claim for promotion from a person holding an ex-cadre post, is not legally tenable. Therefore we see no basis to take a different view in the matter than the one taken by the learned Single Judge, in dismissing the cases".

¶7Thus, in Dilip Talukdar (supra), the Division Bench of this Court has held that promotion to a higher rank can be considered only from the feeder cadre and not from an ex-cadre post. In the case before me, I find that the petitioners who are Muster Roll Workers have had their services regularized against posts, which were made personal to them, similar to the fact situation in the case of Dilip Talukdar (supra).

Page No.# 12/12

¶8In view of the present case being a covered case, in terms of the judgment of this Court and the Division Bench of this Court in Dilip Talukdar (supra), the petitioners who are holding ex-cadre posts, cannot be considered for promotion to Grade-III cadre post. Accordingly, there being no merit in the writ petition, the same is dismissed.

JUDGE Comparing Assistant

PageoNo.#o1/12 GAHC010205772023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5579/2023o NIBONoCHANDRAoDASoANDo27oORSo S/OoLATEoNONIGOPALoDASoKHALASI,oR/OoVILL-HILARAoCOLONY,oP.O.- KALAIN,oDIST-CACHAR,oASSAM,oPIN-788814 2:oBIMALoCHANDRAoDAS oS/OoLATEoNIBARANoDAS oDATEoOFoJOININGo01.01.1987 oUNDERoSILCHARoPHEoDIVISION-II oR/OoVILL-oNETAJIoPALLIoTULARGRAMoPART-II oP.O.-SONAIMUKH oPIN-788119 3:oMD.oRAHIMoUDDINoLASKAR oS/OoLATEoHARUNoRASHIDoLASKAR oDILCHARoPHE-oDIVISION-I oDOJ-08.07.7987 oR/OoVILL-oWESToJARAILTALA oP.O.-JARAILTALAoBAZAR oPIN-788127 4:oMURLIDHARoYADAV oS/OoLATEoBIMALoGOALA oVILLoANDoP.O.-CHHOTAoMAMDA oPIN-788126 PageoNo.#o2/12 5:oASHUoTANTI oS/OoLATEoNAKULoTANTI oDIVISION-IIoSILCHAR oVILLoANDoP.O.-DEWANoT.E. oPIN-788802 6:oBIDHANoLASKAR oS/OoLATEoBHANUoKUMARoLASKAR oR/OoCHANDRAPUR oP.O.-BHAKATPUR oPIN-788005 7:oMD.oARJUoRAHMANoBARBHUIYA oS/OoLATEoSAFIQURoRAHMANoBARBHUIYA oVILL-BERENGAoPART-I oP.O.-BERENGA oPIN-788005 8:oSANJIBoDAS oS/OoLATEoSUKHAMOYoDAS oR/OoNATIONALoHIGHWAY oNEARoNPoBHAWAN oP.O.-KALPANAoTRADING oSILCHAR oPIN-788005 9:oBANIPADAoSARMACHARJEE oS/OoLATEoRAMESHoCHoSARMACHARJEE oR/OoTARAPURoEoANDoDoCOLONY oSHIBBARIoROAD oSILCHAR oPIN-788003 PageoNo.#o3/12 10:oSMTIoTAPASHIoBHATTACHARJEE oW/OoLATEoSAMUALoKASHYAP oCHENCOORIoROAD oMADHYASHREEoLANE oBYEoLANEoNO.1 oHOUSEoNO.o29 oSILCHAR oPIN-788004 11:oMANGALoCHANDRAoDAS oS/OoLATEoISHANoCHANDRAoDAS oR/OoKHELMAoPART-III oP.O.-SADIRKHAL oPIN-788815 12:oDIPAKoKUMARoDEB oS/OoLATEoGOPALoCHANDRAoDEB oRONGPUR oSHANTIPARA oWARDoNO.o5 oSILCHAR oCACHAR oPIN-788009 13:oRATHINDRAoCHANDRAoROY oS/OoLATEoSASHINDRAoCHoROY oR/OoKHELMAoPART-I oP.O.-GUMRAHoBAZAR oPIN-788815 14:oGURUoCHARANoKURMI oS/OoLATEoGOPALoKURMI oR/OoASHRAMoROAD oBILPAR oP.O.-RANGIRKHARI oSILCHAR PageoNo.#o4/12 oPIN-788005 15:oMD.oZAKIRoHUSSAINoLASKAR oS/OoLATEoHAZIoABDULoLATIFoLASKAR oR/OoVILL-oKRISHNAPUR oNIJJOYNAGAR oP.O.-KRISHNAPUR oPIN-788126 16:oNILKANTAoROY oS/OoLATEoBROJENDRAoROY oR/OoVILL-KALINAGARoPART-I oP.O.-DALU oPIN-788101 17:oSAMSULoALOMoBARBHUIYA oS/OoSIRAJoUDDINoBARBHUIYA oR/OoVILL-oNIZoLEVERPUTA oP.O.-SADIRKHAL oPIN-788815 18:oBIDYADHARoHAZAM oS/OoLATEoRAMoSWARUPoHAZAM oR/OoVILLoANDoP.O.-CHOTOJALENGA oPIN-788014 19:oMEHBUBoHUSSAINoBARBHUIYA oS/OoLATEoMATHIRoALIoBARBHUIYA oR/OoVILL-GANIRGRAM oP.O.-MOHADPUR oPIN-788025 20:oSWAPANoCHANDRAoROY PageoNo.#o5/12 oS/OoLATEoSUDHIRoCHANDRAoROY oR/OoVILLoANDoP.O.-CHUTTAJALENGAoPART-II oPIN-788014 21:oMD.oBILALoUDDINoLASKAR oS/OoLATEoARBESHoALIoLASKAR oR/OoVILLoANDoP.O.-CHANDRAPUR oPIN-788001 22:oNAZRULoHOQUEoBARBHUIYA oS/OoSUNAHARoALIoBARBHUIYA oVILL-BURIBAILoPART-I oP.O.-GONIRGRAM oCACHAR oPIN-788025 23:oLoNILMOHANoSINGHA oS/OoLATEoGOBINDAoSINGH oR/OoVILL-oSUNDARIoPART-III oP.O.-SUNDARI oPIN-788001 24:oMD.oAKBARoHUSSAINoMAZUMDER oS/OoLATEoFAIZULoBARIoMAZUMDER oR/OoBERENGAoPART-I oP.O.-BERENGAoPART-II oPIN-788005 25:oSUJIToCHANDRAoDAS oS/OoLATEoSUNESHoCHANDRAoDAS oKHALASHI oR/OoVILL-oTULARGRAMoPART-II oP.O.-SONAIMUKH PageoNo.#o6/12 oPIN-788001 26:oBROJESWARoNATH oS/OoLATEoBROJENDRAoCHANDRAoNATH oR/OoVILL-oSALGANGARoPAR oP.O.-NORSHINGPUR oPIN-788115 27:oMD.oSALIMoUDDINoLASKAR oLATEoKHALILoUDDINoLASKAR oKHALASHI oR/OoVILL-oDAKHAINoMEHERPURoPART-VII oP.O.-DAKHINoMEHERPUR oPIN-788014 28:oMD.oAMADULoHAQUEoCHOUDHURY oS/OoLATEoSIDDQUEoAHMEDoCHOUDHURY oR/OoSARALKHAoROAD oWARDoNO.o2 oP.O.-SETTLEMENToROAD oMAIZDHI oDIST-KARIMGANJ oPIN-788712.oPETITIONERoNO.o28oHASoCOMMONoADDRESSoOFo CORRESPONDENCEoC/OoSRIoBIMALoCHANDRAoDAS oVILL-oNETAJIoPALLIoTULARGRAMoPART-II oP.O.-SONAIMUKH oPIN-78811o VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,oDEPARTMENToOFoPUBLICoHEALTHoENGINEERING,oASSAMo CIVILoSECRETARIAT,oDISPUR,oGUWAHATI,oASSAM,oPIN-781006 2:THEoCHIEFoENGINEER oPUBLICoHEALTHoENGINEERINGo(WATER)oASSAM oHENGRABARI oGUWAHATI PageoNo.#o7/12 oPIN-781036 3:TEHoADDITIONALoCHIEFoENGINEER oPHE oBARAKoVALLEYoZONE oSIL