Partly allowed

Jadumoni Nath and 28 Ors. v. State of Assam and 3 Ors.

Gauhati HC10 Nov 2022WP(C)/7711/2016

Case brief

AI extract

What is this about?

Court dismissed petitioners' claim for regularization of long-service contractual hospital workers as they failed to meet Uma Devi conditions. However, ordered hospitals to consider granting minimum scale of pay to eligible staff upon individual representation.

What did the court decide?

Petitioners granted liberty to submit individual representations for minimum scale of pay; hospitals directed to consider claims and make payments if entitled.

Jadumoni Nath and 28 Ors. Vs State of Assam… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010138002016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/7711/2016

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JADUMONI NATH .

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GRADE IV EMPLOYEE, NORTH LAKHIMPUR CIVIL HOSPITAL, LAKHIMPUR, PERMANANTLY RESIDING AT S/O. LAKHON CH. NATH, VILL. ANAIGHORIA GAON, P.O. ANGERKHOWA, P.S. PANIGAON, DIST. LAKHIMPUR, ASSAM.

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2: SMTI BEAUTI SAIKIA

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W/O. LT. GUPAL DUTTA VILL. CHOUKHAM P.O. CHABATI P.S. LILABARI DIST. LAKHIMPUR ASSAM.

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3: SRI PRAFULLA DAS

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S/O. LT. HARULARA DAS VILL. CHOWKHAM MAJGAON P.O. CHABATI P.S. LILABARI DIST. LAKHIMPUR ASSAM.

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4: MRS. MOMY BORUAH

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W/O. PRADIP BORUAH VILL. NAKARI WARD NO.-1 P.O. and P.S. NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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Page No.# 2/17

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5: MRS. JYOTI PRABHA BORAH HAZARIKA

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W/O. LT. MITHARAM HAZARIKA VILL. LALUK KASOJULI DIST. LAKHIMPUR ASSAM.

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6: SMTI MINU SING BARUAH

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W/O. JUGONDRA SING VILL. NALLCATA P.O. BAGALIJAN DIST. LAKHIMPUR ASSAM.

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7: RAJUMONI BORUAH

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S/O. PRADIP CH. SAIKIA VILL. NAKARI WARD NO.-2 P.O. NAKARI P.S. NORTH LAKHIMPUR.

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8: GUNADA RAJKHOWA

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D/O. LT. BAPURAM RAJKHOWA VILL. RAJKHOWA GAON P.O. AJAD P.S. PANIGAON DIST. LAKHIMPUR.

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9: MRS. NIJU DEVI

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W/O. MR. KHAGENDRA NATH SARMAH VILL. CHOWKHAM P.O. CHABATI P.S. NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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10: CHANIMAI BORA PAYANG

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S/O. INDRA BORAH VILL. RAJGARH DAUMUKHID P.O. RAMPUR DEORI P.S. NORTH LAKHIMPUR

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11: LAMBUDHAR DUTTA

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S/O. LT. TOKESWAR DUTTA VILL. NAKARI WARD NO.-3 P.O. and P.S. LAKHIMPUR ASSAM.

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12: MD. BAHARUL ALI

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S/O. MD. SONJAN ALI VILL. SENSUWA P.O. ANGERKHOWA P.S. PANI GAON DIST. LAKHIMPUR ASSAM.

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13: MD. SAILEN BORAH

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S/O. LT. JUGA BORAH VILL. CHOWKHAM P.O. CHABATI DIST. LAKHIMPUR ASSAM.

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14: NABA KANTA NATH

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C/O. MR. BOGAI NATH VILL. BHAPATI NATH GAON P.O. AZAD DIST. LAKHIMPUR ASSAM.

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15: RAJIB HAZONG

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S/O. JAGADISH HAZON WARD NO.-3 P.O. and P.S. NORTH LAKHIMPUR DIST. LAKHIMPUR.

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16: DIPALI BORA GOGOI

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D/O. DHONIRAM BORA NO. 1 KOWADONGA P.O. and P.S. LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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17: SRI SANJAY MILI

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S/O. PRADIP MILI VILL. GHAGAR KALA KHOWA P.O. MOHAIJAN P.S. LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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18: SRI GOPAL DUTTA

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VILL. CHOWKHAM P.O. CHABATI NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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19: MRS. BINA KALITA

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W/O. LT. MUNINDRA KALITA VILL. and P.O. CHABATI P.S. NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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20: SMTI HIRAMONI GOGOI

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W/O. LT. MUHIM GOGOI VILL. BANGALMARI P.O. MALEKHOLA DIST. DHEMAJI ASSAM.

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21: BIJUMONI GOGOI

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D/O. PRONOY KR. GOGOI VILL. CHOWKHOM P.O. SABATI P.S. LAKHIMPUR.

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22: DHIRAJ BHUYAN

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S/O. TULAN BHUYAN VILL. KOWAPHALA P.O. and P.S. DHAMAJI DIST. DHEMAJI ASSAM.

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23: SMTI BORNALI PADUN NARAH

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W/O. SRI RAJIB NARAH VILL. DUSTIMUKH P.O. KHUBULIA DIST. DHEMAJI ASSAM.

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24: PAPRI DIHINGIA

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D/O. LT. DEBESWAR DIHINGIA VILL. CHAKALA DALANI P.O. NARUWATHAN DIST. DHEMAJI ASSAM.

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25: SRI ROBIN GOGOI

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S/O. SRI PABITRA GOGOI VILL. KAMAR GOAN P.O. and P.S. DHEMAJI DIST. DHEMAJI ASSAM.

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26: SRI MONUBIKASH DUTTA

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S/O. SRI PUNYA DUTTA VILL. MATIKHULA P.O. MATIKHULA DIST. DHEMAJI ASSAM.

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27: DULUMONI DUTTA

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D/O. AKON DUTTA VILL. MATIKHULA DIST. DHEMAJI ASSAM.

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28: ADITYA KOUCH

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S/O. SRI LILA KT. KOUCH VILL. NALINIPAM P.O. and P.S. DHEMAJI DIST. DHEMAJI ASSAM PIN. 787057.

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29: MISS MINATI CHUTIA

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D/O. LT. DULESWAR CHUTIA VILL. BAKULBARI P.O. HOLLOWDUNGA P.S. GOGAMUKH DIST. DHEMAJI ASSAM

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VERSUS

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STATE OF ASSAM and 3 ORS. REP. BY THE COMMISSIONER AND SECRETARY, GOVT. OF ASSAM, HEALTH and FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-06.

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2:DIRECTOR OF HEALTH SERVICE DEPTT.

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HENGRABARI GUWAHATI.

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3:SUPERINTENDENT OF NORTH LAKHIMPUR CIVIL HOSPITAL

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LAKHIMPUR ASSAM.

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4:SUPERINTENDENT OF DHEMAJI CIVIL HOSPITAL

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DHEMAJI ASSAM

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Advocate for the Petitioner : Mr. R.P. Sharma, Senior Counsel

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Mr. M. Saikia

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Advocate for the Respondent : MR. B. GOGOI (SC, HEALTH)

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Date of hearing : 03.11.2022.

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Date of judgment : 10.11.2022

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Page No.# 7/17

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BEFORE

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HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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JUDGMENT & ORDER (CAV)

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Heard Mr. R.P. Sharma, learned senior counsel assisted by Mr. M. Saikia, learned counsel for the petitioners. Also heard Mr. B. Gogoi, learned counsel for the respondents.

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2. The 29 writ petitioners, who are working in different capacities in North Lakhimpur Civil Hospital and in Dhemaji Civil Hospital, have prayed for regularization of their services.

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3. The petitioners’ case in brief is that they are ward boys/ward girls casual helper/helper/Grade-IV employees (contractual) in North Lakhimpur Civil Hospital and in Dhemaji Civil Hospital. The grievances of the petitioners are that despite working for more than 10 to 20 years, their services were not regularized. Accordingly, they had prayed to this Court for regularization of their services, within a specified time frame.

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4. This Court had dismissed the above case on the ground that the petitioners being contractual workers, they were not entitled to regularization, in terms of the Division Bench judgment of this Court in W.A.No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others), wherein the Division Bench had held that Muster Roll Workers/Work Charged Workers and similarly placed employees

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were not entitled for regularization.

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5. Being aggrieved, the petitioners filed W.A.No. 206/2018. W.A.No. 206/2018 was allowed by setting aside the Order dated 05.12.2017 passed by the learned Single Judge, by holding that the learned Single Judge ought to have examined the matter in further detail, keeping in mind the ratio laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnataka & Others Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, as well as the decision of the Division Bench of this Court rendered in W.A. No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others). The learned Division Bench held that the case of each of the appellants/writ petitioners deserved to be examined on the facts of each petitioner’s case, instead of generalizing that they were contractual employees and therefore, not entitled to regularization.

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6. As such, the writ petitioners are before this Court once again. On considering the observations made by the Ld. Division Bench in WA No.206/2018, it appears that the writ petitioners should each file separate writ petitions, as the case of each petitioner has to be examined on the facts of each petitioner’s case. Be that as it may, the cases of each petitioner is being considered, keeping in view the starting point of their employment on contractual, temporary and on honorary basis.

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7. There are 29 writ petitioners in this case and they have been apparently employed in different capacities on contractual/temporary basis. Out of the 29 writ petitioners, only the petitioner Nos. 21, 22, 23, 25 & 26 have annexed appointment orders, showing that they have been engaged temporarily or on contractual basis, to work in Dhemaji Civil Hospital at a fixed rate. Petitioner

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Nos. 21 & 22 have been engaged at a fixed rate of Rs. 3,000/- per month, while the contractual appointment of the petitioner Nos. 23, 25 & 26 is fixed at Rs. 1,500/- per month.

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8. All are the petitioners except for petitioner Nos. 4, 6, 27 & 28 have annexed certificates, showing that they have been engaged in various capacities as contractual workers. There is nothing in the certificates annexed to show from which date they have been engaged on contractual basis and the monthly remuneration/wages to be given to them. The petitioner Nos. 4, 6, 27 & 28 have not annexed any certificate or any appointment order, to show under what capacity they have been working, in either the North Lakhimpur Civil Hospital or in the Dhemaji Civil Hospital. There is no averment made in the writ petition that the petitioners were appointed to their posts in pursuance to any advertisement or that they had the necessary qualification to hold the posts they were engaged in.

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9. The dates from which the petitioners have been working in the North Lakhimpur and Dhemaji Civil Hospitals, as per the certificates and appointment orders annexed to the writ petition, are as follows:-

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Petitioner No. 1 - Since 1^st January, 2015.

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Petitioner No. 2 - Since 1^st February, 2011.

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Petitioner No. 3 - Since 29^th April, 2012.

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Petitioner No. 4 - No certificate or appointment order annexed.

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Petitioner No. 5 - Since 2008.

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Petitioner No. 6 - No certificate or appointment order annexed.

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Petitioner No. 7 - Since 15^th September, 2012.

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Petitioner No. 8 - Since 1996 as Honorary Female Attendant.

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Petitioner No. 9 - Since January, 2008.

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Petitioner No. 10 - Since July, 2012.

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Petitioner No. 11 - Since August, 2009.

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Petitioner No. 12 - Since 13^th April, 2008.

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Petitioner No. 13 - Since 1^st May, 2007.

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Petitioner No. 14 - Since 15^th October, 2011.

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Petitioner No. 15 - Since January, 2006.

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Petitioner No. 16 - Since March, 2010.

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Petitioner No. 17 - Since 18^th August, 2014.

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Petitioner No. 18 - Since November, 2007.

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Petitioner No. 19 - Since August, 2014.

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Petitioner No. 20 - Since 1^st December, 2004.

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Petitioner No. 21 - Since 1^st April, 2016.

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Petitioner No. 22 - Since 1^st April, 2016.

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Petitioner No. 23 - Since 4^th November, 2014.

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Petitioner No. 24 - Since 3^rd February, 2011.

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Petitioner No. 25 - Since March, 2013.

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Petitioner No. 26 - Since 12^th November, 2014.

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Petitioner No. 27 - No certificate or appointment order annexed.

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Petitioner No. 28 - No certificate or appointment order annexed.

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Petitioner No. 29 - Since 26^th November, 2016.

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The above facts clearly show that the submission made by the learned counsel for the petitioners, with regard to the length of service of all the petitioners is a lie, inasmuch as, the writ petition had been filed on 14.12.2016.

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10. As can be seen from the above, all the petitioners have been appointed from the year 2004 onwards, except for the petitioner No. 8, who has a certificate certifying that she has been working as a honorary female attendant in the Pediatrics OPD of North Lakhimpur Civil Hospital since 1996. The certificate is issued by one Doctor S. Talukdar on 08.02.1999.

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11. The certificate showing that the petitioner No. 8 is working as a honorary female attendant states as follows:-

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“To whom it may concern.

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Certified that Smti Gunada Rajkhowa of Village Rajkhowa Gaon is a physically handicapped person. She has been working as a honorary female attendant in the Paediatrics 0.P.D (Room No. 5) of North Lakhimpur Civil Hospital since 1995 till date. It 1s true to the best of my knowledge.

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She is sincere, laborious, honest and dutiful. She bears a good moral character. I wish her success.”

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12. In the case of State of Karnataka Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, which was decided on 10.04.2006, the Apex Court has held that a temporary, contractual, casual or daily wage employees do not have a legal right to be made permanent, unless they have been appointed in terms of the relevant Rules or in adherence to Article 14 & 16 of the Constitution. However, the Apex Court in paragraph No. 53 of Uma Devi (3) (supra), had directed the Union of India, the State Governments and their instrumentalities to take steps for regularization as a “one-time measure”, the services of irregularly appointed persons, who had worked for 10 years or more in duly sanctioned posts, but not under the cover of the orders of the Courts or of Tribunals. Paragraph No. 53 of the judgment of the Apex Court in Uma Devi (3) (supra) was thereafter clarified by the Apex Court in the case of State of Karnataka & Others Vs. M.L. Kesari, reported in 2010 9 SCC 247, wherein it held that an exception to the general principles against the regularization was allowed in Uma Devi (3) (supra), if the following conditions were fulfilled.

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“(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

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(ii) the appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned post, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular”.

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13. The Government of Assam, Finance (EC-II) Department thereafter issued Office Memorandum No. FEC (II) 49 / 2010 /pt/52 dated 27.06.2013 for

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regularization of services of the Work Charged, Muster Roll and similarly placed workers in pursuance to the order of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Uma Devi (3) & Others, reported in 2006 4 SCC 1, State of Karnataka & Others Vs. M.L. Kesari, reported in 2010 9 SCC 247 and the Gauhati High Court’s Order dated 17.05.2006 in WP(C) No. 6222/2003. In the said Office Memorandum dated 27.06.2013, it was stated in paragraph No. 2 that regularization of those workers, as referred to in paragraph No. 53 of the judgment passed in Uma Devi (3)(supra) would be done as a “One time measure”, subject to the employees fulfilling the following three conditions. Firstly, they should have been working continuously for 10 years or more as on 10.04.06 i.e. the date of passing of the judgement in Uma Devi's case without the benefit or protection of the interim order of any Court or Tribunal. Secondly, they should have been engaged against sanctioned vacant post. Thirdly, they should have requisite qualification to hold the post.

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14. Paragraph No. 2 of the OM dated 27.06.2013 is reproduced as follows:-

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The State Government will now like to take the "One time measure" for regularization of those workers as referred to in paragraph 53 of the orders in Uma Devi's case readwith M.L. Kesari's case, whereby exception was curved out to regularize all employees who fulfill the following three conditions:-

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i) Who have been working continuously for 10 years or more as on 10.04.06 i.e. the date of passing of the judgement in Uma Devi's case without the benefit or protection of the interim order of any Court or Tribunal.

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(ii) Who have been engaged against sanctioned vacant post.

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(iii) Who have requisite qualification to hold the post.”

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15. As can be seen from the above, none of the writ petitioners have had

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service for 10 years or more as on 10.04.2006. In respect of the petitioner No. 8, it is seen that there is a certificate showing that she is a honorary female attendant. There is nothing to show that she has been engaged in a sanctioned vacant post or that she was being paid any remuneration/honorarium or that she was having the requisite qualification to hold the post. There is no proof that the petitioner No. 8 had been working for 10 years as on 10.04.2006, as the date and month of her engagement is not spelt out in the certificate.

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16. Besides the above, the Division Bench of this Court in W.A.No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others) has held at paragraph No. 23 that Muster Roll Workers, Work Charged Workers and Casual Workers are not entitled for regularization of their services with consequential benefits, such as, pension etc. Further, after discussing the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors., reported in (2006) 4 SCC 1 and in the case of State of Karnataka vs. M.L. Kesari, reported in (2010) 9 SCC 247, the Division Bench has held that the State Government cannot create post to regularize the services of the Muster Roll Worker/Work-Charged employees who are not working against sanctioned posts. The Division Bench also held that, the Apex Court in the case of Uma Devi (3)(supra), has clearly held that when the temporary employment or engagement as a contractual or casual worker is not based on a proper procedure for selection, the theory of legitimate expectation cannot be successfully advanced by the temporary, contractual or casual employees.

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17. In view of the fact that there is nothing to show that the petitioners have fulfilled the three conditions set out in the judgment of the Apex Court in Uma Devi (3) (supra) and the Office Memorandum dated 27.06.2013 issued by the

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State Government, besides keeping in view the decision of the Division Bench of this Court in W.A.No. 45/2014, this Court finds that there is no merit in the prayer of the petitioners for regularization of their services.

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18. Mr. R.P. Sharma, learned senior counsel for the petitioners submits that he does not wish to press the present case for regularization of the services of the petitioners, as the law is clear in this point. He also submits that the question of regularization of the services of the petitioners could be decided by the State Government at a later stage. He however submits that in terms of paragraph No. 22 of the judgment of the Division Bench of this Court in W.A. No. 45/2014 (State of Assam & Others Vs. Sh. Upen Das & 836 Others), the petitioners should be given the minimum of the pay scale given to regular workers.

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19. Mr. B. Gogoi, learned counsel for the State respondents submits that while the petitioners have given up their prayer for regularization of their services, they have not prayed for being given the minimum of the pay scale in terms of paragraph No. 22 of the judgment of the Division Bench of this Court in W.A. No. 45/2014 in the writ petition. Also, the petitioners have not been appointed by the State Government and they have been engaged by the Hospital Management Society, who are not made parties to the writ petition.

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20. He also submits that as per the various certificates that are annexed to the writ petition showing that the petitioners are working in the two Hospitals, there is nothing to show that all the other petitioners are being given any wages. The documents on record show that only the petitioner Nos. 21, 22, 23, 25 and 26 are being given wages. Petitioner Nos. 21 and 22 are being given wages of Rs. 3,000/- per month, while the petitioner Nos. 23, 25 and 26 are being given Rs.

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1,500/- per month. Further, some of the petitioners have left their engagements/jobs.

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21. As can be seen from the contention of the learned counsels for the parties and the contents of the preceding paragraphs, the only issue left to be decided is as to whether the petitioners are entitled to the payment of minimum scale of pay in terms of the judgment of the Division Bench of his Court in W.A. No. 45/2014. In this respect, it has to be first noted that no prayer to the said effect has been made by the petitioners in the writ petition.

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22. Be that as it may, paragraph No. 22 of the Division Bench Judgment & Order dated 08.06.2017 passed in W.A. No. 45/2014 gives a direction to the State Government to pay minimum of the pay scale to Muster Roll Workers, Work-Charged Workers and similarly placed employees working since the last more than 10 years (not in sanctioned post) in light of the decision of the Apex Court in State of Punjab Vs. Jagjit Singh, reported in (2017) 1 SCC 148.

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23. As it appears, most of the petitioners have been engaged by the Hospital Management Society and not by the State Government, and only 5 out of the 29 writ petitioners are being given fixed wages. Accordingly, this Court is of the view that the concerned Hospital Management Committee/State respondents will have to consider the giving of minimum scale of pay to the petitioners, provided they are still working in the two Hospitals and are entitled to the same.

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Consequently, the petitioners are given the liberty to submit individual representations to the Superintendent of the two Hospitals, with regard to their claim for payment of the minimum scale of pay. The concerned Superintendent, being the Member Secretary of the concerned Hospital Management Committee, shall thereafter place the same before the appointing authority, who shall thereafter consider the case of the petitioners, with regard to payment of the minimum scale of pay and make due payment, if they are entitled to the same. The petitioners should submit their individual representations within three weeks from today. Thereafter, the decision/s on the petitioners’ representations should be made within a further period of 3 (three) months from the date of receipt of a certified copy of this order and the petitioners’ representations.

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24. The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Jadumoni Nath and 28 Ors. v. State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Jadumoni Nath and 28 Ors. v. State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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