Dismissed

Prasad Kumar Roy and 2 Ors. v. the State of Assam and 5 Ors.

Gauhati HC2 Dec 2025WP(C)/3656/2024

Case brief

AI extract

What is this about?

The High Court dismissed the petitioners' claim for promotion to Junior Assistant. The petitioners, regularized against personal posts, were held not to be in the feeder cadre. Relying on Dilip Taluklar, the Court held that regularization in personal posts does not confer a right to promotion, and an undertaking by departmental counsel could not override this legal position.

What the court decided

AI extract

Prasad Kumar Roy and 2 Ors. Vs the State of Assam and… — Service and Employment | Gauhati HC (2025)

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GAHC010126632024

2025:GAU-AS:16987

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

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Case No. : WP(C)/3656/2024

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PRASAD KUMAR ROY AND 2 ORS.

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S/O- LATE PRASANTA KUMAR ROY, R/O- KALIMOHAN ROAD, TARAPUR, SILCHAR-3, P.O. TARAPUR, P.S. SILCHAR SADAR, DIST. CACHAR, ASSAM

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2: SANJIB KUMAR ROY S/O- LATE SATYA RANJAN ROY VILL.- RAM NAGAR P.S. LAKHIPUR DIST. CACHAR ASSAM

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3: MOIN UDDIN CHOUDHURY S/O- LATE ROWAB ALI CHOUDHURY VILL. AND P.O. GOSSAIPUR PART-III P.S. UDHARBOND DIST. CACHAR ASSA

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GUWAHATI-6.

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2:THE CHIEF ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT WATER ASSAM HENGRABARI GUWAHATI-36.

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3:THE ADDITIONAL CHIEF ENGINEER PUBLIC HEALTH ENGINEERING BARAK VALLEY ZONE SILCHAR.

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4:THE SUPERINTENDING ENGINEER PUBLIC HEALTH ENGINEERING CACHAR SILCHAR.

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5:THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING SILCHAR DIVISION NO. I CACHAR SILCHAR.

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6:THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING SILCHAR DIVISION NO. II CACHAR SILCHAR

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Advocate for the Petitioner : MR H R A CHOUDHURY, MR F U BARBHUIYA,J M SULAIMAN,MS S DAS

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Advocate for the Respondent : GA, ASSAM, SC, P H E

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BEFORE

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HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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03/12/2025

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Heard Mr. F U Barbhuiya, learned counsel for the petitioners. Also heard Ms. M Bhattacharjee, learned Additional Senior Government Advocate for the respondent No. 1 and Mr. R R Gogoi, learned Standing counsel, Public Health Engineering Department for the respondent Nos. 2 to 6.

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2. The grievance raised by the petitioners in the present writ petition is with regard to the non-consideration of their cases for promotion to the posts of Junior Assistant, available in the establishment, where they are presently working, insipte of they fulfilling the requisite eligibility criterias mandated for such consideration and the undertaking given in this

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connection before this Court by the authorities, in the earlier round of litigation, for extending to them due consideration for promotion, as and when vacancies become available for the purpose.

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3. The petitioners in the writ petition have projected that the petitioner No. 1 and the petitioner No. 2, were initially engaged in the establishment of the Executive Engineer, Public Health Engineering, Silchar Division No. II, Cachar, Silchar, i.e., the respondent No. 6, as Work Charged Khalasi/Muster Roll Worker in the year 1987 and 1992, respectively. The petitioner No. 3, is projected to have been engaged as a Work Charged Khalasi in the establishment of the Executive Engineer, Public Health Engineering, Silchar Division No. I, Cachar, Silchar, i.e., the respondent No. 5 in the year 1988. As the petitioners were continuing in their respective services, the petitioner No. 1 was brought to the regular establishment as a Khalasi vide issuance of an office order dated 20.11.2003. The regularization of the services of the petitioner No. 1 was so effected, w.e.f. 01.12.2003. The petitioner No. 2 was regularized in his services as a Work Charged Khalasi, w.e.f. 22.07.2005, vide issuance of an office order dated 06.10.2005. Likewise, the petitioner No. 3, vide an office order dated 24.12.2003 was brought over to the regular establishment, w.e.f. 01.12.2003 and engaged as a Khalasi.

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The petitioners, upon vacancies arising against the post of Junior Assistant in the establishment, wherein, the petitioners were so working, staked a claim for being considered for promotion against the said posts. The claim of the petitioners for consideration for promotion to the post of Junior Assistant in their respective establishments, having not been considered by the respondent authorities, the petitioners, along with others approached this Court by way of instituting writ petitions, being WP(C) No. 5068/2018 and WP(C) No. 5083/2018.

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A Co-ordinate Bench of this Court, on considering the issues arising in the matter, was pleased vide order dated 13.03.2019, to dispose of the said writ petitions, by directing the respondent authorities to take a decision as to the Rule, that would be applicable for consideration of the cases of the petitioners, therein and thereafter, to inform the petitioners, therein, of the same, by issuing a speaking order. The respondent authorities, thereafter, issued a speaking order dated 28.03.2019 and therein, rejected the claim of the petitioners

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for consideration of the cases for promotion on the ground that they did not possess the minimum requisite educational qualification for promotion to the post of Grade-III in terms of the provisions of the Assam Ministerial District Establishment Service Rules, 1967 (as amended).

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The petitioners, herein, had instituted contempt proceedings alleging violation of the directions passed by this Court vide order dated 13.03.2019 in WP(C) No. 5068/2018 and 5083/2018. During the hearing of the contempt petitions, the departmental counsel had undertaken that as and when vacancies would arise, case of the petitioners for promotion shall be considered, in terms of the provisions of the amended Rules of 1967.

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Noticing the said undertaking, a Co-ordinate Bench of this Court, vide order dated 01.04.2022, proceeded to close the contempt petitions, by requiring the respondent authorities to take into consideration the case of the petitioners for promotion as and when vacancies arise.

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The petitioners not having been considered for promotion to the cadre of Junior Assistant, even after the directions, noticed hereinabove, passed by the Co-ordinate Bench of this Court, the petitioners have joined together to institute the present proceeding, praying for the reliefs, as noticed hereinabove.

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4. Mr. Barbhuiya, learned counsel for the petitioners, by reiterating the facts, as noticed hereinabove, has submitted that the respondents having undertaken before this Court to consider the case of the petitioners for promotion to the cadre of Junior Assistant, the nonconsideration of the cases of the petitioners, in spite of the fact that they possess all the requisite eligibility criterias, for being considered for such promotion; vacancies being available, has caused great prejudice to the service interest of the petitioners, herein.

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5. Mr. Barbhuiya, learned counsel for the petitioners has submitted that the petitioners, herein, cannot be held to be holding personal posts given the manner in which their services were so regularized and accordingly, the decision of the Division Bench of this Court in the case of Dilip Talukdar & Others Vs. State of Assam & Others, reported in 2017 (2) GLT 135, would have no application to the cases of the petitioners and their cases would be required to

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be considered by reckoning the qualification as possessed by them, in terms of the provisions of the Rules of 1967.

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6. Mr. Barbhuiya, has further submitted that although the petitioners, herein, fulfilled the eligibility criterias as set out in the amended provisions of the Rules of 1967, their cases for promotion to the cadre of Junior Assistant was not considered by the authorities, while such consideration came to be extended to persons, working against Grade-IV posts, who admittedly did not possess the requisite eligibility criterias.

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7. In the above premises, Mr. Barbhuiya, learned counsel submits that vacancies being available in the establishment of the respondent Nos. 5 & 6, against which the cases of the petitioners can be considered for promotion, a direction is called upon to be issued by this Court, upon the respondent authorities to expeditiously consider the cases of the petitioners for promotion against the vacant posts of Junior Assistant, available in their respective establishments.

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8. Per contra, Ms. M Bhattacharjee, learned Additional Senior Government Advocate, submits that the promotion claimed by the petitioners would have to be considered by the Public Health Engineering Department in accordance with the provisions of the Assam Ministerial District Establishment Service Rules, 1967 (as amended).

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9. Mr. R R Gogoi, learned Standing counsel, PHE, at the outset submits that the petitioners, herein, were so regularized in their respective services against personal posts created for the purpose in respect of each of them. He submits that the personal posts as created for the purpose of regularization of the services of the petitioners and others, were to subsist only till the same was vacated by the petitioners in any manner. He submits that the petitioners, having been regularized in their respective services against personal posts created for the purpose, the posts as created would not add to the cadre strength of the Grade-IV post as available in the Divisions, wherein, the petitioners are working and accordingly, they cannot be deemed to be incumbents holding posts in the feeder cadre for the purpose of promotion to the post of Junior Assistant. In support of his submission, Mr. Gogoi, has placed reliance upon the decision of the Division Bench of this Court in the case of

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Dilip Talukdar & Others (supra). He submits that in terms of the said decision, the petitioners, herein, are not entitled to be considered for promotion to the next higher grade of Junior Assistant. He has also placed reliance on a decision of a Co-ordinate Bench of this Court in the case of Mamoni Pahadi and Another Vs. State of Assam and Others [Review Petition No. 147/2022, order dated 29.03.2023].

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10. With regard to the undertaking as given by the learned departmental counsel and recorded in the order dated 01.04.2022 passed by the Co-ordinate Bench of this Court in Cont. Cas(C) No. 136/2020 and Cont. Cas(C) No. 137/2020, Mr. Gogoi, learned Standing counsel, PHE submits that the same would in no manner confer upon the petitioners any right for promotion to the next higher cadre of Junior Assistant, inasmuch as, the said undertaking was so given by the departmental counsel, being ignorant of the decision of the Division Bench of this Court in the case of Dilip Talukdar & Others (supra). He further submits that the undertaking of the departmental counsel as recorded in the said order dated 01.04.2022 is inconsequential, inasmuch as, as the date of disposal of the said contempt cases, the decision of the Division Bench in the case of Dilip Taludar (supra) was holding the field.

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11. In the above premises, Mr. Gogoi, learned Standing counsel, PHE submits that the claim of the petitioners, herein, for being promoted to the next higher cadre of Junior Assistant, given the service condition of the petitioners, herein, would not mandate an acceptance of this Court.

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12. I have heard the learned counsel for the parties and also perused the materials available on record.

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13. It is not disputed that the petitioners were engaged, prior to 01.04.1993 as Work Charged and/or as Muster Roll Workers. While the petitioner Nos. 1 & 2 were so engaged in the establishment of the respondent No. 6, the petitioner No. 3 was so engaged in the establishment of the respondent No. 5. The petitioners had rendered continuous service since the date of their initial engagement as a Work Charged and/or Muster Roll Employees. In terms of the policy of the Government of Assam for regularization of the services of Work Charged/Muster Roll/Casual Employees, engaged prior to 01.04.1993, the cases of the

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petitioners were taken up for consideration for such regularization of their services. The services of the petitioner No. 1, herein, was came to be regularized w.e.f. 01.12.2003 as Khalasi (Grade-IV) vide issuance of an office order dated 20.11.2003. A perusal of the said order dated 20.11.2003 would make it apparent that the services of the petitioner No. 1 was admittedly regularized against a personal post created for him. In the order dated 20.11.2003, a prescription was made to the effect that the posts against which the services of the petitioner No. 1 and others involved were regularized, was created temporarily and in the name of each of the persons involved, which would simultaneously be abolished with the cessation of the services of the petitioner No. 1 and others involved.

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14. Likewise, the services of the petitioner No. 2 was regularized vide issuance of an order dated 06.10.2005 w.e.f. 22.07.2005, the regularization of the services of the petitioner No. 2 was also against a post created in his name for the purpose, i.e., against a personal post. The respondents in their affidavit have made categorical statements to the said effect.

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15. The services of the petitioner No. 3 was regularized w.e.f. 01.12.2003 in pursuance of the approval of the Government, which is the approval finding mention in the office order dated 20.11.2003, issued towards regularization of the services of the petitioner No. 1, herein. Accordingly, the regularization of the services of the petitioner No. 3, is also to be construed to have been so effected against a personal post created for the purpose in his name.

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16. The posts against which the services of petitioners, herein, were so regularized, being personal posts, would cease to have effect on cessation of the services of the petitioners, in a manner known to law. The said posts admittedly were not so created in addition to the posts already forming the cadre strength of the Grade-IV service of the Division, wherein, the petitioners were so engaged, but was so created as ex-cadre posts personal to the petitioners, herein.

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17. The issue as arising in the present proceeding had arisen for consideration before a Division Bench of this Court in the case of Dilip Talukdar & Others (supra).

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18 . The Division Bench of this Court in the case of Dilip Talukdar & Others (supra) drew the following conclusions:-

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"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 encadrement 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".

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19. Thus, 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 excadre post. In the case on hand, this Court finds that the services of the petitioners as Work Charged employees were regularized against posts, which were so created as personal posts similar to creation of posts in respect of the appellants involved in the case of Dilip Talukdar (supra) and as such, the petitioners, herein, are holders of ex-cadre posts.

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20. Applying the decision of the Division Bench of this Court in the case of Dilip Talukdar & Others (supra) to the facts of the present case, this Court finds that the services of the petitioners, herein, having been so regularized by creation of posts personal to them, the same being not in addition to the cadre strength of the Grade-IV post of the Division, wherein, the petitioners were so engaged, the petitioners cannot be deemed to be in the feeder cadre for being considered for promotion to the next higher grades of the service, including the post of Junior Assistant, which is a Grade-III post.

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21. Having drawn the above conclusion, this Court would now examine the contentions

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raised by the learned counsel for the petitioners with regard to the undertaking given by the learned departmental counsel before a Co-ordinate Bench of this Court in the proceedings of Cont. Cas(C) No. 136/2020 and Cont. Cas(C) No. 137/2020. The said undertaking is recorded in the order dated 01.04.2022 passed in the above noted contempt petition and the same being relevant, is extracted hereinbelow:

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“…………However, Mr. D. Gogoi the learned Standing Counsel for the PHE Department submits that as and when the vacancies arise the case of the petitioners for promotion shall be considered in terms with the amended Rules of 1967. In that view of the matter, this Court is of the opinion that the order dated 13.03.2019 stands complied with and the PHE Department shall, as and when the vacancies arise, take into consideration the case of the petitioners for promotion.”

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22. A perusal of the said undertaking would go to reveal that what was contended was that the petitioners’ case would be liable for consideration in terms of the amended provisions of the Rules of 1967. Even if the said undertaking given by the departmental counsel is taken on its face value, the same would not further the case of the petitioners, herein, inasmuch as, the Division Bench in the case of Dilip Talukdar & Others (supra) having already laid down that Work Charged/Muster Roll workers regularized in their services against personal post would not be eligible for being considered for promotion to the post figuring in the Grade-III of the service, this Court would not be in a position to issue a direction upon the respondent authorities to consider the case of the petitioners, herein, in violation of the law laid down by the Division Bench of this Court in the case of Dilip Talukdar & Others (supra).

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23. In view of the above discussion, this Court is of the considered view that the claim of the petitioners for being considered for promotion to the posts figuring in the Grade-III of the service would not mandate an acceptance, inasmuch as, the petitioners by virtue of the posts held by them on regularization of their services cannot be held to be incumbents figuring in the feeder cadre for being considered for such promotion. As such, in the facts and circumstances of the present case, the claim of the petitioners for promotion to the post of Junior Assistant and/or any other equivalent posts stands rejected.

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24. Accordingly, this Court is of the considered view that the present writ petition is devoid of any merit and consequently, the same stands dismissed. However, there would be no order as to cost.

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JUDGE

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Comparing Assistant

Prasad Kumar Roy and 2 Ors. v. the State of Assam and 5 Ors.

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Prasad Kumar Roy and 2 Ors. v. the State of Assam and 5 Ors.

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