Rukmini Roy Vs the State of Assam and 3 Ors.

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GAHC010189612020

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2025:GAU-AS:7130

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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)/5770/2020

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RUKMINI ROY

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W/O SRI ALOKESH CH. ROY

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RESIDENT OF WARD NO. 1, NEAR CIVIL HOSPITAL GAURIPUR, DIST DHUBRI, JR. ASSISTANT IN THE OFFICE OF EXECUTIVE ENGINEER, DHUBRI, DIVISION, (IRRIGATION) GAURIPUR, 783331

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VERSUS

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THE STATE OF ASSAM AND 3 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, IRRIGATIO DEPARTMENT, GUWAHATI 6

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2:THE CHIEF ENGINEER IRRIGATION DEPARTMENT CHANDMARI GUWAHATI 781003

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3:THE EXECUTIVE ENGINEER DHUBRI DIVISION (IRRIGATION) GAURIPUR 783331

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4:DIPAK KALITA

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S/O ACHYUT CH. KALITA. R/O GAURIPUR WARD NO. 4 NEAR DURGA MANDIR PO AND PS GAURIPUR DIST DHUBRI ASSAM 78333

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Advocate for the Petitioner : MR. M J BARUAH, MS M NEOG,J. KASHYAP,MS B MAJUMDER

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Advocate for the Respondent : SC, IRRIGATION,

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BEFORE HONOURABLE MR. JUSTICE KARDAK ETE

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JUDGMENT

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Date : 02-06-2025

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Heard Heard Mr. MJ Baruah, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned standing counsel, Irrigation Department, for respondent Nos.1, 2 & 3. None appeared for the respondent No.4, despite notice is effected.

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By filing this petition, the petitioner has put to challenge the order dated 21.10.2020, issued by the Executive Engineer, Irrigation Department, Dhubri Division, Gauripur, Assam by which the respondent No.4, namely, Sri Dipak Kalita along with another person have been promoted to the post of Senior Assistant. The petitioner has also prayed for direction to the respondent authorities to consider the petitioner for promotion to the post of Senior Assistant.

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Briefly put, the case of the petitioner is that she was appointed as a Muster Roll Worker on 17.11.1986 and thereafter her service was regularized on 06.10.2005, as Helper along with some other persons, as per the policy decision of the State, taken in the year 1983. The petitioner was promoted to the post of Lower Division Assistant (now re-designated as ‘Junior Assistant’) cum Typist w.e.f. 01.01.2008, a Grade-III post, after due process of selection along with two other persons.

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The selection and appointment of the petitioner along with other similarly situated persons were put to challenge by some other Muster Roll Workers, who claimed to be senior in the Grade-IV, by way of writ petition before this Court in a batch of Writ Petition, leading case being WP(C) No.5492/2010. Those writ petitions were disposed of by a common order dated 13.09.2011, by allowing the writ petitions and setting aside the appointment orders of the respondents. However, the promotion of the petitioner and three others have not been interfered with, solely on the ground that their appointment were not challenged in the writ petitions. The learned Single Judge found that the appointment of the respondents in those writ petitions including the petitioner were found to be not in accordance with the Rules,

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namely, the Assam Ministerial District Establishment Service Rules, 1967.

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The aforesaid order passed by the learned Single Judge, dated 13.09.2011, was taken to appeal by some of the Junior Assistants, being Writ Appeal No.301/2011, Writ Appeal No.327/2011, Writ Appeal No.330/2011, Writ Appeal No.331/2011 and Writ Appeal No.332/2011. The Division Bench by common order dated 13.06.2012, disposed of the Appeals with a direction that the State may either initiate a fresh selection process or take a decision on regularization in accordance with the rules. It was also provided that since the appellants have been continued for more than six years, pending decision by the State, they may be allowed to continue as ad-hoc arrangement. It is also noticed that the Division Bench has upheld the finding recorded by the learned Single Judge that the appellants having been regularized in the year 2005 did not have requisite length of service or eligibility for promotion to Grade-III, which could not be shown to be factually erroneous. It also recorded that it is not the case of the appellants that any relaxation was made in the eligibility requirement pointed out in the order of learned Single Judge and in absence of relaxation of the said requirement, the Rules had to be followed and the appellants could not be appointed in violation thereof as has been done.

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Mr. MJ Baruah, learned counsel for the petitioner submits that since the promotion of the petitioner dated 01.08.2008 has not been interfered with by the learned Single Judge and the petitioner having been allowed to continue in the said promoted post of Junior Assistant and the petitioner has been serving the Department for more than 16 (sixteen) years by now, the petitioner is eligible to be considered for promotion to the post of Senior Assistant. He submits that although this Court has held that the promotion of the petitioner was not accordance with the applicable Rules, there is no interference to the promotion of the petitioner and the Division Bench having been directed to take a decision on regularization of the appellants in those Writ Appeals, the authorities ought to have taken a decision either to initiate fresh selection process or on regularization of the incumbents.

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While referring to the various communications made by the respondent authorities, Mr. Baruah, learned counsel submits that the petitioner has not been reverted back as on date,

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rather she is continuing in her service. Therefore, he submits that the respondent authorities may be directed to consider the case of the petitioner for promotion to the post of Senior Assistant. Mr. Baruah further submits that although initially the petitioner challenged the promotion of the respondent No.4 to the post of Senior Assistant, by efflux of time, the petitioner is not pressing the challenge to the promotion of the respondent No.4.

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On the other hand, Mr. N. Upadhyay, learned standing counsel, Irrigation Department, appearing for respondent Nos.1, 2 & 3, while referring to the affidavit-in-opposition filed by the respondent authorities submits that since the petitioner was promoted to the post of Junior Assistant from a personnel post of Helper and her service as Junior Assistant has not been regularized till date, she cannot claim for promotion to the post of Senior Assistant. Therefore, the petitioner is not entitled for consideration for promotion to the post of Senior Assistant.

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Due consideration has been extended to the rival submissions of learned counsel for the parties and perused the materials available before the Court.

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Admittedly, the petitioner was engaged as a Muster Roll Worker in the year 1986 and subsequently, as per the policy decision of the State on regularization of the Muster Roll Workers, the service of the petitioner was regularized in the year 2005. Thereafter, the petitioner was promoted to the post of Junior Assistant, vide order dated 01.01.2008. It is also admitted position that the appointment/ promotion of the petitioner to the post of Junior Assistant was put to challenge before this Court, wherein vide order dated 13.09.2011, the learned Single Judge found that the promotion of the petitioner and other similarly situated persons were not in accordance with the Assam Ministerial District Establishment Service Rules, 1967. However, the appointment of the petitioner along with the other 3 (three) similarly situated persons were not interfered with solely on the ground that their promotions were not challenged.

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Therefore, some of the respondents filed Writ Appeals being Writ Appeal No.301/2011, Writ Appeal No.327/2011, Writ Appeal No.330/2011, Writ Appeal No.331/2011 and Writ

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Appeal No.332/2011, wherein the Division Bench of this Court by order dated 13.06.2012, has upheld the judgment and order of the learned Single Judge and disposed of the Writ Appeals. The relevant paras of the order dated 13.06.2012, are reproduced here-in-below:

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“ The finding recorded by learned Single Judge that the appellant having been regularized in the year 2005 did not have requisite length of service or eligibility for promotion to Grade-III, could not be shown to be factually erroneous. However, it was submitted that the appellants had long service as Muster Roll employees and on that basis they will be considered eligible in the light of Circulars of the Government dated 02.04.2004 and 14.09.2005.

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It is not the case of the appellants that any relaxation was made in the eligibility requirement pointed out in the order of learned Single Judge. In absence of relaxation of the said requirement, the Rules had to be followed and the appellants could not be appointed in violation thereof as has been done.

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Accordingly, we dispose of this appeal with a direction that the State may either initiate a fresh selection process or take a decision on regularization in accordance with the rules, within three months from the date of receipt of a copy of this order. Since the appellants have been continuing for more than six years, pending decision by the State, they may be allowed to continue as ad hoc arrangement”.

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Perusal of the above order of the Division Bench clearly shows that the finding of the learned Single Judge has been upheld by the holding that the finding recorded by the learned Single Judge that the service of the appellants having been regularized in the year 2005, they did not have requisite length of service or eligibility for promotion to Grade-III, could not be shown to be factually erroneous. It also reflects that the case of the appellants is not that any relaxation was made in the eligibility requirement pointed out in the order of learned Single Judge. In absence of relaxation of the said requirement, the Rules had to be followed and the appellants could not be appointed in violation thereof as has been done. Accordingly, a direction was issued to the respondent authorities either initiate a fresh selection process or take a decision on regularization in accordance with the Rules.

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Despite clear direction of the Division Bench of this Court, it is noticed that no action has been initiated, either for fresh selection process or any decision has been taken for regularization of the incumbents. It is also seen that the respondent authorities by various communications have expressed the difficulty in reverting back the writ petitioner and other similarly situated persons to revert back to their original post of Grade-IV. In consequence, the petitioner and other similarly situated persons have been allowed to continue in the

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promoted post of Junior Assistant, till date.

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Having considered the orders of this Court (Supra), no doubt, the appointment of the petitioner to the post of Junior Assistant was not in accordance with the Rules, however, despite clear direction from this Court, no action had been initiated either for fresh selection process or decision on the regularization of the petitioner in the post of Junior Assistant, rather allowed the petitioner to continue till date in the said post, it would be difficult to take a view that the petitioner may not be eligible for consideration to the higher post by now, although technically the petitioner has not been regularized in the post of Junior Assistant.

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Considering that the respondent authorities have expressed technical difficulties in reverting back the petitioner and other similarly situated persons to the post of Grade-IV, having the posts been abolished by then and allowed the petitioner and other similarly situated persons to continue in the post of Junior Assistant, after they were promoted, I am of the considered view that interest of justice would be served, if the respondents are directed to consider the case of the petitioner and take a decision on the regularization of service of the petitioner, taking into consideration of the facts and circumstances of the present case.

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Accordingly, the respondent authorities are directed to consider the case of the petitioner and take a decision first on the regularization of service of the petitioner and thereafter, consider her case for promotion to the next higher post, in accordance with the law, within a period of five (5) months, from today.

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The writ petition stands disposed of in terms of above. No order as to costs.

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JUDGE

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Comparing Assistant

Rukmini Roy v. the State of Assam and 3 Ors.

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