Ramani Kakati Vs the State of Assam and Anr.

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GAHC010237572022

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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)/7535/2022

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RAMANI KAKATI S/O- LATE KHAGENDRA NATH KAKATI, R/O- LICHUBAGAN, HENGRABARI, P.O.- HENGRABARI, P.S.- DISPUR, GUWAHATI- 36, KAMRUP(M), ASSAM.

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VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT, DISPUR, GUWAHATI- 781006, DIST.- KAMRUP(METRO), ASSAM.

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2:THE DIRECTOR DAIRY DEVELOPMENT ASSAM KHANAPARA GUWAHATI- 781022 DISTRICT- KAMRUP(METRO) ASSAM

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Advocate for the Petitioner : MR. A GANGULY, MR. J I BORBHUIYA,MR A HOSSAIN,MR. L MOHAN,MS. M ROY,MR T CHHETRI

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Advocate for the Respondent : GA, ASSAM, MS. M M KOTOKY, SC, ANIMAL HUSBANDRY & VETERINARY DEPTT. & DIARY DEVELOPMENT DEPTT.

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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Date : 10-06-2025

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JUDGMENT & ORDER (Oral)

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Heard Mr. J. I. Barbhuiya, learned counsel for the petitioner. Also heard Ms. M. M. Katoki, learned Standing Counsel, Animal Husbandry & Veterinary Department representing the respondents.

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2. The petitioner has instituted the present proceeding assailing a speaking order dated 19.10.2022, issued by the respondent no. 2, rejecting his claim for inclusion of his name in the gradation list of regular Grade-IV staff of the Directorate of Diary Development and for his consequential promotion to the next higher grades of the service.

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3. As projected in the writ petition, the petitioner was initially engaged as a Muster Roll Worker w.e.f., 15.11.1980. Thereafter, the service of the petitioner was regularized vide an order 30.09.2005. The service was so regularized in the year 2005 in terms of a policy decision adopted in the matter by the respondent authorities. The service of the petitioner was regularized against a personal post so created for the purpose. It is further contended that a provisional gradation list of Grade-IV (HQ) employees of the Directorate as on 23.10.2019 was published on 04.11.2019 and therein, the name of the petitioner figured at Serial No. 2. The said gradation list was finalized and a final gradation list dated 29.07.2022 came to be so published, however, the name of the petitioner was dropped therefrom.

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Being aggrieved by his exclusion from the final gradation list of Grade-IV employees of the Directorate, the petitioner approached this Court by way of instituting a writ petition being WP(C) No. 5910/2022.

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The said writ petition was disposed of by this Court vide an order dated 09.09.2022, granting liberty to the petitioner to submit a representation against

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the gradation list in question and the respondent no. 2 herein, was directed to dispose of the said representation after giving an opportunity of hearing to the parties who would be effected, in the event, the claim of the petitioner is accepted. The petitioner accordingly, submitted a representation on 14.09.2022. Thereafter, the respondent no. 2, on consideration of the materials brought on record, proceeded vide order dated 19.10.2022 to reject the claim of the petitioner as made in his said representation dated 14.09.2022. It was contended in the order dated 19.10.2022 that the claim of the petitioner regarding his omission from the gradation list of regular Grade-IV staff dated 29.07.2022 was misleading, since the gradation list was prepared only for the regular Grade-IV staff of the Directorate and not for regularized Muster Roll Workers like the petitioner herein.

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Being aggrieved, the petitioner has instituted the present proceeding.

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4. Mr. J. I. Barbhuiya, learned counsel for the petitioner, by reiterating the facts as noticed herein above, has submitted that upon regularization of the services of the petitioner, the petitioner is a regular incumbent in the Grade-IV category of the Directorate and is holding a sanctioned post. Accordingly, the name of the petitioner was mandatorily required to be so included in the gradation list of the Grade-IV staff of the Directorate published.

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5. Mr. Barbhuiya, learned counsel, by referring to the speaking order dated 19.10.2022 has submitted that the reasonings advanced therein by the respondent no. 2 are clearly perverse and the same has been so advanced only with a view to deprive the petitioner of his due promotion to the next higher grade of the service. Mr. Barbhuiya has further submitted that amongst the Grade-IV staff working in the Directorate, the petitioner was drawing the highest grade pay of Rs. 4200/-. Accordingly, the petitioner being the senior most in the establishment, his case was required to be so considered for promotion to the

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next higher post. Denial of consideration for promotion to the petitioner has resulted in violation of his fundamental rights.

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6. Mr. Barbhuiya, learned counsel for the petitioner, by referring to the contentions made in the affidavit-in-reply filed in the matter by the petitioner against the affidavit-in-opposition filed by the respondent no. 2 has submitted that persons similarly situated and drawing grade pay lower than the petitioner have been considered and promoted to the next higher grade. In view of the above position, Mr. Barbhuiya, submits that the speaking order dated 19.10.2022 would mandate an interference from this Court with a further direction to the respondent authorities for inclusion of the name of the petitioner at the appropriate stage in the gradation list prepared for the employees in Grade-IV category in the Directorate. He further prays that the petitioner’s case for promotion to the next higher grades of the service be directed to be so considered with retrospective effect by reckoning his seniority position.

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7. Per contra, Ms. M. M. Kataki, learned Standing Counsel, Animal Husbandry & Veterinary Department appearing for the respondents has at the outset submitted that the services of the petitioner herein was so regularized against a personal post and the said post was to stand abolished as soon as the petitioner had relinquished his post in any manner. Ms. Kataki, learned counsel has submitted that the length of service rendered by the petitioner as Muster Roll; and thereafter, as a regularized Muster Roll Worker would not entitle him to be so included in the gradation list of the incumbents in Grade-IV, inasmuch as, the petitioner is treated to be an ex-cadre employee and there is no decision arrived at by the authorities for encadering his services.

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8. Ms. Kataki, learned Standing Counsel has further submitted that merely because of the petitioner is drawing his grade pay at the higher stage i.e., at the rate of Rs. 4200/-, the same would not mandate consideration of his case for

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promotion to the next higher grades. Ms. Kataki has submitted that although certain regularized Muster Roll Workers were promoted in the next higher grade, the same was so done in clear violation of the policy in place in this connection and such promotions would not vest the petitioner with a right to demand similar benefits.

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9. In the above premises, Ms. Kataki, learned Standing Counsel submits that the speaking order dated 19.10.2022 having been so issued after considering all relevant matters, the same would not mandate any interference.

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10. I have heard the learned counsel appearing for the parties and also perused the materials brought on record.

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11. At the outset, it is to be noted that the petitioner’s Muster Roll services was regularized vide an order dated 30.09.2005 w.e.f., 22.07.2005 in pursuance to a policy decision adopted in this connection by the Government of Assam. The said regularization was so effected against a personal post created for the purpose by the respondent authorities. The petitioner was not encadred in the regular GradeIV service of the Directorate and he continued in his services against the personal post so created for this purpose.

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12. The grievance raised in the present proceeding by the petitioner, pertains to the non-inclusion of his names in the gradation list published of the regular Grade-IV employees and the non-consideration of his case for promotion to the next higher grades of the service. Accordingly, the issue that would arise for consideration in the present proceeding is as to whether the petitioner as a regularized Muster Roll Worker is entitled to be considered for promotion to the next higher grades of the service.

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13. The said issue is no longer res-integra and the Division Bench of this Court in the case of Dilip Talukdar & 21 Ors., Vs State of Assam & Ors. , reported in

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2017(2) GLT 135, has held that when regularization of a Grade-IV work-charged worker has been done against a personal post, the post held by those persons would be outside the cadre of a Grade-IV post, i.e. an ex-cadre post. The Court further held that “unless a person who is holding an ex-cadre post is en-cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. In the above referred cases, the petitioners therein had been reverted back to their original posts after being promoted. The challenge made by them in the above cases was unsuccessful due to the reasons stated above.

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14. A Co-ordinate Bench of this Court in the case of Kuladhar Talukdar & Others vs. State of Assam & Others , reported in 2021 0 Supreme (Gau) 94 , examined the issue as to whether Muster Roll/Work-charged employees who had been regularized against the post which were made personal to them, could be promoted and whether, their reversion to their regularized post was legally tenable. This Court, after going through various judgments, came to a finding that the said bunch of cases was covered by the judgment of the Division Bench of this Court in Dilip Talukdar (supra) , as well as decisions of the co-ordinate benches, wherein it was held that claim for promotion for a person holding an excadre post was not legally tenable. The relevant paragraphs of the decision of the co-ordinate Bench in the case of Kuladhar Talukdar (supra) are re-produced below:-

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“ 18. The present issue has already been decided by the Co-Ordinate Bench of 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 Water Resource 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 of by a

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Coordinate 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-cadre post is en-cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. This Court thereafter dismissed the writ petition filed by the petitioners.

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WP(C) No. 3116/2014 was with regard to the claim of the petitioners therein for promotion from Grade-IV post to the post of Section Assistant, which is a Grade-III post. Here also, the petitioners who were in the Water Resource Department, Govt. of Assam had been regularized against posts which were made personal to them and which were to be abolished as soon as the incumbent relinquished the post in any manner. A Co-Ordinate Bench, 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, had to be reverted back, as the post held by them were against Cadre post and as such, they could not be promoted to a regular post.

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19. Being 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.”

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The Division Bench dismissed the appeals on the ground that a claim for promotion from a person holding an ex-cadre post was not

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legally tenable. 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 Dilip Talukdar and 21 Others, 2017(2) GLT 135, which is at paragraph 12 is reproduced below :-

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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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15. The decisions of this Court noticed herein above, lays down that unless a person who is holding an ex-cadre post is encadred into a cadre post, which is a feeder post to a higher cadre post, the person holding the personal post cannot be promoted to the next higher post. In the present writ petition, it is seen that the petitioner has not sought any relief for encadrement of the post held by them. The post held by the petitioner being admittedly a personal post, the same

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having not been encadred in the regular Grade-IV of the service, this Court is of the considered view that the petitioner cannot claim for inclusion of his name in the gradation list of the incumbents in the regular Grade-IV grade of the service.

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16. The petitioner herein, having been held to hold an ex-cadre post, he not figuring in the feeder cadre for promotion to the next higher grades of the service, including the post of Field Assistant (Grade-III) under the Statistical Cell of the Directorate of Diary Development, Assam, the claim of the petitioner for being considered for promotion would not mandate an acceptance by this Court.

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17. The order of regularization of the services of the petitioner, having specifically mandated that such regularization to have been effected against posts created personal to them, the petitioner cannot have an enforceable rights to claim promotion to the higher cadres of the service, when he is himself placed in an ex-cadre post outside the hierarchy of the posts of the service. Accordingly, the claim made by the petitioner for consideration of his case for promotion, in the considered view of this Court, is also not legally tenable.

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18. In view of the above discussions, this Court is of the considered view that the present writ petition is devoid of any merit and accordingly, the same stands dismissed. However, there would be no order as to costs.

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JUDGE

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Comparing Assistant

Ramani Kakati v. the State of Assam and Anr.

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Ramani Kakati v. the State of Assam and Anr.

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