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IN THE HIGH COURT OF GAUHATI
RANJAN GOGOI, IQBAL AHMED ANSARI AND H.N. SARMA, JJ.
Jitendra Kalita – Appellant
Vs.
State of Assam and Ors. – Respondent
WP(C) No(s).343 of 1997; 6045 of 1998; 663, 1043, 3018, 3808, 4065, 4311, 4640, 5350 of 1999; 1393, 1399, 6134 of 2000; 552, 1009, 1250, 1960, 4510, 7582, 8775 of 2001; 395, 1266, 1268, 1269, 1270, 1271, 1272, 1975, 4072, 4436, 6938, 6952, 7737, 7968, 7972, 8014 of 2002; 356, 833, 834, 973, 1215, 2233, 2310, 3004, 3211, 3328, 3914, 3938, 4014, 4033, 4085, 4135, 4383, 5087, 6139, 6222, 6688, 6775, 6776, 7982, 7988, 8278, 9648, 10163, 10513 of 2003; 972, 973, 1185, 1311, 1450, 1547, 1554, 1684, 1765, 1886, 2110, 2111, 3015, 3061, 3383, 3414, 3446, 3468, 3671, 3754, 4235, 4236, 4584, 5213, 5572, 5581, 5854, 5855, 5876, 6080, 6424, 6651, 6804, 6818, 6873, 6896, 6986, 7129, 7164, 7690, 7750, 7988, 8174, 8396, 8578, 8580, 8996, 9210, 9279, 9311, 9351, 9551 of 2004; 35, 285, 853, 1520, 1551, 2617, 2628, 2672, 3136, 3161, 3298, 3390, 3664, 3879, 3901, 4243, 4367, 4456, 5442, 6629, 6696, 6802, 6924, 6962, 6997, 7028, 7359, 7673, 7751, 7828, 7941, 7942, 7959, 7984, 8015, 8016, 8219, 8297, 8304, 8458, 8651, 8659, 8710, 8803, 8845, 8846, 8861, 8929 of 2005; 193, 235, 265, 276, 752, 801, 1076 of 2006;
Decided On: 17.05.2006
OFFICE MEMORANDUM - POLICY DECISION - IMPLEMENTATION - REGULARISATION OF MUSTER ROLL/WORK CHARGED EMPLOYEES - SCOPE AND EXTENT - EXTENSION TO OTHER CATEGORIES OF EMPLOYEES - VALIDITY - HARMONIZING PRINCIPLES - HUMANITARIAN CONSIDERATIONS - APPLICABILITY - TRANSPORT DEPARTMENT - SELECTION PROCESS - VALIDITY - SELECT LIST - QUASHING - FRESH SELECTION - DIRECTIONS.
Fact of the Case:
The case involved multiple writ petitions and contempt petitions arising from conflicting judicial verdicts on the issue of regularisation of muster roll/work charged employees and other categories of casual employees in various departments of the State of Assam. The primary question before the Court was whether an office memorandum issued by the Chief Secretary of the State, directing regularisation of muster roll/work charged employees engaged prior to a certain date, constituted a valid policy decision of the State and the scope and extent of its implementation.
Finding of the Court:
1. The office memorandum dated 20.4.1995 does not reflect a valid policy decision of the State for regularisation of muster roll/work charged employees. 2. No muster roll/work charged employee is entitled in law to seek and claim regularisation in terms of the aforesaid office memorandum dated 20.4.1995. 3. However, as a large number of regularisations of different categories of employees have already been effected in terms of the office memorandum dated 20.4.1995, considering the human factor involved, the Court does not consider it necessary to pass orders setting aside any of the said regularisations. However, there will be no further regularisation in terms of the aforesaid office, memorandum, dated 20.4.1995, and/or such other judicial order(s) for regularisation, passed, in this regard, but has not yet been implemented. 4. The office memorandum dated 20.4.1995 does not cover any category of employees other than muster roll and work charged employees. No policy decision has been taken by the State with regard to regularisation of different categories of casual/contingent/ad hoc employees working in the different departments of the State Government. Such employees are, therefore, not entitled to claim any regularisation either under the office memorandum dated 20.4.1995 or under any other office memorandum in force. 5. Casual employees of the Transport Department in Grade III posts are not entitled to regularisation in terms of the office memorandum dated 20.4.1995 or any other office memorandum in force. 6. The selections held for filling up the vacant posts of L.D. Assistants in the Transport Department including the select list dated 24.6.2003 is found to be illegal and, therefore, set aside. 7. The Court express no opinion with regard to the validity of the Cabinet decision dated 22.7.2005 or its implementation and execution. The matter will be considered, if required, at the appropriate time and stage.
Issues: 1. Whether the office memorandum dated 20.4.1995 constituted a valid policy decision of the State for regularisation of muster roll/work charged employees? 2. What was the scope and extent of the implementation of the office memorandum dated 20.4.1995? 3. Whether the office memorandum dated 20.4.1995 could be extended to other categories of employees, such as casual employees in Grade III posts? 4. Whether the selections held for filling up the vacant posts of L.D. Assistants in the Transport Department were valid? 5. Whether the select list dated 24.6.2003 should be quashed?
Ratio Decidendi: 1. A policy decision of the State must be implemented in accordance with certain laid down principles, which principles, in turn, must be able to satisfy the tests of legality, propriety, and reasonableness. 2. The office memorandum dated 20.4.1995 was issued unilaterally by the Chief Secretary of the State without the sanction of any valid exercise of the executive power of the State and, therefore, cannot be understood to have been issued in exercise of the executive power of the State. 3. The office memorandum dated 20.4.1995 does not reflect a valid policy decision of the State and, therefore, the arguments advanced on the question of the sanctity and legality thereof on account of the absence of an appropriate manner of its execution in the form of a valid scheme, are matters that need not be gone into by the Court. 4. The office memorandum dated 20.4.1995 does not cover any category of employees other than muster roll and work charged employees and, therefore, cannot be extended to other categories of employees, such as casual employees in Grade III posts. 5. The selections held for filling up the vacant posts of L.D. Assistants in the Transport Department were found to be illegal due to irregularities in the award of marks in the interview segment of the selection process.
Final Decision: 1. The office memorandum dated 20.4.1995 does not reflect a valid policy decision of the State for regularisation of muster roll/work charged employees. 2. No muster roll/work charged employee is entitled in law to seek and claim regularisation in terms of the aforesaid office memorandum dated 20.4.1995. 3. However, as a large number of regularisations of different categories of employees have already been effected in terms of the office memorandum dated 20.4.1995, considering the human factor involved, the Court does not consider it necessary to pass orders setting aside any of the said regularisations. However, there will be no further regularisation in terms of the aforesaid office, memorandum, dated 20.4.1995, and/or such other judicial order(s) for regularisation, passed, in this regard, but has not yet been implemented. 4. The office memorandum dated 20.4.1995 does not cover any category of employees other than muster roll and work charged employees. No policy decision has been taken by the State with regard to regularisation of different categories of casual/contingent/ad hoc employees working in the different departments of the State Government. Such employees are, therefore, not entitled to claim any regularisation either under the office memorandum dated 20.4.1995 or under any other office memorandum in force. 5. Casual employees of the Transport Department in Grade III posts are not entitled to regularisation in terms of the office memorandum dated 20.4.1995 or any other office memorandum in force. 6. The selections held for filling up the vacant posts of L.D. Assistants in the Transport Department including the select list dated 24.6.2003 is found to be illegal and, therefore, set aside. 7. The Court express no opinion with regard to the validity of the Cabinet decision dated 22.7.2005 or its implementation and execution. The matter will be considered, if required, at the appropriate time and stage.
Ranjan Gogoi, J.
1. Two groups of mutually irreconcilable judicial verdicts, any one of which can be implemented at the peril of the other, has necessitated this reference to an Expanded Bench to decide which of the conflicting views should now hold the field. A post-cognizance realisation that the issue involved could have extensive ramification as one of the two views, that flows from a Division Bench Judgment in the case of Achyut Chandra Pathak and Ors. v. State of Assam and Ors. reported in (2000) 1 GLT 243, has been consistently applied arid followed, had led the Full Bench to direct that notices be issued to all such muster roll/work charged employees in all Departments of the State, who are awaiting regularisation as well as those who have been so regularised, in Order to ensure that they do not go unheard.
2. The facts necessary to understand the precise scope of the reference made to the Full Bench need to be amplified at the outset:
In the several engineering and works related departments of the State, a muster roll of workers is maintained in addition to the employees working in the regular cadre. Such workers are known as Muster Roll Workers. Also, in such engineering and works related Departments of the State there is another category of workers whose tenure of service and pay and allowances are charged to a particular on going work. Such employees are commonly known as work charged employees. Though muster roll and work charged establishments are normally to be found in the works related departments, which are basically the engineering departments of the State, the practice of engaging such workers has virtually come to be followed in all Departments of the State. In addition to the above two categories, each department of the State employs a large number of casual workers including fixed pay and daily rated workers. The extent of such employment in the State of Assam, which is outside the mainstream of employment, it must be noticed, is considerable.
3. In the year 1983, and to be precise, on 23.9.1983, a Cabinet decision was taken to the effect, that all muster roll labourers working in all Departments of the State, who have completed 15 years of service or more, may be regularised as Grade IV employees. What happened thereafter and how the decision of the Cabinet was implemented, if at all, is not very clear save and except that in a communication dated 15.3.1984 issued by the Chief Secretary of the State, the General Secretary of the P.W.D. Employees Union was informed that muster roll workers of the Public Works Department and other Engineering Departments, who have completed 15 years of continuous service was to be regularised with effect from 1.8.1984. By the said communication, the workers Union was further informed that work charged employees of the Engineering Departments, who have completed 5 years continuous service, were to be brought under the regular establishment. Admittedly and evidently, no scheme was prepared or detailed principles were laid down as to how the Cabinet decision dated 23.9.1983 was to be executed and implemented consistent with the rights under Articles 14 and 16 of the Constitution of such persons who came within the purview of the aforesaid Cabinet decision dated 23.9.1983. The position remained unchanged until the Chief Secretary to the Government of Assam addressed a communication bearing No. ABP 176/91/P11/188 dated 20.4.1995 to all the Commissioners and Secretaries of the Government of Assam. By the aforesaid communication dated, 20.4.1995 the Chief Secretary informed all concerned that in spite of the decision of the State Government to regularise the services of work charged and muster roll employees, no action for regularization of such employees have been taken. Accordingly, the Chief Secretary informed all the Departments to take necessary action, in consultation with the Finance Department, for early regularisation of the services of work, charge and muster roll
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