Point of Law: Regularization - Promotion from a person holding an ex-cadre post was not legally tenable - When 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.

JUDGMENT :

1. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R.M. Deka, Advocate for the petitioners in WP(C) 8072/2019, WP(C) 8602/2019, WP(C) 8688/2019 and WP(C) 9374/2019; Mr. M. Bhagabati, learned counsel for the petitioners in WP(C) 9451/2019, Mr. K.U. Ahmed, learned counsel for the petitioners in WP(C) 25/2020; Mr. J.P. Das, learned counsel for the petitioners in WP(C) 1355/2020, WP(C) 1357/2020, WP(C) 1365/2020, WP(C) 1371/2020, WP(C) 1372/2020, WP(C) 1374/2020, WP(C) 1397/2020 & WP(C) 1400/2020 and Ms. D. Borgohain, learned counsel for the petitioners in WP(C) 1673/2020. Also heard Mr. B. Goswami, learned Addl. A.G., Assam, assisted by Ms. S. Chutia, Advocate and Mr. B. Gogoi, learned Standing Counsel, Finance Department.

2. The challenge made in the bunch of writ petitions is to the office order dated 25.11.2013 issued by the respondent No. 1, the order dated 28.08.2017 issued by the respondent No. 2 and the letter dated 28.09.2018 issued by the Chief Engineer, Water Resource Department, by which a decision has been taken to the effect that the regularized Muster Roll labourers and Work Charge labourers, who have been regularized against post which are made personal to them, cannot be promoted in terms of the Assam Ministerial District Establishment Service Rules, 1967.

3. The case of the petitioners is that they were initially working as Muster Roll Labourers and Work-Charge Labourers in the Water Resource Department prior to 01.04.1993. Thereafter, consequent to a decision taken by the State Government, their services were regularized in the year 2005 vide various orders. The regularization orders of the petitioners stated that the posts to which they had been regularized, was personal to the respective workers (petitioners) holding the post and would stand abolished automatically, as soon as he relinquishes his post in any manner. Subsequently, the petitioners were promoted from Grade-IV posts to Grade-III posts. Some were even given further promotion. However, vide various orders issued over different years, the petitioners in some of the writ petitions have been reverted back to the post in which they were regularized, on the ground that they had been wrongfully promoted. The petitioners in several other writ petitions have challenged the show-cause notice issued to them, asking them as to why they should not be reverted back from their promotional posts, to the post they were regularized in.

4. The petitioners’ case is that as they have been duly promoted and have been serving in the promotional post for a number of years, they could not be reverted back to their original posts. On the other hand, the case of the respondents is that persons who have been regularized against personal post cannot be promoted, as the personal posts were ex-cadre post and as such, an ex-cadre post cannot be a feeder post for promotion to a cadre post. In support of their submission, the respondents have relied upon decisions of this Court in WP(C) 4254/2014 and WP(C) 2416/2014, wherein this Court had upheld the submission of the State respondents and the judgment of the Single Judge had been upheld by the Division Bench of this Court in the case of Sri Dilip Talukdar and 21 Others vs State of Assam and 5 Others, reported in 2017 2 (GLT) 135.

5. The counsels for the petitioners submit that while some petitioners have been promoted twice, one of them has been promoted thrice. They have also been given increments. Further, the promotions were done by the Water Resource Department in public interest. They also submit that the AH & Veterinary Department, Govt. of Assam have taken a decision to make Work-charged and Muster Roll workers eligible to all benefits, including promotion, as per the prevailing Government Rules. As the Govt. cannot speak in two voices, the reversion of the petitioners to their original posts cannot be done in the absence of statutory rules.

6. Mr. K.N. Choudhury, learned senior counsel submits that th