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2023 Supreme(Gau) 1346
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SANJAY KUMAR MEDHI, J.
Ramani Das S/o Shri Atul Ch. Das – Petitioner
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 7358 of 2021, W.P. (C) No. 1488 of 2023
Decided On : 29-11-2023
Advocate Appeared:
For the Petitioner: R. Mazumdar.
For the Respondents: H.K. Das, K. Gogoi, R. Borpujari, S.K. Medhi, R. Dhar.
The State must speak with one voice, and the denial of salaries without implementing a policy decision was held to be unjustified and unfair.
Headnote:
SALARY - Non-payment of salaries and temporary release from service - Office Memorandum dated 30.03.2012, Article 235 of the Constitution of India, High Court's control over service matters, permanent retention of posts, outsourcing of services - [30.03.2012, Article 235, Permanent Retention, Outsourcing]
Fact of the Case:
The petitioner, appointed as a Sweeper, faced non-payment of salaries from September 2021 and was temporarily released from service. The dispute arose from the applicability of an Office Memorandum dated 30.03.2012, which required outsourcing of sweeping and cleaning services.
Finding of the Court:
The Court found that the petitioner's recruitment and appointment were valid, as the post of Sweeper had been permanently retained despite the Office Memorandum. The Court criticized the authorities for denying the petitioner's salaries and reinstated the petitioner, directing immediate release of due salaries.
Issues: The issues involved the applicability of the Office Memorandum dated 30.03.2012, the permanent retention of the Sweeper post, and the High Court's control over service matters.
Ratio Decidendi: The Court held that the permanent retention of the Sweeper post and the lack of steps to implement the outsourcing policy rendered the denial of salaries unjustified. It emphasized that the State must speak with one voice and criticized the insensitive approach of the authorities.
Final Decision: The writ petitions were allowed, directing the release of due salaries and reinstatement of the petitioner. The temporary release from service was set aside, and the authorities were directed to take immediate steps for salary release within 45 days.
JUDGMENT :
SANJAY KUMAR MEDHI, J.
1. Heard Shri R. Mazumdar, learned counsel for the petitioner. Also heard Shri K. Gogoi, learned Additional Senior Government Advocate, Assam for the Judicial Department; Shri H.K. Das, learned Standing Counsel for the Gauhati High Court; Shri R. Dhar, learned counsel and Ms. S. Barik, learned counsel on behalf of Shri S.K. Medhi, learned Standing Counsel, AG, Assam and Shri R. Borpujari, learned Standing Counsel for the Finance Department.
2. Considering the issues involved which relate to non-payment of salaries to the petitioner as well as his “temporary release” from service as a Sweeper in the establishment of the Chief Judicial Magistrate, Baksa and also considering that the contesting respondents have filed their affidavit-in-opposition, the writ petitions are taken up for disposal at the admission stage. However, before going to the issues directly, it would be convenient to narrate the facts involved briefly.
3. The establishment of the Chief Judicial Magistrate, Baksa was created in the year 2007. Vide the communication issued by the Judicial Department, Government of Assam dated 31.03.2007, the sanction of the Governor of Assam for creation of 158 number of posts in the newly created districts including that of Baksa was notified in which there was one post of Sweeper in the establishment of the Chief Judicial Magistrate, Baksa. The said notification stated that those were issued in terms of two Office Memoranda of the Finance Department dated 03.07.2015 and 04.09.2015. The Judicial Department, Government of Assam had issued a communication dated 04.11.2015 conveying the sanction of the Governor of Assam to the permanent retention of 158 number of posts which includes three number of posts of Sweeper in each of the Courts of Udalguri, Chirang and Baksa. The said notification had also referred to the two Office Memoranda of the Finance Department dated 03.07.2015 and 04.09.2015.
4. Accordingly, a recruitment process was initiated in which the petitioner had participated for the post of Sweeper and the petitioner was issued a call letter dated 01.12.2018 to appear for the Viva-Voce, which was scheduled on 05.01.2019. In the said selection process, the petitioner was selected for the post of Sweeper which was notified vide order dated 26.03.2019. Consequently, the petitioner was duly appointed vide appointment letter dated 27.03.2019. It is the case of the petitioner that pursuant to such appointment order, he has joined the service on 01.04.2019 as a Sweeper and has been discharging his duties diligently. However, the initial grievance of the petitioner is non receipt of the monthly salaries from September, 2021.
5. The petitioner accordingly had approached this Court by filing the first writ petition being WP (C)/7358/2021 for a direction for release of the arrear and current salaries from September, 2021. However, on 13.09.2022, an order was issued by the learned CJM, Baksa temporarily releasing the petitioner from service. Accordingly, the petitioner has filed the second writ petition being WP (C)/1488/2023.
6. Shri Mazumdar, learned counsel for the petitioner has submitted that it appears that the salaries have not been paid in view of an Office Memorandum dated 30.03.2012, as per which, the sweeping and cleaning services were required to be outsourced. He submits that the said Office Memorandum issued by the Finance Department would not be applicable in the instant case as the post of Sweeper in which the petitioner was appointed at Baksa has been permanently retained and till date, no decision has been taken to outsource the work of Sweeper in the Court. It is also submitted that under Article 235 of the Constitution of India, the High Court exercises control over service related matters not only on Judicial Officers but also of Ministerial Staffs and Subordinate Courts Staff and therefore, any action by the Administration would amount to intrusion with the powers of the High Court.
7.
