The main legal point established in the judgment is that the petitioners were not entitled to regularization of their services as drivers in the Assam Tribal Development Authority, and the court directed the State Government to implement welfare schemes for the petitioners.

JUDGMENT :

Kalyan Rai Surana, J.

Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. F.U. Borbhuiya, learned counsel for the petitioners. Also heard Mr. G. Bordoloi, learned Govt. Advocate for respondent nos. 1 and 5, Mr. B. Gogoi, learned standing counsel for the Finance Department and Mr. R.K.D. Choudhury along with Mr. R. Dhar, learned standing counsel for the WPT&BC Department, respondent nos. 3 and 4.

2. In the present case is hand, the issue regarding non-regularization of the petitioners to the post of driver in the Assam Tribal Development Authority (respondent no. 3) (hereinafter referred to as ‘ATDA’ for short) is involved. Therefore, as the case is ready as regards service and the respondent nos. 3 and 4 have filed their affidavit-in-opposition, at the insistence of the learned counsel for all sides, the matter has been heard in the ‘admission’ stage.

3. The grievance of the three petitioners in WP(C) 956/2016 and the sole petitioners in WP(C) 1216/2016 is that WPT & BC Department had arbitrarily rejected the proposals dated 14.07.1994, 05.04.2011 and 20.04.2015 submitted by the ATDA for creation of posts of driver to accommodate the petitioners by regularising their services. In connection with both the said writ petitions, a common order dated 03.11.2017 was passedby this Court. The relevant part of the said order is quoted below:—

“In view of such provisions of Section 12 of the Act, the reasons stated in order dated 21.12.2015 that the posts of Driver had not been approved is inadequate to reject the claim of the petitioners for regularization of their services. In view of above, it is directed that the WP(T) & BC Department shall take a decision as to whether the decision of the authority taken u/s 12 requiring the four posts of driver in to be approved or not. In doing so, the Government in the WP(T) & BC Department shall give its own reason either accepting or rejecting the case for approval. If the WP(T) & BC Department is of the view that the concurrence of the Finance Department or any other department is required to be obtained, the same being an inter-departmental requirement for a correspondence, the Department shall do the needful to arrive at its decision.

List the matter again on 05.01.2018 to enable the WP(T) & BC Department to take the appropriate decision.”

4. Pursuant to the aforesaid order, the WPT & BC Department by a speaking order bearing No. TAB/BC/224/2011/219 dated 03.01.2018, rejected the proposal for regularization on the ground that the appointments were sought to be made in the non-sanctioned and non-existing post and without prior concurrence or approval of the State Govt. The three petitioners in W.P. (C) 956/2016 and the sole petitioner in W.P. (C) 1216/2016 have now jointly filed WP(C) 2321/2018 in order to assail the herein before referred order dated 03.01.2018.

5. The learned senior counsel for the petitioners has submitted that in the present case in hand, previously there was no vehicle allotted to the ATDA. However, subsequently, the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA. Therefore, the petitioners were engaged in service as drivers. It is submitted that from time to time, communications were exchanged for sanctioning the creation of the posts of drivers and to regularise the service of the petitioners and in this regard, reference is made to communications dated 14.07.1994, 30.01.2001, 26.06.2001, 26.06.2002, 03.06.2008, 08.01.2013 and 08.04.2015. It is submitted that in this case, instead of creating the posts of drivers, the ATDA had extracted service from the petitioners. Accordingly, by placing strong reliance on the case of Nihal Singh v. State of Punjab, (2013) 14 SCC 65, it has been submitted that as the petitioners are rendering service, this is a fit case for issuing a direction to the respondents to regularise the service of the petitioners with retrospective effect by providing ex p