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PRINCIPAL SEAT AT GUWAHATI
RAMANI DAS – Appellant
Versus
THE STATE OF ASSAM AND 5 ORS – Respondent
WP(C) 1488 2023
OUTSOURCING - SWEEPER - SALARY - [The petitioner, a Sweeper in the establishment of the Chief Judicial Magistrate, Baksa, was denied salaries from September 2021 and was temporarily released from service in September 2022. The Court held that the petitioner was entitled to salaries and reinstatement as the post of Sweeper had been permanently retained and the Office Memorandum requiring outsourcing of sweeping services was not applicable.]
Fact of the Case:
The petitioner was appointed as a Sweeper in the establishment of the Chief Judicial Magistrate, Baksa, in March 2019. However, from September 2021, his salaries were withheld, and in September 2022, he was temporarily released from service. The petitioner contended that the withholding of salaries was due to an Office Memorandum issued by the Finance Department in 2012, which required outsourcing of sweeping services. However, the petitioner argued that this Office Memorandum was not applicable as the post of Sweeper in Baksa had been permanently retained.
Finding of the Court:
The Court found that the post of Sweeper in Baksa had been permanently retained in 2015, despite the existence of the Office Memorandum requiring outsourcing of sweeping services. The Court also noted that no steps had been taken to implement the outsourcing policy in the concerned establishment. Therefore, the Court held that the petitioner was entitled to his salaries and reinstatement.
Issues: 1. Whether the Office Memorandum requiring outsourcing of sweeping services was applicable to the petitioner's post, which had been permanently retained?2. Whether the petitioner was entitled to his salaries and reinstatement despite the temporary release from service?
Ratio Decidendi: 1. The Court held that the Office Memorandum requiring outsourcing of sweeping services was not applicable to the petitioner's post, which had been permanently retained.2. The Court held that the petitioner was entitled to his salaries and reinstatement despite the temporary release from service.
Final Decision: The Court allowed the petitioner's writ petitions and directed the authorities to release the petitioner's due salaries and reinstate him forthwith.
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 HK Das, learned Standing Counsel for the Gauhati High Court; Shri R. Dhar, learned counsel and Ms. S. Barik, learned counsel on behalf of Shri SK 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. Per contra, Shri K. Gogoi,
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