High Court
Legal Reasoning
HON’BLE MR. JUSTICE A K GOSWAMI JUDGMENT AND ORDER(Oral) Heard Mr. M. Nath, learned counsel for the petitioners. Also heard Ms. R .Deka, learned Standing Counsel, PWD,Assam. 2.
Decision
This writ petition is directed against the order dated 27.03.2009 issued by the respondent no.3 cancelling the writ petitioners’ appointment/up-gradatio n to the post of Section Assistant vide order dated 09.01.2006 . 3. The writ petitioners were engaged as Muster Roll Labourers on 09.07.199 4, 05.09.1994 and 01.03.2004, respectively, under the establishment of responden t no.3. By order dated 09.01.2006 issued by the respondent no.3, the three peti tioners were up-graded as Section Assistants. Two writ petitions being W.P.(C)No.2647/06 and W.P(C)No.5332/05 were fil 4. ed with the grievance that five persons were illegally upgraded to the post of S ection Assistant without considering the cases of the said writ petitioners. How ever, the said five persons were not made parties in the said two writ petitions . On the basis of materials on record, this court, in its judgment and order dat ed 27.01.2009, recorded a prima facie finding that the up-gradation/promotion/ap pointment of those five persons were made illegally. Taking note of the fact tha t the said five persons were not made party-respondents, this court did not set aside and quash their orders of appointment/up-gradation and directed the respon dents to pass appropriate orders consistent with the observations made in the sa id judgment after providing adequate opportunities to the five incumbents. 5. The present writ petitioners are three out of five persons mentioned in the judgment and order dated 27.01.2009. 6. Thereafter, notices were issued by the respondent no.3 to the writ petit ioners on 26.03.2009 for oral hearing on 27.03.2009. Thereafter, the order date d 27.03.2009, which has already been noted, was passed by the respondent no.3. Mr. M. Nath, learned counsel for the petitioners s submits that the peti 7. tioners s were not provided sufficient time to prepare and project their cases. It is submitted by him that the petitioners prayed for grant of two days time t o submit their reply, but no such time was granted and the impugned order was pa ssed. Thus, according to him, the opportunity of hearing provided to the petitio ners was a mere eye-wash and an empty formality and on this count alone, the wri t petition deserves to succeed. 8. Ms. R.Deka, learned Standing Counsel, PWD, placing reliance on paragraph -8 of the affidavit of the respondent no.3, submits that the petitioners s had s ubmitted written statement on 27.03.2009 and therefore, submission of Mr. Nath t hat petitioners were not granted adequate opportunity is not correct. It is al so submitted by her that for promotion to the post of Section Assistant, which is equivalent to the post of Lower Division Assistant, seven years continuous s ervice, apart from other qualifications, is required and the petitioners s being not regularized as Muster Roll Workers, they were not even eligible for conside ration for appointment/up-gradation to the post of Section Assistant. It has als o been submitted by her that the authorities had admitted that promotion of the petitioners were made by the respondent no.3 by mistake. Submissions advanced by the counsel for the parties are considered. 9. 10. There is no dispute that this court in its judgment and order dated 27.0 3.2009 had recorded a prima-facie finding regarding illegal up-gradation/promoti on/appointment of the petitioners to the post of Section Assistant. In the writ petition, there is no attempt on the part of the petitioners to justify how thei r up-gradation /promotion/appointment was in accordance with law. In the face of prima-facie finding recorded against them by this court, onus was on the petiti oners to canvass about legitimacy of their up-gradation. The petitioners have fa iled to place on record any material to dislodge the prima facie finding recorde d against them by this court. During the course of hearing, Mr. Nath has candid ly submitted that petitioners have not been regularized as Muster Roll Workers. It is also worth noting that against the affidavit filed, the petitioners did no t file affidavit-in-reply. 11. Principles of natural justice have many facets and they cannot be put in a straight-jacket formula. When the petitioners had filed written statement, it cannot be said that they were deprived of presenting their cases in a reasonabl e manner. What is more, in the writ petition, there is no attempt on their part to justify their up-gradation to enable them, theoretically speaking, to contend that because of lack of reasonable opportunity, they were prejudiced. 12. In view of the above discussions, this court finds no merit in this writ application and accordingly, the same is dismissed. At this stage, Mr. Nath, learned counsel for the petitioners submits th 13. at the State has come out with an Office Memorandum dated 27.06.2013 on the subj ect of Regularization of services of Work-Charged, Muster Roll and similarly p laced workers in pursuance of orders of the Hon’ble Supreme Court of India dated 10.04.2006, reported in 2006 (4) SCC 1 (State of Karnataka-vs- Uma Devi & other s) and he submits that cases of the petitioners may be considered for regulari zation in the light of the said memorandum. He also submits that petitioners may be given opportunity to file a representation before Commissioner and Special S ecretary (Roads) to the Government of Assam, PWD for consideration of their case s for regularization in terms of the said Office Memorandum. 14. Without expressing any opinion on the merits of the claim of the petitio ners for regularization of their services under the Memorandum, the petitioners are left at liberty to file representation(s) for regularization of their serv ices under Office Memorandum dated 27.06.2013. 15. Ms. R.Deka, learned Standing Counsel, PWD submits that though the matter of regularization of the petitioners as Muster Roll Workers is not an issue, their cases would be considered if they are found to be meeting the requirements for regularization under the one-time measure under the Memorandum. 16. Writ petition stands disposed of. No costs.