IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Petitioner : WP(C) NO.992 OF Sri Bijit Saikia, S/o Sri Tilak Saikia, R/o Deodia-Ati, P.O.-Bengena Ati Satra, P.S.-Kamalabai, Dist-Jorhat, Assam. 2. Sri Atul Chandra Baruah, S/o Lt. Reba Kanta Baruah, R/o Baligaon, P.O.-Sriram Banamali, P.S.-Jengraimuka, Dist-Jorhat, Assam. 3. Sri Bipin Regan, S/o Late Phamidhar Regan, R/o No. 1 Borgaya, P.O.-Borgaya, P.S.-Garmuka, Dist-Jorhat, Assam. 4. Sri Dimbeswar Pegu, S/o Lt. Padmudhar Pegu, R/o Lalitigaon, P.O.-Gowalgaon, P.S.-Garmur, Dist-Jorhat, Assam. By Advocates: Mr. T. C. Chutia. Respondent: 1. State of Assam, represented by the Commissioner & Secretary, Panchayat & Rural Development Department, Dispur, Guwahati Commissioner & Secretary to the Govt. of Assam, Finance Department, Dispur, Guwahti Commissioner & Secretary to the Govt. of Assam, Personnel (B) WP(C) No. 992 of 2014 Page 1 of 14

2 Department, Dispur, Guwahati Director, Panchayat & Rural Development, Assam, Panjabari, Guwahati. 5. Deputy Commissioner, Jorhat. 6. Zila Parishad, Jorhat represented by its Chairman. By Advocate: Mr. P. S. Deka, GA. Ms. A. Verma, SC, Finance Department. Me. H. K. Mahanta, SC, Personnel Department. B E F O R E HON BLE MR. JUSTICE UJJAL BHUYAN Date of hearing : Date of Judgment : J U D G M E N T AND O R D E R (ORAL) Heard Mr. T. C. Chutia, learned counsel for the petitioners, Mr. P. S. Deka, learned Govt. Advocate, Assam, Ms. A. Verma, learned Standing Counsel, Finance Department and Mr. H. K. Mahanta, learned Standing Counsel, Personnel Department. 2. This case was heard on and today is fixed for delivery of order. Accordingly, judgment is dictating in the open Court. WP(C) No. 992 of 2014 Page 2 of 14

3 3. By filing this petition under Article 226 of the Constitution of India, the four petitioners seek a direction to the respondents to regularize their service. 4. Facts of the case may be briefly noted. 5. Petitioners are serving as Panchayat employees in different Panchayats and Mahkuma Parishad (as it then existed) in the district of Jorhat. Petitioner No. 1 was appointed as Tax Collector in the Kamalabari Gaon Panchayat on Petitioner No. 2 was appointed on as Peon-cum- Chowkidar in the Office of Sriram Gaon Panchayat. Petitioner No. 3 was appointed on as LDA in the Majuli Mahkuma Parishad and petitioner No. 4 was appointed as Peon-cum- Chowkidar in the Office of Lohit Gaon Panchayat on and he joined in his service on All the petitioners were engaged on casual basis and they are working as such till date. 7. Government of Assam in the Panchayat and Rural Development Department had credited a numbers of non-gazetted posts including 1484 posts of Tax Collectors, 1332 posts of Peoncum-Chowkidars etc. But those posts were not filled up. Respondents decided to regularize the service of the petitioner and WP(C) No. 992 of 2014 Page 3 of 14

4 in this connection process was initiated on In the letter of the Director of Panchayat and Rural Development (now redesignated as Commissioner of Panchayat and Rural Development) dated , it was stated that as against the sanctioned posts of 1092 Tax Collectors only 952 posts were filled up with 140 vacancies. Likewise, against the 615 sanctioned posts of Peon-cum- Chowkidars, only 445 posts were filled up and 170 posts were remained vacant. This was in respect of Gaon Panchayat. There were similar vacancies, though lesser in number in respect of Anchalik Panchayat. 8. Director expresses difficulty faced by the Panchayats due to non-availability of adequate staff. 9. The Government thereafter requested to the Director to furnish the total numbers of LDA, Tax Collectors, Peon-cum- Chowkidar, etc. who were prior to in different Gaon Panchayat/Anchalik Panchayat. Working against sanctioned vacant posts for the purpose of their regularization this communications/correspondence continued thereafter. 10. According to the petitioners, their case for provincialisation was approved by the Government in the Panchayat and Rural Development Department which had the State Level WP(C) No. 992 of 2014 Page 4 of 14

5 Empowered Committee. According to them, this would be in evident in File No. PDA 9/2001/53. It is further stated that the proposal contended in the aforesaid file is in the process of finalization. Finance Department has concurred to the proposal for regularization of the services of 39 Muster Roll Workers engaged prior to against the existing vacancy in Grade-III and Grade-IV. In the list of 39 Muster Roll Workers short-listed for the purpose of regularization, petitioner No. 1 is in the Sl. No. 1, petitioner No. 2 is at Sl. No. 25, petitioner No. 3 is at Sl. No. 31 and petitioner No. 4 is at Sl. No. 30 but till date no decision has been taken. This has compelled the petitioners to file the present writ petition. 11. Respondent No. 4 has filed an affidavit through the Joint Director. It is stated that Government of Assam in the Panchayat and Rural Development Department issued letter dated approving payment of fixed monthly wages but 1812 numbers of casual workers engaged in different Panchayati Raj Institutions. It is stated that 1081 numbers of casual workers who were engaged prior to and 731 numbers of casual workers who were engaged after upto would be paid fixed monthly Rs. 4500/- per month. Petitioners are included in the list of 1812 casual workers short-listed for the WP(C) No. 992 of 2014 Page 5 of 14

6 purpose of conferring fixed monthly Rs. 4500/- per month in fact they have been paid the above amount since As per sanctioned of the Finance (Economic Affairs) Departments letter dated , names of the petitioners are included in the list of beneficiaries under the Jorhat district. 12. Other respondents have not filed affidavit. 13. Petitioners have filed reply affidavit to the affidavit filed by the respondent No. 5. In their reply affidavit, petitioners have contended that by virtue of their long engagement, a right has approved to them that provincialisation of their services under the Assam Panchayat Employees (Provincialisation) Act, By paying Rs. 4500/- per month to the petitioner, the State has not done any favour to the petitioners rather petitioners have been discriminating against and deprived of benefit of regularization and or provincialisation. Statement made in the writ petition pertaining to File No.9/2001/53 have reiterated. 15. Mr. T. C. Chutia, learned counsel for the petitioners submits that petitioners have rendered service as casual workers in the Panchayats without any break for more than 10 years. In fact, petitioners have completed more than 20 years of continuous service in their present capacity. Their continuation in casual WP(C) No. 992 of 2014 Page 6 of 14

7 employment is without the aid or assistance of any order of the Court or tribunal. In that view of the matter, the embargo imposed by the Hon ble Supreme Court in the case of the State of Karnataka Vs Uma Devi, reported in 2006 (4) SCC 1 would not be applicable in the case of the petitioners. In this connection, learned counsel has referred to the following decisions: (4) SCC 583 (Amarendra Kr. Mahapatra Vs. State of Orissa) (13) SCC 264 (Yeswant Arjun More Vs State of Maharashtra) (13) SCC 268 (State of Maharashtra Vs. Sanjay Bhalchandra Umbrajkar). He has also referred to the provision of the Assam Panchayat Employees (Provincialisation) Act, 1999 to contend that service of the petitioners are required to be provincialised. 16. Learned State Counsel on the other hand refers to the affidavit on behalf of the respondent No. 4 and submits that the State has taken a decision to pay fixed Rs. 4500/- per month to the petitioners which they have availed of. Therefore, it cannot be said that the State is.. to the plight of the petitioners. It is however contended that in view of the judgment in Uma Devi (supra) claim for the regularization would not be maintainable. 17. Mr. Mahanta, learned Standing Counsel, Personnel Department submits that Personnel Department has no role to play in the dispute raised by the petitioners. WP(C) No. 992 of 2014 Page 7 of 14

8 18. Submissions made have been considered. Basic facts are not disputed. 19. State has not disputed that petitioners are in casual employment in different Panchayati Raj Institutions for more than 20 years now at a stage. It is also not disputed that petitioners are continuing as casual employees till date. In reorganization of their continuous service and in terms of the communication dated of the Government of Assam in the Panchayat and Rural Development Department, petitioners are being paid Rs. 4,500/- per month since Having noticed the conscious facts, it may be necessary to examine the overall legal prospects in the context of the petitioners claim. 21. Panchayats have been accepted as a model of legal selfgovernment at the grass-root level. By the Constitution (73 rd Amendment) Act, 1992 Part-IX was inserted in the Constitution of India. Part-IX deals with Panchayat. 22. By this Amendment Act, Panchayats have been given constitutional recognization. Article 243-B provides that there shall be constituted in every State, Panchayats at the village, intermediate WP(C) No. 992 of 2014 Page 8 of 14

9 and district levels in accordance with the provisions of Part-IX. Duration of Panchayat is 5 years which are elected bodies. 23. Under Article 243-G the Legislature of a State is authorized to make law endow the Panchayats with such powers and authority and responsibilities as may be necessary to enable them to function as institutions of self-government. Article 243-H also mandate the Legislature of a State to authorize a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified. It also provides for constitution of Funds for crediting of moneys received by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom. Constitution of Finance Commission to review the financial position of the Panchayats and to make recommendations is provided in Article 243-I. 24. Therefore, it is clearly evident that not only the Panchayats have received constitutional recognization and status; they have been mandated with a vast range of activities to ensure that governance rules the last person at the grass roots. Following the constitutional mandate as above, the Assam Panchayat Act, 1999 has been enacted establishing a three dires system of Panchayati Raj Goverments in the State of Assam. Powers, Funds and duties of WP(C) No. 992 of 2014 Page 9 of 14

10 the Panchayat are elaborately dealt with in the Act, which is not necessary to be gone into in the present proceedings. 25. Suffice it to say that in view of the admittedly large array of the funds of the Panchayat which are statutorily and constitutionally recognized, it is necessary that the Panchayat must have adequate staff and infrastructure to ensure that they can perform and achieve the duties arising to them. 26. In the absence of adequate man power and infrastructure it will not be possible on the part of the Panchayat to discharge their statutory and constitutional obligations. 27. It is for this purpose that the Assam Panchayat Employees (Provincialisation) Act, 1999 has been enacted. To provincialisation the services of the employees working in the Panchayats at all levels establishment under the Assam Panchayat Act, 1994, the objective of the Provincialisation Act is to bring the serving employee of the Panchayat under the control of the State Government so that they are conferred with the status of the Government employees. The purpose of the Act as noticed above is intended to make the Panchayati Raj Institutions functioning in the State of Assam meaningful and effective. WP(C) No. 992 of 2014 Page 10 of 14

11 28. It is in the light of the above provisions that the claim of the petitioners is required to be considered. 29. State has come up with a plea that they have provided fixed Rs. 4500/- per month to the petitioners. 30. Question for consideration is whether such a measure in the light of the above discussion can be said to be just, fair and adequate? Part IV of the Constitution deals with Directive Principles of State Policy. Under Article 39 of the Constitution which performs part of the directive principles of state policy, the State must secure that these citizens have the right to an adequate means of livelihood and that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment. Article 40 amends the State to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of selfgovernment. This directive principles has functioned its full pay in part IX to the Constitution organization of village panchayats is now not a matter which is not justifiable in a part of the directive principles. Similarly Article 42 provides that the State makes provision for securing just and humane conditions of work for its citizens. WP(C) No. 992 of 2014 Page 11 of 14

12 31. It is seen that the finance (Estt. A) Department has issued office memorandum dated revising the monthly fixed pay of the fixed pay Casual Employees and monthly consolidated pay of Bungalow Peons from the existing rates of Rs. 6,000/- per month and Rs. 5,000/- per month. Those who being putting lesser 10 years of such service as on has paid Rs. 6,500/- per month, those who had putting in more than 10 years but lesser than 20 years as on has paid Rs. 6,700/- per month and lastly who had putting more than 20 years of service as on are paid Rs. 7,000/- per month. When the State fixes the monthly fixed pay of fixed pay Casual Employees and such other categories of employees, it is necessary that they should be some uniformity in the fixation of such fixed pay. It is certainly not desirable that in one state the fixed of lower wages in case of other departments it raises for Rs. 6,500/- to Rs. 7,000/- per month even the later amount may not be an adequate in today s context. If he consider the fixed pay provides such category of employees in the other States. However, since this is the matter pertaining to the evidence of the State at this stage Court would not like to issue any positive direction. But certainly this is the matter which requires a re-think on the part of the Finance Department as well as all other administrative departments of the State. WP(C) No. 992 of 2014 Page 12 of 14

13 32. Coming back to the main prayer of the petitioners, petitioners being categorically stated that they claim for regularization has received approval of various departments at various stages and the same is now in the process of finalization. 33. In file No. PDA 9/2001/53, this statement of the petitioners have not been controverted by respondent No. 4. It is also not been stated by respondent No. 4 in his affidavit whether the petitioners are not working against any sanctioned posts. Allowing the petitioners to continue service as casual employees for more than 20 years at a stage and thereafter proceeding them fixed monthly Rs. 4,500/- is certainly not in question of fair treatment which is essential component of good Government. As already noticed above, the Assam Panchayat Employees (Provincialisation) Act, 1999 has been enacted specifically to provincialise the services of employees working in the Panchayat at all levels. As noticed above, the purpose of this Act is to strengthen and make the Panchayats more effective so that they can discharge their constitutional duties. 34. The decisions cited by learned counsel for the petitioner have been duly considered. Learned State Counsel has not been able to show anything as to why the services of the petitioners should not be provincialised in terms of the aforesaid Act. WP(C) No. 992 of 2014 Page 13 of 14

14 35. Having regard to the above and considering all aspects of the matter, respondents, more particularly respondent No. 1, is directed to finally decide the case of the petitioner as processed in File No. PDA 9/2001/53, keeping in view, the provisions of the Assam Panchayat Employees (Provincialisation) Act, Let the said decision be taken within a period of 3 (three) months from the date of receipt of a certified copy of this order. 37. Writ petition is accordingly allowed. But without any order as to cost. JUDGE Aparna WP(C) No. 992 of 2014 Page 14 of 14