WP(C) 4759/2007 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN O R D E R 20-12-2013 All these writ petitions raising identical issues of fact and la w, being inter-related, were heard together and are being disposed of by this co mmon order. 2. The core issue involved in this batch of writ petitions is the c laim of work charge employees, muster roll workers and similar category of emplo yees engaged prior to 01-04-1993 for regularisation of their service under the G overnment of Assam. Related grievance, which can also be said to be an offshoot of the core issue, is the claim of such categories of employees and workers or t heir family members for pension or family pension as the case may be, after atta ining the age of superannuation or in the case of death, by creating supernumera ry post personal to the incumbent and regularising his service for one day. The grievance has crystallized in the form of challenge to the Office Memorandum (OM ) dated 16-06-2012 issued by the Finance (EC-II) Department, Government of Assam , which has ruled out any further regularisation on both counts. Back Ground Facts. 3. The present batch of writ petitions have their genesis in the ea rlier rounds of litigation which culminated in a Full Bench judgment of this Cou rt in the case of Jitendra Kalita and others -Vs- State of Assam and others repo rted in 2006 (2) GLT 654. State of Assam is being confronted by the problem of a large number of work charge employees, muster roll workers and similar category of employees seeking regularisation which has assumed endemic proportion despit e what was thought to be the conclusive intervention of this Court through the F ull Bench in Jitendra Kalita. Of course, this problem is not confined or peculia r to the State of Assam only. It has a pan Indian complexion and had assumed ala rming proportion so much so that a Constitution Bench of the Hon’ble Supreme Cou rt had to step in. It is the case of State of Karnataka -Vs- Uma Devi reporte d in (2006) 4 SCC 1. Yet the problem refuses to fade away and continues to confr ont the Court. This has resulted in the present round of litigation which is sou ght to be answered through the instant judgment. 4. The Full Bench in Jitendra Kalita had very lucidly and elaborate ly set out the facts. Therefore, for better appreciation, the facts as narrated in Jitendra Kalita are liberally quoted and referred to in the instant judgment. Relevant portion of Jitendra Kalita dealing with the genesis of the problem and the attempts made by the State for resolution of the problem, reads as under:- 2. & & & & & & & & & & & & & & & & & & & & & & &. In the several engineering and works related departments of the State, a muster roll of workers is maintained in addition to the employees working in the regula r cadre. Such workers are known as Muster Roll Workers. Also, in such engineerin g and works related departments of the State there is another category of worker s whose tenure of service and pay and allowances are charged to a particular on going work. Such employees are commonly known as work charged employees. Though muster roll and work charged establishments are normally to be found in the work s related departments, which are basically the engineering departments of the St ate, the practice of engaging such workers has virtually come to be followed in all departments of the State. In addition to the above two categories, each depa rtment of the State employs a large number of casual workers including fixed pay and daily rated workers. The extent of such employment in the State of Assam, w hich is outside the mainstream of employment, it must be noticed, is considerabl e. 3. In the year 1983, and to be precise, on 23-09-1983, a Cabinet decision was ta ken to the effect that all muster roll labourers working in all departments of t he State, who have completed 15 years of service or more may be regularized as G rade IV employees. What happened thereafter and how the decision of the Cabinet was implemented, if at all, is not very clear save and except that in a communic ation dated 15-03-1984 issued by the Chief Secretary of the State, the General S ecretary of the PWD Employees Union was informed that muster roll workers of the Public Works Department and other engineering departments, who have completed 1 5 years of continuous service were to be regularized with effect from 01-08-1984 . By the said communication, the workers Union was further informed that work ch arged employees of engineering departments, who have completed 5 years continuou s service, were to be brought under the regular establishment. Admittedly and ev idently, no scheme was prepared or detailed principles were laid down as to how the Cabinet decision dated 23-09-1983 was to be executed and implemented consist ent with the rights under Article 14 and 16 of the Constitution of such persons who came within the purview of the aforesaid Cabinet decision dated 23-09-1983. The position remained unchanged until the Chief Secretary to the Government of A ssam addressed a communication bearing No.ABP 176/91/Pt.1/188 dated 20-04-1995 t o all the Commissioners and Secretaries of the Government of Assam. By the afore said communication dated 20-04-1995 the Chief Secretary informed all concerned t hat in spite of the decision of the State Government to regularize the service o f work charged and muster roll employees, no action for regularization of such e mployees have been taken. Accordingly, the Chief Secretary informed all the depa rtments to take necessary action, in consultation with the Finance Department, f or early regularization of the services of work charge and muster roll employees who were engaged prior to 01-04-1993. The aforesaid communication dated 20-04-1 995 was followed by an Office Memorandum (OM) dated 11-10-1995 issuing strict in structions to all concerned not to engage any further muster roll / work charged employees after 01-04-1993 and further a clarification was issued on 13-10-1995 to the effect that the OM dated 20-04-1995 was to operate provided the muster r oll/work charged employees were not discharged or terminated on or before 20-04- 1995. 5. Based on the above OM dated 20-04-1995 a number of writ petition s came to be filed by such category of employees before this Court seeking regul arisation of service in view of their engagement prior to 01-04-1993 and citing long years of service, the lead case being Civil Rule No.4411/1995. While direc ting regularisation of service of those engaged upto 01-04-1993, it was held by the Court that those engaged after 01-04-1993 did not have any legally enforcea ble right. Writ appeal filed by the post 01-04-1993 work charge and muster roll employees was dismissed. 6. In the meanwhile, in respect of Transport Department where a s election was held for filling up a number of posts in Grade-III, two sets of conflicting orders came to be passed by this Court, one directing regularisation of adhoc/casual employees working in grade-III posts who were appointed prior t o 01-04-1993, and the second set where the Court directed appointment of the sel ected candidates by adhering to the merit list. The conflicting decisions led th e matter to be referred to the Full Bench in Jitendra Kalita. 7. The details and conclusions in Jitendra Kalita will be adverted to a little later in this judgment. At this stage, suffice it to say that the Fu ll Bench held that the OM dated 20-04-1995 did not reflect a valid policy decisi on of the State for regularisation of muster roll/work charge employees. While t hose already regularised on the strength of the OM dated 20-04-1995 were not dis turbed considering the human factor involved, it was however made clear that the re would be no further regularisation in terms of the OM dated 20-04-1995. 8. Significantly and more importantly for the present round of liti gation, it may be noted that in the proceedings of Jitendra Kalita, the Chief Se cretary to the Government of Assam had filed an affidavit on 14-11-2005 informin g the Court that on 22-07-2005 the State Cabinet had taken a decision to regular ise the services of work charge / muster roll workers engaged prior to 01-04-199 3 and that pursuant to the aforesaid Cabinet decision, an order had been issued by the competent authority of the State with the concurrence of the Finance Depa rtment for creation of over 30,000 posts against which such regularisations were proposed to be affected. 9. The Full Bench in Jitendra Kalita did not express any opinion wi th regard to the validity of the Cabinet decision dated 22-07-2005 or its implem entation and execution. 10. From the documents placed on record, including the communicatio n dated 22-08-2005 of the Finance (EC-II) Department, Government of Assam and th e OM dated 31-07-2010 of the Pension and Public Grievances Department, Governmen t of Assam, it appears that the State Government had created 5892 numbers of wor k charge grade posts and 25069 numbers of grade IV posts personal to the incumbe nts for the purpose of regularisation of services of 5892 numbers of work charge employees and 25069 numbers of muster roll workers. Thereafter, services of abo ut 30,000 work charge employees and muster roll workers were regularised. 11. It was then that subsequent writ petitions came to be filed and the present round of litigation commenced. To keep the matter within reasonable proportion and to ensure that it does not become unwieldy, specific details and facts of the individual cases are not being narrated. However, to sum up the pro jection of the grievances, it may be pointed out that in some of the cases, peti tioners claim to be engaged as work charge employees or muster roll workers pr ior to 01-04-1993. They seek regularisation of service on the strength of their long and continuous engagement, some for more than 25 years. In some of the writ petitions, regularisation is sought for on the strength of the Cabinet decision dated 22-07-2005. Grievance raised is that while services of similarly situated persons have been regularised following the above Cabinet decision, their servi ces have not been regularised. Again, grievance of some of the petitioners is th at because of clerical error in the spelling of their names in the list of eligi ble employees short listed for regularisation, objections were raised and conseq uently, their services were not regularised or due to inadvertence and oversight , their names were dropped from such list. There is yet another group of cases w here the grievance is that State has created two categories of muster roll/work charge/casual employees i.e. into fixed pay and non-fixed pay categories. While services of the non-fixed pay category have been regularised, regularisation of those petitioners have been denied on the ground that they are fixed pay employe es, though both the groups render similar nature of work. They had approached t his Court earlier and this Court had directed consideration of their cases, afte r holding such classification as illegal. Yet their services have not been regul arised. 12. Parallel to the above proceedings, a related group of petitions came to be filed before this Court. In this group of cases, the grievance expres sed was that notwithstanding rendering long years of service by the concerned in cumbent either as work charge employee or as muster roll worker, having been eng aged prior to 01-04-1993, pension or family pension as the case may be, were not forthcoming after attaining the age of superannuation or in case of death, insp ite of repeated demands made before the authority. Stand of the Finance Departme nt and the concerned administrative departments had been that in view of the dec ision in Jitendra Kalita, no regularisation of service for one day by creating s upernumerary post personal to the incumbent to enable payment of pension was pos sible. A Single Bench of this Court vide a common order dated 21-05-2008 passed in WP(C) Nos.2186 and 2384 of 2007 when confronted with the above problem clarif ied that Jitendra Kalita did not prohibit grant of pensionary benefit to the inc umbent or his family members after death or after crossing of retirement age by creating supernumerary post for a single day. Respondents were therefore directe d to proceed with the matter in accordance with law so as to enable the petition ers to receive their pensionary dues. This position was consistently followed th ereafter by this Court, the details of which may not be necessary to be spelt ou t save and except that the number of such cases would be sufficiently large, til l an abrupt departure was made by another Single Bench of this Court vide order dated 14-03-2013 passed in Review Petition No.124/2012 whereby it was held that such regularisation of service by creating supernumerary post for one day would not be permissible in view of Uma Devi as it was reasoned that if regularisation during the service period was not permissible, it would be equally impermissibl e to regularise such service after the service period is over or after the death of the individual concerned. 13. Coming back to the mainstream of facts, this Court was consideri ng a group of cases, the lead case being WP(C) No.1271/2006 (Ramani Deka and oth ers -Vs- State of Assam and others), seeking regularisation of service on the gr ound that the petitioners were engaged as work charge, muster roll and other sim ilar category of workers / employees prior to 01-04-1993. The claim was based on the Cabinet decision dated 22-07-2005. Grievance expressed was that they were l eft out of regularisation though they fulfilled the relevant criteria for such r egularisation while services of similarly situated persons were regularised. On 06-09-2010, it was submitted by the State before the Court that as per informati on collated from 29 departments, around 3720 numbers of work charge, muster roll and similar other workers were working who were engaged prior to 01-04-1993. The Court was further informed that the State Government would come out with a p olicy for regularisation of the services of such workers after due examination w ithin a period of 3 months. This Court by order dated 06-09-2010 directed that i n view of the clear stand taken by the State, consequential action should be tak en and completed within the specified time period. 14. In WP(C) (Taken up) No.24/2007, where this Court was considering the conditions of prisons in the State, including engagement of adequate staff and other related issues, a Division Bench of this Court passed an order on 30-0 7-2010 directing that in terms of the Full Bench decision in Jitendra Kalita, th e State Government should frame a policy for regularisation of casual workers. L earned Additional Advocate General, Assam appearing for the State submitted that the policy would be framed within 8 weeks. On 01-11-2010, learned Additional Ad vocate General submitted before the Court that an undertaking had already been g iven in Ramani Deka that a policy would be framed within 3 months. In view of th e undertaking given by the State, the Division Bench observed that no further st eps need be taken with regard to the direction issued on 30-07-2010. 15. When Ramani Deka was taken up on 14-12-2011, it was submitted be fore the Court on behalf of the Finance Department that the matter was under act ive consideration in coordination with the Departments of Health, PWD, Directora te of Zoology and Mining, Water Resources etc. and the benefit of the deliberati on was likely to be positive, in favour of the petitioners. 16. Most surprisingly, suddenly and notwithstanding the above undert akings given before the Court, a miscellaneous application was filed by the Stat e in the said WP(C) (Taken up) No.24/2007 seeking leave of the Court to permit t he State to implement its policy of regularisation. The said application was reg istered as MC No.597/2012. A Division Bench of this Court by order dated 27-03-2 012 declined to grant the prayer. 17. Following the same, the Finance (EC-II) Department, Government o f Assam issued the impugned OM dated 16-06-2012 whereby it was decided that no m ore regularisation of services of work charge, muster roll or similarly placed w orkers can be undertaken by the State Government even if such workers were en gaged prior to 01-04-1993 and have rendered continuous service without break. It was also decided that there would be no more regularisation by creating supernu merary post for one day in respect of those work charge or muster roll workers w ho were engaged prior to 01-04-1993 but has died or has attained the age of supe rannuation after rendering continuous services uninterruptedly. Another decision taken was that all concerned departments / Government Offices should strictly a dhere to the earlier Finance Department OM dated 05-11-1999 regarding stopping t he engagement of work charge, muster roll, casual employees etc. PLEADINGS 18. All the writ petitions have been structured on the plank of the petitioners being engaged as muster roll, work charge, casual, daily rated etc. employees prior to 01-04-1993 and being in continuous and uninterrupted service for long periods of time. As already noticed above, in some of the writ petition s, regularisation has been sought for on the strength of the Cabinet decision da ted 22-07-2005. Pleaded case is that while the services of similarly situated wo rk charge and muster roll employees have been regularised following the Cabinet decision dated 22-07-2005, services of the petitioners have not been regularised . In some of the cases, it has been contended by the petitioners of those cases that because of clerical error in the spelling of their names in the list of eli gible employees short listed for regularisation, objections were raised because of which, their services were not regularised. It has also been contended that d ue to sheer oversight or inadvertence, they were left out of regularization. In a few cases, it has been pleaded by the petitioners of those cases that the Stat e has created two categories of muster roll / work charge / casual employees i.e . those who are paid fixed pay and those who are not paid fixed pay. It is conte nded that both the categories of employees render similar type of work but while the services of the non-fixed pay category employees have been regularised, reg ularisation of service of those petitioners have been denied on the ground that they are fixed pay employees. When they had approached this Court earlier, this Court after holding such classification as illegal, had directed consideration o f their cases. Yet their services have not been regularised. It is also contende d that the blanket ban on payment of pension to those work charge employees and muster roll workers who were engaged prior to 01-04-1993 but has died or has att ained the age of superannuation after rendering continuous and uninterrupted ser vice by creating supernumerary post for one day is wholly unjustified, arbitrary and unreasonable. The said decision is contrary to the legislative intent which manifests through the proviso to Rule 31 of the Assam Services (Pension) Rules, 1969. It is also violative of the constitutional philosophy as expressed throug h the directive principles of State policy under the Constitution of India. 19. Respective departments have filed counter affidavits in most of the cases. Though factual aspects are different and therefore have invited varyi ng responses in so far contentions based on facts are concerned, the common thre ad running through the affidavits is that regularisation is no more possible in view of Uma Devi and Jitendra Kalita. Regarding payment of pension or family pen sion to work charge employees and muster roll workers who were engaged prior to 01-04-1993 but has died or has attained the age of superannuation after renderin g continuous service uninterruptedly by creating supernumerary post for one day, it is contended that when regularisation of service is not permissible during t he period of engagement as work charge employee or muster roll worker, such regu larisation would also be impermissible after death or after attaining the age of superannuation had the incumbent been in regular service to enable receipt of p ension. However, the stand of the Government has now become crystallized in the form of the OM dated 16-06-2012. SUBMISSIONS 20. Heard Mr. K.K. Mahanta and Mr. A.B. Choudhury, learned Senior Co unsel, Mr. R.C. Saikia, Mr. G.Uzir, Mr. A.M. Bujarbarua, Mr. J. Ahmed, Dr. B. Ah med, Mr. D.K. Sarma and Mr. I.H. Saikia, learned Counsel appearing for the petit ioners. Also heard Mr. D. Saikia, learned Additional Advocate General, Assam, Mr . B. Goswami, learned Standing Counsel, Water Resources Department, Mr. B. Choud hury, Ms. A. Verma, Mr. B. Gogoi and Ms. R. Deka, learned Counsel for the respon dents. 21. Learned Counsel for the parties have made elaborate and extensiv e arguments. Without going into the details and specifics of the arguments of ea ch of the counsel, an attempt is being made to summarize and highlight the subst ance of the arguments advanced by both sides. 22. Learned Counsel for the petitioners have argued that Cabinet dec ision was taken by the State on 22-07-2005 to regularise work charge employees, muster roll workers and similar category of employees who were engaged prior to 01-04-1993 and are in service continuously and uninterruptedly. Pursuant thereto , various departments including the Water Resources Department finalized such ca tegory of employees and accordingly their services were regularised. Either thro ugh inadvertence or oversight or because of clerical mistake, petitioners were e xcluded from regularisation though they fulfilled the required criteria. When th e mistakes were detected, corrective steps were taken for inclusion of the names of the petitioners for regularisation. While the process was on, the impugned O M dated 16-06-2012 was issued putting a complete embargo on regularisation. It i s contended that the impugned OM dated 16-06-2012 is wholly arbitrary and discri minatory, being in violation of Article 14 of the Constitution of India. It was issued on a complete mis-reading of the Division Bench order dated 27-03-2012 an d the decisions in Uma Devi and Jitendra Kalita. When there was already a Cabine t decision on 22-07-2005 and when an undertaking was given by the State before t he Court to frame a policy to effect regularisation as per Cabinet decision, the re was no need to seek permission from the Court. The Division Bench did not pro hibit the State from framing policy to give effect to the Cabinet decision. The order of the Division Bench has to be read and understood in that context. Learn ed Counsel for the petitioners would contend that the motive of the State is cle arly suspect as it has misused the order of the Division Bench to resile from th e undertaking given to the Court. Decision in Uma Devi would not be applicable i n the present batch of cases as the claim for regularisation is based on a Cabin et decision which was not the case in Uma Devi. The issue in Uma Devi was illega l appointments and the power of the Court to issue directions for regularisation of such appointments. Moreover, the present batch of cases is also based on the plea of discrimination as similarly situated persons have been regularised whil e the petitioners have been left out. Thus, the impugned OM dated 16-06-2012 is liable to be appropriately interferred with. 23. It is also contended that claim of the petitioners for regularis ation