WP(C) 6170/2014. Gauhati High Court

Case Number:WP(C) 6170/2014
Judgement Date:May 26, 2020
Court:Gauhati High Court
SUMMARY

Other service matters with respect to State Govt Employees

 
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THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

WP(C) No.5135/2015

  1. Sadau Assam Panchayat Casual Karmachary Santha,

    Represented by its President & Secretary,

  2. Md. Abdul jalil,

    S/o. Lt. Mohammad Ali,

    R/o. Chandra Village,

    P.O.- Simila Tarbari,

    P.S. – Boko Chhaygaon, Dist- Kamrup.

  3. Sri Jitumoni Das,

    S/o. Lt. Prafulla Das,

    R/o. Patbausi,

    District- Barpeta.

    ........................... Petitioners

    ........ Vs ........

  4. State of Assam,

    Represented by the Commissioner & Secretary to the Government of Assam,

    Panchayat & Rural Development Department, Dispur, Guwahati-6.

  5. Director,

    Panchayat & Rural Development, Assam,

    Dispur, Guwahati.

  6. Commissioner & Secretary to the

    Government of Assam,

    Finance Department, Dispur, Guwahati-6.

  7. Deputy Secretary to the

    Government of Assam,

    Finance (EC-1) Department, Dispur, Guwahati-6.

  8. Joint Secretary to the

    Government of Assam,

    Panchayat & Rural Development Department, Assam, Dispur, Guwahati-6.

    WPC Nos.5135/2015 & 6170/2014 Page 1 of 33

  9. Chief Executive Officer,

    Zilla Parishad, Kamrup.

  10. Chief Executive Officer,

    Zilla Parishad, Nagaon.

  11. Chief Executive Officer,

    Zilla Parishad, Sonitpur.

  12. Chief Executive Officer,

    Zilla Parishad, Lakhimpur.

  13. Chief Executive Officer,

    Zilla Parishad, Barpeta.

  14. Chief Executive Officer,

    Zilla Parishad, Jorhat.

  15. Chief Executive Officer,

    Zilla Parishad, Bongaigaon.

  16. Chief Executive Officer,

    Zilla Parishad, Sivasagar.

  17. Chief Executive Officer,

    Zilla Parishad, Cachar.

  18. Chief Executive Officer,

    Zilla Parishad, Karimganj.

  19. Chief Executive Officer,

    Zilla Parishad, Dhubri.

  20. Chief Executive Officer,

    Zilla Parishad, Darrang.

  21. Chief Executive Officer,

    Zilla Parishad, Nalbari.

  22. Chief Executive Officer,

    Zilla Parishad, Hailakandi.

  23. Chief Executive Officer,

    Zilla Parishad, Golaghat.

  24. Chief Executive Officer,

    Zilla Parishad, Dibrugarh.

  25. Chief Executive Officer,

    Zilla Parishad, Tinsukia.

    WPC Nos.5135/2015 & 6170/2014 Page 2 of 33

  26. Chief Executive Officer,

    Zilla Parishad, Goalpara.

  27. Chief Executive Officer,

    Zilla Parishad, Dhemaji.

    ........................... Respondents

    WP(C) No.6170/2014

  28. Sadau Assam Panchayat Casual Karmachary Santha,

    Represented by its President & Secretary,

  29. Md. Abdul jalil,

    S/o. Lt. Mohammad Ali, R/o. Chandra Village,

    P.O.- Simila Tarbari,

    P.S. – Boko Chhaygaon, Dist- Kamrup.

  30. Sri Jitumoni Das,

    S/o. Lt. Prafulla Das,

    R/o. Patbausi, District- Barpeta.

    ........................... Petitioners

    ........ Vs ........

  31. State of Assam,

    Represented by the Commissioner & Secretary to the Government of Assam,

    Panchayat & Rural Development Department, Dispur, Guwahati-6.

  32. Director,

    Panchayat & Rural Development, Assam,

    Dispur, Guwahati.

  33. Finance Department, Assam,

    Represented by Commissioner & Secretary,

    Dispur, Guwahati-6.

  34. Chief Executive Officer,

    Zilla Parishad, Kamrup.

  35. Chief Executive Officer,

    Zilla Parishad, Nagaon.

    WPC Nos.5135/2015 & 6170/2014 Page 3 of 33

  36. Chief Executive Officer,

    Zilla Parishad, Sonitpur.

  37. Chief Executive Officer,

    Zilla Parishad, Lakhimpur.

  38. Chief Executive Officer,

    Zilla Parishad, Barpeta.

  39. Chief Executive Officer,

    Zilla Parishad, Jorhat.

  40. Chief Executive Officer,

    Zilla Parishad, Bongaigaon.

  41. Chief Executive Officer,

    Zilla Parishad, Sivasagar.

  42. Chief Executive Officer,

    Zilla Parishad, Cachar.

  43. Chief Executive Officer,

    Zilla Parishad, Karimganj.

  44. Chief Executive Officer,

    Zilla Parishad, Dhubri.

  45. Chief Executive Officer,

    Zilla Parishad, Darrang.

  46. Chief Executive Officer,

    Zilla Parishad, Nalbari.

  47. Chief Executive Officer,

    Zilla Parishad, Hailakandi.

  48. Chief Executive Officer,

    Zilla Parishad, Golaghat.

  49. Chief Executive Officer,

    Zilla Parishad, Dibrugarh.

  50. Chief Executive Officer,

    Zilla Parishad, Tinsukia.

  51. Chief Executive Officer,

    Zilla Parishad, Goalpara.

    WPC Nos.5135/2015 & 6170/2014 Page 4 of 33

    ........................... Respondents

    BEFORE

    HON’BLE MR. JUSTICE UJJAL BHUYAN

    Advocates for the petitioners : Mr. KN Choudhury, Sr. Advocate,

    Mr. DP Borah, Advocate,

    Mr. FU Borbhuiya, Advocate, Mr. B Khan, Advocate,

    Mr. B Choudhury, Advocate, Mr. MZ Quadir, Advocate, Mr. G Baishya, Advocate.

    Advocates for the respondents : Mr. D Saikia, Addl. Advocate General, Assam,

    Ms. A Verma, SC, Finance Department & Special Counsel, Rural Development Department.

    Dates of hearing : 28.11.2016 & 01.12.2016.

    Date of judgment : 26.05.2017.

    Judgment & Order

  52. These two writ petitions were heard as part of a bunch of writ petitions. As a

    matter of fact, WP(C) No.5135/ 2015 was treated as the lead case. However, Court is of the view that it would be more practicable and appropriate to take up these two writ petitions for judgment separately. Accordingly, those two writ petitions are disposed of by this common judgment.

  53. Petitioners are same in both the writ petitions. However, for better

    adjudication, facts of the two writ petitions are briefly narrated separately.

    WP( C) No.6170/ 2014

  54. Sadau Assam Panchayat Casual Karmachary Santha, its President and

    Secretary are the three petitioners in this case. Petitioner No.1 is an association of casual employees serving in the Panchayats in the State of Assam and is registered under the Trade Unions Act, 1926 (petitioner-association hereafter). As stated above, petitioner No.2 is the President and petitioner No.3 is the Secretary of the petitioner-association. I t is stated that there are a total of 1812 numbers of members of the petitioner-association, whose details have been annexed to the writ petition.

    WPC Nos.5135/2015 & 6170/2014 Page 5 of 33

  55. I t is further stated that members of the petitioner-association are casual

    employees working in Grade-I I I and Grade-I V posts in the Panchayati Raj I nstitutions as per staffing pattern introduced by the Assam Panchayati Raj Act, 1986 and endorsed by the Assam Panchayati Raj (Administrative) Rules, 1990. They are working as Tax Collector, Road Mohorar, Peon, Chowkidar etc. in Zilla Parishads, Anchalik Panchayats and Gaon Panchayats having been engaged during the period from 1992 to 2006. Their appointments were preceded by adoption of resolutions by the respective Gaon Panchayats etc. The posts of Lower Division Assistant, Tax Collector and Road Mohorar are in Grade-I I I and posts of Peon and Chowkidar are in Grade-I V.

  56. Assam Panchayati Raj Act, 1972 provided for a two tier system of Panchayati

    Raj I nstitutions (PRI s) i.e., Mahkuma Parishad and Gaon Panchayat.

  57. Government of Assam in the then Panchayat and Community Development

    Department vide communication dated 15.03.1974 tentatively decided that the staffing pattern of Mahkuma Parishad and Gaon Panchayat would be as follows: -

    Mahkuma Parishad

    i) Head Assistant – 1,

    ii) Accountant – 1,

    iii) Upper Division Assistant – 2,

    iv) LD Assistant – 4,

    v) Tax Supervisor – 2,

    vi) Tax Collector – 5,

    vii) Duftry – 1,

    viii) Peon – 5,

    ix) Chowkidar – 1, and

    x) Driver – 1.

    WPC Nos.5135/2015 & 6170/2014 Page 6 of 33

    Gaon Panchayat

    i) Secretary – 1,

    ii) Office Assistant – 1,

    iii) Mohorar – 1,

    iv) Tax Collector – 2,

    v) Chowkidar – 1, and

    vi) Peon – 1.

  58. Assam Panchayati Raj Act, 1972 was repealed and was replaced by the

    Assam Panchayati Raj Act, 1986 providing for three tier Panchayati Raj I nstitutions comprising of Mahkuma Parishad, Anchalik Panchayat and Gaon Panchayat. Because of transition from two tier system to three tier system, there was corresponding increase in the number of Panchayati Raj I nstitutions.

  59. Assam Panchayati Raj (Administrative) Rules, 1990 was framed and notified.

    Rule 2 thereof, provided the staffing pattern as under: -

    Mahkuma Parishad

    i) Upper Division Assistant – 1,

    ii) Lower Division Assistant-cum-Typist – 1,

    iii) Driver – 1,

    iv) Peon – 3, and

    v) Chowkidar – 1.

    Anchalik Panchayat

    i) Head Assistant – 1,

    ii) Upper Division Assistant – 2,

    iii) Lower Division Assistant-cum-Typist – 4,

    iv) Tax Collector – 2,

    v) Peon – 3, and

    vi) Chowkidar – 2.

    WPC Nos.5135/2015 & 6170/2014 Page 7 of 33

    Gaon Panchayat

    i) Road Mohorar-cum-Tax Collector – 1, and

    ii) Peon-cum-Chowkidar – 1.

  60. A notification dated 16.11.1991 was issued by the Commissioner & Secretary

    to the Government of Assam, Panchayat & Rural Development Department notifying that the services of 4565 numbers of Panchayat employees serving in the Gaon Panchayats and Mahkuma Parishads constituted under the Assam Panchayati Raj Act, 1972 were provincialised w.e.f. 02.10.1991.

  61. Thus by the notification dated 16.11.1991 casual employees of Gaon

    Panchayat and Mahkuma Parishad constituted under the Assam Panchayati Raj Act, 1972 were only considered for provincialisation. I t is contended that having regard to the increase in the number of Panchayati Raj I nstitutions following transition to three tier system, the number of employees whose services were so provincialised was wholly inadequate.

  62. Assam Panchayati Raj Act, 1986 gave way to Assam Panchayat Act, 1994.

    Assam Panchayat Act, 1994 retained the three tier system, but replaced Mahkuma Parishad by Zilla Parishad.

  63. Thereafter, Assam Panchayat (Administrative) Rules, 2002 provided the

    staffing pattern for Gaon Panchayats, Anchalik Panchayats and Zilla Parishads as under:-

    Zilla Parishad

    Grade-I I I

    i) Head Assistant – 1,

    ii) Upper Division Assistant – 2,

    iii) Lower Division Assistant – 4,

    iv) Accountant – 1,

    v) Junior Engineer – 1,

    vi) Tax Collector – 2, and vii) Driver – 1.

    WPC Nos.5135/2015 & 6170/2014 Page 8 of 33

    Grade-I V

    i) Peon – 4, and

    ii) Chowkidar – 2.

    Anchalik Panchayat

    Grade-I I I

    i) Upper Division Assistant – 1,

    ii) Lower Division Assistant – 2, and

    iii) Tax Collector – 2.

    Grade-I V

    i) Peon – 2, and

    ii) Chowkidar – 1.

    Gaon Panchayat

    Grade-I I I

    i) Secretary – 1, and

    ii) Road Mohorar-cum-Tax Collector – 1.

    Grade-I V

    i) Peon–cum-Chowkidar – 1.

  64. There is substantial difference between the number of posts created for the

    Panchayati Raj I nstitutions and requirement of employees in the Panchayati Raj I nstitutions as per staffing pattern provided under the Assam Panchayat (Administrative) Rules...

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