Arup Kumar Goswami, J.@mdashHeard Mr. M. Nath, learned counsel for the petitioners. Also heard Ms. R. Deka, learned Standing Counsel,
PWD, Assam. This writ petition is directed against the order dated 27.03.2009 issued by the respondent no. 3 cancelling the writ petitioners''
appointment/up-gradation to the post of Section Assistant vide order dated 09.01.2006.
2. The writ petitioners were engaged as Muster Roll Labourers on 09.07.1994, 05.09.1994 and 01.03.2004, respectively, under the
establishment of respondent no. 3. By order dated 09.01.2006 issued by the respondent no. 3, the three petitioners were up-graded as Section
Assistants.
3. Two writ petitions being W.P.(C) No. 2647/06 and W.P.(C) No. 5332/05 were filed with the grievance that five persons were illegally
upgraded to the post of Section Assistant without considering the cases of the said writ petitioners. However, 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 dated 27.01.2009, recorded a prima
facie finding that the up-gradation/promotion/appointment of those five persons were made illegally. Taking note of the fact that 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
respondents to pass appropriate orders consistent with the observations made in the said judgment after providing adequate opportunities to the
five incumbents.
4. The present writ petitioners are three out of five persons mentioned in the judgment and order dated 27.01.2009.
5. Thereafter, notices were issued by the respondent no. 3 to the writ petitioners on 26.03.2009 for oral hearing on 27.03.2009. Thereafter, the
order dated 27.03.2009, which has already been noted, was passed by the respondent no. 3.
6. Mr. M. Nath, learned counsel for the petitioner''s submits that the petitioner''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 to submit their reply, but no such time was granted and the
impugned order was passed. Thus, according to him, the opportunity of hearing provided to the petitioners was a mere eye-wash and an empty
formality and on this count alone, the writ petition deserves to succeed.
7. Ms. R. Deka, learned Standing Counsel, PWD, placing reliance on paragraph-8 of the affidavit of the respondent no. 3, submits that the
petitioner''s had submitted written statement on 27.03.2009 and therefore, submission of Mr. Nath that petitioners were not granted adequate
opportunity is not correct. It is also 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 service, apart from other qualifications, is required and the petitioner''s being not regularized as Muster
Roll Workers, they were not even eligible for consideration for appointment/up-gradation to the post of Section Assistant. It has also been
submitted by her that the authorities had admitted that promotion of the petitioners were made by the respondent no. 3 by mistake.
8. Submissions advanced by the counsel for the parties are considered.
9. There is no dispute that this court in its judgment and order dated 27.03.2009 had recorded a prima-facie finding regarding illegal up-
gradation/promotion/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 their 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 petitioners to canvass about legitimacy of their up-gradation. The petitioners have failed to place on
record any material to dislodge the prima facie finding recorded against them by this court. During the course of hearing, Mr. Nath has candidly
submitted that petitioners have not been regularized as Muster Roll Workers. It is also worth noting that against the affidavit filed, the petitioners
did not file affidavit-in-reply.
10. 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 reasonable 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.
11. In view of the above discussions, this court finds no merit in this writ application and accordingly, the same is dismissed.
12. At this stage, Mr. Nath, learned counsel for the petitioners submits that the State has come out with an Office Memorandum dated 27.06.2013
on the subject of Regularization of services of Work-Charged, Muster Roll and similarly placed workers in pursuance of orders of the Hon''ble
Supreme Court of India dated 10.04.2006, reported in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and he submits that
cases of the petitioners may be considered for regularization in the light of the said memorandum. He also submits that petitioners may be given
opportunity to file a representation before Commissioner and Special Secretary (Roads) to the Government of Assam, PWD for consideration of
their cases for regularization in terms of the said Office Memorandum.
13. Without expressing any opinion on the merits of the claim of the petitioners for regularization of their services under the Memorandum, the
petitioners are left at liberty to file representation(s) for regularization of their services under Office Memorandum dated 27.06.2013.
14. 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. Writ petition stands disposed of. No costs.
