Page No.# 1/9 GAHC010140942023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4585/2023 KISHOK TALUKDAR S/O- LATE KHAGENDRA NATH TALUKDAR, VILLAGE- BANGLIPARA, P.O. AND P.S. BHABANIPUR, DIST.- BARPETA (BAJALI), ASSAM, PIN- 781352 VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE PRINCIPAL SECRETARY, GOVT. OF ASSAM, PUBLIC WORKS (ROADS) DEPARTMENT, DISPUR, GUWAHATI-06, ASSAM 2:THE COMMISSIONER AND SPECIAL SECRETARY GOVT. OF ASSAM P.W. (BLDG AND NH) DEPARTMENT DISPUR GUWAHATI-06 ASSAM 3:THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06 ASSAM 4:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT NH WORKS CHANDMARI GUWAHATI DIST.- KAMRUP (M) PIN- 781003 5:THE EXECUTIVE ENGINEER Page No.# 2/9 PWD (BLDG.) GUWAHATI MECHANICAL DIVISION GUWAHATI 6:THE EXECUTIVE ENGINEER PWD GUWAHATI NH DIVISION GUWAHATI- Advocate for the Petitioner : MR. T SK, MR. I ALAM Advocate for the Respondent : SC, PWD, SC, FINANCE BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 19-08-2025 Heard Mr. I. Alam, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned standing counsel, PWD appearing for all the respondents. The petitioner by way of instituting the present proceeding has prayed for a direction upon the respondent authorities, to regularise/ adjust his services against any vacant Grade-IV post in the regular establishment of the respondent No. 5 and/ or the Department. The facts in briefs requisite for adjudication of the issues arising in the present proceeding is noticed as under. The father of the petitioner, Khagendra Nath Talukdar who was working as Roller Handyman, died-in-harness on 17-07-1990. The brother of the petitioner, thereafter, approached the respondent authorities for consideration of his case for appointment on Page No.# 3/9 compassionate ground, against any vacant Grade-IV post in the establishment of the respondent No. 5. The application submitted by the elder brother of the petitioner was considered by the respondent authorities and vide communication dated 01-02-1990, the approval of the Government for appointment of his elder brother, Durlab Talukdar, on compassionate grounds against a Grade-IV post was accorded. The elder brother of the petitioner, thereafter, vide an application dated 07-11- 1992, approached the respondent authorities praying, therein, that the case of his younger brother Sri Kishok Talukdar, i.e. the petitioner, herein, be considered for appointment on compassionate ground, in his place in terms of the approval accorded for the purpose. It is seen that the prayer of the elder brother of the petitioner for appointing the petitioner, herein, on compassionate ground, in his place was considered by the competent authority and vide communication dated 31-08-1993, direction came to be issued to the respondent No. 5, to take necessary steps for appointment of the petitioner, in any Grade-IV post, as per approval already communicated in the matter, pertaining to the appointment of the elder brother of the petitioner on compassionate ground. In terms of the approval granted in the matter by the competent authority, the respondent No. 5, i.e. the Executive Engineer, PWD (Mechanical Division), vide order dated 20-09-1993, proceeded to appoint the petitioner, herein, on compassionate ground as a Work-Charge Roller Handyman. It is to be noted that the appointment affected in case of the petitioner, on compassionate ground, was so affected in the Work-Charged Establishment of the respondent No. 5. The initial appointment of the petitioner was for a period of 03 (three) months. However, the said appointment was thereafter continued, Page No.# 4/9 until further orders, by an order dated 01-02-1994, issued by the respondent No. 5, herein. In terms of the appointment so affected in case of the petitioner herein, the petitioner continued in his services and as on date he is continuing to discharge his services in the Work-Charge Establishment, under the respondent No. 5. The petitioner having been appointed on compassionate grounds and his appointment being so affected in the Work-Charge Establishment, the petitioner had approached the respondent authorities on numerous occasions praying for his adjustment and/ or regularisation of his services, against a vacant Gr-IV post in the regular establishment under the respondent No. 5. However, the said prayer of the petitioner not having been acceded to by the respondents, the present writ petition came to be instituted by the petitioner praying for the reliefs, as noticed, hereinabove. Mr. I. Alam, learned counsel for the petitioner by reiterating the facts as noticed, hereinabove, has submitted that the petitioner, herein, admittedly having been appointed on compassionate ground, such appointment could not have been so affected in the Work-Charge Establishment. He submits that the petitioner is required to be so appointed as against a regular vacant post in the establishment of the respondent No. 5 and/ or in any other establishment under the respondents on regular basis. He submits that the petitioner although is receiving the pay and allowances, that is otherwise to be authorised to an employee working against a similar post in the regular establishment, his future service benefits would be hampered in the event, he is required to continue in his services in the Work-Charge Establishment. Accordingly, he prays that this Court would pleased to Page No.# 5/9 direct the respondent authorities to regularise the services of the petitioner against a vacant post in the regular establishment of the respondents, including, against any vacant post in the establishment of the respondent No. 5. Per contra, Mr. R. Dhar, learned counsel for the respondent submits that the petitioner, although, was appointed on compassionate grounds, his such appointment, in view of the fact that there was no vacant post available in the regular establishment, came to be so affected in the Work-Charge Establishment, which was with a view to provide succour to the family members of the petitioner at the time of the crisis arising on the death of the only bread earner of the family. Mr. Dhar submits that the petitioner having accepted the said appointment and having joined his services, he cannot now pray for a further direction for his such engagement to be so affected in the regular establishment of the department. Mr. Dhar by highlighting that the petitioner has prayed for regularisation of his services, has referred to a decision of this Court rendered in the case of State of Assam Vs. Upen Das, reported in 2020 (5) GauLT 605, for the proposition that no regularisation was permissible to be made of Work-Charge/ Muster Roll/ Casual Workers of the department. Accordingly, in the above premises, Mr. Dhar submits that the present petition would not mandate an acceptance and would be required to be dismissed in limine. I have heard the learned counsel for the parties and also perused the materials brought on record. The facts as noticed, hereinabove, would without any ambiguity bring to the forefront that the appointment of the next of kin of Late Khagendra Nath Talukdar, was Page No.# 6/9 approved by the competent authority for appointment on compassionate grounds. Although initially such appointment was so approved for appointment on compassionate ground in favour of the elder brother of the petitioner, i.e. Durlob Talukdar, however, on an application being so made by the elder brother of the petitioner for considering the case of the petitioner, herein, for such appointment in his place, the matter was processed by the departmental authorities and an approval for appointment of the petitioner on compassionate ground, in terms of the approval already granted in the matter, for affecting such appointment on compassionate grounds in respect of the next of kin of late Khagendra Nath Talukdar came to be accorded. The petitioner was directed to be considered for appointment on compassionate grounds against any Grade-IV post. The approval as brought on record by the competent authority does not bring to the forefront that the approval was so granted for appointment of the next of kin of Late Khagendra Nath Talukdar against a vacant post in the Work-Charge Establishment. A perusal of the approval so granted by the competent authority would go to reveal that such appointment was directed to be so made against a vacant post in the regular establishment. It is the settled position of law that the appointment made under the die-in-harness scheme of the State Government has to be so made on regular basis against a vacant post in the regular establishment. The stand of the respondent that the appointment of the petitioner was so affected in a Work-Charge Establishment to facilitate him and his family members to tide over the financial constraints faced by them on account of the death of the Government employee involved, cannot be held to be erroneous, but the same would not permit the respondent authorities to continue to engage, the petitioner, Page No.# 7/9 herein, in the Work-Charged Establishment, as his services ought to have been brought over to the regular establishment, immediately as and when a vacancy, therein, had so arisen. It is not the case of the respondents that after appointment of the petitioner in Work-Charged Establishment, no vacancy had arisen against any Grade-IV post in the regular establishment of the respondent No. 5 and/ or in any other establishment of the Department. The petitioner, herein, being appointed on compassionate grounds in the year 1993, this Court is of the considered view that it is not permissible for the respondents to continue to engage the petitioner in the Work-Charged Establishment, when the scheme under which compassionate appointment in respect of the petitioner was effected does not contemplate appointment on temporary basis. At this stage the contention of the respondents that the prayer of the petitioner would not mandate a consideration in view of the decision of the Division Bench of this Court in the case of Upen Das (Supra), is to be examined. This Court has perused the decision of the Division Bench in the case of Upen Das (Supra) and on close perusal, this Court is of the considered view, that the appointment of the petitioner being so approved on compassionate grounds, such appointment being mandated to be so effected, against a regular vacant post, the direction of this Court in Upen Das (Supra) would have no application to the facts, as arising in the present matter. In view of the above conclusion, this Court is of the considered view that the petitioner’s services must be immediately adjusted against a regular vacant post in the regular establishment, that would be available, either in the establishment of the Page No.# 8/9 respondent No. 5 and/ or any other establishment under the department. Accordingly, the respondent No. 2, 4 and 5 shall now take requisite steps for having the services of the petitioner regularised/ adjusted against any vacant post in the regular establishment, either under the respondent No. 5 and/ or any other establishment of the department. The period of service rendered by the petitioner w.e.f. 20-09-1993 shall be reckoned for the purpose of fixation of seniority on being adjusted against a post in a regular establishment and shall also be reckoned for the purpose of computation of the petitioners pension and pensionary benefits, on his superannuation from his services. The respondent No. 3, Finance Department on receipt of a proposal in this connection, shall consider the same in the light of the observation made hereinabove, in the present order by this Court, and process the same expeditiously. On affecting such adjustment/ regularisation of the services against a regular vacant post, the continuous services of the petitioner in such regular establishment, be so deemed to be so continuing w.e.f. the date of his initial appointment in the Work-Charged Establishment, in pursuance to the order dated 29-09-1993, passed by the respondent No. 5, herein, in terms of the approval granted for the same, by the competent authority of the department. Consequential orders towards implementing the directions passed, hereinabove, be issued by the respondent authorities within a period of 03 (three) months from the date of receipt of a certified copy of this order from the petitioner, herein. With the above observation and direction, this writ petition stands allowed. Page No.# 9/9 JUDGE Comparing Assistant