Page No.# 1/7 GAHC010228382022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7238/2022 AIMONI KAKATI W/O. SRI NAGENDRA NATH BHUYAN, VILL. TEOK TINGAR GAON (MAHARA), P.O. AND P.S. TEOK, DIST. JORHAT, ASSAM, PIN-785112. VERSUS THE STATE OF ASSAM AND 5 ORS REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, SOCIAL WELFARE DEPTT., DISPUR, GUWAHATI-06. 2:THE DIRECTOR OF SOCIELA WELFARE DEPTT. ASSAM UZANBAZAR GHY.-01. 3:THE PROGRAMME OFFICER JORHAT PROGRAMME OFFICE DIVISIONAL ICDS CELL JORHAT K.K. BORUAH ROAD P.O. AND DIST. JORHAT ASSAM-785001. 4:THE CHILD DEVELOPMENT PROJECT OFFICER DEMOW ICDS PROJECT DEMOW DIST. SIVASAGAR ASSAM-785662. Page No.# 2/7 5:THE CHILD DEVELOPMENT PROJECT OFFICER KALIAPANI ICDS PROJECT TEOK DIST. JORHAT ASSAM-785112. 6:THE COMMISSIONER AND SECRETARY FINANCE DEPTT. GOVT. OF ASSAM DISPUR GHY.-06 Advocate for the Petitioner : MR. I H SAIKIA, MR. M R CHOUDHURY,MR. K KALITA,MS L HMAR Advocate for the Respondent : GA, ASSAM, SC, FINANCE BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER 05.12.2025 Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. J.K. Goswami, learned Addl. Senior Government Advocate appearing for all the respondents. 2. By filing this writ petition, the petitioner has prayed for a direction to the respondent authorities to grant appointment w.e.f. 01.04.2001, i.e., from the date of selection / appointment of a persons below the petitioner in the select list. The petitioner has also prayed for payment of arrear salary from April, 2001 to April, 2019 along with interest. 3. The petitioner was engaged as a Grade-III employee in the Office of the Child Development Project Officer (CDPO), Demow ICDS Project, Sivasagar by Page No.# 3/7 the Director of Social Welfare & Probation, Assam on a fixed consolidated pay of Rs.900/- per month vide order dated 14.08.1996. 4. With a view to regularize the services of ad-hoc employees, against the available vacant posts, the respondent authorities had conducted a selection test held on 02.02.2001 in the department in all the districts in the State of Assam. The petitioner along with other Grade-III employee in the Department had participated in the aforesaid selection test / Interview. The Select List was published for all the districts including Sivasagar for the Offices of the CDPO in which the petitioner was placed at Sl.No. 3 in order of merit. 5. Accordingly, for the District of Sivasagar, 6 (six) persons including the petitioner were selected. However, the petitioner was denied appointment while illegally appointing the persons below the petitioner in the Select List. 6. Subsequently, the Programme Officer, Jorhat Programme Office, Divisional ICDS Cell, Jorhat, has given a proposal to the Director of Social Welfare Department for regularisation of service of the petitioner as LDA-cum-Typist on 12.07.2016. 7. When no action was taken by the respondent authorities for appointment / regularisation despite several approaches and the proposal by the concerned authority for regularisation and appointment in terms of the Select List, the petitioner approached this Court by way of a writ petition being WP(C)/4959/2018. The writ petition was disposed of vide an order dated 25.02.2019 directing the respondent authorities to consider the proposal, i.e., 12.07.2016 submitted by the Programme Officer, Divisional ICDS Cell, Jorhat and pass appropriate orders. 8. Pursuant thereto, on 02.08.2019, the Director of Social Welfare, Assam Page No.# 4/7 had regularised the service of the petitioner as LDA cum Typist against regular vacant sanctioned post at Kalapani ICDS Project, Teok, District -Jorhat. 9. It is the case of the petitioner that since the petitioner has been illegally denied regularisation / appointment despite she being selected at Sl. No. 3 and illegally appointing the persons below her, the appointment / regularisation ought to be from the date when the persons below the petitioner in the Select List were appointed / regularized. The petitioner having been denied such entitlement for grant of restrospective regularisation, the respondents may be directed to regularise her service not from the date of order but from the date when the persons below the petitioner in the Select List was appointed / regularized. 10. Mr. I.H. Saikia, learned counsel for the petitioner while referring to the order dated 24.08.2015 submits that similarly situated person, though in respect of other district pursuant to the order of this Court dated 17.09.2001 passed in the WP(C)/6603/2011 filed by Sri Rajib Kr. Choudhury, the same authority i.e., Director of Social Welfare, Assam had regularised the service of the said Rajib Kr. Choudhury w.e.f. 01.04.2001. Since the case has arisen out of the same selection process by the same authority on the same ground and with similar orders passed by this Court, the petitioner be granted similar benefits of regularisation from the date when the persons below the petitioner were appointed, i.e., 01.04.2001. He further refers to another order dated 17.06.2016 whereby the service of one Shri Ajit Ch. Bora has been regularised w.e.f. 01.04.2001 providing restrospective regularisation by the same authority. 11. Mr. J.K. Goswami, learned Addl. Senior Government Advocate, Assam by referring to the additional affidavit filed by the respondent no.2 has submitted that as per the view of the Judicial Department, it is a settled law that a person Page No.# 5/7 cannot be allowed to draw the benefit of a post, the duties of which he/she has not discharged. Therefore, as per the view of judicial department, the question of granting her seniority since her initial appointment and giving her restrospective benefits of service does not arise. He further submits that there is no direction issued to the respondent authorities for restrospective regularisation of service from the date of selection of the petitioner. 12. On the direction of this Court dated 14.02.2025, to clarify the reasons of non-regularisation of the service of the petitioner along with similarly situated persons who were below her in the original merit list, Mr. Goswami, learned counsel referring to the additional affidavit submits that despite best effort, the records of the Interview and selection published in the 2001 could not be traced out. Therefore, the reason for appointment of the candidate at Sl. No. 5 of the select list and the petitioner at Sl. No. 3 was not considered could not be ascertained. He further submits that since the petitioner has been regularised in the year 2019, she being in Sl. No. 3 of the merit list, she would be entitled to all the benefits from the date of her regularisation in the service only and not from the date of publication of the select list. He further submits that there is no record to show that the petitioner has been working on ad-hoc since 2001-2019. Therefore, claim of the petitioner to have been working continuously on ad-hoc basis in the said Grade-III post cannot be accepted. 13. Considered the submissions advanced by the learned counsel for the parties. 14. Admittedly, the petitioner along with some other persons were engaged as Grade III employee under the ICDS Project, Social Welfare Department of Assam. The selection process consisting of interview and other test were conducted by the respondent authorities to regularise the service of the Grade III employees, who have been engaged in the Department. After the Interview Page No.# 6/7 and selection test, Select List was published for all the districts. 15. For the district of Sivasagar, 6 (six) persons were selected for regularisation in the vacant post of Grade-III as LDA cum typist. Accordingly, the name of the petitioner appeared at Sl. No. 3. However, the regularisation / appointment was denied to the petitioner while regularising the service of the persons who have been selected and placed at Sl. Nos. 4, 5 and 6. 16. Pursuant to the direction of this Court by an order dated 25.02.2019, the respondent authorities has finally regularised the service of the petitioner in terms of the Select List 2001 and vide the order dated 02.08.2019, the same authority, i.e. Director of Social Welfare, Assam regularised the service of Shri Rajib Kr. Choudhury and Shri Ajit Ch. Bora as LDA cum Typist w.e.f. 01.04.2001 in respect of Jorhat District. Upon consideration, the aforementioned 2 (two) persons appears to be similarly situated persons as the selection and appointment / regularisation arisen from the same select list pursuant to the same selection process for regularisation of the services of the Grade-III employees. 17. Undisputedly, the respondent authorities have regularised the service of 3 (three) persons who were below the petitioner in the select list as LDA-cum- Typist in the Department of Social Welfare, Government of Assam. Thus, in my view, the petitioner would be entitled for regularisation from the date when the persons below the petitioner were regularised i.e., 01.04.2001 as no reasons is discernible from the materials available on record as the respondent authorities could not provide any justifiable ground. 18. Apart from above, in view of the fact that the records could not be traced out and the same authority regularising the service of the aforementioned two Page No.# 7/7 persons in the same Department out of Select List pursuant to same selection process though of a different districts, with retrospective effect, the action would amount to discrimination as the respondent authorities while granting regularisation with restrospective effect to a similarly situated persons have denied the same benefit to the petitioner. 19. In view of the above discussions made hereinabove, this Court is of considered opinion that the petitioner is entitled to be regularized / appointed from the date when the persons below the Select List admittedly have been appointed i.e., w.e.f. from 01.04.2001 with all benefits except back-wages. 20. Accordingly, the respondent authorities are directed to regularise the service of the petitioner w.e.f. 01.04.2001. However, the petitioner shall not be entitled for any back-wages but other benefits be provided with in accordance with law. 21. Writ petition accordingly stands allowed and disposed of. JUDGE Comparing Assistant