Page No.# 1/11 GAHC010166152022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5439/2022 BIDYADHAR CHINTEY S/O- LATE SUKARAN CHINTEY, VILL- UPPER SONOWAL GAON, P.O- BENGENAATI, P.S- KAMALABARI, DIST- MAJULI (ASSAM), PIN-785106 VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, PWRD DEPARTMENT , DISPUR, GUWAHATI-781006 2:THE SECRETARY TO THE GOVERNMENT OF ASSAM PWRD ESTABLISHMENT (B) BRANCH DISPUR GUWAHATI-781006 3:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM PWRD ESTABLISHMENT (B) BRANCH ( CONFIDENTIAL CELL) DISPUR GUWAHATI-781006 4:THE CHIEF ENGINEER PWD (ROADS) ASSAM CHANDMARI GUWAHATI-781003 5:THE EXECUTIVE ENGINEER PWRD Page No.# 2/11 MAJULI DISTRICT TERRITORIAL ROAD DIVISION GARMUR MAJULI P.O AND DIST- MAJULI ASSAM PIN-78510 Advocate for the Petitioner : MR R ISLAM, MS M DEKA,MS. A HUSSAIN Advocate for the Respondent : SC, PWD ROAD, – B E F O R E – HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the petitioner : Mr. R. Islam Advocate for the respondents : Mr. R. Dhar, Learned Standing Counsel, PWD Date of Judgment and Order : 15.10.2025 JUDGMENT AND ORDER Heard R. Islam, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Standing Counsel, PWD Department. 2. This writ petition is filed by the petitioner praying for a direction for his promotion to the next higher post of Junior Assistant under the PWD Department. The petitioner was appointed in the year 1992 and since then he has been serving as a Boat Chowkidar in a Grade IV post in the Office of the Executive Engineer, PWRD, Majuli District Territorial Road Division, Majuli, Garmur. It is the contention of the petitioner that he has completed his graduation and also obtained a Diploma in Typewriting both in English and Page No.# 3/11 Assamese and also completed Certificate Course on Computer Concepts from the National Institute of Electronics and Information Technology. The petitioner is also pursuing a Masters Degree through the distance mode of education. 3. Pursuant to the petitioner being initially appointed by appointment order bearing No.1129-33 dated 29.02.1992 issued by the Executive Engineer, PWD, Jorhat Road Division, Jorhat, the petitioner along with five others were subsequently brought to the regular cadre w.e.f. 22.07.2005 and since then the petitioner has been serving in the regular cadre in the Grade IV category. 4. In the seniority list published for the qualified Grade IV staff under the Executive Engineer, PWD, Jorhat Rural Road Division, the name of the petitioner reflected at Serial No.34 in the said seniority list. 5. In the Office of the Executive Engineer, PWRD, Majuli District Road Division, Majuli, some vacancies in the post of Junior Assistant are available. The petitioner having requisite qualification of higher secondary and also having a Diploma in Typewriting along with certificate in Computer Applications had expected that his name would be included in the zone of consideration for promotion to the next higher post of Junior Assistant. Accordingly, the petitioner filed a representation before the appropriate authority seeking consideration for promotion in a vacant post of Junior Assistant. At that time, the petitioner was an undergraduate and the fact that he did not have the requisite qualification, his case was not considered. 6. Subsequently, the petitioner obtained his bachelor degree from Krishna Kanta Handiqui State Open University in the year 2020 and thereupon, he filed another application before the authorities seeking consideration for his Page No.# 4/11 promotion to the next higher post of Junior Assistant. 7. The names of the petitioner along with two others for up-gradation of their services from Grade IV to the post of Junior Assistant were forwarded to the Secretary to the Government of Assam, PWRD, Establishment (B) Branch. The petitioner belongs to ST(P) category and in that category, he is the senior most graduate Grade IV employee. 8. It is submitted on behalf of the petitioner that in the meantime, the PWRD Service Rules regulating services of Grade III and Grade IV were duly amended and in terms of the said amended Rules 10% of the vacancies in the cadre of Junior Assistant in the respective establishment of Divisional Office/Circle in a year was required to be filled up by suitable candidates and members of Grade IV service. The petitioner having fulfilled all the requisite criteria had a legitimate expectation of being considered for promotion to the next higher post of Junior Assistant. However, since no action was undertaken by the departmental authorities, the petitioner approached this Court earlier by filing WP(C) No.1157 of 2022, which came to be disposed of by order dated 28.03.2022, whereby the PWD authorities were directed to consider the forwarding letter dated 19.01.2021, within a period of three months from the date of receipt of certified copy of the said order passed by the Co-ordinate Bench. 9. Pursuant thereto, the petitioner submitted his representation enclosing a certified copy of that order requesting for consideration of the petitioner's case for promotion to the next higher post of Junior Assistant. 10. Pursuant to the said representation, the higher authority rejected the Page No.# 5/11 petitioner's case for consideration on the ground that he was holding a personal post and therefore, his case could not be considered for promotion to the next higher post. 11. The learned counsel for the petitioner submits that the petitioner was initially appointed on 29.02.1992 against the post of W/C Chowkidar in the scale of pay of Rs.900.00-15-1005-20-1105-EB-20-1225-30-1435/-. His appointment, thereafter, was brought under the regular cadre by order dated 09.11.2005. It is urged by the learned counsel for the petitioner that once the petitioner has been brought under the regular cadre he is entitled to all the benefits extended to the other similarly situated persons under the service Rules. Therefore, the rejection of petitioner’s claim by the authority concerned on the ground that his initial appointment was in a personal post is arbitrary and the same needs to be interfered. 12. The learned Standing Counsel, PWD Department submits that the petitioner's initial appointment was on a personal post by the order dated 29.02.1992 and the judgment of Division Bench of this Court has clearly held that the persons appointed to personal posts cannot claim for promotion to the next higher cadre under the Rules. The persons holding personal posts cannot be considered as en-cadre members of the department. In this context, the learned Standing Counsel, PWD has placed before Court a communication No.ADT.71/2005/133 dated 30.09.2005. The said communication is extracted below: “Government of Assam PUBLIC WORKS DEPTT. AUDIT DRANCH DISPUR : : : GUWAHATI Page No.# 6/11 NO.AUT.71/2005/133 Dated Dispur, the 30th September/2005 From : Shri B.N. Bhattacharjee, Under Secy, to the Govt. of Assam, P.W.D. (Audit. Branch). To : The Accountant General (ME) Assam, Maidamgaon, Beltola, Guwala ti-29. Sub :Creation of posts for regularising the service of Work-charged/Muster Roll Worker's engaged prior to 01-04-93 and are in continuous service without any interruption/break and still working in their respective establishment. Sir, I am directed to convey the sanction of the Governor of Assam to the creation of 3471 (three thousand four hundred seventy one) Nos. of posts for different categories of Work-charged staff and 8598 (eight thousand five hundred, ninety eight) Nos. of Grade-IV posts for Muster Roll Worker's w.e.f. 22-07-2005 to 28-02-2006 as detailed below at Annexure "A" & "D" in connection with regularising the services of 3471 Nos. of Work-charged staff and 8598 Nos. of Muster Roll Workers who were engaged prior to 01-04-1993 and still working in their respective establishment without any interruption or break in service as per prescribed proforma. The expenditure is debitable to the respective Head of Accounts as shown in Annexure "I' where budget provision exists. These posts are personal to the incumbents concerned who are holding the, posts and will be abolished as soon as the concerned incumbents relinquish their posts in any manner. These posts will not be filled up by any other persons other than the respective work-charged/Muster Roll workers for whom the posts never been created. This issues as per concurrence of Finance (EC-II) Deptt. communicated vide their letter No.FEC (XI)1/2003 65, dtd. 22-08-2005. Enclo:- As above. Your’s faithfully, Under Secy. To the Government of Assam Public Works Deptt. (Audit Branch) Memo No. ADT.71/2005/133(A) Dated Dispur the 30th September/2005 Page No.# 7/11 Copy forwarded for information and necessary action to:- 1) The Deputy Commissioner,……………………. 2) The Chief Engineer, PWD……………………… 3) The Addl. Chief Engineer, PWD…………….. They are requested to furnish proposal for annual retention of these posts beyond 28.02.06 alongwith the names of the incumbents 4) The Executive Engineer, PWD………………………………. He is required to issue regularization order immediate after receipt of the Govt. order within 3 days failing which drastic action will be taken against the defaulting officials/officers. Further he is requested to verify the approved list of the Muster Roll and Work-charged staff including the date of superannuatioin and if any anomalies are found inform the Govt. immediately. 5) The Treasury Officer………………………………. 6) Finance (EC-I)/EC-II/EC-III/Budget) Deptt. Dispur. By order etc. Under Secy to the Govt. of Assam Public Works Deptt. (Audit Branch) Memo No. ADT.71/2005/133-(B) Dated Dispur, the 30th September/2005. Copy to:- The Accountant General (A&E) Assam, Maidamgaon, Beltola, Guwahati-29 for information and necessary action. Sr. Financial Adviser, PWD, Dispur” 13. The enclosure to the said communication contains the names of Work Charged employees under the Jorhat West Road Division (as it then was) which includes the name of the writ petitioner and shown as B/Chowkidar. In this context a references is made to the judgment of Division Bench of this Court Page No.# 8/11 rendered in Dilip Talukdar and Others Vs. State of Assam and Others reported in 2017 2 GauLJ 637. In this writ appeal, the appellants who had been serving as Work-Charged/Master Roll Workers since before 01.04.1993 and pursuant to a Cabinet decision taken to regularize the services of such categories of workers working in various Government Departments had requisite number of posts created for regularization of the eligible incumbents under communication dated 22.08.2005. In the guidelines appended to the Government order, it was stipulated that these posts are personal to the respective Work Charged/Master Roll Worker and will be abolished as soon as the incumbent relinquished to the post in any manner. 14. The appeals preferred against the orders passed by Co-ordinate Bench were found to be devoid of merit and were accordingly dismissed. The relevant paragraphs of the judgment are extracted below: “7. In order to appreciate the contention raised by the writ petitioners, the learned Court dwelt on the backdrop to the policy decision of the Government to regularize the service of the WC/MR workers, in different works departments, who were in continuous service since before 1.4.1993. The circumstances leading to temporary creation of 5829 WC Grade-IV posts and 25069 Grade-IV posts w.e.f. 22.7.2005, for regularization of that many WC MR workers, were considered. The Court also noted that the guideline issued by the Finance Department clearly stipulated that the posts were created as personal to the respective incumbent and will be abolished as soon as the concerned incumbent relinquish the post in any manner. Thus the temporary nature of the additional posts, was noted by the Court 8. The Court analysed the concept of personal posts and noted that the regularization of service of the WC/MR workers, were not against any cadre posts Page No.# 9/11 of the department but the posts so created were to be treated as ex cadre posts. 9. As promotion to higher rank can be considered only from the feeder cadre and since the writ petitioners were not en-cadre in the feeder cadre, the learned Judge opined that they are disentitled to claim promotion to the higher cadre The learned Judge found that regularization of the incumbents in the temporarily created personal posts, was accepted without protest, with the attendant terms and condition and therefore it was observed that the beneficiaries of the regularization order cannot turn around and assail the decision of the Government, which wanted to confer limited benefits, through the process of regularization. 10. On the plea of discrimination vis-a-vis those already en-cadre in the feeder cadre, the Court held that the incumbents regularized against the posts created personal to them are on a different footing as their posts being temporary in nature were not added to the cadre strength in the department. Thus the plea of discrimination was negated visa-a-vis those who were working in the posts within the notified cadre, of the department. 11. On the basis of above reasoning, the prayer for promotion made by the ev- cadre incumbents holding posts on personal basis, was found to be untenable and accordingly the cases came to be dismissed, under the common judgment dated 16.3.2015. 12. We have seen the reasons recorded by the learned Judge for the impugned verdict and find that the posts against which the writ petitioners were regularized were never added to the notified cadre in the department. Yet no plea was advanced for en-cadrement of the posts held by the affected parties. The promotion in the department can be considered only from the eligible employees in the feeder cadre and the writ petitioner being outside of the cadre, cannot have any enforceable right to claim promotion, particularly when, the regularization Page No.# 10/11 order itself stipulates that they are regularized in posts personal to them Such temporary creation of post cannot automatically add to the cadre strength of the department and claim for promotion from a person holding an ex-cadre post is not legally tenable Therefore we see no basis to take a different view in the matter than the one taken by the learned Single Judge, in dismissing the cases.” 15. The learned Standing Council, PWD Department submits that in view of the findings of the Division Bench and the interpretation of the notifications/circulars issued by the Department regarding regularization of Master Roll/Work Charged Workers no claim for promotion of the writ petitioner can be considered as the posts in which they were appointed are also personal posts and therefore, fall outside the regular cadre. 16. The learned counsel for the petitioner has not been able to distinguish the facts of this case from the judgment namely, Dilip Talukdar (supra) cited by the learned counsel for the respondent. 17. The relevant notifications have been carefully perused and the pleadings available on record have also been minutely examined as well as the judgment rendered in Dilip Talukdar (supra) has also been carefully noted. 18. The learned counsel for the petitioner has not been able to dispel the contentions of the respondent authorities that the communication dated 30th of September, 2005 is not applicable to the petitioner. The said communication which is extracted in the preceding paragraphs clearly specifies that the posts hold by the petitioner and other similarly situated persons are personal to the incumbents and shall be abolished as soon as the incumbents relinquish their posts in any manner. Page No.# 11/11 19. Under such circumstances and since the Division Bench of this Court has held that persons appointed to the personal posts are outside the regular cadre and cannot be considered to be as members of the feeder cadre for promotion to the higher post, such view is also binding on this Court. The learned counsel at the Bar have fairly submitted that no further appeal against that judgment has been preferred by either party and therefore, the same has attained finality as on date. 20. Under such circumstances, this Court does not find any merit in this present writ petition and the same stands dismissed. 21. Interim order, if any stands vacated. 22. Pending Interlocutory Application, if any is also dismissed. 23. It is however, made clear that dismissal of the writ petition will not preclude the petitioner from being considered for up-gradation to any post by the department, should such a procedure be adopted in the future. JUDGE Comparing Assistant