Page No.# 1/9 GAHC010112022026 2026:GAU-AS:13096 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2998/2026 SMT ASHIMA DHAR W/O SRI PARTHA SARATHI DHAR, RESIDENT OF JYOTI KUCHI, KALICHARAN DEKA PATH, GUWAHATI- 40, DISTRICT-KAMRUP METRO, ASSAM. VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. ASSAM, PUBLIC WORKS ROADS DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE UNDER SECRETARY GOVT. OF ASSAM PUBLIC WORKS ROAD DEPARTMENT ESST-B BRANCH DISPUR GUWHATI-6. 3:THE DEPUTY SECRETARY PWRD GOVT. OF ASSAM DISPUR GUWAHATI-6. 4:THE CHIEF ENGINEER PUBLIC WORKS ROADS DEPARTMENT CHANDMARI GUWAHATI-3. 5:THE EXECUTIVE ENGINEER PWRD MECHANICAL DIVISION ULUBARI Page No.# 2/9 GUWAHATI-7 6:THE FINANCE DEPARTMENT GOVT. OF ASSAM REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI - 6 Advocate for the Petitioner : MR. B P BORAH, MS. N BARMAN Advocate for the Respondent : SC, PWD, SC, FINANCE BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 07/09/2026 Heard Mr. B P Borah, learned counsel for the petitioner and Mr. P Nayak, learned Additional Advocate General, appearing for the respondents. 2. The petitioner in the present writ petition has prayed for a direction upon the respondent authorities for assigning to her seniority position in the cadre of Junior Assistant, w.e.f. the date, she was initially appointed as a Works Charge Tracer, vide an order dated 13.01.1995, on compassionate grounds. 3. The father of the petitioner, herein, Arabinda Dhar, while serving as a Sub Engineer, Grade-1 in the establishment of the Executive Engineer, PWD Div-II, Silchar (I) (presently renamed as Karimganj Building Division), had died-in- harness on 01.07.1994. The petitioner, accordingly, submitted an application for consideration of her case for appointment on compassionate grounds. The respondent authorities, considering the necessity of providing of an employment Page No.# 3/9 to the petitioner, proceeded to grant approval for the appointment of the petitioner on compassionate grounds. In pursuance to the said approval, the petitioner was appointed in such capacity by the Executive Engineer, PWD, Silchar Roads Division. The petitioner had, thereafter, approached the respondent authorities to appoint her on regular basis considering the fact that the petitioner was so appointed as a Works Charge Tracer on compassionate grounds. The said prayer of the petitioner not being favourably considered, the petitioner had approached this Court by way of instituting a writ petition, being WP(C) No. 8357/2019. A Co-ordinate Bench of this Court, vide judgment & order dated 19.10.2020, proceeded to dispose of the said writ petition, directing the respondent authorities to pass appropriate order for appointment of the petitioner on regular basis. Accordingly, vide an order dated 22.09.2022, issued by the Chief Engineer, PWD (Roads), Assam, the services of the petitioner came to be regularized against a vacant sanctioned post of Junior Assistant in the establishment of the Executive Engineer, PWRD, Guwahati Mechanical Division, Ulubari, Guwahati, w.e.f. the date of her initial appointment i.e., w.e.f. 13.01.1995. The petitioner further projects that she was released with her arrears of salary, w.e.f. 13.01.1995 and accordingly, for all intent and purpose, the services of the petitioner was deemed to have so commenced, w.e.f. 13.01.1995 as a Junior Assistant. However, the petitioner not having been assigned her seniority position by reckoning the date of her appointment as Junior Assistant to be Page No.# 4/9 13.01.1995, in spite of the stipulations made in this connection in the order dated 22.09.2022, the petitioner has instituted the present writ petition. 4. Mr. B P Borah, learned counsel for the petitioner, by reiterating the facts noticed hereinabove, has submitted that the initial appointment of the petitioner as a Works Charge Tracer, being so effected on compassionate grounds, the said appointment was permissible to be so effected against a regular vacant post. He submits that the petitioner’s prayer for being accommodated against a regular vacant post on compassionate grounds not being considered favourably by the respondents, the petitioner had approached this Court by way of instituting a writ petition, being WP(C) No. 8357/2019 and this Court vide order dated 19.10.2020, had disposed of the said writ petition, directing the respondent authorities to pass appropriate order for appointment of the petitioner on regular basis. 4.1 It is submitted by the learned counsel for the petitioner that in pursuance to the directions passed by this Court, the respondents vide an order dated 22.09.2022, had regularized the services of the petitioner against a vacant sanctioned post with retrospective effect, i.e., with effect from the date of her initial appointment, i.e., w.e.f. 13.01.1995. It is further projected that the petitioner was also released her due arrear salaries, w.e.f. 13.01.1995. 4.2 Mr. Borah, learned counsel for the petitioner submits that in view of the order dated 22.09.2022, it is to be now construed that the petitioner’s service stood regularized, w.e.f. 13.01.1995 for all intent and purpose and accordingly, the seniority of the petitioner as a Junior Assistant, would now be reckonable from 13.01.1995, which, however, has not been considered by the respondent authorities. Page No.# 5/9 4.3 Mr. Borah, learned counsel for the petitioner, submits that the plea taken by the respondents that the seniority of the petitioner, w.e.f. 13.01.1995, to be not permissible to be so assigned to her in absence of a vacant post of Junior Assistant in the regular cadre being available, w.e.f. 13.01.1995, to be clearly perverse, inasmuch as, the petitioner has already been regularized in her services, w.e.f. 13.01.1995, followed by release of her due arrear salaries from the said date. Accordingly, Mr. Borah, submits that the petitioner is now required to be assigned her seniority position in the cadre of Junior Assistant, w.e.f. 13.01.1995 and this Court would pass appropriate directions in this connection. 5. Per contra, Mr. P Nayak, learned Additional Advocate General, appearing for the respondents has submitted that the services of the petitioner was regularized vide order dated 22.09.2022 with retrospective effect, i.e., w.e.f. 13.01.1995. However, the actual accommodation of the petitioner against a regular vacant post had occasioned only w.e.f. 22.09.2022. He submits that although, the arrear salaries of the petitioner was released to her, a vacant post of Junior Assistant not being available since 13.01.1995, the petitioner could not be assigned seniority in the cadre of Junior Assistant, w.e.f. 13.01.1995. 6. I have heard the learned counsel for the parties and also perused the materials available on record. 7. It is an admitted position that the petitioner was initially appointed as a Works Charge Tracer on compassionate grounds in terms of the approval granted in the matter by the Government. It is a settled position of law that an appointment effected on compassionate grounds cannot be so effected on adhoc basis and is mandated to be so effected against a vacant post in the regular establishment. Page No.# 6/9 8. In pursuance to the directions passed by this Court in WP(C) No. 8357/2019 vide order dated 19.10.2020, the respondent authorities had issued an order dated 22.09.2022, regularizing the services of the petitioner against a vacant sanctioned post of Junior Assistant with retrospective effect, i.e., with effect from the date of her initial appointment, i.e., w.e.f. 13.01.1995. The said order, being relevant, is extracted hereinbelow: ” GOVERNMENT OF ASSAM OFFICE OF THE CHIEF ENGINEER, P.W.D. (ROADS), ESSTT.CELL-II, CHANDMARI, GUWAHATI-3. No. CEE/16/2021/Pt/10, Dated Guwahati, the 22nd Sep 12022. OFFICE ORDER In pursuance of Govt. in PWRD letter No.RBEB.13/2008/100, dtd. 17.09.2022 and as per Hon'ble Gauhati High Court's Order dated 21.10.2020 passed in WP(C) No.8357/2019, the services of Smti. Ashima Dhar, W/C Tracer under O/o the Executive Engineer, PWRD, Silchar & Udharbond Territorial Road, Silchar is hereby regularized against vacant sanctioned post of Junior Assistant under O/o the Executive Engineer, PWRD, Guwahati Mechanical Division, Ulubari Guwahati-7 w.e.f. the date of her initial appointment (i.e. w.e.f. 13.01.1995). (Sanjiv Shyam) Chief Engineer, P.W.D. (Roads) Assam, Chandmari, Guwahati-3. Dated Guwahati, the 22nd Sep/2022” 9. A perusal of the said order would go to reveal that while the petitioner’s services were regularized against a sanctioned post of Junior Assistant available Page No.# 7/9 in the establishment of the Executive Engineer, PWRD, Guwahati Mechanical Division, Ulubari, Guwahati, her such regularization was effected with effect from the date of her initial appointment as Works Charge Tracer, i.e., w.e.f. 13.01.1995. The respondents in their affidavit have contended that the petitioner was extended with all arrear service benefits as a Junior Assistant in pursuance to the regularization of her services. 10. In view of the said developments taking place in the matter, this Court would construe that the petitioner was for all intent and purpose regularized in her services as a Junior Assistant with retrospective effect, i.e., w.e.f. 13.01.1995, followed by release of her due arrear salaries. 11. Accordingly, the petitioner in the facts and circumstances of this case, is entitled to reckon her seniority in the cadre of Junior Assistant, w.e.f. 13.01.1995. The period of service rendered by the petitioner, w.e.f. 13.01.1995, would also be reckonable for the purpose of computation of a pension and other pensionary benefits, upon her superannuation from services. 12. The plea taken by the respondents that the petitioner was not assigned her seniority, w.e.f. 13.01.1995, in absence of a vacant post, being available for the purpose in the cadre of Junior Assistant, w.e.f. 13.01.1995, does not mandate an acceptance from this Court, in view of the developments taking place, more particularly, the order dated 22.09.2022, by which the services of the petitioner was regularized against the post of Junior Assistant, w.e.f. 13.01.1995 and the continuance of the order till date followed by the release to the petitioner of her due arrear salaries. 13. In view of the above position, this Court directs the respondent Page No.# 8/9 authorities to assign to the petitioner her seniority position in the cadre of Junior Assistant, w.e.f. 13.01.1995 forthwith. 14. Upon being assigned seniority in the cadre of Junior Assistant w.e.f. 13.01.1995, the petitioner would be entitled to further consequential service benefits, including promotion to the cadre of Senior Assistant, in accordance with the Rules holding the field. 15. It is also provided that in the event, the respondents are of the view that there has to be a creation of post for the purpose of assigning seniority to the petitioner, w.e.f. 13.01.1995, the respondents shall create a supernumerary post for the purpose, w.e.f. 13.01.1995 and assign to the petitioner her due seniority in the cadre of Junior Assistant, w.e.f 13.01.1995. Such creation of a supernumerary post would not burden the respondent authorities any further, inasmuch as, it is the contention of the parties to the present proceeding that the arrears of salary, receivable by the petitioner, w.e.f. 13.01.1995, has already been released to her. The requisite steps in the mater be initiated by the respondent authorities and concluded within a period of 1 (one) month from the date of receipt of a certified copy of this order. 16. A fresh Gradation List of the incumbents in the cadre of Junior Assistant, be published by assigning to the petitioner her seniority position, w.e.f. 13.01.1995 in the cadre of Junior Assistant and thereafter, in the event, any person junior to the petitioner has already been promoted to the cadre of Senior Assistant, the case of the petitioner be so considered on merits, in accordance with the Rules holding the field, by applying the principle of “Next Below Rule”. 17. In view of the above conclusion, the communication dated 21.08.2024 Page No.# 9/9 stands interfered with. 18. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant