In this set of writ petitions, challenge has been made to the orders of reversion from Store Keeper/LDA or any other equivalent posts to the post of Surveillance Worker under the Health ...
No Acts & Articles mentioned in this case
Page No.# 1/27
GAHC010120602017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/235/2017
MD. NARUL HOQUE LASKAR
S/O. LT. TAWAKUL ALI LADKARA, R/O. WATER WORKS ROAD, LANE NO.5
AT SILCHAR, P.S. SILCHAR, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, HEALTH AND
FAMILY WELFARE DEPTT., DISPUR, GHY.-06.
Advocate for the Petitioner : MR.S SARMA
Advocate for the Respondent : SC, HEALTH & FAMILY
WP(C)/1408/2017
SAMARJIT MALAKAR
S/O LT. BIREN CH. DEKA R/O HAJO SAKTIBORI P.O. and P.S. HAJO DIST.
KAMRUP R
ASSAM PIN - 781102
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI -6 Page No.# 1/27
GAHC010120602017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/235/2017
MD. NARUL HOQUE LASKAR
S/O. LT. TAWAKUL ALI LADKARA, R/O. WATER WORKS ROAD, LANE NO.5
AT SILCHAR, P.S. SILCHAR, DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, HEALTH AND
FAMILY WELFARE DEPTT., DISPUR, GHY.-06.
Advocate for the Petitioner : MR.S SARMA
Advocate for the Respondent : SC, HEALTH & FAMILY
WP(C)/1408/2017
SAMARJIT MALAKAR
S/O LT. BIREN CH. DEKA R/O HAJO SAKTIBORI P.O. and P.S. HAJO DIST.
KAMRUP R
ASSAM PIN - 781102
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI -6
Page No.# 2/27
2:THE DEPUTY SECRETARY TO THE
GOVT. OF ASSAM
HEALTH and FAMILY WELFARE A DEPARTMENT
DISPUR
GUWAHATI -06.
3:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI -36.
4:THE JT. DIRECTOR OF HEALTH SERVICES
MALARIA
NVBDCP
ASSAM
CHRISTIAN BASTI
GUWAHATI -05.
5:THE JOINT DIRECTOR OF HEALTH SERVICES
GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783101.
6:THE DISTRICT MALARIA OFFICER
GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783101
------------
Advocate for : MR.S K SINGH
Advocate for : appearing for THE STATE OF ASSAM and 5 ORS.
WP(C)/7886/2016
JULEE SINHA @ JULEE SINGHA
W/O. SRI RADHA KANTA SINHA
R/O. HOUSE NO.31
CHANDAN NAGAR
BYE LANE NO.3
SURVEY
BELTOLA
GHY.-28.
Page No.# 3/27
VERSUS
STATE OF ASSAM and 10 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND F.W. A DEPTT.
GHY.
DIST. KAMRUP
ASSAM.
------------
Advocate for : MR.J P DAS
Advocate for : appearing for STATE OF ASSAM and 10 ORS.
WP(C)/7703/2016
MONOJ DAS
S/O. LT. AMULYA DAS
R/O. VILL. GALIAHATI
BARPETA
P.O. and P.S. BARPETA - 781301
DIST. BARPETA
ASSAM.
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HEALTH and FAMILY WELFARE DEPTT.
DISPUR
GUWAHATI-6.
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI-36.
3:THE ADDITIONAL DIRECTOR OF HEALTH SERVICES H
CUM STATE PROGRAMME OFFICER
NVBDCP
ASSAM
GUWAHATI-36.
4:THE JOINT DIRECTOR OF HEALTH SERVICES
BARPETA.
Page No.# 4/27
5:DIST. MALARIA OFFICER OF THE OFFICE OF THE DIST. MALARIA
ERADICATION OFFICER
BARPETA
ASSAM.
6:THE INSPECTOR OF DRUGS
BARPETA.
------------
Advocate for : MR.S SARMA
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM and 5 ORS.
WP(C)/7706/2016
MD. ABEDUL HAQUE
S/O. MD. TAZIZUL HAQUE
R/O. NALBARI TOWN
WARD NO.1
KHATAHARI
DIST. NALBARI
ASSAM.
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY.-06.
2:THE DIRECTOR
HEALTH SERVICES
ASSAM
HENGRABARI
GHY.-36.
3:THE JOINT DIRECTOR
HEALTH SERVICES H
CUM STATE PROGRAMME OFFICER
NVBDCP
ASSAM
GHY.-06.
Page No.# 5/27
4:THE JOINT DIRECTOR
HEALTH SERVICES
NALBARI.
5:DIST. MALARIA OFFICER
THE OFFICER OF THE DISTRICT
MALARIA ERADICATION OFFICER
NALBARI
ASSAM.
6:THE INSPECTOR OF DRUGS
NALBARI.
------------
Advocate for : MR.S SARMA
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM and 5 ORS.
WP(C)/1414/2017
PANKAJ CHAMUAH and ANR.
S/O LT. DEBA CHAMUAH
R/O PANINDRA ROAD
W/NO.3
P.O. and P.S. NORTH LAKHIMPUR
PIN-787001
DIST- LAKHIMPUR
ASSAM
2: PHATIK BORA
S/O LT. TANKESWAR BORA
R/O RUP NAGAR
W/NO.11
K.B. ROAD
P.O.and P.S. NORTH LAKHIMPUR
DIST- LAKHIMPUR
ASSAM
PIN- 787001
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
HEALTH and F.W. DEPTT.
DISPUR
GHY-6
Page No.# 6/27
2:THE DY. SECRETARY TO THE GOVT. OF ASSAM
HEALTH and F.W. A DEPTT.
DISPUR
GHY-6
3:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY-36
4:THE JT. DIRECTOR OF HEALTH SERVICES MALARIA
NVBDCP
ASSAM
CHRISTIAN BASTI
GHY-5
5:THE JT. DIRECTOR OF HEALTH SERVICES
LAKHIMPUR
NORTH LAKHIMPUR
ASSAM
PIN-787001
6:THE DISTRICT MALARIA OFFICER
LAKHIMPUR
NORTH LAKHIMPUR
ASSAM
PIN-787001
------------
Advocate for : MR.M K NEOG
Advocate for : appearing for THE STATE OF ASSAM and 5 ORS.
WP(C)/1283/2017
BABITA DAS
D/O- SRI DHARMESWAR DAS
W/O- HEMCHANDRA SARKAR
ORIGINAL R/O- PAILA
DIST.- NALBARI
AND PRESENT R/O VILL.- JALAKHATA
P.O.- DHANTOLA BAZAR
P.S.- ABHAYAPURI
DIST.- BONGAIGAON
ASSAM.
VERSUS
THE STATE OF ASSAM and 3 ORS.
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
Page No.# 7/27
DISPUR
GHY- 6.
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY- 36.
3:THE JOINT DIRECTOR OF HEALTH SERVICES
BONGAIGAON.
4:THE SUB-DIVISIONAL MEDICAL and HEALTH OFFICER
BOITAMARI
BPHC
BONGAIGAON
ASSAM.
------------
Advocate for : MR.S SARMA
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM and 3 ORS.
WP(C)/7704/2016
JITUMONI KALITA
S/O LT. BHALA RAM KALITA R/O VILL- BATIKURIHA P.O. and P.S. BHELLA
PIN - 781309
DIST. BARPETA
ASSAM.
VERSUS
THE STATE OF ASSAM and 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI -36.
3:THE JOINT DIRECTOR OF HEALTH SERVICES
BARPETA.
4:DISTRICT MALARIA OFFICER
Page No.# 8/27
OF THE DISTRICT
MALARIA ERADICATION OFFICER
NALBARI
ASSAM.
------------
Advocate for : MR. S SARMA
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM and 3 ORS.
WP(C)/7705/2016
SYEDA JURIMA AHMEDA
D/O SYED LATIF ALI
R/O VILL. and P.O. BHOGPUR
PIN-781366
P.S. GORESWAR
PRESENTLY R/O AT BARPETA
P.S. BARPETA
DIST- BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM and 5 ORS.
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
HEALTH AND F.W. DEPTT.
DISPUR
GHY-6
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABRI
GHY-36
3:THE JT. DIRECTOR OF HEALTH SERVICES M
CUM STATE PROGRAMME OFFICER
NVBDCP
ASSAM
GHY-36
4:THE JT. DIRECTOR OF HEALTH SERVICES
BARPETA
PIN-781301
5:DISTRICT MALARIA OFFICER OF
THE O/O THE DISTRICT
MALARIA ERADICATION OFFICER
Page No.# 9/27
BARPETA
ASSAM
PIN-781301
6:THE INSPECTOR OF DRUGS
BARPETA
PIN-781301
------------
Advocate for : MR.S SARMA
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM and 5 ORS.
WP(C)/7879/2016
RAJA SARMA @ RAJA SARMAH
AGED ABOUT 37 YEARS
S/O. SRI BIBHASH SARMA
R/O. HENGRABARI PHE COMPLEX
HEALTH COMPLEX
QTR NO. 316
DISPUR
GUWAHATI-36.
VERSUS
STATE OF ASSAM and 6 ORS.
REPRESENTED BY THE UNDER SECRETARY TO THE GOVT. OF ASSAM
HEALTH and F.W. A DEPTT.
GHY
DIST. KAMRUP ASSAM.
2:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HEALTH and F.W. DEPTT.
DISPUR
GUWAHATI-06
DIST. KAMRUP ASSAM.
3:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI-781036.
4:THE JOINT DIRECTOR OF HEALTH SERVICES M
ASSAM
GHY.-6.
Page No.# 10/27
5:THE ENTOMOLOGIST-CUM-RESEARCH OFFICER FILARIA
NFCP
ASSAM
HENGRABARI
GUWAHATI-36.
6:THE JOINT DIRECTOR OF HEALTH SERVICES M-CUM-STATE
PROGRAMME OFFICER
NVBDCP
ASSAM
CHRISTIAN BASTI
GUWAHATI-781005.
7:THE JOINT DIRECTOR OF HEALTH SERVICES
KAMRUP
PANBAZAR
GUWAHATI-781001.
------------
Advocate for : MR.J P DAS
Advocate for : appearing for STATE OF ASSAM and 6 ORS.
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
Date : 09-03-2021
JUDGEMENT & ORDER
The subject matter of all the writ petitions being similar, the same are taken up together
for disposal by this common judgment and order.
2. In this set of writ petitions, challenge has been made to the orders of reversion from
Store Keeper/LDA or any other equivalent posts to the post of Surveillance Worker under the
Health and Family Welfare Department, Assam. The petitioners have taken various grounds of
challenge, including violation of the principles of natural justice before passing the impugned
orders which, according to them, have adverse consequences. However, before coming to the
issue at hand, it would be convenient to state the basic facts of each of the cases.
Page No.# 11/27
3. The petitioner, Shri Manoj Das in WP(C) No.7703/2016 was initially appointed as a
Surveillance Worker (hereinafter referred to as the SW) vide appointment letter dated
26.05.1998 issued by the Joint Director of Health Services. During the tenure of his services,
he had obtained his diploma in type writing (both in English and Assamese). Since a post of
Store Keeper was lying vacant, the petitioner made a prayer for upgrading his services as
Store Keeper. It is the case of the petitioner that his post of SW was subsequently designated
as Store Keeper in the same scale of pay vide an order dated 05.05.2008 issued by the Addl.
Director of Health Services, Assam. The petitioner was thereafter transferred to Barpeta vide
an order dated 19.03.2013. Since then, the petitioner claims to be continuously working as
LDA. However, by the impugned orders dated 30.11.2016 and 12.12.2016, the petitioner
along with other incumbents were reverted back to the post of SW. It is the case of the
petitioner that neither any reasons were assigned for such reversion nor he was given any
opportunity or notice.
4. The petitioner, Shri Jitumoni Kalita in WP(C) No.7704/2016 was initially appointed as a
SW vide appointment letter dated 17.12.2005 issued by the Director of Health Services,
Assam. During the tenure of his services, he had obtained qualification in computer and had
also completed his M.Sc. in Information and Technology. It is the case of the petitioner that
his post of SW was subsequently designated as Store Keeper in the same scale of pay vide an
order dated 04.06.2013 issued by the authorities. Since then, the petitioner claims to be
continuously working as LDA. However, by the impugned orders dated 30.11.2016 and
12.12.2016, the petitioner along with other incumbents were reverted back to the post of SW.
It is the case of the petitioner that neither any reasons were assigned for such reversion nor
the petitioner was given any opportunity or notice.
5. The petitioner, Ms. Syeda Jurima Ahmeda in WP(C) No.7705/2016 was initially
appointed as a SW vide appointment letter dated 11.04.2008 issued by the Director of Health
Services, Assam. During the tenure of her services, she was deputed to the office of the
District Malaria Officer, Barpeta in the leave vacancy of an LDA. The said post was
subsequently designated as LDA in the same scale of pay vide an order dated 25.01.2010
Page No.# 12/27
issued by the authorities. Since then, the petitioner claims to be continuously working as LDA.
However, by the impugned orders dated 30.11.2016 and 12.12.2016, the petitioner along
with other incumbents were reverted back to the post of SW. It is the case of the petitioner
that neither any reasons were assigned for such reversion nor the petitioner was given any
opportunity or notice.
6. The petitioner, Md. Abedul Haque in WP(C) No.7706/2016 was initially appointed as a
Basic Health Worker (hereinafter referred to as the BHW) vide appointment letter dated
06.05.1995 issued by the District Malaria Officer, Nalbari. It is the case of the petitioner that
his post of BHW was subsequently designated as Store Keeper in the same scale of pay vide
an order dated 28.06.2006 issued by the Joint Director of Health Services, Assam. In the
meantime, the petitioner also served as Nodal Officer, NRC Cell, Nalbari and was appointed as
Booth Level Officer, issued by the Electoral Registration Officer. However, by the impugned
orders dated 30.11.2016 and 12.12.2016, the petitioner along with other incumbents were
reverted back to the post of BHW. It is the case of the petitioner that neither any reasons
were assigned for such reversion nor the petitioner was given any opportunity or notice.
7. The petitioner, Shri Raja Sarma @ Raja Sarmah in WP(C) No.7879/2016 was initially
appointed as a SW vide appointment letter dated 09.12.1998 issued by the Joint Director of
Health Services, Assam. On 07.12.1999, the petitioner was transferred and posted in the
same capacity of SW to the District Malaria Office, Kamrup against a vacant post. It is the
case of the petitioner that the Under Secretary of the Department wanted to know whether
the present proposal of transfer of cadre from SW to LDA will hamper the field work which
was replied in the negative. The same was followed by a letter dated 06.05.2004 conveying
no objection of the Government in respect of change of cadre of LDA subject to the condition
that seniority as SW will not be counted in the cadre of LDA. Thereafter vide order dated
17.05.2004 the petitioner was transferred at his own request and posted as LDA. On
31.05.2007, the petitioner had prayed for his transfer as LDA under the Joint Director of
Health Services (Malaria) and consequently, on 19.07.2007, the petitioner was transferred and
posted at the disposal of the Joint Director of Health Services. In the meantime, vide order
Page No.# 13/27
dated 21.09.2012, the petitioner was confirmed. Since then, the petitioner claims to be
continuously working as LDA. However, by the impugned orders dated 30.11.2016 and
12.12.2016, the petitioner along with other incumbents were reverted back to the post of SW.
It is the case of the petitioner that neither any reasons were assigned for such reversion nor
the petitioner was given any opportunity or notice.
8. The petitioner, Smt. Julee Sinha in WP(C) No.7886/2016 was initially appointed as a
SW vide appointment letter dated 11.04.2008 issued by the Director of Health Services,
Assam. After serving for long, vide letter dated 16.02.2011, appropriate action was directed
to be taken by following Rules and procedures. On 01.03.2011, in anticipation of Government
approval, the petitioner was, however, converted to the post of LDA in the same scale of pay
with the condition that her seniority will be counted with effect from the date of joining in the
present post of LDA. However, by the impugned orders dated 30.11.2016, the petitioner
along with other incumbents was reverted back to the post of SW. It is the case of the
petitioner that though she had submitted a representation, the same has not been
considered. It is the case of the petitioner that neither any reasons were assigned for such
reversion nor the petitioner was given any opportunity or notice.
9. The petitioner, Md. Nurul Hoque Laskar in WP(C) No.235/2017 was initially appointed
as a SW vide appointment letter dated 05.01.2005 and was posted at Silchar for a period of
three months which was extended for another period of three months vide order dated
27.06.2005. Finally, vide order dated 17.01.2007, the services of the petitioner was
regularized. It is the case of the petitioner that subsequently, he was designated as a Store
Keeper and his services have been utilized as such. However, by the impugned orders dated
30.11.2016 and 12.12.2016, the petitioner along with other incumbents were reverted back
to the post of SW. It is the case of the petitioner that neither any reasons were assigned for
such reversion nor the petitioner was given any opportunity or notice.
10. The petitioner, Ms. Babita Das in WP(C) No.1283/2017 was initially appointed as a
Surveillance Worker (hereinafter referred to as the SW) vide appointment letter dated
Page No.# 14/27
11.04.2008 issued by the Director of Health Services, Assam. On 07.12.2016, the petitioner
was placed as LDA in the office of the Joint Director of Health Services, Bongaigaon as the
petitioner had the requisite qualification and had also made a request. Subsequently, the
petitioner’s post of SW which was attached with the office of the SDMHO Block PHC,
Boitamari was redesignated as LDA in the same scale of pay vide order dated 07.12.2012
which the petitioner joined and has been continuously discharging her duties since then.
However, in spite of working continuously in the capacity of LDA for more than 4 years, the
Authorities had suddenly passed an order dated 20.02.2017 by which the present post for the
petitioner was withdrawn and she was reverted back to her original post of SW. It is the case
of the petitioner that neither any reasons were assigned for such reversion nor the petitioner
was given any opportunity or notice.
11. The petitioner, Shri Samarjit Malakar in WP(C) No.1408/2017 was initially appointed
as a SW vide appointment letter dated 11.04.2008 issued by the Director of Health Services,
Assam. On 23.09.2009, he was transferred to the office of the Joint Director of Health
Services, Goalpara in the same post of SW which was later designated as LD Assistant vide
memo dated 01.01.2014 which post, the petitioner was continuing to hold. However, vide the
impugned memo dated 20.02.2017, the Director of Health Services, Assam withdrew the
earlier ‘promotion’ order and reverted back the petitioner to his earlier post of SW from LD
Assistant. It is the case of the petitioner that neither any reasons were assigned for such
reversion nor the petitioner was given any opportunity or notice.
12. The petitioners, Shri Pankaj Chamuah and Shri Phatik Bora in WP(C) No.1414/2017
were initially appointed as SWs on 27.07.2001 and 26.02.1985 issued by the Director of
Health Services, Assam and District Malaria Officer, Lakhimpur, respectively. The posts of the
petitioners were redesignated as LDA vide order dated 03.11.2007 so far as the petitioner no.
1 is concerned and so far as the petitioner no. 2, the redesignation was done on 23.09.2009
as Store Keeper and was posted in the office of the District Malaria Officer, Lakhimpur on
05.12.2016. Though the petitioners claim to be continuously serving since then, vide the
impugned communication dated 20.02.2017, the posts of LDA were withdrawn and the
Page No.# 15/27
petitioners were reverted back to the post of SWs. It is the case of the petitioners that
neither any reasons were assigned for such reversion nor the petitioners were given any
opportunity or notice.
13. I have heard Shri S Sarma, learned counsel for the petitioners in WP(C) Nos.7703,
7704, 7705 & 7706/2016 and WP(C) No.235 & 1283/2017; Shri JP Das, learned counsel for
the petitioners in WP(C) Nos.7879 & 7886/2016 and Shri MK Neog, learned counsel for the
petitioners in WP(C) Nos.1408 & 1414/2017. I have also heard Shri B Gogoi, learned Standing
Counsel, Health & Family Welfare, Government of Assam. The materials placed before this
Court have been carefully examined.
14. The common grounds of challenge, as urged by the learned counsel for the petitioners
may be culled out in the following manner:
i) By working for a long period of time in the cadre/post of Store
Keeper/LDA, the petitioners have accrued a right to continue in the same
post till their services are regularized.
ii) The initial appointment of the petitioners in the post of
SW/BHW was after the due process of law and the respondent
authorities in their wisdom, having utilized the services of the petitioners
as Store Keeper/LDA in the office, the impugned decision to revert the
petitioners back to the original posts of SW/BHW is arbitrary and
unreasonable.
iii) The nature of duties performed as Store Keeper/LDA being
confined to office work, which is wholly different from the duties of
SW/BHW which is related to the field, the impugned reversion would
cause immense hardship and inconvenience.
iv) The reversion appears to be a part of the consequence of an
order of the High Court in which the petitioners were not parties.
v) In any case, the said reversion was not preceded by affording
any opportunity and therefore, there is gross violation of the principles of
natural justice.
vi) In few of the cases, as a condition for joining as LDA/Store
Keeper, the seniority in the cadre of SW was forfeited and on such
Page No.# 16/27
reversion, the said petitioners would be junior to the other incumbents.
15. Elaborating the aforesaid grounds, the learned counsel for the petitioners submit that
reversion having adverse civil consequences, the same could not have been done without
grant of an opportunity to the petitioners. It is further contented that it is the legitimate
expectation of the petitioners that they would at least be allowed to continue in the post of
Store Keeper/LDA in which post, they have attained sufficient experience. Shri JP Das,
learned counsel for the petitioners also submits that the impugned action is violative of Article
311(2) of the Constitution of India. Shri MK Neog, learned counsel for the petitioners also
cited two cases wherein no action of reversion has been taken with regard to similarly
situated persons.
16. In support of the submissions made, the following decisions have been referred to by
Shri S Sarma, learned counsel for the petitioners:
i) Balbir Singh Vs. State of HP & Ors., reported in (2000) 10 SCC 166;
ii) S Sumnyan Vs. Limi Niri & Ors., reported in (2010) 6 SCC 791;
iii) Himadri Das & Anr. Vs. State of Assam, reported in 2012 (5) GLT
568.
Shri JP Das, learned counsel additionally relied upon the decision of this Court in the
case of -
iv) Rubu Opo Vs. State of AP & Ors., reported in 2011 (3) GLT 544.
17. In the case of Balbir Singh (supra), the interference of the Court was on account of
reversion from a higher post to which the incumbent was promoted after a conscious
decision. In the case of S Sumnyan (supra), the aspect of seniority of SW was taken into
consideration. This High Court in the case of Himadri Das & Anr. (supra), had interfered
with the decision to revert to a lower grade on the ground of violation of the principles of
natural justice. In the said case, the petitioners, who were earlier Muster Roll Workers, were
Page No.# 17/27
upgraded to Khalasi, which is admittedly a higher post, and accordingly, reversion to the post
of Muster Roll Worker without issuing show cause notice was held to be bad in law. The case
of Rubu Opo (supra), was pertaining to an order of transfer which was on political
interference wherein this Court had allowed the petition by observing that the impugned
order was not in accordance with law and even the normal tenure of two years was not
complete.
18. Shri B Gogoi, learned Standing Counsel, Health Department submits at the outset that
though affidavit-in-opposition has not been filed in all the cases, those filed would cover the
other cases as well. The learned Standing Counsel submits that it is the direction of this Court
which forms the basis of the decisions to repost the petitioners as SW/BHW. He clarifies that
the expression ‘reversion’ has to be understood in the facts and circumstances of the case
wherein there is no change in the scale of pay or other service benefits and therefore, by
such reversion, no legal rights of the petitioners have been adversely affected. That being the
position, the aspect of following the principles of natural justice becomes redundant. Shri
Gogoi elaborates that it is only when an adverse action is taken against an incumbent, the
aspect of following the principles of natural justice would come in, and in the instant case, no
adverse action has been taken against the petitioners.
19. Shri Gogoi, learned Standing Counsel submits that in WP(C) No.148/2015
(Birabrata Acharjee Vs. State of Assam & Ors.), this Court was considering the case of
the petitioner who was similarly placed like the present petitioners with the additional fact
that due to his medical condition, he was not in a position to work in the field as SW. This
Court in paragraph 10 of the judgment and order 19.11.2019 had framed the following issue:
“ 10. Therefore, the only point of determination in this writ petition is
whether a writ in the nature of mandamus can be issued for directing
the authorities to convert the post of Surveillance Worker (i.e., field
worker), which is held by the petitioner to the post of LDA/Junior
Assistant or Store-Keeper, etc. (i.e., office work).”
Page No.# 18/27
After discussing the case of Shri Mengutuo Kense & Ors. Vs. State of Nagaland
& Ors., reported in (2017) 0 Supreme (Gau) 379 : 2018 STPL 8331 (Gau) , this Court
had dismissed the writ petition by making the following observation:
“ 13. In the case of Shri Mengutuo Kense & Ors. Vs. State of
Nagaland & Ors., (2017) 0 Supreme (Gau) 379 : 2018 STPL 8331
(Gau), this Court has held that it is Government who creates post as
per its needs and it also submitted that post and services are created
to serve public interest and not to serve individual interest or interests
of a group of people. In the present case in hand, no right or rights of
the petitioner under Articles 14 and 16 of the Constitution of India has
been violated by the refusal of the respondents to convert the post of
Surveillance Worker held by the petitioner to LDA/Junior Assistant.
Resultantly, if no legal or constitutional right of the petitioner has been
violated, he is not entitled to a writ of mandamus in terms of prayers
made in this writ petition.
14. Viewed with the said angle, there appears to be no merit in the
claim made by the petitioner and, as such, the petitioner is not entitled
to any relief in this writ petition and, as such, this writ petition stands
dismissed. However, leaving the parties to bear their own cost.”
15.
20. However, this Court made some additional observation in the aforesaid judgment and
order dated 19.11.2019 which is extracted hereinbelow:
“ 15. However, before parting with the records, having noticed that
the officials under the Health & Family Welfare Department and under
the Directorate of Health Services had concerted the posts of several
Surveillance Workers to LDA/Junior Assistant or Store Keeper and that
the learned Standing Counsel had submitted that one wrong in the
past cannot be a ground to commit another wrong. Moreover, in their
Page No.# 19/27
affidavit-in-opposition, the respondent no. 2 had cited that there are
no rules permitting such conversion. Therefore, it is made clear that if
in future, any such conversion by the respondents comes to the notice
of the petitioner, if so advised, he shall have the liberty to approach
this Court again to ventilate his grievance and claim to be treated
equally and or at par.”
21. Shri Gogoi submits that in view of such categorical observation to treat all similarly
placed incumbents in the rank of SW/BHW at par, the present action has been taken.
22. On merits, it is the submission of the Department that the post of SW is under a
particular scheme, known as National Vector Borne Disease Control Programme (NVBDCP)
and is an ex-cadre post qua the Service Rules governing the other employees under the
Health & Family Welfare Department. Therefore, the post of SW is never the feeder cadre for
promotion to the post of Store Keeper/LDA which is a Post within the cadre under the Service
Rules. That apart, the arrangement of allowing the petitioners to hold the post of Store
Keeper/LDA was in the same scale of pay and only there were certain changes in the nature
of the duties performed. Shri Gogoi further submits that most of the aforesaid arrangements
were done on the request of the incumbents and therefore, no grievance can be raised when
they are put back in their original posts which was necessitated by the judgment dated
19.11.2019 of this Court passed in the case of Birabrata Acharjee (supra). Shri Gogoi
accordingly submits that no legal rights of the petitioners have been infringed and therefore,
the writ petitions deserve to be dismissed.
23. In support of his submissions, Shri Gogoi, learned Standing Counsel relies upon the
following decisions:
i) State of Orissa and Ors. Vs. Mamata Mohanty, reported in (2011) 3
SCC 436;
ii) Dilip Talukdar and Ors. Vs. State of Assam and Ors. (DB), reported in
Page No.# 20/27
2017 (2) GLT 135;
iii) Motiur Rahman Laskar Vs. State of Assam and Ors., Order dated
16.03.2015 in WP(C) No.4254/2014.
24. In the case of Mamata Mohanty (supra), the settled legal proposition regarding the
positive aspect of Article 14 has been reiterated. For ready reference, the relevant paragraph
of the judgment is extracted hereinbelow:
“ 36. It is a settled legal proposition that Article 14 is not meant to
perpetuate illegality and it does not envisage negative equality. Thus,
even if some other similarly situated persons have been granted some
benefit inadvertently or by mistake, such order does not confer any
legal right on the petitioner to get the same relief. (Vide Chandigarh
Administration and Anr. v. Jagjit Singh and Anr. MANU/SC/0136/1995 :
AIR 1995 SC 705; Yogesh Kumar and Ors. v. Government of NCT Delhi
and Ors. MANU/SC/0191/2003 : AIR 2003 SC 1241; Anand Buttons
Ltd. etc. v. State of Haryana and Ors. MANU/SC/1054/2004 : AIR 2005
SC 565, KK Bhalla v. State of MP and Ors. MANU/SC/0234/2006 : AIR
2006 SC 898; Maharaj Krishan Bhatt and Anr. v. State of Jammu &
Kashmir and Ors. MANU/SC/7902/2008 : (2008) 9 SCC 24; Upendra
Narayan Singh (supra); and Union of India and Anr. v. Kartick Chandra
Mondal and Anr. MANU/SC/0043/2010 : AIR 2010 SC 3455).
This principle also applies to judicial pronouncements. Once the
court comes to the conclusion that a wrong order has been passed, it
becomes the solemn duty of the court to rectify the mistake rather
than perpetuate the same. While dealing with a similar issue, this
Court in Hotel Balaji and Ors. v. State of AP and Ors.
MANU/SC/0148/1993 : AIR 1993 SC 1048 observed as under:
… To perpetuate an error is no heroism. To rectify it is the compulsion
of judicial conscience. In this, we derive comfort and strength from the
wise and inspiring words of Justice Bronson in Pierce v. Delameter
Page No.# 21/27
(AMY at page 18: ‘a Judge ought to be wise enough to know that he is
fallible and, therefore, ever ready to learn : great and honest enough
to discard all mere pride of opinion and follow truth wherever it may
lead: and courageous enough to acknowledge his errors.
(See also In Re : Sanjiv Datta, Dy. Secy., Ministry of Information &
Broadcasting MANU/SC/ 0697/1995 : (1995) 3 SCC 619; Nirmal Jeet
Kaur v. State of MP and Anr., MANU/SC/ 0695/2004 : (2004) 7 SCC
558; and Mayuram Subramanian Srinivasan v. CBI MANU/SC/
8200/2006 : AIR 2006 SC 2449).”
25. A Division Bench of this Court in the case of Dilip Talukdar and Ors. (supra) with
regard to rights accrued, if any, by the petitioner who was outside the cadre had made the
following observations:
“10. On the basis of above reasoning, the prayer for promotion made
by the ex-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 16.03.2015.
11. 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 encadrement 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 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
Page No.# 22/27
matter than the one taken by the learned Single Judge, in dismissing
the cases. From the above discussion and analysis, the Appeals are
found devoid of merit and the same are accordingly, dismissed by
leaving the parties to bear their respective cost.”
26. In the case of Motiur Rahman Laskar (supra), this Court was examining the concept
of personal post and had observed as follows:
“Question is what do we understand by personal posts. The
background which led to regularization of service of the petitioners as
Grade-IV (Khalasi) against personal posts has already been noticed.
Finance Department had made it clear, which has been reiterated by
the administrative department that the regularization of service of the
petitioners would be against personal posts and these posts would
stand abolished the moment the incumbents relinquished their posts in
any manner. This would mean that the posts held by the petitioners
i.e., the personal posts are outside the cadre of Grade-IV (Khalasi).
Therefore, personal posts would mean ex-cadre posts. In other words,
petitioners are ex-cadre posts. They are not part of the cadre of
Khalasi (Grade-IV). In service jurisprudence, promotion is necessarily
from the feeder cadre to the higher cadre in the service, since
respective cadres form part of the service. Unless one is encadred in
the feeder cadre, he cannot claim promotion to the higher cadre. Since
petitioners are holding ex-cadre posts and are not encadred, they are
not entitled to promotion to the next higher cadre which is the cadre
of Section Assistant. This was also a condition of their regularization.
The petitioners having accepted their regularization with all the terms
and conditions, including the aforesaid condition that they would be
regularized against personal posts sanctioned only for the purpose of
regularization and, therefore, would be holding personal posts, which
Page No.# 23/27
decision has been followed by the administrative department,
petitioners cannot now turn around and assail such decision as being
arbitrary and discriminatory.
In the present case, the impugned decision as above, cannot be said
to be arbitrary or unreasonable, it being a condition of regularization.
WPC Nos. 4254, 3116, 3461, 6569, 2416/2014 & 4922/2013 Page 9 of
10 Those holding cadre post in the cadre of Khalasi and those holding
ex-cadre post of Khalasi are not similarly situated. They cannot be
treated alike for the purpose of promotion. Therefore, question of
discrimination does not arise.
Regarding reversion of the two petitioners in WP(C) Nos.4922/2013
and 4254/2014, while it is true that before reversion the two
petitioners ought to have been put on notice, but at the same time it
cannot also be overlooked that given the factual scenario, even if
opportunity of hearing would be granted to those two petitioners, it
would not have made any material difference to the final outcome of
reversion. The two petitioners were not entitled to promotion to the
post of Section Assistant and, therefore, they had to be reverted back.
In such a case, even if compliance to the principles of natural justice is
insisted upon, it would not make any material difference to the final
outcome. Interference with the order of reversion on the ground of
violation of the principles of natural justice will lead to revival of the
order of promotion, which was an illegal order. Principles of natural
justice cannot be pressed into service to revive and restore an
illegality.”
27. Clarifying the contentions of the petitioners that certain persons were not brought
back to the post of SW, Shri Gogoi, learned Standing Counsel submits that from the reply
dated 15.03.2019 to the RTI application, only those persons who had retired in the meantime
were not brought back to the original post of SW and that would not give any right to the
petitioners.
28. This Court has given its anxious consideration to the rival contentions of the learned
Page No.# 24/27
counsel for the parties. The core issue which requires determination is as to whether the
action of bringing back the petitioners to their original posts of SW/BHW is justified. To
answer the said issue, it is necessary to remind ourselves that the post of SW is a post under
a particular programme, namely, NVBDCP and is not a cadre post under the Service Rules of
the Health Department. The relevant point which is required to be noted is that the
subsequent postings of the petitioners as Store Keepers/LDAs were in the same scale of
pay of SW / BHW and therefore, cannot, by any stretch of imagination, be treated to be a
promotion. In any event, the post of SW being an ex-cadre post, promotion cannot be
envisaged. The action of the authorities in permitting the petitioners to discharge duties as
Store Keeper / LDA in the same scale of pay was mostly out of the own request of the
petitioners and due to administrative convenience and by that, no indefeasible right to
continue in the said post of Store Keeper / LDA has vested upon the petitioners.
29. Though an argument has been advanced on behalf of the petitioners that action could
not have been taken on the basis of the directions of this Court in the case of Birabrata
Acharjee (supra) on the ground that the present petitioners were not parties in the said
case, this Court is not inclined to accept the said submission inasmuch as the cause of action
espoused by the petitioner in that case was his own with which the present petitioners are
not at all connected. Rather, this Court finds sufficient force in the contention of the
Department that a rectification exercise was performed by the Department which was in
compliance with the observation of this Court made in the said case.
30. As regards the arguments of violation of the principles of natural justice, this Court
finds force in the submissions of Shri Gogoi, learned Standing Counsel, Health Department
that the orders impugned in this writ petitions do not have any adverse civil consequences
upon the petitioners and therefore, there is no requirement to give any prior notice or
opportunity. As has been observed, it was under the same scale of pay as SW/BHW that the
petitioners were given while serving as Store Keeper / LDA. In any case, adherence to the
principles of natural justice would only amount to an ‘useless formality’, as has been
explained by the Hon’ble Supreme Court in the case of Aligarh Muslim University & Ors.
Page No.# 25/27
Vs. Mansoor Ali Khan, reported in (2000) 7 SCC 529, the relevant paragraph being
quoted hereinbelow:
“ 23. Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at p.395)
namely, " if upon admitted or indisputable facts only one conclusion was possible",
then in such a case, the principle that breach of natural justice was in itself
prejudice, would not apply. In other words if no other conclusion was possible on
admitted or indisputable facts, it is not necessary to quash the order which was
passed in violation of natural justice. Of course, this being an exception, great care
must be taken in applying this exception.
24. The principle that in addition to breach of natural justice, prejudice must
also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank
of India ( 1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was) also laid
down the principle that not mere violation of natural justice but de facto prejudice
(other than non-issue of notice) had to be proved. It was observed: quoting Wade
Administrative Law, (5th Ed.PP.472-475) as follows: ( para 31)
"[I]....it is not possible to lay down rigid rules as to when principles of
natural justice are to apply, nor as their scope and extent ....There must
have been some real prejudice to the complainant; there is no such thing
as a merely technical infringement of natural justice. The requirements of
natural justice must depend on the facts and circumstances of the case, the
nature of the inquiry, the rules under which the tribunal is acting, the
subject matter to be dealt with and so forth".
Since then, this Court has consistently applied the principle of prejudice in several
cases. The above ruling and various other rulings taking the same view have been
exhaustively referred to in State Bank of Patiala Vs. S.K. Sharma ( 1996(3) SCC
364). In that case, the principle of 'prejudice' has been further elaborated. The
same principle has been reiterated again in Rajendra Singh Vs. State of M.P. ( 1996
(5) SCC 460).
25. The 'useless formality' theory, it must be noted, is an exception. Apart
from the class of cases of "admitted or indisputable facts leading only to one
conclusion" referred to above,- there has been considerable debate of the
Page No.# 26/27
application of that theory in other cases. The divergent views expressed in regard
to this theory have been elaborately considered by this Court in M.C. Mehta
referred to above. This Court surveyed the views expressed in various judgments in
England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and
Straughton L.J. etc. in various cases and also views expressed by leading writers
like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said
that orders passed in violation must always be quashed for otherwise the Court will
be prejudging the issue. Some others have said, that there is no such absolute rule
and prejudice must be shown. Yet, some others have applied via-media rules. We
do not think it necessary, in this case to go deeper into these issues. In the
ultimate analysis, it may depend on the facts of a particular case.”
31. This Court also holds that since the regular process of appointment to the rank of Store
Keeper / LDA is prescribed in the Rules and the petitioners not being borne in the said cadre
of Store Keeper / LDA by undergoing the aforesaid recruitment process, no right, whatsoever
has accrued upon them to claim continuance in the said post of Store Keeper / LDA.
32. As discussed above, none of the case laws relied upon by the petitioners would come
to their aid as those cases pertain to demotion from a higher post to a lower post with a
higher scale of pay which is not the situation in the present case.
33. While not being inclined to accept the principal submissions made on behalf of the
petitioners, one of the submissions which has been emphasized by Shri Das, learned counsel
for the petitioner needs to be considered and answered. It has been contended that in the
case of WP(C) No.7879/2016 (Shri Raja Sarmah @ Raja Sarmah), one of the conditions for
allowing the petitioner to serve as LDA was to forfeit his seniority in the original post of BHW.
It was accordingly argued that if the impugned orders are given effect to, the petitioner
would be deprived of their seniority.
34. In view of the above discussions and taking into consideration all the facts and
circumstances, this Court is of the view that the petitioners have not been able to make out
any case for interference by this Court in exercise of its extra ordinary powers. It is, however,
Order downloaded on 04-08-2025 10:11:53 PMPage No.# 27/27
directed that none of the petitioners should be deprived of their seniority from their original
dates of their posting as SW / BHW and such seniority be restored on the date from which
the petitioners would render service in the substantial post of SW / BHW.
35. The writ petitions are accordingly dismissed. No order as to costs.
JUDGE
Comparing Assistant
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