Gauhati High Court
Saudau Assam Panchayuat Casual ... vs The State Of Assam And 7 Ors on 12 June, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
W P(C) No.3444 of 2016
1. Sadau Assam Panchayat Casual Karmachary
Santha,
Represented by its President and SEcreatary
2. Md. Abdul Jalil,
S/O late Mohamad Ali,
R/O Village-Chandra, P.O.-Simila Tarbari,
P.S.-Boko, Chaygaon, Dist.-Kamrup,
PIN Code-781135
3. Sri Jitumoni Das,
S/O late Prafulla Das,
R/O Patbaushi,
Dist. -Barpeta
..... Petitioners
-Versus-
The State of Assam to be represented by its
Commissioner and Secreatary to the Government
of Assam, Department of Panchayat and Rural
Development, Assam, Dispur, Guwahati-06
and 7 Others
..... Respondents
WP(C) No.3444 of 2016
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BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioners: Mr. P.K. Goswami ...... Advocate.
For the respondents: Ms. A. Verma, ..... SC, P & R D Department.
Date of Hearing and Judgment : 12th June, 2017
JUDGMENT AND ORDER (Oral)
Heard Mr. P.K. Goswami, the learned counsel for the petitioners as well as Ms. A. Verma, the learned Standing Counsel, Panchayat and Rural Development Department, for the respondent Nos. 2, 3, 4 and 5 and Mr. P. Nayak, the learned Standing Counsel, Finance Department, for the respondent Nos. 6, 7 and 8. The respondent No.1 is represented by the learned Government Advocate, Assam.
2] The petitioner No.1 is a registered association under the Trade Union Act, 1926, and the petitioner Nos. 2 and 3 are the President and the Secretary of the Association. The members of the petitioners' association are casual employees as Grade-III and Grade-IV engaged staff against the vacant post and as per the staffing pattern which was introduced by the Assam Panchayat Act, 1986, which was later endorsed by the Assam Panchayat (Administrative) Rules, 2002, which includes the posts of Tax Collectors, Road Moharar, Peon, Chowkidar and Driver in the Panchayat Department of the Government of Assam. They were engaged from a period between the year 1992 to 2006 as per the requirement of Zila Parisad, Gaon Panchayat and Anchalik Panchayat by adopting resolutions in their respective committees. Some of the employees of the petitioners' association WP(C) No.3444 of 2016 3 were engaged by the Panchayat Local Bodies prior to the publication of the Assam (Administrative) Rules, 2002 while others as per the staffing pattern prescribed by the aforesaid Rules.
3] On 25.01.2012, the State Government decided to pay the casual workers engaged in different Panchayat Raj Institutions (in short PRIs) fixed wages at the rate of 4500/- per month after due verification and after furnishing of utilization certificate. While the members of the petitioners' association were paid the said fixed amount for some time, they were, however, not paid for the period from 01.04.2015 to 31.03.2016. Consequently, the petitioner No.3 submitted representations to the Commissioner, the Panchayat and Rural Department on 13.11.2015 and 16.11.2015, but, however, there was no response from the respondent authorities.
4] The Additional Secretary to the Government of Assam, Panchayat and Rural Development Department on 29.02.2016 (Annexure-H) in response to the assessment of required fund for fixed wages for the casual workers engaged in different PRIs and the Development Blocks for the period from 01.04.2015 to 31.03.2016 wrote to the Commissioner Panchayat and Rural Development, Assam, to take necessary action in terms of the endorsement of the Finance Department. The endorsement of the Finance Department is reproduced herein below:
"Your endorsement at prepage.
P & RD Department is requested to issue instruction to concerned PRIs to pay wages @ Rs.4500/- P.M. (to the individual bank accounts of the casual workers by way of ECS) for the period 01.04.2015 to 31.03.2016 to the existing casual workers against the total of 1812 numbers of casual workers as per P & RD Department letter No.PDA.194/2006/pt-11/395 dated 25.01.2012 out of 13th and 14th FC grant which is being released by Finance Department during 2015.
Sd/-
Joint Director Finance (Economic Affairs) Department"WP(C) No.3444 of 2016 4
5] Since the respondent authorities failed to take any action despite the communication dated 29.02.2016, the petitioner No.3 again on 29.04.2016 submitted a representation to the Additional Chief Secretary to the Government of Assam, Panchayat and Rural Development Department, requesting for necessary action and direction to the concerned PRI's to make payment of fixed wages of the casual workers for the period from 01.04.2015 to 31.03.2016. However, as the same was not considered and the casual workers having remained unpaid, the petitioners have filed the instant writ petition.
6] The respondent No.3 in response to the writ petition filed an affidavit-in- opposition on 01.11.2016 contending, inter alia, that the members of the petitioners' association were engaged as casual workers by the Panchayat Raj Institution (PRIs) without following the provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Administrative) Rules, 2002. However, the Panchayat and Rural Development Department sought the instructions of the Finance Department with regard to the payment of fixed wages and casual workers and in reply, the Finance (Economic Affairs) Department informed that the PRIs are treated as 3rd tire Local Self Government in the federal structure in the Indian Union and as the concerned Local Self Government Institution had engaged casual fixed pay employees at different tires of PRIs at their own direction, therefore, the local bodies may be asked to clear the liabilities, if any, from their own resources like Central Finance Commission Award, State Finance Commission Award or their own revenue collecting resources. Such instructions was made vide letter under Memo No.FEA (SFC) 49/2009/pt75 dated 17.06.2016.
7] The respondent No.3 also contended that as per the decision in the meeting held on 07.12.2015 under the Chairmanship of the Minister of Panchayat and Rural Development Department, it was decided that the wages of the casual workers be met from the grants under the 5th State Finance Commission and for which the proposal be made to the Finance Department. Further, as per the instructions given by the Finance Department, the proposal for sanction fund WP(C) No.3444 of 2016 5 under the non-salary component of the 5th State Finance Commission Award during the year 2016-17, a proposal was submitted to the State Government in the Panchayat and Rural Development Department for sanction of the amount therein in order to pay the engaged casual workers. However, due to lack of fund, the members of the petitioners' association could not be paid their salaries.
8] The respondent No.3 also filed an additional affidavit on 05.04.2017 to bring on record the subsequent development in the case to content that although the Panchayat and Rural Development was asked to issue instructions to the concerned PRIs to pay wages for the engaged casual workers as was instructed vide communication dated 29.02.2016. However, by the time, the same was received, the operational period of the 13th Finance Commission had already expired and the grants were exhausted. Furthermore, the 14th Finance Commission do not permit utilization of fund towards salaries/honorarium of existing employees, permanent and contract which would include wages to causal workers. It is also contended that the Panchayat and Rural Development Department submitted a list of 3670 casual workers to the Finance Department on 21.09.2016 for judicious consideration for payment of monthly wages to causal workers. In the meeting held on 22.09.2016 on the matter of job security and retiral benefits it was observed that such benefits can be provided to causal workers working continuously for more than 10 years with Government but not against sanctioned posts cover the causal workers engaged in various Panchayat Raj Institutions (PRIs). However, due the non-availability of fund and also due to non-availability of a specific provision for payment of the casual employees, the respondent concerned is not in a position to pay the claimed fixed pay.
9] Mr. P.K. Goswami, the learned counsel for the petitioners, submits that as was mentioned earlier, the same subject matter was dealt by a co-ordinate bench of this Court in WP(C) No.5135 of 2015 and WP(C) No.6170 of 2014 filed by the petitioner association. He submits that the same has been disposed of vide a common judgment and order dated 26.05.2017. The writ petitions were disposed of with a direction to the respondent authorities to take recourse to the WP(C) No.3444 of 2016 6 provisions of the Assam Panchayat Employees (Provincialisation) Act, 1999 to provincialise the services of the remaining employees of the Panchayats. However, if the same was not done, the remaining numbers of staff as per the staffing pattern should be filled up by resolving the recruitment under Section 140(1) of the Assam Panchayat Act, 1944, by constituting District Selection Committees in the Panchayat and Rural Development Department. Till such decision, the members of the petitioners' association are to be paid fix wages i.e. Rs.4,500/- per month. Mr. P.K. Goswami has produced a copy of the said judgment and order dated 26.05.2017.
10] Ms. A. Verma, the learned counsel for the respondents on the other hand submits that fund received under the 14th Finance Commission does not contain the salary component. She submits that the expenditure on candidates including the honorarium TA, DA and other wages of existing employees whether permanent or contractual are excluded from the utilization of the fund. Therefore, the respondents cannot utilize the fund received from the 14th Finance Commission for paying the wages of the petitioners' association.
11] I have considered the rival submissions of the parties as well as perused the materials available on record.
12] On perusal of the judgment and order dated 26.05.2017 passed in WP(C) No.5135 of 205 and WP(C) No.6170 of 2014, it can be seen that the case of the members of the petitioners' association has been exhaustively dealt with by this Court. The Court has taken into account the decision and approval of the State Government for payment of fixed wages @ Rs.4,500/- per month to the 1812 numbers of casual workers on 25.01.2012 while also taking into account Section 3 of the Assam Panchayat Employees (Provincialisation) Act, 1999, does not visualize any classification or categorization of employee of the Panchayats but covers all employees of Panchayats and they would be deemed to have been provincialised on and from the appropriate date. Therefore, the Court upon considering the fact that the Commissioner, Panchayat and Rural Development WP(C) No.3444 of 2016 7 had written to the Additional Chief Secretary to the Government of Assam, Panchayat and Rural Development Department on 18.12.2014 for creation of about 3,000 posts at different levels of the Panchayat Raj Insitutitons (PRIs) on the basis of recommended staffing pattern, it was observed that if such posts were created, the State Government can take recourse to the provision of the Assam Panchayat Employees (Provincialisation) Act, 1999 to provincialise the services of all the remaining employees of the Panchayats which would include the members of the petitioners' association. If the same does not materialise and the Government takes a policy decision not to redeploy the excess staff or decides on limited redeployment, the remaining could be filed up by resorting to recruitment under Section 140 (1) of the Assam Panchayat Act, 1944 by constituting of District Selection Committee. While directing such exercise to be completed within a period of 6 (six) months from receipt of the order, it was also directed the wages of the members of the petitioners' association employed on casual basis would continue to be paid their fixed wages @ Rs.4,500/- per month. Although, the 2 (two) cases primarily concern the absorption of the members of the petitioners' association but, nevertheless, the regular payment of monthly fixed wages has also been accounted for. Therefore, under the circumstance, the decision rendered on 26.05.2017 supports the cause of the members of the petitioners' association in the instant case as well I find no reason to differ to the same.
13] Considering the fact that the members of the petitioners' association have rendered their services and paid monthly fixed wages of Rs.4,500/-, pursuant to the decision taken on 25.01.2012 and also taking into consideration the decision taken in the meeting minutes dated 07.12.2015 and the endorsement of the Finance Department reproduced in the communication dated 29.02.2016, I am of the considered opinion that the respondent authorities are bound to pay the monthly fixed wages of the members of the petitioners' association for the period between 01.04.2015 to 31.03.2016. It would be necessary for the State respondents to arrange the fund so required and the contention of the respondents about impermissibility of utilization the fund from WP(C) No.3444 of 2016 8 the 14th Finance Commission cannot come in the way. Having opined thus, the writ petition is disposed of by directing the respondent authorities to pay the monthly fixed wages of the members of the petitioners' association for the period between 01.04.2015 to 31.03.2016 within a period of 3 (three) months from the date of receipt of a certified copy of this order.
14] With the above observations and directions, the writ petition stands disposed of. No cost.
JUDGE sumita WP(C) No.3444 of 2016