Gauhati High Court
Pankaj Kakoty vs The State Of Assam And 6 Ors on 27 August, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/28
GAHC010083502025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2135/2025
PANKAJ KAKOTY
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS, HEALTH AND
FAMILY WELFARE DEPARTMENT, ASSAM,
SON OF LATE KAMAL KAKOTY
RESIDING AT RUKMINI NAGAR,
HOUSE NO.8, BALIBAT, DISPUR,
P.S. DISPUR,
DIST. KAMRUP (METRO), ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR,
GUWAHATI-06.
2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER OF FOOD SAFETY ANDDRUG ADMINISTRATION
ASSAM
BANPHOL PATH
GUWAHATI-06
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
Page No.# 2/28
DEPARTMENT OF PERSONNEL
PERSONNEL (B)
DISPUR
GUWAHATI-06.
5:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-06.
6:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI-36.
7:THE DRUGS CONTROLLER
ASSAM
HENGRABARI
GUWAHATI-36
Advocate for the Petitioner : MR. K N CHOUDHURY, MD I H LASKAR,MR. D J DAS,MR. M
AHMED
Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, HEALTH
Linked Case : WP(C)/2137/2025
PURNA SINDHU MUDOI
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS
HEALTH AND FAMILY WELFARE DEPARTMENT
ASSAM
SON OF GUNA SINDHU MUDOI
R/O SATGAON NA-PARA
HOUSE NO. 52
PANJABARI
GUWAHATI-37
DIST.KAMRUP (METRO)
ASSAM
Page No.# 3/28
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-06.
2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER OF FOOD SAFETY AND DRUG ADMINISTRATION
ASSAM BANPHOL PATH
GUWAHATI-06.
4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF PERSONNEL
PERSONNEL (B)
DISPUR
GUWAHATI-06
5:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-06.
6:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI-36.
7:THE DRUGS CONTROLLER
ASSAM
HENGRABARI
GUWAHATI- 36.
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : GA
Page No.# 4/28
ASSAM appearing for THE STATE OF ASSAM AND 6 ORS
Linked Case : WP(C)/6309/2024
PURNA SINDHU MUDOI
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS
HEALTH AND FAMILY WELFARE DEPARTMENT
ASSAM
S/O GUNA SINDHU MUDOI
RESIDENT OF SATGAON
NAPANA
HOUSE NO. 52
PANJABARI
GUWAHATI 37
DIST. KAMRUP M ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
2:THE COMMSSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
3:THE COMMISSIONER OF FOOD SAFETY AND DRUG ADMINISTRATION
ASSAM
BANPHOL PATH
GUWAHATI 06
4:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR GUWAHATI 06
5:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI 36
Page No.# 5/28
6:THE DRUGS CONTROLLER
ASSAM
HENGRABARI
GUWAHATI 36
7:HEM CHANDRA BHATTA
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS
LAKHIMPUR
ASSAM
C/O SRI PURNA BHATTA
RESIDENT OF HOUSE NO. 25
BOISHOBPUR
PO PATHALIPAHAR
PS BIHPURIA
DIST LAKHIMPUR
ASSAM 784183
————
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 6 ORS
Linked Case : WP(C)/6308/2024
PANKAJ KAKOTY
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS
HEALTH AND FAMILY WELFARE DEPARTMENT
ASSAM
S/O LATE KAMAL KAKOTY
RESIDENT OF RUKMINI NAGAR
HOUSE NO. 8
BALIBAT
DISPUR
PS DISPUR DIST KAMRUPM ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
2:THE COMMSSIONER AND SECRETARY
Page No.# 6/28
TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
3:THE COMMISSIONER OF FOOD SAFETY AND DRUG ADMINISTRATION
ASSAM
BANPHOL PATH
GUWAHATI 06
4:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR GUWAHATI 06
5:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI 36
6:THE DRUGS CONTROLLER
ASSAM
HENGRABARI
GUWAHATI 36
7:PUJA DEBNATH
PRESENTLY HOLDING THE POST OF INSPECTOR OF DRUGS
KARIMGANJ
ASSAM
C/O SHRI BISWAJIT DEBNATH
RESIDENT OF HOUSE NO. 06
SILCHAR
PO RANGIRKHARI
PS RANGIRKHARI
DIST CACHAR
ASSAM 788005
————
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 6 ORS
Page No.# 7/28
BEFORE
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner: Mr. K.N. Choudhury, Senior Advocate
Mr. M. Ahmed, Advocate
For the Respondents: Mr. D. Saikia, Advocate General
Mr. B. Gogoi, Addl. AG
Date of Hearing : 15.05.2025, 22.05.2025
Date of Judgment : 27.08.2025
Judgment and Order (CAV)
Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. M.
Ahmed, learned counsel for the petitioners. Also heard Mr. D. Saikia, learned
Advocate General assisted by Mr. B. Gogoi, learned Additional Advocate General
for the respondents.
2. WP(C)/2135/2025 and WP(C)/6308/2024 are filed by the petitioner namely
Pankaj Kakoty. In WP(C)/2135/2025, the petitioner has assailed the order dated
11.04.2025 passed by the Department of Health and Family Welfare, whereby
the representation preferred by the petitioner for considering the regularization
of the services of the petitioner as an Inspector of Drugs under the Department
of Health and Family Welfare stood rejected. WP(C)/6308/2024 is filed by the
petitioner, Shri Pankaj Kakoty challenging the transfer order dated 24.11.2024
Page No.# 8/28
whereby the private respondent no.7 namely Puja Devnath serving in the post
of Inspector of Drugs, Karimganj was sought to be transferred to the post held
by the petitioner vide the impugned order dated 24.11.2024. Similarly, in
WP(C)/2137/2025 the petitioner therein has challenged the rejection of his
representation by the respondent Authority, vide the order dated 11.04.2025
whereby the proposal for regularization of the writ petitioners stood rejected.
WP(C)/6309/2024 is also filed by the petitioner, Purna Sindhu Mudoi, putting to
challenge the transfer order dated 24.11.2024 whereby the private respondent
no.7 Sri Hem Chandra Bhatta, who was serving as Inspector of Drugs in
Lakhimpur was sought to be transferred to the post held by the writ petitioner.
3. In WP(C)/6308/2024 and WP(C)/6309/2024, a Co-ordinate bench by order
dated 29.11.2024 while permitting the State Counsel to complete his
instructions, by way of an ad-interim measure directed that till the next day
fixed the service(s) of the petitioners shall not be disturbed in any manner. This
interim order came to be extended subsequently and is still in force. During the
pendency of these writ petitions, the Department by an order dated 11.04.2025,
rejected the representations of the writ petitioners, who had sought the
regularization of their services as Inspector of Drugs. The petitioners are
currently serving in the said post on an ad-hoc basis, having been appointed
under Regulation 3(f) of the Assam Public Service Commission (Limitation of
Functions) Regulation, 1951. Similarly, in WP(C)/2137/2025, a similar order
passed in the representation of the writ petitioner namely Purna Sindhu Mudoi
therein stood rejected by the order dated 11.04.2025. These orders came to be
passed during the pendency of the WP(C)/6308/2024 and WP(C)/6309/2024.
Since there was already an interim order passed in WP(C)/6308/2024 and
WP(C)/6309/2024 that the services of the writ petitioners shall not be disturbed
Page No.# 9/28
in any manner, this interim order was also extended to the writ petitions
WP(C)/2135/2025 and WP(C)/2137/2025. On the prayer of the learned counsel
for the parties, WP(C)/2135/2025 and WP(C)/2137/2025 was directed to be
tagged together and listed for hearing. All these petitions have come up for
hearing and are taken up together for the hearing and disposal.
4. Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. M. Ahmed,
learned counsel for the petitioners submits that the writ petitioners were
selected and appointed as Inspector of Drugs initially for the period of 4 months
under Regulation 3(f) of the Assam Public Service Commission (Limitation of
Functions) Regulation, 1951. The order dated 10.11.2005 also reflected the
years and places of posting of the petitioners. It is submitted on behalf of the
petitioners that the petitioner in WP(C)/2135/2025 and WP(C)/6308/2024 was
posted in Karimganj and the petitioner in WP(C)/2137/2025 and
WP(C)/6309/2024 was posted in North Lakhimpur. Pursuant to said order dated
10.11.2005, the petitioners joined in their services on 16.11.2005 and
11.11.2005 respectively. It is submitted that subsequently, their ad-hoc
appointments were extended from time to time and the petitioners have
continued to render their services without having been regularized by the
Department as no steps were taken by the department to send proposals for
regularization of the writ petitions. It is submitted that by an Office
Memorandum number ABP 118/2003/464 dated 16.03.2015, the Department of
Personnel (B), Government of Assam undertook an exercise for regularization of
employees working under Regulation 3(f) under various Departments subject to
fulfillment of the conditions mentioned in the Office Memorandum, more
particularly at Clause-VI thereof. The list of candidates in the various
departments whose cases have been considered for regularization were also
Page No.# 10/28
appended to the office memorandum dated 16.03.2015. In so far as the
Department of Health and Family Welfare is concerned, names of only two
candidates who were serving as Research Assistants, namely Sri Rafiqur
Rahman and Sri Satyendra Prasad Baruah were found in the list. The total
number of employees as indicated under the various departments, as is
reflected in the enclosure to the Office Memorandum dated 16.03.2015, stood
at 90 candidates.
5. The writ petitioners were aggrieved that although they were also similarly
situated candidates, their names were not considered by the department under
this Office Memorandum dated 16.03.2015 and as such they were aggrieved by
their non-considerations. It is submitted by the learned Senior Counsel that the
Office Memorandum dated 16.03.2015 clearly indicates that the steps taken by
the Department were intended as a one-time measure. Therefore, the Senior
Counsel argues, there was no justifiable reason for the respondents to have
been excluded the petitioner from this consideration. The petitioners, being in
service under the same conditions as those who were considered, ought not
have been left out of the process for regularization undertaken by the
respondents as a one-time measure. Since their names were not included by
Office Memorandum dated 16.03.2015, a representation was preferred and
since the representation was not disposed of, the petitioners approached this
court by filing WP(C)/3383/2015. During the pendency of the said writ petition,
the Department of Health and Family Welfare by order dated 25.04.2017,
disposed of the representations of the petitioners holding that their cases
cannot be considered for regularization on the grounds and reasons mentioned
therein.
Page No.# 11/28
6. Being aggrieved by the said order being WP(C)/2812/2017 and
WP(C)/3383/2015 came to be filed by the petitioners. Subsequently,
WP(C)/2812/2017 and WP(C)/3383/2015 were disposed of by the common
judgment and order dated 24.11.2023 whereby the respondents were directed
to reconsider and revisit the case of the writ petitioners by considering all the
attending facts and circumstances, including the cases of the persons
regularized under 3(f) under the various departments, including under the
Department of Health and Family Welfare. The respondents were directed to
take note of the fact that the government at the appropriate level has taken a
conscious decision to take a one-time measure for regularization of the
incumbents who had rendered ad-hoc services under Regulation 3(f). The order
dated 25.04.2017 by which the cases of the writ petitioners were rejected and
was interfered and set aside and the matter was remanded back to the
authorities to re decide the question of conferring the benefit of regularization.
The entire exercise was directed to be completed within 90 days from the date
of receipt of the certified copy of the order. Since this direction was not
complied with by the respondent authorities, contempt petition was also filed by
the petitioners and subsequently by order dated 11.04.2025 the respondent
Authority reconsidered the matter and whereupon the representations filed by
the petitioner dated 07.11.2023 and 12.12.2023 respectively stood rejected.
Being aggrieved the speaking order dated 11.04.2025 whereby the claims of the
writ petitioners for regularization was again rejected is assailed in the present
writ petitions being WP(C)/2135/2025 and WP(C)/2137/2025 by the writ
petitioners respectively.
7. The learned Senior Counsel for the petitioners has urged before the court
that reading of the earlier order passed by the departmental authorities being
Page No.# 12/28
order dated 25.04.2017 which stood interfered with by this Court by judgment
and order dated 24.11.2023 passed in WP(C)/2812/2017 and WP(C)/3383/2015
and the impugned order dated 11.04.2025 together, it is apparent that although
the respondents were directed to revisit the claims of the writ petitioners
seeking regularization of their 3(f) services, the respondents had merely
reiterated their stand as reflected in the earlier order passed dated 25.04.2017.
The learned Senior Counsel submits that the petitioners have been rendering
their services diligently and for that can be attributed to them their services
were not considered for regularization by the department in spite of they having
rendered their services for long years under Regulation 3(f). The non-
consideration of their services for regularization get that the failure for
regularization of their services cannot be attributed to the petitioners as the
proposal and the process has to be undertaken by the concerned department. It
is submitted that the state at its highest level had considered the plight of the
services rendered by employees under Regulation 3(f) and had taken a decision
for one-time measure to regularize such employees. The Office Memorandum
dated 16.03.2015, contained the list of about 90 employees who had rendered
services under Regulation 3(f) and the departments in which they rendering
services. Although the Department of Health and Welfare is also included in the
list, the names of only two Employees of the said department was included in
the list excluding the present writ petitioners for reasons best known to the
respondents. Mr. Choudhury therefore submits that where the government has
taken a decision to regularize the services of 3(f) employees, the claims of the
petitioners cannot be denied when similar benefits are being granted to other
similarly situated employees who were also rendering their services under
Regulation 3(f). Referring to the Office Memorandum dated 16.03.2015 the
Page No.# 13/28
learned Senior Counsel submits that the petitioners fulfill all the conditions
mentioned in Clause-VI and therefore this Court on the earlier occasion
considered it appropriate to set aside the order dated 25.4.2017 passed by the
respondent authorities. The learned counsel for the petitioners relies upon the
following judgments in support of his contentions- Shyam Kumar Yadav & Anr.
Vs. The State of Madhya Pradesh & Others (WA No.25609/2018), Raman Kumar
& Others Vs. Union of India & Others (2023 LiveLaw SC 520), Shripal & Anr. Vs.
Nagar Nigam, Ghaziabad (Civil Appeal No.8157/2024), Jaggo Vs. Union of India
& Others (2024 INSC 1034).
8. The respondents have contested the matter by filing their affidavits. The
learned Advocate General represents the State respondents. He strongly
disputes the contentions raised by the petitioners. He submits that the
department has correctly passed the order dated 11.04.2025 upon consideration
of all the attending facts and circumstances and therefore the petitioners having
been found to be not suitable as they did not fulfill the required conditions
prescribed in the Office Memorandum dated 16.03.2015, their cases were not
considered for regularization and their representations accordingly stood
rejected. Referring to the Office Memorandum dated 16.03.2015, the learned
Advocate General submits that the Office Memorandum is very clear in respect
of the criteria which are to be satisfied by the candidates who can claim
consideration under the said Office Memorandum. He submits that this Office
Memorandum is applicable for all candidates who are rendering their services
under Regulation 3(f) of the APSC (Limitation of Functions) Regulation, 1951,
who have crossed the upper age limit specified for appearing in the
interview/the test held by the APSC for the posts that they are holding now and
therefore, they are left with no chances to get regularized the said posts. The
Page No.# 14/28
Office Memorandum further prescribes that cases of the incumbents who have
not appeared in the APSC test or interview and those whose cases have been
sub-judice are outside the purview of the Office Memorandum. He therefore
submits that it is only those candidates working under Regulation 3(f) who
satisfy this criteria and whose proposals are forwarded by the concerned
department for regularization under Office Memorandum dated 16.03.2015 were
considered by the Department. He further submits that the conditions
prescribed in Clause-VI, which the petitioners claim to satisfy, cannot be read in
isolation. It must be read with the conditions prescribed in the Office
Memorandum dated 16.03.2015 in its entirety. It is further submitted that the
Clause-VI of the said Office Memorandum is not the criteria which can
determine the claim of incumbents for consideration of their cases for
regularization, but it rather lays down the procedure to be followed by the
departments in putting up the proposals for regularizations. Such procedure will,
however, have to be subject to the conditions mentioned in the Office
Memorandum referred to by the learned counsel before the Court. The learned
Advocate General further submits that the two employees of the Department of
Health and family welfare who were considered and whose names are found in
the list appended to the Office Memorandum dated 16.03.2015, have satisfied
the criteria prescribed under the Office Memorandum dated 16.03.2015. With
regard to the contentions on behalf of the writ petitioners that although in
respect of other similarly situated candidates, certain benefits have been
granted although the same have been denied to the petitioner, it is submitted
that such benefits even if conferred, will not entitle the petitioners to pray for a
direction or a mandamus from this Court, as it will amount to grant of negative
equality sought to be projected by the petitioners and will amount to
Page No.# 15/28
perpetuating illegality. The learned Advocate General further submits that this
Office Memorandum dated 16.03.2015, is a step which ought not to have been
taken by the State at the relevant point in time and it is a step in retrograde to
the settled position of law as have been declared by the Supreme Court time
and again. The learned Advocate General submits that the Office Memorandum
dated 16.03.2015 was issued on the basis of an opinion rendered by the
Advocate General of the State, which is reflected in the Office Memorandum
dated 16.03.2015 itself. He submits that this opinion perhaps is not a correct
opinion and which ought not to have been rendered by the Chief Legal Advisor
of the State as the Office Memorandum was issued, on 2015, which is pursuant
to the judgment rendered in Uma Devi and Others Vs. Secretary, State of
Karnataka and others reported in 2006 4 SCC 1. It is submitted that pursuant to
the law laid down by the Apex Court in Uma Devi (supra) all these claims made
by the petitioners cannot be entertained, notwithstanding the Office
Memorandum dated 16.03.2015. In any view of the matter, since the process
undertaken in terms of the Office Memorandum dated 16.03.2015 was stated to
be a one-time measure and the employees whose names figure in the list
appended to the Office Memorandum dated 16.03.2015 and who were
rendering services under Regulation 3(f) and whose claims have since been
considered and have been regularized, their individual cases are not assailed
before this court by the petitioners as none of the employees including those
regularized under the Department of Health and Family Welfare are arrayed as
parties. In such an event, it is clear that the petitioners are not questioning the
regularization of Sri Rafiqur Rahman and Satyendra Prasad Baruah (Research
Assistants) who are employed under the Health and Family Welfare Department
as they are not arrayed as party respondents in the present proceedings.
Page No.# 16/28
However, in view of the law laid down by the Apex Court in Uma Devi (supra)
with a clear finding that no direction can be issued for regularization of such
candidates save and accept under any such scheme as may be framed by the
Government, the prayers made in the writ petition cannot be entertained. The
order impugned in the present proceedings was passed in view of the directions
of this Court in the earlier round of litigation passed in WP(C)/3383/2015 vide
the judgment and order dated 24.11.2023. The order impugned in the present
proceedings is a detailed order which was passed by the respondent authorities
taking into consideration all the facts and circumstances and therefore there is
no infirmity in the said order and consequently, no interference is called for.
Therefore, there is no merit in the writ petition the same should therefore be
dismissed. The learned counsel for the respondents refers to and relies upon the
following judgments- Pranjit Kumar Das Vs. State of Assam & Others ( 1995 1
GLR 229), Debabrat Borgohain & Others Vs. Dilip Hazarika & Others (1996 (3)
GLT 310), Anamika Tamuli Vs. State of Assam & Others (2018 (2) GLT 376),
Saurav Jyoti Parasor & Others Vs. State of Assam & Others (2022 6 GLR 308),
Uma Devi & Others Vs. Secretary, State of Karnataka & Others (2006 4 SCC 1).
9. The learned counsel for the parties have been heard. Pleadings available
on records have been carefully perused. The issue before this court is whether
the petitioners claim for regularization had been duly considered by the
respondent authorities as had been directed by this court of vide the earlier
judgment and order dated 24.11.2023 passed in WP(C)/2812/2017 and
WP(C)/3383/2015.
10. To answer this question, it is necessary to refer to the Office
Memorandum dated 16.03.2015. The same is extracted below-
Page No.# 17/28
GOVERNMENT OF ASSAM
DEPARTMENT OF PERSONNEL:: PERSONNEL B
OFFICE MEMORANDUM
No: ABP 118/2003/464 Dated Dispur the 16th March 2015
Sub: Appointments under Regulation 3(f) of APSC Limitation of Functions Regulations,
1951 and one time measure for regularisation of certain such appointees.
Various Departments of Government of Assam from time to time exercising power under
Regulation 3(f) of APSC Limitation of Function Regulation [henceforth referred to as
Regulation 3(f)] gave appointments to various candidates to tackle emergency situations
faced by those Departments.
Many such candidates initially appointed for four months under Regulation 3(f) are
continuing in the services year after year in an ad-hoc manner without regularisation. All
these candidates have already crossed the upper age limit specified for appearing in the
interview / test held by the APSC for the posts that they are holding and therefore left
with no chances to get regularised in the post.
Evidently, this situation has arisen mainly due to unwarranted exercise of power under
Regulation 3(f) by the Departments, failure on the part of the APSC to hold interviews in
timely manner and also the failure on the part of the Departments to move APSC for
regular recruitment.
As communicated by the concerned Departments, all these Regulation 3(f) appointees
now under consideration, are working in regular vacancies mainly under various orders of
the High Court and drawing their regular salaries as admissible. However, those cases
where the incumbent concerned have not appeared) the APSC test/interview and those
whose cases are sub-judice are outside the purview of this OM.
Government after careful consideration of the matter after taking into account of the
views of Finance and Judicial Departments in individual cases, the views offered by
Advocate General Assam, on the matter, and also the observation of the Supreme Court
in Jacob M. Puthuparambil v. Kerala Water Authority & Ors, AIR 1990 SC 2228 case, have
decided to lay down the following policy guidelines in the matter of appointment under
Regulation 3(f) and regularisation of the existing 3(1) appointees as aforementioned so
as to prevent emergence of any similar situation in future that may compel government
to resort to such measure as this.
I. Henceforth no appointment shall be made under the Regulation 3(f) without prior
concurrence of Personnel and Finance Department and with the approval of the Cabinet.
II. Any such proposal as cleared by the State Cabinet for appointment under Regulation
3(f) shall have to pass through all the steps as laid down in the guidelines in OM No ABP
89/99/19 dated 29th October 2001 read with ABP 59/99/129 dated 30th June 2001
Page No.# 18/28
(copies enclosed).
III. Any fresh appointment made under Regulation 3(1) after issue of this OM shall get
only two extensions of the term and then their services shall stand automatically
terminated. Personnel B Department shall communicate the date of termination while
allowing the extension of the second term.
IV. All the Departments shall immediately work out the number of employees appointed
under Regulation 3(f) working in the establishments under their control and take up with
APSC for advertisement of the posts within three months from the date of issue of this
OM with intimation to the Personnel-B Department.
V. Personnel B Department shall not allow any further extension of the term of any
employee appointed under Regulation 3(f) which exceeds beyond 6 six months from the
date of issue of this OM and will take up the matter with each of the Departments and
APSC for advertisement of such posts within the stipulated time. There shall be no person
appointed under Regulation 3(f) with effect from first day of the December 2015.
VI. The list of employees appointed under Regulation 3(f) who have been considered
here as an exceptional case and one time measure for regularisation, as appended at
Annexure-A, and who have rendered services to Government varying from 9 years to 22
years, shall be regularised with immediate effect subject to the condition that:
i. Each such employee shall be regularised against the regular vacant posts which
they are holding currently and drawing salaries thereon.
ii. Each Department whose names have been figured in the Annexure-A against
the names of the employees, shall examine and verify the cases of these
employees individually with reference to their eligibility in terms of the
educational and other qualifications as required at the time of their initial
appointments in regard to the post that they are now holding.
iii. On such verification, the Department will issue order of regularisation with
immediate effect on the strength of this CM.
iv. On such regularisation, such incumbents will be eligible for the regular service
benefits/ conditions as laid respective Service Rules. down in thev. The seniority of the employees in their respective cadres will be counted w.e.f
the date of order of regularisation.
vi. Their past services inay be counted only for the purpose of calculation of
pension benefits and for no other purposes.
VII. This is sought to be done as an exceptional case and one time measure and shall not
be taken to recourse in future.
Action taken report on the matter shall be submitted to the Personnel-B Department
Page No.# 19/28regularly on monthly basis till such time as there exist any 3(f) appointee in any
establishments under the Department.
Sd/ (S.C. Das IAS)
Additional Chief Secretary to the Government of Assam Departinent of
Personnel::Personnel BMemo No: ABP 118/2003/464-A Dated Dispur the 16th March 2015
11. From a perusal of the Office Memorandum dated 16.03.2015 it is seen
that the criteria specified for consideration of the cases for regularization of their
services can be culled out as under :-
1. Only those appointees to be considered who had already crossed the upper age
limit specified for appearing in the interview/test held by APSC for the post that they are
holding and therefore left with no chances to get regularized in the post;
2. Appointees who had not appeared the APSC test/interview were outside the
purview of the OM;
3. Incumbents whose cases were sub-judice were also outside the purview of the
OM;
4. Regularization shall only be for those who had rendered services to Govt. varying
from 9 years to 22 years when the OM came into force;
12. Further the procedure to be adopted by the department in respect of
those candidates upon their satisfaction of the criteria as specified is about are
prescribed under Clause-VI. These conditions are also extracted below :-
i. Each such employee shall be regularised against the regular vacant posts which
they are holding currently and drawing salaries thereon.
ii. Each Department whose names have been figured in the Annexure-A against the
names of the employees, shall examine and verify the cases of these employees individually
with reference to their eligibility in terms of the educational and other qualifications as
required at the time of their initial appointments in regard to the post that they are now
holding.
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iii. On such verification, the Department will issue order of regularisation with
immediate effect on the strength of this OM.
iv. On such regularisation, such incumbents will be eligible for the regular service
benefits/conditions as laid down in the respective Service Rules.
v. The seniority of the employees in their respective cadres will be counted w.e.f. the
date of order of regularisation.
vi. Their past services may be counted only for the purpose of calculation of
pension benefits and for no other purposes.
13. From the above, it appears that the criteria prescribed under the Office
Memorandum dated 16.03.2015 are very clear that the appointees will be
considered only if they have crossed the upper age limit specified for appearing
in any interview or test held by the APSC for the purpose and are therefore left
with no chances to get regularized. Further, the regularization will be for those
candidates who have rendered Government services varying from 9 to 22
years. The criteria clearly specifies that the candidates who did not appear for
the APSC test or interview were outside the purview of the Office
Memorandum as also those incumbents whose cases were sub-judice. In the
facts of the present proceedings it is seen that the present petitioner satisfies
the requirement of the length of services for being included in for due
consideration. However, from the impugned order it is seen that the
respondent authorities have indicated in the impugned order that the
petitioners did not avail of their opportunity for applying in appearing in APSC
test or interview for regular appointment by the APSC for 12 number of posts
of the Inspector of Drugs vide the advertisement dated 26.10.2016 and the
subsequent advertisement for recruitment of 12 numbers of Inspector of Drugs
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vide the advertisement dated 20.01.2018. The authorities came to be finding
that the petitioners did not appear in the examination and get qualified for
which they were otherwise eligible to appear for. According to the respondent
department, the upper age limit for Government employment for General
category is 43 years and which is relaxable by further five years in case of
Scheduled Tribe and Scheduled Caste candidates. The ages of the petitioners
Sri Pankaj Kakoty on 01.01.2017 was 39 years 5 (five) months and the age of
Sri Purna Sindhu Mudoi was 37 years 3 (three) months and further Sri Purna
Sindhu Mudoi belongs to the Scheduled Caste category. Therefore, it is further
relaxable by another five years over and above the upper age limit of 43 years
in case of petitioner Shri Purna Sindu Mudoi. In the pleadings before the Court,
no averment is found on behalf of the petitioner that this finding by the
respondent authority was not correct on facts. There is also no avernment in
the petition to explain as to why the writ petitioners did not consider appearing
in the interview or test conducted by APSC vide the advertisement dated
26.10.2016 and the advertisement dated 20.01.2018. The Assam Public
Service Commission (Limitation of Functions) Regulations, 1951 have been
framed under the powers conferred under Article 320(3) of the Constitution of
India. This Regulation provides for the circumstances and the situations which
are an exception for the mandatory consultation with the Assam Public Service
Commission of the State. Regulation 3(f) is one such situation which is
prescribed under these set of Regulations where in public interest if the
appointment should be made immediately and reference to the commission
would cause undue delay and where the appointment is to be made by direct
recruitment to a temporary post created in the service provided that if the post
has been sanctioned for or is likely to last for more than 4 (four) months,
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commission as soon as possible will be consulted in all matters mentioned
under clause 3 of the article 320 of the Constitution of India. Under the
provisions of Regulation 3(f) itself although prior consultation with the
commission in cases of exigencies of service made in public interest need not
be made if the authorities are of the view that it will cause undue delay.
However, if the post has been sanctioned or is likely to last for more than 4
(four) months, the Commission shall as soon as possible be consulted in all
matters.
14. In these proceedings, although the claim of the petitioner is based on the
Office Memorandum dated 16.03.2015 and the respondents have also defended
the order dated 11.04.2025 impugned in the present with petitions, what has
not been placed by the either parties before the Court are the views of the
Assam Public Service Commission pursuant to the appointment of the
petitioners under Regulation 3(f). No information is placed before the Court as
to whether pursuant to the appointment of the petitioner under Regulation 3(f),
the Commission was consulted and if so, what opinion was rendered in respect
of the writ petitioners. The APSC is also not arrayed as a party respondent in
the present proceedings from the impugned order it is seen that a Medical and
Health Recruitment Board was constituted by the State to look into all matters
in respect of recruitment to all posts under the Health and Family Welfare
Department, including the posts of Inspector of Drugs. The said Board is also
not arrayed as a party in the present proceedings. From the arguments made
before this Court, it appears that all matters relating to the recruitment of the
posts under the Health and Family Welfare Department are required to be
conducted and regulated by the Medical and Health Recruitment Board. In the
context of the present proceedings, whether the cases of the petitioners were
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also required to be placed before the Medical and Health Recruitment Board is
also not the pleaded case projected in the present proceedings. This court is
confronted with a very specific prayer that the petitioners claim similar benefits
as have been conferred on those 90 employees who were also appointed on
under regulation 3(f) and whose names are appended to the Office
Memorandum dated 16.03.2015. The challenge made in the present writ
petition although is to the impugned order dated 11.04.2025, it is essentially
and specifically directed against the denial of the claims of the petitioners, as
have been conferred on the said 90 employees whose names are reflected in
the list appended to the Office Memorandum dated 16.03.2015. The benefits
conferred on these employees have not been specifically challenged including
the benefit conferred on two employees under the Health and Family Welfare
Department. These persons are not arrayed as party respondents. The learned
counsel for the petitioner has made a specific submission before the court that
they do not wish to challenge the benefits conferred on any of these employees
including the two employees under the Health and Family Welfare Department.
A specific plea before this Court is that the petitioners are to be conferred
similar benefits as have been granted under the Office Memorandum dated
16.03.2015 as the petitioners claim to be similarly situated and does satisfy all
the criteria specified in the Office Memorandum dated 16.03.2015.
15. The Office Memorandum dated 16.03.2015 is also not under challenge
questioning the benefits conferred on the employees whose names are reflected
in the list appended to the Office Memorandum dated 16.03.2015.
16. From a perusal of the Office Memorandum dated 16.03.2015, it is evident
that this Office Memorandum was issued on the basis of an opinion rendered by
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the learned Advocate General of the State who had rendered the opinion placing
reliance on the judgment of the Apex Court rendered in Jacob M. Puthuparambil
and Others Vs. Kerala Water Authority and Others reported in AIR 1990 SC
2228. There is no mention of the date on which the then learned Advocate
General of the State rendered the opinion however, the office memorandum
reflecting the same was issued only on 16.03.2015. The Judgment of the Apex
Court rendered in Jacob M. Puthuparambil (supra) was subsequently been
overruled on the point of the claim made by ad-hoc or temporary workers for
regularization. With effect from the date of the judgment rendered in Uma Devi
(supra) dated 10.04.2006, the Apex Court clearly laid down that judgments
which run counter to the principles settled in Uma Devi (supra), or which issue
directions contrary to those principles, would no longer hold precedential value.
Accordingly, in light of such specific directions issued by the Apex Court in Uma
Devi (supra), the judgment rendered by the Apex Court in Jacob M.
Puthuparambil (supra) had lost its status as a binding precedent from the date
of the Uma Devi judgment, i.e., 10.04.2006. The Judgment of Uma Devi (supra)
was considering the issue of regularization of employees who had rendered
years of services. In so far as the rights of employees who were appointed
without following the due process of law, the Apex Court held that the rights of
the employees who were appointed on daily wage basis have violated under
Article 14 and 16 of the Constitution. The Apex Court held that no rights can be
founded on an employment on daily wage to claim that such employees should
be treated at a par with the regularly recruited candidates. There is no
fundamental right in those who have been employed on daily wages or
temporarily or on contractual basis to claim that they have a right to be
absorbed in service. The Apex Court held that they cannot be said to be holders
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of a post since a regular appointment could be made only by making
appointments consistent with the requirements of Article 14 and 16. The Apex
Court held that the Rule of law compels the State to make appointments as
mandated by the Constitution and in the manner prescribed. Accepting an
argument that State action in not regularizing the employees was not fair within
the framework of Rule of law, would be amount to permit the State to
perpetuate an illegality in the matter of public employment and that would be a
negation of the constitutional scheme adopted by the people of India. The Apex
Court held that when a Court is approached by a relief, by way of writ, the Court
has necessarily to ask itself whether the person before it had any legal right to
be enforced. Considered in the light of the very clear constitutional scheme, it
cannot be said that the employees have been able to establish legal rights to be
made permanent, even though they were never been appointed in terms of the
relevant Rules and in adherence of the Articles 14 and 16 of the Constitution of
India.
17. Although the Judgment of the rendered by Uma Devi (supra) was in the
context of the claims of the regularization or the plea of regularization made by
daily wage workers and the consideration of their constitutional rights vis-a-vis
the regularly appointed employees in view of the long years of services
rendered by these daily wage workers, the principle which can be culled out
from the judgment of Uma Devi (supra) is that the claim of any person for a
direction for regularization cannot be issued unless the litigant satisfies the
Court that there was a statutory duty cast upon the respondent authority to
accept the plea of regularization and passed consequential orders thereon. The
State however, is within its powers to frame any such scheme as may be
convenient for regularization of the services of such employees.
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18. Coming to the facts of this case, it is seen that the petitioners were
employed under Regulation 3(f) and the Regulation 3(f) is only an exception
towards consultation with the Assam Public Service Commission prior to making
such appointments through direct recruitment where the appointments are
required to be made immediately in public interest and prior consultation will
cause undue delay. But the Regulation 3(f) does not exclude consultation with
the Commission completely. The Commission has to be consulted upon such
appointments being made under Regulation 3(f) and subsequently for
confirmation of the services. As have been discussed above, these views of the
Commission are not placed before the Court by either of the parties. The APSC
is also not arrayed as a party nor have the petitioners sought for any relief or
direction towards the APSC in the present proceedings. The only plea before the
Court is that as the writ petitions are also similarly situated as the employees
who were regularized and whose names find mention in the Office
Memorandum dated 16.03.2015 and who were appointed under Regulation 3(f)
and their services were regularized as a one-time measure overlooking the
claims of the writ petitioners, similar benefits should be conferred on the writ
petitioners as they are also similarly situated like those persons.
19. The State has also not placed before the court the steps they intend to
undertake in respect of the writ petitioners as they have apparently served for
more than 20 years of service.
20. Taking into consideration the submissions made by the learned counsel for
the parties and upon careful perusal of the pleadings more particularly the
impugned order dated 11.04.2025 read with the Office Memorandum dated
16.03.2015. This court is not inclined to allow the prayers made in the writ
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petition for a direction for regularization of the petitioner in terms of Office
Memorandum dated 16.03.2015. The petitioners do not fulfill the criteria
specified in the Office Memorandum dated 16.03.2015 as have been seen from
the order dated 11.04.2025 past, which is impugned in the present proceedings.
On a date when the Department considered the proposals, the petitioners were
not over-aged, and as such, their eligibility for regular appointment had not
been restrained.
21. Under such circumstances, the claims made by the petitioners cannot be
accepted. The writ petition being devoid of merit, their claims stand rejected.
22. However, since the petitioners were appointed as under Regulation 3(f)
appointees by the State, and they have continued to render services for more
than 20 years since their date of initial appointment in the year of 2005 on their
services being extended periodically by the State, and also in the absence of
any explanation on behalf of the State as to why the cases of the petitioners
were allowed to be continued under Regulation 3(f) without any proposal for
regularizing their services, the petitioners shall not be terminated from their
services till such time the department takes a decision in the matter in terms of
the relevant Rules as well as the provisions of the Assam Public Service
Commission (Limitation of Functions) Regulation, 1951. The respondent
department will have to take a call on what steps the department would like to
take in respect of the writ petitioners, keeping in view the long tenure of service
that they have rendered. The respondent department will therefore consider the
cases of the petitioners in terms of the relevant Rules including the Assam
Public Service Commission (Limitation of Functions) Regulation, 1951 and other
relevant Rules and pass appropriate orders as regards their continuation in
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service. Till such time such orders are being passed by the department, the
petitioners will continue in their services.
23. In view of the discussions above, the Judgments pressed into service at
the bar have not been discussed.
24. In terms of the above directions, all the writ petitions stand disposed of.
No order as to cost.
25. The interim orders passed in this matter are hereby modified to the extent
indicated herein.
JUDGE
Comparing Assistant
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