Tripura High Court
Manik Majumder vs The State Of Tripura And 3 Others on 3 December, 2021
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) 800/2020
Manik Majumder ----Petitioner(s)
Versus
The State of Tripura and 3 others ----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate
Mr. K. Nath, Advocate
For Respondent(s) : Mr. D. Sarma, Additional GA
HON'BLE MR. JUSTICE ARINDAM LODH
Order
03/12/2021
Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. K.
Nath, learned counsel for the petitioner. Also heard Mr. D. Sarma, learned
Additional GA appearing for the respondents.
By way of filing the instant writ petition, the petitioner has prayed for a
direction upon the respondents to count half of the period of past service
rendered by the petitioner as contingent worker before his regularization as
MPW under Kamalpur Nagar Panchayat.
Briefly stated, the petitioner was first engaged on 02.08.1999 as DRW
without any financial concurrence which is revealed from Annexure 2 to the
writ petition. By order dated 21.11.2009, the service of the petitioner was
regularized w.e.f. 01.10.2009 in the scale of pay of Rs. 3300-7100/-. One
noticeable feature in the order dated 21.11.2009 is that "the pay and
allowances are to be paid from own resource revenue of Kamalpur Nagar
Panchayat‟, and further, „this regularization may be terminated at any time
without assigning any notice or one month's pay". While serving under
Nagar Panchayat in that capacity, the petitioner was superannuated from his
service on and from 30.11.2015. Since the petitioner has not completed 10
(ten) years of statutory qualifying service, he was not allowed any pension.
After his retirement on 30.11.2015, the petitioner had filed repeated
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representations to the authority concerned of Nagar Panchayat to disburse
his pension, but, since the matter was not considered by the respondent-
Nagar Panchayat, the petitioner has knocked the door of this court for proper
redress for granting him the benefit of pension. It is the case of the petitioner
that if half of the period of his past service, which he rendered as contingent
worker is counted, then, he would be treated to have completed 10 (ten)
years of qualifying service, which will entail him to get pensionary benefits.
On the aforesaid factual backgrounds, Mr. Roy Barman, learned senior
counsel has invited my attention to the memorandums issued time to time by
the Finance Department, Government of Tripura stipulating that in case of
contingent workers, half the period of continuous service rendered by a
contingent employee, shall be counted for consideration of payment of
pension, etc. The memorandums are enclosed as Annexure 10, 11 and 12 to
the writ petition. Refuting the respondents‟ plea which are available from the
counter affidavit, learned senior counsel has submitted that the respondent
nowhere in their counter affidavit have stated that respondent-Nagar
Panchayat has not adopted the aforesaid memorandums issued by the
Finance Department, Government of Tripura, and according to learned
senior counsel, these memorandums are equally applicable to the employees
of Nagar Panchayats. Mr. Roy Barman, has pressed into service a decision
of the High Court of Himachal Pradesh in case of Smt. Sheela Devi vs. State
of H.P. and others, reported in CWPOA No. 195 of 2019, wherein a learned
Division Bench of the said court had observed thus:
"14. The taking of work on contractual basis for long amounts to adopting the
exploitative device. Later on, though the services of the husband of the petitioner as
observed above, were regularised. However, the period spent by him on contractual
basis, has not been counted towards the qualifying service. Thus, the respondents
have not only deprived the deceased husband of the petitioner from the due
emoluments during the period he served on less salary on contractual basis but he
was also deprived of counting of the period for pensionary benefits".
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I have perused the judgment as referred to be learned senior counsel. I
find that the facts of the case of Sheela Devi supra has no relevance to
context of the present case.
Refuting the submission of learned senior counsel for the petitioner,
Mr. Sarma, learned Additional GA appearing for the respondents has
submitted that the memorandums relating to counting half of the period of
past service as contingent worker shall not be applicable to Nagar
Panchayats. Furthermore, it is submitted that the instant writ petition should
be dismissed at threshold on the grounds of delay and laches.
At this juncture, learned senior counsel for the petitioner has
submitted that in the counter affidavit, the State-respondents have not taken
this plea. So, this plea should not be raised at this stage.
I have considered the rival submissions advanced by the learned
counsels appearing for the parties to the lis.
At the very outset, this court has put a question to learned senior
counsel for the petitioner to show a single scrap of paper to justify that
Nagar Panchayat has adopted the memorandums issued time to time by the
Finance Department, Government of Tripura for counting of half of the
period of past service of the contingent workers for extending the benefits of
pension, etc., but, he could not produce any such paper before this court.
The service conditions of the employees of Nagar Panchayat are
regulated by Tripura Municipality Act, and not by any statute of State
government. Furthermore, I have noticed that though this plea of adoption of
memorandums of counting of past service has not been directly dealt with by
the State-government, but, they have categorically stated that these are
matter of records. Since there is no record that Nagar Panchayats have
adopted those memorandums, in my opinion, the memorandums issued by
Finance Department, Government of Tripura for counting half of the period
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of past service of contingent workers shall not be applicable to the
employees of Nagar Panchayat.
Admittedly, the petitioner has not completed 10 (ten) years of
qualifying service as required under CCS(CCA) Rules. One noticeable
feature, as I said earlier, that in the order of regularization of the petitioner,
as surfaced in the order dated 21.11.2009, it is categorically mentioned that
the pay and allowances would be paid from the revenue generated from own
resource of Kamalpur Nagar Panchayat. Thus, it is aptly clear that all
benefits if necessarily to be provided to the petitioner by operation of any
law, then, it would be considered by Kamalpur Nagar Panchayat and not by
State-respondents. Added to that, the petitioner was engaged as MPW by the
authority of the Nagar Panchayat without financial concurrence of the state-
government.
As such, Kamalpur Nagar Panchayat is directed to proceed with the
matter to determine the eligibility of pension in favour of the petitioner in
accordance with law, and Kamalpur Nagar Panchayat, respondent no. 3 must
take such steps, within the ambit of law, within a period of 3 (three) months
from the date of receipt of the copy of this order.
Accordingly, the instant writ petition stands disposed of.
Pending application(s), if any, also stands disposed of.
JUDGE
Saikat
