Smt. Supriya Chakraborty vs Tripura University
2021 Latest Caselaw 1283 Tri

                           IN THE HIGH COURT OF TRIPURA
                                        AGARTALA
                                      WP(C)No.608 of 2021
      Smt. Supriya Chakraborty,
      MRW (Group-C), Tripura University,
      daughter of late Sisir Ranjan Chakraborty,
      resident of Jogendranagar,
      P.O. Jogendranagar, Agartala,
      District : West Tripura
                                                                  ......... Petitioner(s)
                                         -Versus-
      1. Tripura University,
      A Central University,
      represented by the Registrar,           Tripura
      University,
      having office at Surjyamaninagar,
      P.O. Surjyamaninagar, PIN : 799002,
      Agartala, District : West Tripura

      2. The Registrar,
      Tripura University,
      having his office at Surjyamaninagar,
      P.O. Surjyamaninagar, PIN : 799022,
      Agartala, District : West Tripura
                                                                ........ Respondent(s)

      For the Petitioner (s)             :    Mr. T.D. Majumder, Sr. Adv.
                                              Mr. T. Halam, Adv.
      For the Respondent (s)             :    Mr. R. Datta, Adv.
      Date of hearing & delivery of      :    21.12.2021
      Judgment and Order
      Whether fit for reporting          :    NO


                          HON'BLE MR. JUSTICE S. TALAPATRA
                                JUDGMENT & ORDER

Heard Mr. T.D. Majumder, learned senior counsel assisted by Mr. T. Halam,

learned counsel appearing for the petitioner as well as Mr. R. Datta, learned counsel

appearing for the respondents.

2. The facts are mostly undisputed. The petitioner was appointed as the Daily

Rated Worker [DRW] [Group-C] on 27.12.2005 [see Annexure-7 to this writ petition] on

purely temporary basis.

3. Mr. T.D. Majumder, learned senior counsel appearing for the petitioner has

submitted that the petitioner was appointed on compassionate ground as her father

namely Sisir Ranjan Chakraborty died on 26.11.2005 in harness while he was working in

the Tripura University. Since such appointment, the petitioner has been discharging his

duties without blemish. On 09.08.2019, the petitioner made a representation to the Vice

Chancellor, Tripura University for her absorption in a regular post. The said representation

has not been disposed of. The petitioner has not been apprised of anything whether the

petitioner would be regularized or absorbed. According to the petitioner, there is a vacancy

in the post of Lower Division Clerk and the petitioner who has the educational and other

qualifications for appointment to that post. The petitioner has enclosed the recruitment

rules for the post of Lower Division Clerk with this writ petition [see Annexure-16 to the

writ petition]. But no positive action yielded from the end of the respondents. Hence, the

petitioner has urged this Court to direct the respondents to absorb her in the post of

Lower Division Clerk (LDC) following the instance of one Smt. Basanti Debbarma who had

been absorbed in the Group-C post under Die-in-Harness Scheme.

4. Mr. Majumder, learned senior counsel has drawn our attention to the

memorandum dated 07.05.2007 whereby the particulars of DRW/Casual workers etc. were

collected by the University for examining the feasibility of regularization.

5. Mr. R. Datta, learned counsel appearing for the respondents has submitted

that the petitioner does not have any indefeasible right to get regularization. In para-9 of

the reply filed by the University-respondents, it has been stated that no record has been

produced by the petitioner that she had the typing speed of 30 words per minute as

required as essential qualification for recruitment to the post of Lower Division Clerk. That

apart, it has been asserted that there is no rule or scheme under the University for

regularisation of service of the employees working for a certain period or more than such

period and as a result, the petitioner cannot get any benefit as prayed for. But, as regards

absorption of Smti. Basanti Debbarma, the University-respondents do not have any

satisfactory reply.

6. Having appreciated the submissions of the learned counsel for the parties,

this Court finds that at one point of time, the University-respondents had been exploring

the feasibility of regularization of those DRW/Contingent workers who had completed

fifteen years of service but nothing in culmination happened. The petitioner has completed

fifteen years of service as DRW and she has expressed her legitimate expectation for being

regularized in a post commensurate to her qualification. True it is that the University-

respondents do not have any scheme for regularisation, even no rule provides that a DRW

or a contingent worker will be entitled to regularization on completion of certain period of

service.

7. In such circumstances, the Court cannot direct the respondents to regularize

the petitioner as a matter of right, but at the same time it can be oblivious of, that the

petitioner has been working for more than fifteen years and discharging the regular

functions of a Lower Division Clerk on a fixed remuneration. In Narendra Kumar Tiwari

and Others versus State of Jharkhand and Others reported in (2018) 8 SCC 238

the apex Court having noted the proposition of Secretary, State of Karnataka and

Others versus Umadevi(3) reported in (2006) 4 SCC 1, has observed that on

completion of ten years service, one contingent or daily rated worker should be

regularized. The employer should regularize or absorb a person rendering long service,

more than ten years, as the contingent worker by framing a scheme or otherwise. The

relevant observations made in Narendra Kumar Tiwari are reproduced hereunder :

5. The decision in Umadevi (3):(2006) 4 SCC 1 was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.

6. The concept of a one-time measure was further explained in Kesari in paras 9, 10 and 11 of the Report which read as follows:

"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the

protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.

11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure."

7. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.

8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.

10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc."

The University-respondents, in the perspective facts, are directed to consider

the absorption of the petitioner in the post of Lower Division Clerk. Such consideration be

made by granting relaxation wherever is necessary within three months from the date

when the petitioner shall supply a copy of this order.

No order as to costs.

JUDGE

Sabyasachi B