Kasem Miya vs The State Of Tripura Represented ...
2021 Latest Caselaw 219 Tri

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                 HIGH COURT OF TRIPURA
                    A_G_A_R_T_A_L_A

                    WP(C) No. 1332 of 2017

1.   Kasem Miya, S/O. Suraj Miya, R/O. Vill-Bhati Abhaynagar,
     P.O. Agartala, P.S. West Agartala, District- West Tripura.

                                                  .....Petitioner

                        -V E R S U S-

1.   The State of Tripura represented by its Secretary cum
     Commissioner to the Department Higher Education, Govt. of
     Tripura, P.O. Kunjaban, P.S. New Capital Complex, District:
     West Tripura.

2.   The Director of Higher Education Department, Govt. of Tripura,
     P.O. Kunjaban, P.S. New Capital Complex, District: West
     Tripura.

3.   The Secretary cum Commissioner, Department of Finance, Govt.
     of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District:
     West Tripura.

                                              ..... Respondents.

WP(C) No. 1333 of 2017

1. Sri Abhiram Das, S/O Late Lalmohan Das, R/O Vill- Bhati Abhaynagar, P.O. Agartala, P.S. West Agartala, District: West Tripura.

.....Petitioner

-V E R S U S-

1. The State of Tripura represented by its Secretary cum Commissioner to the Department Higher Education, Govt. of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

2. The Director of Higher Education Department, Govt. of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

3. The Secretary cum Commissioner, Department of Finance, Govt.

of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

..... Respondents.

WP(C) No. 1334 of 2017

1. Sri Adhir Debnath, S/O- Late Bijoy Krishna Debnath, R/O- Vill-

A. D. Nagar, P.O. & P.S. A. D. Nagar, District: West Tripura.

.....Petitioner

-V E R S U S-

1. The State of Tripura represented by its Secretary cum Commissioner to the Department Higher Education, Govt. of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

2. The Director of Higher Education Department, Govt. of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

3. The Secretary cum Commissioner, Department of Finance, Govt.

of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

..... Respondents.

                     B_E_F_O_R_E
           HON'BLE MR. JUSTICE ARINDAM LODH

For Petitioner(s)           :       Mr. S. Dey, Advocate.
For Respondent(s)           :       Mr. D. Sarma, Addl. G.A.
Date of hearing
and delivery of
judgment and order          :       23.02.2021
Whether fit for reporting   :       NO





                    JUDGMENT & ORDER [ORAL]

Heard Mr. S. Dey, learned counsel appearing for the petitioners. Also heard Mr. D. Sarma, learned Addl. G.A. appearing for the State-respondents.

[2] By way of filing these writ petitions, the petitioners have prayed for the following reliefs and it appears that the prayers made in these writ petitions are same in nature:

"(I) Issue notice upon the respondents.

(II) Call for the records.

(III) Issue rule calling upon the respondents to show cause as to why a writ of mandamus directing the respondents to engage the petitioner as Daily Rated Worker (DRW) from 2002 i.e. on the completion of 10 years of service as Part time worker and provide the petitioner all the financial benefits thereunder from 2002 itself and further to regularize the petitioner w.e.f. 2012 i.e. on the completion of 10 years of service as DRW and provide them the financial benefits thereunder with retrospective effect, shall not be passed.

AND/OR Issue rule calling upon the respondents to show cause as to why a Writ of certiorari for setting aside/modifying the memorandum dated 17.05.2013 whereby the petitioner was appointed as Daily Rated Worker in 2012 whereas the petitioner is entitled to be engaged as DRW from 2002 itself i.e. on the completion of 10 years of service as Part time worker shall not be passed. (IV) And after hearing the parties be pleased to make the rule absolute.

AND/OR Pass any other order/orders as deemed fit and proper."

[3] Outlining the relevant facts, in brief, the petitioners were first engaged as Part Time workers (Sweeper) (PTWs, for short) [Annexure-1] in MBB College, Agartala vide memorandum dated 01.06.1992 under the respondent Nos.1 & 2 and since then, the petitioners have been working with utmost sincerity and dedication under the respondent No.2. At no point of time, there has been any blemish in the service career of the petitioners.

[4] It is the pleaded case of the petitioners that the petitioners have completed their 10 years of service as PTW in the year 2002 itself and thus, they are entitled to be engaged as Daily Rated Workers (DRWs, for short) from 2002 with all financial benefits thereunder.

[5] While the petitioners had been discharging their duties as PTWs, the respondent No.2 i.e. the Director of Higher Education, Government of Tripura had issued a memorandum dated 17.05.2013, wherein a policy was taken by the Government of Tripura to engage the PTWs who were engaged on or prior to 31.03.2003 and have completed 10 years of service as on 30.11.2012 and who were paid out of State Government fund, would be considered for engagement as DRWs (Group-D). The memorandum dated 17.05.2013 reproduced herein below, for convenience, in extenso:

"Government of Tripura Directorate of Higher Education Estt. (NG) Section No. F.7 (269)-DHE/NG/2013(L)/249(11) Dated, Agartala, the 17.05.2013.

MEMO Subject: Engagement of Part-time Workers (PTW) for 2 (Two) hours/3 (Three) hours/ 4(four) hours as Daily Rated Workers (DRW) under Education (Higher) Department with effect from 01.12.2012.

The undersigned is directed to engage 19 (Ninteen) Nos. Part-time Workers (PTW) under Education (Higher) Department those were engaged for 2 (Two) hours/3 (Three) hours/ 4(four) hours on or prior to 31.03.2003 and have completed 10(ten) years of service as on 30.11.2012 as per list enclosed herewith as Daily Rated Workers (DRW) Group-D with effect from 01.12.2012 subject to the condition that:

(i) The PTW engaged as DRW would continue to perform similar kind of work as they may be doing presently or any other work in addition as may be assigned by the respective Head of the Institutions/Establishments.

(ii) The engagements made as DRW subject to ex post facto concurrence of Finance Departments for the post created for placement of the Part-time Workers as DRW (Gropu-D).

2. They are entertained against the post created vide Education (Higher) Department's memo No. F.5 (8-1)-DHE/PLG/2008 dated 30.04.2013 and the

expenditure involved on this account is debitable to the Head of Account 2202- General Education, 03-University and Higher Education 103-Govt. College & Institute, 41-Human Development, 49-Govt. Degree Colleges, 01-Salary (Non- Plan) under Demand No. 39.

3. This is issued with the approval of the Finance Department, Govt. of Tripura conveyed vide their Memorandum No. F.34(6)-FIN(G/2012) dated 09.01.2013.

(Dr. B. Palit) Director of Higher Education, Tripura."

[6] The case of the petitioners are that their names were also considered for engagement as DRWs being they were engaged as PTWs prior to 31.03.2003 and completed 10 years of service as on 30.11.2012 as per list enclosed with the memorandum dated 17.05.2013. The name of the petitioners, Md. Kasem Miya (Md. Kasam Miah) at Sl. No.8, Sri Abhiram Das at Sl. No.6 and Sri Adhir Debnath at Sl. No.7. As per the said list they were engaged as DRWs w.e.f. 01.12.2012 vide memorandum dated 17.05.2013 [Annexure-2].

[7] It is the further pleaded case of the petitioners that the Government of Tripura, Department of Finance had issued a memorandum dated 21st January, 2009 stating, inter alia, as under:

No. F.10(2)-FIN(G)/2008(Part) Government of Tripura, Department of Finance.

Dated, Agartala, the 21st January, 2009 Subject: Regularization of services of DRWs/Casual/Contingent Workers on the next date of completion of 10 years of service.

The undersigned is directed to inform that the Government has taken a policy decision to regularize services of full-time DRWs/Casual/Contingent Workers from the next date of completion of 10 years of service and fulfill the following criterion as per department-wise names and particulars attached herewith:

(i) DRW/Casual/Contingent workers who were engaged on a full time basis in different Departments with or without concurrence of Finance Department other than Permanent Labourers, Part-time workers, Anganwadi Workers and Helpers, Home Guards, Teachers and Workers engaged under SSA and other

Schemes/Programmers, may be considered for regularization as per names attached.

(ii) Requirement of age as per Recruitment Rules will be deemed to be relaxed for the purpose of this regularization.

(iii) Requirement of educational qualification as per Recruitment Rules will be deemed as relaxed for regularization under Group-D only. In case of DRW/and Contingent Workers who were appointed under Group-C category, educational qualification as required under concerned R.R. must be ensured while entertaining their cases for regularization.

(iv) Except age and educational qualification mentioned in point(ii) & (iii) all other criterion as per relevant Recruitment Rules including reservation roster will have to be followed strictly for this process of regularization.

(v) Subject to fulfillment of above conditions, the eligible workers will be provided pay scale in the relevant post on the following day of completion of 10 years of service (without any break) from the date of joining. In the event of revision of pay scales the revised structure will be followed as per Govt.'s decision.

2. To facilitate quick action for implementation of the above decisions, appropriate authorities of the concerned Administrative Departments of the State Government are authorized to take following actions:

(i) The Departments will scrutinize the records and particulars of the workers whose names and particulars are included in the annexure attached herewith to ascertain their eligibility for regularization. Only those workers out of the attached annexure who fulfills all the above criteria are to be regularized.

(ii) While ascertaining eligibility, other than relaxation made in respect of educational qualification and age, other requirements like nationality, reservation quota are to be followed strictly. All original documents shall be checked by the Departments to ensure genuineness of the records/documents.

(iii) After ascertaining the number of eligible cases, the department will take steps for creation of required number of posts in the appropriate category including creation of post for SC and ST as per 100 point roster for accommodating them in the concerned pay scale for regularization. The computation is to be done to ensure 31% reservation for ST and 17% reservation for SC against the number of UR candidates as per list enclosed without bringing any previous backlog. Formal appointment orders are to be issued by concerned appropriate authority accordingly. After taking this step department will send proposal to the Finance Department for ex-post-facto concurrence for creation of posts.

(iv) Following regularization of the eligible cases out of list attached herewith, the departments are required to take action to ensure recruitment of

shortfall of candidates under ST & SC category to fulfill the roster. In respect of such shortfall under Group-D category, the Tribal Welfare Department would act as the Nodal Department for selection of required number of candidates and sponsoring them to the respective Department. The departments are requested to send a report to the Finance Department within one month immediately after action taken as per the instant Memorandum alongwith list of workers regularized.

3. There shall be a complete ban on engagement of DRW/Casual/Contingent etc. workers after 31.03.2003 without concurrence from Finance Department. Responsibility shall be fixed on the official found responsible for any irregular engagement henceforth. Such irregular engagement shall have to be instantly terminated. The wages, if paid any, shall be recovered from the official concerned.

4. The undersigned is directed to request all concerned to ensure strict implementation of the above decisions.

(N. Das) Joint Secretary to the Government of Tripura."

[8] Mr. Dey, learned counsel appearing for the petitioners submitted that in view of this memorandum, the services of the petitioners as DRWs should be regularized with regular scale of pay. [9] I do not find any merit in the said submission for the reason that the petitioners were only engaged as full-time DRWs w.e.f. 01.12.2012 and thus, have not completed 10 years of service as DRWs when the writ petitions were filed in the year 2017. Having held so, in my opinion, the petitioners till the date of filing of these petitions were not entitled to claim regularization of their services on the pretext that they had completed 10 years of service as DRWs.

[10] In the result, the writ petitions stand dismissed and disposed of.

JUDGE

A.Ghosh