Sri Subodh Ch. Das vs The State Of Tripura
2021 Latest Caselaw 342 Tri

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                    HIGH COURT OF TRIPURA
                      _A_G_A_R_T_A_L_A_
                        WP(C) No.1212 of 2019
                        WP(C) No.121 of 2019
(A) WP(C) No.1212 of 2019
Sri Subodh Ch. Das, S/o. Lt. Sunamoni Das, Vill: Suknacherra, P.O.
Suknacherra, Kanchanpur, North Tripura, Pin-799270.
                                                     ......... Petitioner(s)
                             Versus
1. The State of Tripura, to be represented by the Secretary/
Commissioner, Dept. of Education, Govt. of Tripura, New Secretariat
Building, New Capital Complex, Kunjaban, Agartala, West Tripura,
Pin-799006.
2. The Director of Secondary Education, Directorate of Secondary
Education, Govt. of Tripura, Office Lane, Agartala, Tripura, Pin-
799001.
3. The Inspector of Schools, Govt. of Tripura, Kanchanpur, North
Tripura.
                                               ......Respondent(s)

(B) WP(C) No.121 of 2019 Sri Uttam Das, S/o. late Bhanu Das, R/o. Pashchim Dukli, P.O. Pashchim Dukli, P.S. Amtali, District- West Tripura.

......... Petitioner(s) Versus

1. The State of Tripura, represented by its Secretary Cum Commissioner to the Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West Tripura.

2. The Director, Food, Civil Supplies and Consumer Affairs Department, Govt. of Tripura, P.O. Agartala, P.S. West Agartala, District- West Tripura.

3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, Udaipur, P.O. & P.S. R.K. Pur, District- Gomati.

4. The Officer-In-Charge, Central Stores, Food (Civil Supplies and Consumer Affairs) Department, Government of Tripura, A.D. Nagar, P.O. Agartala, P.S. West Agartala, District- West Tripura.

5. The Secretary Cum Commissioner, Department of Finance, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West Tripura ......Respondent(s)

_B_E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate, Mr. Samarjit Bhattacharjee, Advocate, Mr. Arijit Bhaumik, Advocate, Mr. A.T. Paul, Advocate, Ms. A. Debbarma, Advocate.

For Respondent(s) : Mr. Mangal Debbarma, Addl. G.A.

Judgment & Order
delivered on                  :       16th March, 2021.

Whether fit for reporting :           NO.

                         JUDGMENT & ORDER (ORAL)

(Akil   Kureshi, CJ)

These petitions arise in similar background. We may record

facts in brief. In WP(C) No.1212 of 2019 the petitioner was engaged as

a night guard in the office of Inspector of Schools, Kanchanpur, North

Tripura on 03.09.1989. He seeks regularization in service in terms of

Government of Tripura policy circulated under OM dated 21.01.2009.

He made several representations to the authorities for such purpose from

time to time. Since his prayer was not granted, he has filed a petition for

a direction that his services may be regularized upon completion of 10

years of service as DRW from initial engagement on 03.09.1989.

[2] Petitioner in WP(C) No.121 of 2019 was engaged as a

cleaner on full time duty in the office of Central Stores, Food Civil

Supplies & Consumer Affairs Department with effect from 05.11.2003.

He also seeks benefit of regularization pursuant to Government of

Tripura policy dated 21.01.2009. In his case the objection raised by the

Government is that the policy of regularization would not apply in case

of casual workers or DRWs engaged after 31.03.2003 since the

Government of Tripura had imposed a complete ban on engagement of

casual workers after the said date without the concurrence of the

Finance Department.

[3] It is not in dispute that the Government of Tripura had

formulated a policy for regularization of casual workers and DRWs after

completion of 10 years of service as such under OM dated 21.01.2009.

Both the petitioners would ordinarily be eligible for consideration for

regularization subject to fulfillment of the conditions of the scheme. The

same not having been done, suitable directions must be issued. In case

of petitioner in WP(C) No.121 of 2019 the additional objection of the

Government also cannot be accepted since in large number of cases

Single Judge Benches of this Court have been issuing directions for

regularization even of those workers who had engaged after 31.03.2003

and the Government has accepted such decisions and implemented them

as well. When in one such order recently passed by the Single Judge the

Government preferred writ appeals, such appeals being WA of 163 of

2019 and other connected appeals were disposed of by a common

judgment passed today, relevant portion of which reads as under :

"[5] Ordinarily we would have examined the contention of the Government that the scheme of regularization framed by the State of Tripura in the year 2009 would not cover those casual workers who were engaged after 31.03.2003. However we find that in several cases this objection was overruled by the Single Judges and the Government had accepted the decisions. Surely in matters of regularization of casual workers, the Government cannot adopt pick and choose policy, choosing to comply with the directions in a particular matter and to challenge in another. There has to be consistency in the Government stand regarding such policy issues. In other words if the Government has accepted the judgments and the interpretation of memorandum concerning regularization of casual workers in one set of cases, without any explanation or distinction in facts of other set of cases, the Government cannot challenge another judgment rendered in similar background.

[6] We have perused different orders placed on record by Mr. Arijit Bhowmik, learned counsel for the original petitioners. In case of Sri Ajit Debnath Vs. The State of Tripura & Ors. [W.P(C) No.1255 of 2016] and connected petitions decided by the learned Single Judge on 23.06.2017, this issue was specifically raised as can be seen from the following observations:

"7. From the Para-6 of the reply, what surfaces for relevant consideration is that, according to the respondents, those who are engaged prior to

31.3.2003 are only competent to be regularised in terms of the said memorandum dated 21.01.2009, not others."

"[7] In this context while overruling the objection of the Government the learned Single Judge made following observations:

"9. Mr. T.D. Majumder, learned G.A. has further submitted that on the basis of the memorandum dated 18.12.2012 [Annexure R/2] another exercise was taken for regularisation of services of DRWs/Casual Workers etc. from several departments, who were engaged on full time on or prior to 31.03.2003 and had completed 10 years of continuous service. It is reflected from the memorandum dated 18.12.2012 [Annexure R/2 to the reply] that a decision was taken by the government to regularise the services of the DRWs/casual workers, of the Department, who were engaged on or prior to 31.03.2003 on full time basis with or without concurrence of Finance Department and have completed 10 years of service as on 31.07.2012, other than Part Time Workers, Contract Basis Workers, Honorarium Paid Worker, Voluntary Workers, Teachers and Workers engaged under SSA and other Schemes/ Programmes, may be considered for this process of regularization. Thereafter the other general conditions as are available in the memorandum dated 21.01.2009 have been engrafted. This memorandum has nothing to do with the memorandum dated 21.01.2009."

[8] Eventually the petitions were disposed of by issuing following directions:

"11. In view of the memorandum dated 21.01.2009, this court does not find any impediment in the way of regularisation of the petitioners after their completion of ten years of service. However, such regularisation would be subject to the conditions as laid down in the memorandum dated 21.01.2009.

12. Having observed thus, the respondents are directed to regularise the petitioners with effect from the next date on completion of ten years of service within a period of 6(six) months from today on scrutinising their individual records. But it is made clear that they shall get the regular scale with effect from the next date of completion of ten years of service in terms of the memorandum dated 21.01.2009.

With these observations and direction, all these writ petitions are allowed to the extent as indicated above."

[9] Likewise in case of Sri Ajay Kumar Acharjee Vs. The State of Tripura & Ors. [W.P(C) No.1085 of 2016] decided by the learned Single Judge on 31.08.2017 the petitioner was engaged as a full time casual worker w.e.f. 15.11.2003. After completion of 10 years of service he had claimed the benefit of regularization. In his case also the prayer was opposed on the ground that he was engaged after 31.03.2003. The learned Single Judge after referring to the decision in case of Sri Ajit Debnath (Supra) made following observations:

"6. Mr. A. Sengupta, learned counsel appearing for the respondents has fairly submitted that the case of the petitioner is squarely covered by the said decision in Ajit Debnath vs. State of Tripura and others. Be that as it may, this Court in Ajit Debnath vs. State of Tripura and others has laid the perspective to read the policy decision of the Government in respect of regularisation of the services of full time DRWs/Casual Worker/Contingent Worker from the next date of completion of 10 years of service on fulfilling the criteria as laid down in the said memorandum dated 21.01.2009. It has been held that no narrow interpretation of the policy would serve the purpose of regularising the DRWs/Casual Worker/Contingent Workers who have completed their 10 years of service having been engaged after 31.03.2003 with or without concurrence of the Finance Department. In the said memorandum dated 21.01.2009, it is provided that there shall be a complete ban on engagement of DRW/Casual/Contingent etc. workers after 31.0.03.2003 without concurrence from the Finance Department. It was cautioned that the responsibility shall be fixed on the official found responsible for any irregular engagement henceforth. Such irregular engagement shall have to be instantly terminated. Then wages, if paid, shall be recovered from the official concerned. Even after that cut off date i.e. 31.03.2003, the petitioner was engaged and his engagement was subsequently concurred by the Finance Department. Further he was allowed to continue more than 10(ten) years of service. Now the respondents cannot be allowed to hold that the petitioner will not get regularisation of his service, in terms

of the said policy decision as provided in the memorandum dated 21.09.2009.

7. Having observed thus, the respondents are directed to regularise the service of the petitioner with effect from the next date of completion of 10(ten) years of service within a period of n6(six) months from today on scrutinising his individual records. But it is reiterated that the petitioner shall get the regular scale with effect from the next date of completion of 10 years of service in terms of the memorandum dated 21.01.2009. The said memorandum cannot be interpreted narrowly as sought to be done by the respondents."

[10] In case of Sri Sarbesh Sarkar Vs. The State of Tripura & Ors. [W.P(C) No.41 of 2017] and connected petitions decided by the learned Single Judge on 11.07.2017 once again such an issue came up for consideration. All the petitioners were engaged on 30th June, 2003 i.e. after 31.03.2003. The learned Single Judge referred to the decision in case of Sri Ajit Debnath (Supra) and gave following directions:

"16. The petitioners cannot be denied the benefit of regularization as they have rendered service for more than ten years (14 years at a stretch) as the casual workers. They need security of their employment. As stated earlier, since they were/are allowed to continue for such long years, the concurrence of the Finance Department is deemed. Now the respondents are bound to regularize them from the date when they had completed ten years of service without break in the causal employment under their policy of regularization.

17. Having held so, the respondents are directed to regularize the petitioners with effect from the next date on completion of ten years of service within a period of six months from today on scrutinizing their individual records. But it is made clear that they would get the regular scale with effect from the date of completion of ten years of service in terms of the memorandum dated 21.01.2009."

[11] Similar issue had come up in case of Sri Dharmajit Singha Vs. The State of Tripura & Ors. [W.P(C) No.1086 of 2016] decided on 12.07.2017 petitioner therein was engaged on 15.11.2003. His

regularization was opposed on the ground that such engagement was after 31.03.2003 the Single Judge issued following directions:

"17. Having observed thus, this court is of the view that the petitioner is entitled to get the similar direction as given by this court in Ajit Debnath versus State of Tripura & Others [Judgment and order dated 23.06.2017 delivered in WP(C) No.1255/2016]. Hence, the respondents are directed to regularize the service of the petitioner with effect from the next date on completion of ten years of service within a period of six months from today on scrutinizing his individual records. But it is made clear that they shall get the regular scale with effect from the next date of completion of ten years of service in terms of the memorandum dated 21.01.2009."

[12] It can thus be seen that consistently in series of cases the view taken by the learned Single Judges that the memorandum providing that there shall be no further engagement of casual workers after 31.03.2003 without the concurrence of the Finance Department, had nothing to do with the scheme of regularization contained in OM dated 21.01.2009. These judgments have been accepted by the Government as stated by the counsel for the petitioners. Concerned workers have been regularized. In the present group of cases the Government cannot rake up an old issue in which the Government has accepted the interpretation of the Single Judge and implemented the directions issued for regularization. In the result all appeals are dismissed"

[4] Under the circumstances, the respondents shall consider the

petitioners for regularization in terms of OM dated 21.01.2009 with

effect from completion of 10 years from initial engagement. However,

such regularization shall be for notional purposes till the date of filing of

the petitions and after which the respective petitioners would be entitled

to actual wages on the basis of such regularization. These directions

shall be carried out within four months from today

[5] Both the petitions are disposed of accordingly. Pending

application(s), if any, also stands disposed of.

(S.G. CHATTOPADHYAY), J                            (AKIL KURESHI), CJ




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