Tripura High Court
The State Of Tripura Of Tripura vs Smt. Sukla Nama on 16 March, 2021
Page 1 of 11
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WA No.212 of 2019
Along With
WA No.193 of 2019
WA No.213 of 2019
WA No.217 of 2019
WA No.225 of 2019
(A) WA No.212 of 2019
1. The State of Tripura of Tripura, represented by the Secretary-cum-
Commissioner, Department of School Education, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
2. The Director, School Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. The Secretary-Cum-Commissioner, Finance Department, Government
of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
4. The State Council of Educational Research and Training, represented
by its Director, Government of Tripura, Abhoynagar, P.O. Agartala, P.S.
New Capital Complex, District- West Tripura.
......... Appellant(s)
Versus
Smt. Sukla Nama, wife of Sri Uttam Kr. Das, resident of Joynagar Naba
Diganta Lane, P.O. Agartala, P.S. West Agartala, District- West Tripura.
......Respondent(s)
(B) WA No.193 of 2019
1. The State of Tripura of Tripura, represented by the Secretary-cum-
Commissioner, Department of School Education, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
2. The Director, School Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. The Secretary-Cum-Commissioner, Finance Department, Government
of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
4. The State Council of Educational Research and Training, represented
by its Director, Government of Tripura, Abhoynagar, P.O. Agartala, P.S.
New Capital Complex, District- West Tripura.
......... Appellant(s)
Versus
Smt. Tushi Das, wife of Sri Subhankar Chakraborty, resident of 24,
Krishnanagar, Bijoykumar Chowmuhani, P.O. Agartala, P.S. West
Agartala, District- West Tripura.
......Respondent(s)
(C) WA No.213 of 2019
1. The State of Tripura of Tripura, represented by the Secretary-cum-
Commissioner, Department of School Education, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
2. The Director, School Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. The Secretary-Cum-Commissioner, Finance Department, Government
of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
4. The State Council of Educational Research and Training, represented
by its Director, Government of Tripura, Abhoynagar, P.O. Agartala, P.S.
New Capital Complex, District- West Tripura.
......... Appellant(s)
Versus
Sri Ramapati Chakraborty, son of Sri Ram Kumar Chakraborty, resident
of Kamala Sagar, P.O. Kamala Sagar, P.S. Madhupur, District-
Sepahijala.
......Respondent(s)
(D) WA No.217 of 2019
1. The State of Tripura of Tripura, represented by the Secretary-cum-
Commissioner, Department of School Education, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
2. The Director, School Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. The Secretary-Cum-Commissioner, Finance Department, Government
of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
4. The State Council of Educational Research and Training, represented
by its Director, Government of Tripura, Abhoynagar, P.O. Agartala, P.S.
New Capital Complex, District- West Tripura.
......... Appellant(s)
Versus
Sri Debabrata Paul, son of late Nagendra Ch. Paul, resident of
Brahmabari, near Diary Office, P.O. & P.S. R.K. Pur, District- Gomati.
......Respondent(s)
(E) WA No.225 of 2019
1. The State of Tripura of Tripura, represented by the Secretary-cum-
Commissioner, Department of School Education, Government of
Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
2. The Director, School Education Department, Government of Tripura,
P.O. Agartala, P.S. West Agartala, District- West Tripura.
3. The Secretary-Cum-Commissioner, Finance Department, Government
of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura.
4. The State Council of Educational Research and Training, represented
by its Director, Government of Tripura, Abhoynagar, P.O. Agartala, P.S.
New Capital Complex, District- West Tripura.
......... Appellant(s)
Versus
Sri Dilip Sharma, son of late Rabindra Sharma, resident of Jogendra
Nagar, Bankumari, P.O. Jogendranagar, P.S. East Agartala, 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 Appellant(s) : Mr. D. Sharma, Addl. G.A.
For Respondent(s) : Mr. Arijit Bhaumik, Advocate.
Judgment & Order
delivered on : 16th March, 2021.
Whether fit for reporting : NO.
JUDGMENT & ORDER (ORAL)
(Akil Kureshi, CJ)
These appeals have filed by the State Government to
challenge the judgment of the learned Single Judge dated 19.11.2018 in
case of Smt. Tulshi Das versus the State of Tripura and others in WP(C)
No.1566 of 2017 and connected petitions.
[2] Briefly stated the facts are as under :
All the petitioners were engaged under different capacities
on contractual basis under a centrally funded programme called Edusat
Network Programme in the year 2007 on fixed salary. They continued to
discharge their duties in such capacity year after year. They filed the
petitions seeking regularization on the respective posts from 27.05.2008,
which was the date on which according to the petitioners posts were
created and sanctioned in regular establishment by the State
Government.
[3] Before the learned Single Judge the State Government
appeared and filed the reply contending that with a view to creating
audio/video interactive network for quality education for students and
training of teachers in states, Ministry of Human Resource Development
and Indian Space Research Organization had framed a scheme called
„Edusat‟ network connectivity of schools and teachers in May, 2005. In
order to implement such scheme within the State, in a meeting of
monitoring committee of the State officials which was held on
23.11.2006, it was decided that 8(eight) technical persons would be
engaged purely on contractual basis for one year. For selection of such
technical staff interview board was constituted under notification dated
24.01.2007. Advertisement inviting applications was issued on
01.01.2007. Interviews were conducted for various duties, such as
Network Engineer, Producer, Technical Assistant, Programme Assistant
etc. The appointments were made in favour of the petitioners on
contractual basis with consolidated salary of Rs.3,000/- per month. The
respondents further stated that the Finance Department did not accept
the proposal for regularization of the petitioners.
[4] The learned Single Judge was of the opinion that the
decision of Supreme Court in case of Secretary, State of Karnataka and
Ors. vs. Uma Devi (3) and Ors., reported in (2006) 4 SCC 1 would not
prevent regularization of these petitioners. Reference was made to the
decision of Supreme Court in case of State of Karnataka vs. M. L.
Kesari reported in (2010) 9 SCC 247 in which exceptions carved out by
the Supreme Court in Case of Uma Devi were further elaborated. The
petitions were allowed by making following observations :
"15. From the above observation made by the apex court, it appears
that none of the factors negating the claim is applicable in the case
of the petitioners. Only question that may arise is whether the
petitioners were working against the sanctioned posts. From the
minutes of the Council of Ministers as recorded in the confidential
memorandum No.F.2(13)(SCERT/EDUSAT/07 dated 21.05.2008,
Annexure-5 to the writ petition, it would be apparent that in
responding to the necessity those posts were created as there was
requirement of creation of the posts. It is no denying fact that the
petitioners were serving the said requirement. To meet that
requirement, those posts were created. Thus, it meets the
requirement of working against the created posts. However, for
absence of the formal appointment and in terms of the Finance
Department Memorandum No.F.23(24)-GA(P&T)/95 dated
05.07.2005, Annexure R/2, those posts have lapsed, but not yet
abolished. Even the department has approached for re-creating
those posts and there is no impediment as the Council of Ministers
has already created the posts following the process. Those posts at
any point of time could be resurrected by the Finance Department,
even in the administrative capacity. Situated thus, this court is of
the view that when the respondents have taken a specific stand the
posts were created, or for creation of the posts when they
themselves has proposed to create those posts again. For purpose of
regularisation of the petitioners no plea, as raised can stand in the
way. Having observed thus, the respondents are directed that the
petitioners shall be considered for regularisation within a period of
four months from the day when the Principal Secretary, Education
(School Education) shall receive a copy of this order from the
petitioners. It should be apposite to note here that considering 10
years of continuous service, though in the contractual engagement,
the petitioners may not be considered against the fixed pay
employment, keeping the regular posts in abeyance. In view of
what has been observed above, this writ petition stands allowed and
disposed of. There shall be no order as to costs.
A copy of this order be furnished to Mr. N. Chowdhury, learned
GA for the respondents."
[5] This judgment the State Government has challenged in
these appeals. Appearing for the Government learned counsel Shri
Dipankar Sharma submitted that there were no sanctioned posts against
which the petitioners were appointed. They were engaged purely on
contractual basis under the centrally funded scheme. Directions for
regularizing them in service therefore could not have been issued. He
relied on certain decisions, reference to which would be made at a later
stage.
[6] On the other hand learned counsel Shri Arijit Bhaumik
appeared for the original petitioners and submitted that all the petitioners
were engaged after inviting applications through public advertisement
and conducting interview by the interview board constituted for such
purpose. Their initial engagements were thus after following regular
selection process. They have continued to discharge their duties
uninterruptedly for over 10 years now. The posts were sanctioned by the
Government. Subsequent lapsing of the posts can be cured by
administrative action. The learned Single Judge has noted the distinction
between lapsing of the posts and abolition of posts. He also relied on
certain decisions, reference to which would be made at a later stage.
[7] Having thus heard learned counsel for the parties and
having perused documents on record what emerges is that the petitioners
were engaged on purely contractual basis on fixed monthly
remuneration. They were engaged for discharging certain specified
duties under a centrally funded scheme. At the time of their engagement,
there were no sanctioned posts. It is true that under a memorandum
dated 21.05.2003 the Government of Tripura envisaged establishment of
a set up for Edusat network in Tripura which would comprise of
different technical staff and that the incumbents would be paid wages as
per prescribed scales of pay. This notification also contained a proposal
for framing of recruitment rules for the respective posts. The fact of the
matter is that no regular appointments were made within one year of
publication of the said notification or any time thereafter. In such
background the question is, can the petitioners assert their right to be
regularized on posts which are not in existence? Answer obviously has
to be in the negative. As correctly pointed out by the learned Additional
Government Advocate in case of Secretary to Government, School
Education Department, Chennai versus R. Govindaswamy and others
reported in (2014) 4 SCC 769 engagement of a long duration do not
automatically result in right of regularization when there is no
sanctioned post against which the person is engaged. In case of Uma
Devi (supra) also the Supreme Court has frowned upon regularization of
casual workers after a passage of time. The said judgment, however,
may not have direct applicability in the present case since it may be
possible for the counsel for the petitioners to argue that the initial
engagement of the petitioners can be described at best as irregular and
not illegal since they were engaged after inviting applications through
public advertisement and conducted interviews through interview board.
He may also be justified in making reference to the decision in case of
M. L. Kesari (supra) where this aspect emerging from the decision in
case of Uma Devi (supra) is further elaborated. Nevertheless, the facts
of the present case are quite different. Admittedly when the petitioners
were engaged on contractual basis there were no sanctioned posts or
even a sanctioned set up. Subsequent decision to create a permanent
establishment appears to be a stillborn policy. Government never acted
upon it, never framed recruitment rules and never undertook the task of
making regular appointments against such sanctioned posts. As per the
Government policy upon creation of a post if the same is not filled up
within one year the same would automatically lapse. Even the learned
Single Judge has proceeded on the basis that these posts had lapsed. In
that view of the matter, there could not have been any directions for
regularization of the service of the petitioners. Firstly because they were
not engaged against sanctioned posts and secondly because they were
appointed on fixed salary contractual basis under a centrally funded
scheme. Counsel for the original petitioners however relied on a
Government of Tripura notification dated 29.11.2009 in which one of
the clarifications issued by the Finance Department is that the
Administrative Department shall be competent to sanction continuation
of temporary posts in regular scale provided these posts have been
created with prior concurrence of the Finance Department and with the
approval of the Council of Ministers and these posts are physically
occupied on the date of expiry of the previous continuation. Firstly, as
noted after envisaging setting up of a permanent establishment, State of
Tripura never implemented the said decision. Secondly, the said
clarification at best would empower the concerned department to
sanction continuation of temporary posts. No such sanction by the
concerned department having been granted is brought to our notice.
[8] For all these reasons, the judgment of the learned Single
Judge dated 19.11.2018 is reversed.
[9] In the result, appeals are allowed and disposed of. Pending
application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ
Dipesh
