Smt. Mira Roy vs The State Of Tripura
2021 Latest Caselaw 425 Tri

                              Page 1 of 10


                    HIGH COURT OF TRIPURA
                          AGARTALA

                              W.A. No.450/2020
Smt. Mira Roy,
Wife of Late Girindra Karmakar, resident of village- Kamarpukur (South),
PO- MBB College, PS- East Agartala, Sub-Division- Agartala, District-
West Tripura, Pin-799004.

                                                        .....Appellant(s)

                           Versus

1. The State of Tripura,
   represented by the Commissioner & Secretary to the Social Welfare
   & Social Education Department, Government of Tripura, having his
   office at Pandit Nehru Complex, Gorkhabasti, PO- Kunjaban, PS- New
   Capital Complex, District- West Tripura.

2. The Director,
   Social Welfare & Social Education, Government of Tripura, having his
   office at Pandit Nehru Complex, Gorkhabasti, PO- Kunjaban, PS- New
   Capital Complex, District- West Tripura.

                                                      .....Respondent(s)

For Appellant(s)             : Mr. Somik Deb, Sr. Advocate.
                               Mr. Abir Baran, Advocate.

For Respondent(s)            : Mr. Debalay Bhattacharjee, GA.


                              W.A. No.100/2021

1. The State of Tripura,

Represented by the Commissioner & Secretary to the Education Department (Social Welfare & Social Education), Government of Tripura, having his office at Pandit Nehru Complex, Gorkhabasti, P.O.- Kunjaban, P.S.- East Agartala, Sub- Division- Agartala, District- West Tripura.

2.The Director Social Welfare & Social Education, Government of Tripura, having his office at Pandit Nehru Complex, Gorkhabasti, P.O.- Kunjaban, P.S.- East Agartala, Sub-Division- Agartala, District- West Tripura.

Versus

Smt Juthika Bhattacharya Wife of late Pannalal Bhattacharya, resident of village & P.O.- Srirampur, Kailashahar, Unokoti, P.S.- Unokoti, District-Unokoti Tripura.

.....Respondent(s)

For Appellant(s) : Mr. Debalay Bhattacharjee, GA.

Mr. Partha Saha, Advocate.

For Respondent(s)             : Mr. Somik Deb, Sr. Advocate.
                                Mr. Abir Baran, Advocate.


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

Date of hearing and judgment : 30.03.2021.

Whether fit for reporting     : No.


                    JUDGMENT & ORDER (ORAL)

(Akil Kureshi, CJ).

These Appeals arise out of two separate judgments. One is filed by

the original petitioner and another by the State Government. However,

since facts of these cases are closely interconnected, they have been heard

together and would be disposed of by this common judgment.

2. In W.A. No.450 of 2020, the appellant-original petitioner was

appointed as an Anganwadi Worker on or around 16.06.1977. She was

promoted to the post of Supervisor (ICDS) on ad-hoc basis on 24.03.1991.

She was thereafter directly recruited as a Social Education Worker which

post later on re-designated as Junior Social Education Organiser on

30.10.1995. An attempt was made to revert her as an Anganwadi Worker

without regularizing her as a Supervisor (ICDS), which she challenged

before the Gauhati High Court by filing W.P. (C) No.301 of 2001. During

the pendency of this petition, she crossed the age of superannuation and

withdrew the Writ Petition, which was recorded in the order dated

05.03.2007, which reads as under:

"Mr. K.N. Bhattacharjee, learned sr. counsel for the petitioner submits that the writ petitioner who had challenged the order of reversion has already retired from service. He further submits that because of the pendency of this case, her pensionary dues have not been finalized. Accordingly, he prays for withdrawal of the writ petition.

The writ petition is dismissed as not pressed by the petitioner. Interim orders, if any, are recalled.

However, the authorities would now take expeditious steps for finalisation of the pensionary dues of the petitioner."

3. It appears that several other Anganwadi Workers who were also

engaged in the years 1991-92, some of whom were junior to the petitioner,

were in similar circumstances sought to be reverted. They had challenged

the reversions before the Gauhati High Court by filing W.P. (C) No.33 of

2006. This petition was disposed of by the Tripura High Court, which was

established by then, by judgment dated 02.09.2013, the writ petition was

dismissed, however, as can be seen from the following portion of the

judgment, the department was asked to consider if the cases of the

petitioners for absorption as ICDS cannot be done. The petitioners were

allowed to approach the Government authorities for such purpose. The

relevant portion reads as under:

"11. In the given facts and circumstances of the case, I find nothing wrong in the memo, dated 31.12.2005 (Annexure 8 to the writ petition). It is no doubt a fact that the petitioner has been serving under the department for more than 20 years and at least there is nothing on record that the petitioner could not serve the department effectively. It is left open to the department to consider whether the petitioner may be absorbed in any other post if he cannot be absorbed in the post of Supervisor (ICDS). In case such a prayer is made by the petitioner, since the petitioner has already become over-aged and not eligible for any other public employment, the department may consider such prayer sympathetically with a humane touch."

4. Pursuant to the said liberty granted by the Court, the colleagues of

the petitioner approached the Government upon which the Government

considered their cases favourably and issued an order dated 02.06.2017

regularizing the ad-hoc appointments of 12 Supervisors of ICDS from the

date of their appointment in the year 1991-92.

5. The petitioner thereupon filed a fresh petition before this Court

being W.P. (C) No.1480 of 2017. In such petition, she prayed for

regularization as ICDS Supervisor from her initial engagement in the year

1991 in line with the Government decision dated 02.06.2017 under which

some of her juniors were also granted similar benefit. This Writ Petition

was disposed of by the learned Single Judge by impugned judgment. The

learned Single Judge was of the opinion that the petitioner had withdrawn

her challenge from the High Court and long before the Government took

the decision to regularize other ad-hoc ICDS Supervisors, she had retired

from service. She therefore could not revive her challenge and cannot get

the benefit of the decision of the Government concerning other employees.

The learned Single Judge, however, granted certain other reliefs to the

petitioner with respect to which we are not concerned. This decision she

has challenged in this Appeal.

6. W.A. No.100 of 2021 is filed by the State Government to challenge

the judgment of the learned Single Judge in W.P. (C) No.1481 of 2017

filled by the respondent of this Appeal. The respondent was the original

petitioner. She was also engaged initially as an Anganwadi Worker in the

year 1977 and appointed as Supervisor (ICDS) in the year 1991. She had

filed W.P. (C) No.312 of 2001 when she was sought to be reverted. This

Writ Petition was dismissed for default by Gauhati High Court on

12.05.2011. No further steps were taken for restoration of the petition. The

matter stood thus when the Government granted the benefit of

retrospective regularization to 12 ICDS Supervisors, who were appointed

on ad-hoc basis in the year 1991-92. This petition was disposed of by the

impugned judgment in following manner:

"9. Be that as it may, I find sufficient reason in the submission of Mr. Deb, learned counsel appearing for the petitioner. Even though, the petitioner's writ petition had been dismissed for non- prosecution, the respondents are directed to adopt similar consideration, inasmuch as the petitioner at the time of engagement was similarly circumstanced vis-a-vis the persons who have been regularized by the memorandum dated 02.06.2017. The respondents shall consider the petitioner similarly and grant the similar benefits, as granted by the memorandum dated 02.06.2017. The entire exercise be completed within a period of six months from the day of receiving a copy of this order."

7. Appearing for the appellant in W.A. No.450 of 2020, learned senior

counsel Mr. Somik Deb submitted that mere fact that the petitioner had

withdrawn her previous petition would not preclude her from seeking

parity with other co-employees in whose favour, the Government had

exercised discretion and regularized their services. There was no ground

for discriminating the case of the petitioner. Learned Single Judge

therefore committed an error in dismissing the Writ Petition.

8. Learned Government Advocate Mr. Debalay Bhattacharjee opposed

the Appeal contending that the petitioner having forgone the challenge to

her reversion, all her post retiral dues were settled on such basis. Many

years later, she could not revive the challenge on the ground that in case of

other employees, who are not similarly situated, the Government had taken

a sympathetic decision.

9. Appearing in W.A. No.100 of 2021, learned Government Advocate

submitted that the respondent-original petitioner had challenged her

reversion. Such Writ Petition was dismissed. It may be an order of

dismissal for default nevertheless since the petitioner did not take any steps

for restoration of the petition, the reversion order achieved finality. She

was also therefore not entitled to the benefit similar to other employees

since in their cases the challenge was alive and that pursue their cause.

10. Learned senior counsel Mr. Deb opposed the Appeal contending that

there was no decision on merits on the challenge of the petitioner to the

order of reversion. There is no dispute that on all facts, she was similarly

situated to other employees, who were regularized by the Government. The

learned Single Judge therefore correctly granted appropriate directions.

11. Taking up the W.A. No.450 of 2020 first which is filed by the

original petitioner, the distinguishing feature between her and the rest of

the ad-hoc ICDS Supervisors is that she had brought her challenge to her

reversion but consciously gave up the challenge. We have reproduced the

order passed by the Gauhati High Court allowing her to withdraw the

petition in which it is recorded that having retired, her post retiral dues

were held up and she therefore did not wish to press the petition. It was on

this basis that the writ petition was allowed to withdrawn and presumably

her post retiral benefits would have been settled. She therefore cannot

claim the benefit of the Government decision taken years later on the basis

of different set of facts and circumstances.

12. We have noticed that other employees, who had also approached the

Gauhati High Court challenged their reversions, failed in the Writ Petition.

However, while dismissing the Writ Petition, the High Court observed that

these employees have already crossed the age bar and it would be open for

the Government to consider their cases for regularization. While allowing

the petitioners to approach the Government, it was observed that the case

may be considered sympathetically. These petitioners thereupon

approached the Government and Government took a decision in their

favour. These petitioners had thus not given up the challenge to the

reversions. They pursued the petition before the Single Judge of Gauhati

High Court. The judgment was rendered against them on merits,

nevertheless a small window for approaching the Government was kept

open. They availed of such opportunity and succeeded in pursuing the

Government to grant them regularization. The present petitioner for her

own reasons did not adopt this line. It may seem harsh and we would have

been happier if the Government itself had also considered her case,

nevertheless there is a clear line of distinction between her case and cases

of other ICDS Supervisors. We, therefore, do not see any reason to

interfere with the judgment of the learned Single Judge.

13. Coming to the Writ Appeal of the Government, the relevant facts as

noted are that the respondent-original petitioner had filed a Writ Petition

challenging similar order of reversion from the post of Supervisor, ICDS.

This petition was dismissed since no one appeared on the date of hearing.

Thus, no judgment on merits, nor as in case of the co-petitioner, abundance

of challenge. Her case thus was similar to other employees, who had

approached the High Court for sympathetic consideration. When the

Government therefore considered the cases for regularization of ICDS

Supervisors, her case should not have been separated out. This is precisely

what the learned Single Judge has concluded. In this Appeal also,

therefore, there is no reason to interfere.

14. In the result, both the Appeals are dismissed. It is clarified that in the

judgment of W.P. (C) No.1480 of 2017, any directions are issued in favour

of the petitioner, this judgment would not disturb them since in any case

the Government has not come in Appeal against the said judgment.

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

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




sima