Smt. Rekha Harijan vs The State Of Tripura
2021 Latest Caselaw 1089 Tri

                      IN THE HIGH COURT OF TRIPURA
                                  AGARTALA
                              W.P.(C)No.81 of 2021


     Smt. Rekha Harijan,
     wife of Sri Rajesh Harijan,
     resident of Madhya Banamalipur,
     near Girls Bodhjung School,
     P.O. Agartala, District: West Tripura

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

                                     -Versus-

1.   The State of Tripura,
     represented by the Secretary,
     Government of Tripura,
     Social Welfare & Social Education
     Department, New Capital Complex,
     Agartala-799010, Tripura.
2.   The Director,
     Social Welfare & Social           Education
     Department,   New     Capital     Complex,
     Agartala-799010, Tripura

                                                   ............ Respondent(s)

     For the Petitioner (s)        :      Mr. R. Datta, Adv.

     For the Respondent (s)        :      Mr. P. K. Dhar, Sr. Adv.
                                          Mr. A. Dey, Adv.

     Date of hearing & delivery    :      12.11.2021
     of Judgment & order
     Whether fit for reporting     :      NO





                HON'BLE MR. JUSTICE S. TALAPATRA
                    JUDGMENT & ORDER [ORAL]

Heard Mr. R. Datta, learned counsel appearing for the

petitioner as well as Mr. P. K. Dhar, learned Sr. G.A. assisted by Mr.

A. De, learned counsel appearing for the respondents.

[2] By means of this petition filed under Article 226 of the

Constitution of India, the petitioner has urged this court for directing

the respondents to regularize her service in the post under Group-D

category for completion of ten years service, with all service benefits

including the back wages and seniority with effect from 01.07.2009.

The petitioner has asserted that the petitioner belongs to the

Scheduled Cast (SC) Community and she was engaged as the

Contract Based Worker (CBW) with effect from June, 1999. In this

regard, an informative table formed by the respondents [Annexure-4

to the writ petition] has been relied by the petitioner. From the said

table, it can be derived that the petitioner was engaged as CBW.

Similarly situated persons namely Arati Debnath and Nikunja

Debnath (both CBWs) who were junior to the petitioner had been

regularized in the Group-D post under direction from this court and

in terms of the memorandum dated 01.09.2008.

[3] Mr. Datta, learned counsel appearing for the petitioner

has referred to a decision of this court reflected in the judgment

dated 11.09.2017 passed in a batch of writ petitions being

W.P.(C)13 of 2017, W.P.(C)14 of 2017 and W.P.(C) No.15 of 2017.

In the said judgment, it has been observed as follows:

"All the contingent workers or the casual workers are guided by the service contract. There is thin or negligible distinction or no distinction between the casual workers or the contract based workers. Be that as it may, the respondents have failed to produced any piece of paper to show that the petitioners were engaged under any contract. Even the respondents did not make any endeavour to interpret the words 'casual' and 'contingent' as appearing in the Memorandum dated 01.09.2008. For all purposes and having due regard to the records as produced in the rejoinder, this Court is of the view that the petitioners are full time casual workers working under the respondents and had completed 10 years of service much before 31.03.2008 and as such they are entitled to be regularized under the memorandum dated 01.09.2008. Denial of such benefits to the petitioners is arbitrary, discriminatory and is against the Government's own policy. But since the petitioners have approached this Court after a long time from the day when the cause for filing these writ petitions first arose, they will not get the full financial benefit in terms of the memorandum dated 01.09.2008, Annexure 1 to the writ petition. In this context, the respondents are directed to regularize the petitioners w.e.f. 01.07.2008 as the Group D employees within 3(three) months from the day when they would receive a copy of the writ petition.

2) To fix the pay of the petitioners notionally since 01.07.2008 to the day three years prior to the filing of the writ petition. From the day three years prior to the filing of the writ petitions, the petitioners shall be entitled to get the financial benefits and, hence the respondents are directed to pay their arrears of pay and allowances within a period of 3 months from the date when the petitioners shall submit a copy of this order."

[4] The said decision of this court was challenged by the

state by filing the writ appeals. But those writ appeals being WA 59

of 2017, WA 60 of 2017 and WA 61 of 2017 were dismissed by

affirming the said decision of the learned Single Judge. The decision

as delivered in those writ appeals were also challenged before the

apex court but the apex court has refused to interfere with the said

judgment. As a result, those CBWs were appointed under the regular

establishment against Group-D posts.

[5] Mr. Datta, learned counsel for the petitioner has

submitted that the petitioner is also entitled to similar benefits of

regularization along with back wages. In this regard, Mr. Datta,

learned counsel has referred to the provisions of the memorandum

dated 21.01.2009 [Annexure-5 to the writ petition]. There is no

dispute that the petitioner has completed ten years of service in the

year 2009.

[6] Mr. P. K. Dhar, learned Sr. G.A. has fairly submitted that

though there is hardly any distinction between the petitioner and

those CBWs who have been regularized under the direction of this

court, but the petitioner has approached this court after lapse of

considerable time. She was entitled to get the benefit of

regularization in the year 2009, but she has approached this court

only in the year 2021. Therefore, Mr. Dhar, learned Sr. G.A. has

quite emphatically contended that this court may direct the

respondents to regularizes the services of the petitioner against a

group-D post but no arrear pay and allowances are allowed for

laches.

[7] In rejoinder, Mr. Datta, learned counsel has submitted

that in the same manner as reflected in the judgment dated

11.09.2019 [Annexure-R/3 to the reply filed by the respondents],

the arrear pay and allowances be paid to the petitioner.

[8] Having appreciated the submission of the learned

counsel as well as the records as produced before this court, this

court is of the view that the petitioner belonged to the same

category and was holding the senior position in the combined list.

Hence, she is entitled to regularization as the Group-D employee for

her completion of ten years of service. Thus, the respondents are

directed to regularize the services of the petitioner in terms of the

memorandum dated 21.01.2009 from the date when the petitioner

had completed ten years of service as CBW. However, since the

petitioner has approached this court on 08.02.2021, her financial

benefits shall remain restricted. Pay of the petitioner on account of

regularization shall be notionally fixed from the date immediately

after completion of ten years of service. But she would not be

entitled to actual pay and allowances for the entire period since

regularization. The final benefit shall be restricted. The petitioner

shall get the financial benefit from the day, three years prior to the

filing of the writ petition. The petitioner shall be regularized within a

period of 3(three) months from the date when the petitioner shall

submit a copy of this order. The respondents shall also pay the

financial benefits as well, within the said period of three months.

In terms of the above, this petition stands allowed.

There shall be no order as to costs.

JUDGE

Moumita