Tripura High Court
The State Of Tripura vs Smt. Malabika Ghosh on 14 September, 2021
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HIGH COURT OF TRIPURA
AGARTALA
WA No.83/2018 and WA No.181/2021
A) WA No.83/2018 :
1. The State of Tripura
to be represented by the Principal Secretary Department of Health,
Government of Tripura, New Secretariat Complex, P.S - New
Capital Complex, Kunjaban, Agartala, Pin - 799 006.
2. The Director of Health Services, Government of Tripura, Pandit
Nehru Complex, Gurkhabasti, P.O Kunjaban, P.S. West Agartala,
West Tripura, Pin - 799 006.
3. The Additional Secretary, Family Welfare Department, Government
of Tripura, New Secretariat Complex, P.O. Kunjaban, Agartala, West
Tripura, Pin - 799 006.
4. The Principal Secretary, Department of Finance, Government of
Tripura, New Secretariat Complex, P.O. Kunjaban, Agartala, West
Tripura, Pin - 799 006.
.............. Appellant(s).
- Vs -
Smt. Malabika Ghosh, daughter of Sri Suresh Chandra Ghosh, resident
of Bidurkarta Chowmuhani, P.O. Agartala, P.S. West Agartala, District -
West Tripura, Pin - 799 001.
.............. Respondent(s).
B) WA No.181/2021 :
1. The State of Tripura
to be represented by the Principal Secretary, Department of Health,
Government of Tripura, New Secretariat Complex, P.S. New Capital
Complex, Kunjaban, Agartala, Pin - 799 006.
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2. The Director of Health Services
Government of Tripura, Pandit Nehru Complex, Gurkhabasti, P.O
Kunjaban, P.S. West Agartala, West Tripura, Pin - 799 006.
3. The Additional Secretary
Family Welfare Department, Government of Tripura, New Secretariat
Complex, P.O. Kunjaban, Agartala, West Tripura, Pin - 799 006.
4. The Principal Secretary
Department of Finance, Government of Tripura, New Secretariat
Complex, P.O. Kunjaban, Agartala, West Tripura, Pin - 799 006.
.............. Appellant(s).
- Vs -
1. Sri Rajib Das, S/o Haradhan Das, resident of Santirbazar, P.O. &
P.S. Santirbazar, District - Gomati Tripura.
2. Sri Debdulal Paul, S/o late Abinash Chandra Paul, resident of Village
- Town Sonamura, Udaipura, P.O. & P.S. R.K Pur, District - Gomati
Tripura.
............ Respondent(s).
_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE JUSTICE MR. S G CHATTOPADHYAY
For Appellant(s) : Mr. M Debbarma, Addl. G. A.
For Respondent(s) : Mr. P Roy Barman, Sr. Advocate,
Mr. Arijit Bhowmik, Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. S Dey, Advocate.
Date of hearing & judgment : 14th September 2021.
Whether fit for reporting : No.
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JUDGMENT(ORAL)
(Akil Kureshi, CJ).
These appeals are filed by the State Government to challenge the
common judgment of the learned Single Judge, dated 20th November 2017,
in Writ Petitions (C) 414 and 443 of 2014. Initially the State Government
filed one appeal. However, since by the impugned judgment the learned
Single Judge had dealt with two writ petitions, we had insisted on the State
filing a separate appeal. That is how Writ Appeal 181 of 2021 came to be
filed subsequently. Issues being identical we may refer to Writ Appeal 83 of
2018 for convenience.
[2] Brief facts are as under :
Original petitioners (three in number) were engaged as
Radiographers under the Director of Health Services under a
communication, dated 19th July 2005, for a period of one year on contractual
basis on a fixed remuneration of Rs.2,730/- per month. Their services were
extended from time to time. Their fixed remuneration was also revised
periodically. At one stage, the Director of Health Services passed an order,
dated 30th May 2012, bringing over the petitioners on the regular scale after
completion of five years of service in fixed salary regime. Accordingly, the
three petitioners were ordered to be brought over to regular scale w.e.f July
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2010. The Director of Health Services, however, subsequently passed an
order on 3rd September 2014 cancelling the earlier order dated 30th May
2012 on the ground that same was a mistake. This was on the basis of a
memorandum dated 24th April 2014 issued by the Finance Department
pointing out that these petitioners were not engaged on sanctioned posts but
were engaged purely on contractual basis. According to the Government
thus, giving them fixed remuneration was not a temporary measure of five
years before being brought over to regular scale as per Government decision
in regular recruitments but the petitioners were asked to work against ad-hoc
vacancies created for limited period and extended from time to time. At that
stage, the petitioners approached the High Court and sought protection
against their downward revision of pay. They also sought permanent
absorption in Government service.
[3] The Government opposed the prayers mainly contending that the
petitioners were not regularly selected and appointed against sanctioned
posts. They cannot be regularized.
[4] The learned Single Judge agreed with the State Government that
the petitioners were not recruited against sanctioned posts. However, the
learned Judge was of the opinion that their entry was not through backdoor
since all the elements of public selection were present. Applications for
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appointment were invited and selection process was carried out. The learned
Judge was of the opinion that the petitioners cannot be made to work on
fixed salary basis permanently. While disposing of the writ petitions
therefore by the impugned judgment, it was directed that the petitioners shall
be considered for regularization on available vacancies and if vacancies are
not available, by creating supernumerary posts.
[5] Having heard learned counsel for the parties and having perused
documents on record we find that the department had advertised selection
for engagement of Radiographers under a notification dated 7 th May 2005
which provided that such engagement would be on a contractual basis for a
period of one year on contractual remuneration of Rs.2,730/- per month. The
essential qualifications required were H.S.(+2 stage) with Science pass and
two years diploma in Radiography from recognized institution. After
conducting selection process of all eligible candidates who had applied in
response to the said notification, the Director of Health Services issued order
dated 19th July 2005 appointing the petitioners as Radiographers for a period
of one year on a remuneration of Rs.2,730/- per month. One such order of
appointment dated 19th July 2005 refers to a letter dated 22nd February 2005
of the Department of Health and Family Welfare under which such posts
were created. The said letter dated 22nd February 2005 is also on record and
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which provides that the Deputy Secretary, Government of Tripura, was
pleased to convey the sanction of the Governor for creation of the posts for
engagement of workers on contractual basis for one year which may be
extended on the basis of need or performance. Thus, clearly the engagement
of the petitioners was not against a regular sanctioned post but against ad-
hoc posts created by the Government for a limited period.
[6] Be that as it may, the petitioners continued in the same capacity and
discharged their duties as the Radiographers for years together. Their
engagements were extended and their fixed pay was revised from time to
time. Currently we are informed, they receive a consolidated sum of
Rs.20,687/- without any other further benefits of allowances or pay
protection.
[7] As noted, on 30th May 2012, they got a temporary reprieve when
the Director of Health Services issued an order bringing them over to the
regular pay scales with effect from completion of five years of their initial
engagement. This was quickly corrected by a subsequent order, dated 3rd
September 2014, on the ground that granting the regular scales was an error.
[8] It can thus be seen that learned Single Judge was correct in coming
to the conclusion that the petitioners were not appointed against the regular
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vacancies of sanctioned strength in the cadre. Contrary to what Mr. Arijit
Bhowmik for the original petitioners has argued before us, the record would
demonstrate that the petitioners were engaged on ad-hoc vacancies so
created by the department and that such arrangement was made for a period
of one year at a time. If the case of the petitioners was that the single judge
committed an error in coming to the said conclusion, they should have
challenged the judgement since, besides this finding which is adverse to the
petitioners, the single judge has given very limited relief to the petitioners.
Having said that, however, few significant facts emerging from the record
cannot be lost sight of. Right from the year 2005 when the petitioners were
engaged by the department, till date the department has continued to avail
their services without Court intervention. For the first time, the petitioners
approached the Court in the year 2014 that is nearly nine years after their
initial engagement. Pending their petitions no stay was granted against their
termination. The department thus continued to extract work from the
petitioners for over sixteen years since the work existed and department
required the services of the petitioners to do the work. That being the
position, we are firmly of the opinion that the department cannot continue to
pay exploitive wages. If there was no work and the need was merely
temporary, the department should have terminated their services long back.
Sixteen years is long enough a period to establish perennial nature of work.
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[9] This coupled with the fact that the petitioners' initial entry in the
service was not through backdoor, must result into their service protection.
As noted, before engagement the department issued a public advertisement
inviting all eligible candidates to apply. Educational qualifications
commensurate with the nature of work were prescribed. It is not the case of
the department that educational qualifications prescribed in the notification
were different or lower than those prescribed in the service rules for regular
Radiographers. A selection process of all eligible candidates was carried out
pursuant to which the petitioners were selected and engaged. The learned
Single Judge, therefore, was perfectly justified in asking the department to
regularise the services of the petitioners. However, direction for creation of
supernumerary posts would not be in consonance with the judicial trend. The
petitioners can seek regularization on the vacancy on the sanctioned strength
or wait till such vacancy arises.
[10] In the result, by modifying the impugned judgment of the learned
Single Judge it is provided that the original petitioners shall be regularized
on the post of Radiographer on the existing vacancies in the permanent set
up, if so available. If not, against the earliest vacancies which may arise. Till
this is done, the petitioners shall be paid minimum of the scale prescribed for
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the post of Radiographer which would include basic pay plus prevailing
dearness allowance but no other allowances.
Appeals are disposed of accordingly. Pending application(s), if
any, also stands disposed of.
( S G CHATTOPADHYAY, J ) ( AKIL KURESHI, CJ )
Sukehendu
