Sri Anup Sil Sharma vs The State Of Tripura
2022 Latest Caselaw 64 Tri

                            HIGH COURT OF TRIPURA
                                  AGARTALA

                              WP(C) 331 OF 2021

       Sri Anup Sil Sharma
       son of Niranjan Sil Sharma,
       resident of near Progressive Club,
       village: South Belonia, P.O. & P.S. Belonia,
       District: South Tripura, PIN:799155
                                                               ............ Petitioner
             - Vs -
1.    The State of Tripura,
      to be represented by the Principal Secretary,
      Forest Department, Government of Tripura,
      New Secretariat Building, New Capital Complex,
      Kunjaban, Agartala, West Tripura, PIN:799010

2.    The Principal Chief Conservator of Forests, Tripura
      Aranya Bhavan, P.N. Complex,
      Gorkhabasti, Agartala, West Tripura

3.    The Sub-Divisional Forest Officer, Bagafa
      Hrishyamukh Forest Range Office,
      Santir Bazar, Bagafa
                                                           ............ Respondents

BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA

For the petitioner : Ms. N Ghosh, Advocate For the respondents : Ms Sarama Deb, Adv Date of hearing : 07.12.2022 Date of pronouncement : 19.01.2022 Whether fit for reporting : NO

HON'BLE MR. JUSTICE S. TALAPATRA

Judgment & Order

By means of this writ petition, the petitioner has urged this Court for

directing the respondents to allow the petitioner continue as casual worker till his

absorption as Permanent Labourer. It has been further urged that the respondents

be directed to absorb the petitioner as Permanent Labourer in terms of Rules 4 & 5

of Tripura Government, Sepahijala Biological Complex/Any Other Complex/

Institution Permanent Labourers (Recruitment and Condition of Service) Rules,

1990. It has been further urged that the respondents be further directed to absorb

regularize the service of the petitioner as Permanent Labourer w.e.f. 19.11.2018

and allow him to resume his duties as casual worker under Hrishyamukh Forest

Range till such absorption is made.

2. Brief facts, as essential for determining the controversy as raised in

this writ petition, are that the petitioner had been serving the respondents from

19.11.2008 as casual worker in Hrishyamukh Forest Range under the

superintendence of Sub-Divisional Forest Officer, Bagafa. According to the

petitioner, on completion of three years of service as casual worker, serving 240

days in each year, the petitioner became eligible/entitled to be

absorbed/regularized as permanent labourer w.e.f. 19.11.2018. Since joining, till

31.03.2018, the petitioner served the respondents uninterruptedly. The petitioner

had been terminated from his service on 31.03.2018. The petitioner submitted a

representation on 01.11.2017 (Annexure-1 to the writ petition) seeking absorption

as permanent labourer.

3. It has been asserted by the petitioner that Rule 5 of the Tripura

Government, Sepahijala Biological Complex/Any Other Complex/ Institution

Permanent Labourers (Recruitment and Condition of Service) Rules, 1990 as

published by the notification dated 26.11.1990 (Annexure-2 to the writ petition)

provides that a labourer working in the Sepahijala Biological Complex or any other

complex/institution of the Forest Department will be considered for absorption as

permanent labourer when he would complete three years of service, serving 240

days in a year. Rule 5 of the said rules provides that depending on availability of

vacancy, the appointing authority may declare a labourer as permanent labourer if

he conforms to the requirement of Rules 4 and 5 of the said rules. However, such

absorption is subject to satisfaction of the appointing authority as regards the

quality of work, conduct and character of casual worker and his suitability for

employment on the basis of the recommendation of the committee that would be

constituted with senior and responsible officers under Conservator of Forests.

4. It has been referred by the petitioner that on 26.08.2016, by a

notification, the appointing authority of the permanent labourers has been declared

conforming to Rule 2(a) of the said Rules. Since, there is no dispute regarding who

the appointing authority is, no further elaboration is made.

5. According to the petitioner, the Council of Ministers, Government of

Tripura gave concurrence for absorbing the casual workers of the Forest

Department who were appointed, even without approval of the Finance

Department, as permanent labourers. It has been asserted by the petitioner that a

lot of casual workers under the said rules, and with the concurrence of the Council

of Ministers, have been declared and absorbed as permanent labourers. Those

permanent labourers, at various points of time, were working under the various

Forest Ranges or different institutions. The details of such absorptions have been

given in para 15 of the writ petition. According to the petitioner, the Finance

Department had accorded concurrence for absorption of 363 casual workers as

permanent labourers.

6. The petitioner has referred to the writ petition being WP(C)

450/2019 (Gopesh Malakar and Ors. Vs. State of Tripura & Ors.) instituted by the

„similarly situated‟ casual workers in the year 2019 where this court had directed by

the judgment dated 13.09.2019 to absorb the writ petitioners as permanent

labourers w.e.f. 11.01.2018 and to comply such order within three months. The

respondents had challenged the said judgment dated 13.09.2019 by filing a writ

appeal being WA 192/2020, the said appeal was dismissed by the judgment and

order dated 22.12.2020. The respondents have complied the said judgment by

absorption of the litigating casual workers.

7. Reference of a similar writ petition being WP(C) 450/2019 was also

made in the writ petition inasmuch as by the judgment dated 13.09.2019 delivered

in the said writ petition, similar direction for absorption of casual workers as

permanent labourers was made.

8. In para 24 of the writ petition, the petitioner has averred that for

completing the requisite years of service as the casual worker, the right to be

absorbed as the permanent labourer has ripened in his favour. The petitioner has

challenged the decision of disengaging him w.e.f. 31.03.2018. According to him,

that action is grossly illegal as thereby the vested right as accrued in favour of the

petitioner has been taken away.

9. The respondents by filing an elaborate reply, have retorted that the

petitioner never worked as the casual worker under the Forest Department. In para

8 of their reply, it has been averred as under:

"It is further submitted that the petitioner was never engaged and worked as casual worker under the Forest Department. The petitioner was engaged as contractual worker and performed duty as Documentation Assistant under the JICA project. The JICA project is an externally aided time bound project which was substantially funded by external agencies. The said project was sanctioned for a period w.e.f. 2007 to 2018. There were around 500 contractual workers in the JICA project earlier. All of them have been discontinued immediately after closure of the project."

[Emphasis added]

10. Since the petitioner was not engaged as a causal worker under

Sepahijala Biological Complex/any other Complex or Institution of the Forest

Department, the said rules as referred by the petitioner cannot be applied for

purpose of absorption of the petitioner as permanent labourer. The petitioner has

been working as the Documentation Assistant since 19.11.2008 till 31.03.2018

when he was disengaged as the JICA project, where he had been working, was

closed down. Hence, the petitioner does not fall within the meaning of casual

worker who after serving the respondents for three years having worked for 240

days continuously in a year becomes eligible for absorption as the permanent

labourer.

11. It has been asserted by the respondents that for the said reason the

petitioner‟s name was not included in the list of 363 casual workers nor was his

name recommended by the concerned District Level Committee at any point of time

for absorption. However, the respondents have categorically admitted that the

petitioner had served for more than three years and completed 10 years of service

working in the JICA project.

12. The respondents have also averred as under:

"Further, he was working as contractual workers under JICA project which has completed its 10 years period in the year 2018. Moreover, no vacancy is available in the department to absorb him as permanent labourer. The case of 363 petitioners were considered before repeal of "The Tripura Government, Sepahijala Biological Complex/any other Complex/ Institution permanent Labourers (Recruitment and Condition of Service) Rules, 1990" but the present case of Sri Anup Shil Sharma, the issue came in the picture after repeal of the same."

13. The respondents in their reply have repeatedly contended that since

the petitioner was not casual worker under the Forest Department, his case cannot

be considered for absorption as permanent labourer under the said rules. His case

is completely different from the case of 363 casual workers who got absorbed as

permanent labourers under rules 4 and 5 of the said rules.

14. For purpose of reference, rules 4 and 5 are reproduced hereunder:

"Method of declaration of permanent labourer.

4. Depending upon vacancies the Appointing Authority may declare a labourer as permanent labourer.

(a) he is in continuous full time employment for 3 (three) years and has worked for at least 240 days each year in Sepahijala complex or any other complex/Institution of the Forest Department.

(b) The Appointing authority is satisfied with the quality of his work, conduct, character and his suitability for employment as permanent labourer on the basis of Recommendation of a Committee consisting of Officer- in-Charge of the Establishment, Divisional Forest Officer, Forest Training Division, Sepahijala and concerned Conservator of Forests.

*In the Sub-rule 4(b), the existing provision viz "....committee consisting of Officer-in-Charge of the Establishment, Divisional Forest Officer, Forest Training Division, Sepahijala and concerned Conservator of Forests......" shall be substituted with the following -

".....Committee consisting of the DFO/WLW of the establishment, DCF(P&D)/DCF(H/Q) from Forest Headquarter and concerned Conservator of Forests. In respect of the Forest HQ, the committee will consist of two DCFs and a Conservator of Forests as decided by the CCF(Administration)...."

[vide Third Amendment Rules, 2007 Notified vide No.F.17(112)/For-Dev/97/31,848-81 dated 05- 01-

2008 if the Forest Department.]

Provided that labourer shall not be declared as a permanent labourer unless he is:-

(a) More than 18 years of age and less than 35 years of age, the upper age limit being relaxable in case of aperson belonging to Schedled Castes or Scheduled Tribes or any Ex-Service man by 5 years.

(b) Able to read and write any of the local languages and

(c) Mentally and physically fit to discharge the functions properly.

Initial Absorption.

5. A labourer working in the Sepahijala biological Complex or any other complex/Institution of the Forest Department who has worked continuously for the preceding three years or for at least 240 days in each year will be absorbed as permanent labourer upto the extent or authorized strength as per procedure under Rule 4.

Provided that a labourer, who on the date of commencement of these Rules, is less than 18 years of age or has exceeded 50 years of age shall not be declared as a permanent labourer."

15. According to rule 2(b) of the said rules "permanent labourer" means a

labourer so designated from the date on which the declaration is made under rule 4

and includes those absorbed under rule 5 as permanent labourer at the

commencement of those rules.

16. According to the petitioner, he had been excluded from the list most

arbitrarily. In the representation, filed by him on 11.01.2021 (Annexure-25 to the

writ petition), he has quite unambiguously asserted that "he served as causal

labourer under Hrishyamukh Forest Range Office in Bagafa Forest Division" but he

was not absorbed under the said rules. He sought absorption w.e.f. 19.11.2011 by

the said representation.

17. The petitioner has stated that he was engaged as causal worker on

19.11.2008 and he had worked for 240 days in each year continuously for three

years, but no document in support of the fact that he worked as the casual worker

has been produced. Further, the petitioner has contended that he is similarly

situated, as compared with the petitioners of WP(C) 450/2019, but his case has not

been considered. Finally, on 31.03.2018, the respondents disallowed the petitioner

to work as the casual worker and hence, his right to be considered for absorption

under the said rules, 1990 remains unaffected by the said disengagement. Denial,

as such, is arbitrary and colourable exercise of power.

18. Having appreciated the submission of the learned counsel for the

parties, and the documents enclosed with the writ petition, the pertinent question

that surfaces is whether the petitioner had ever worked as the casual worker under

the Forest Department. The respondents have produced the payment scroll with

their reply to show that the petitioner was paid his wages from the Poverty

Alleviation Scheme run by the JICA. But in contrast, the petitioner could not

produce any document to show that he had been working as the casual worker

under the Forest Department.

19. The entries relating to the petitioner has been marked by JICA. From

the records produced with the reply, pages 151--213, for example one entry may

be chosen. The entry (see page 153) is reproduced hereunder:

DATE Vr. No. PARTICULARS Head/Sub- L. Bank Cash remarks head page 21/7/2009 2 "By amount paid to -Do-

Anup Sil Sarma, D/A being the wages for the month of July-09 under JICA project of Hrishyamukh RMU vide cheque No. 483681 dt.4/7/09 = 3500/-

20. True it is that from the records, it is evident that the petitioner had

been working as Documentation Assistant under the JICA project. As such, the

petitioner cannot be considered as the casual worker under the Forest Department

as he was casual worker under the JICA project. The respondents have, therefore,

contended that absorption of contractual workers under the projects is not covered

by the said rules, 1990.

21. Even by the rejoinder, the petitioner could not produce any document

to show that he had been working as casual worker under the Forest Department.

On meticulous scrutiny of the record, it appears that the petitioner had himself

admitted in his representation dated 24.10.2017 (Annexure-1 to the writ petition)

that he had been working under various schemes. The petitioner is aggrieved for

absence of his name in the list prepared by the Forest Department for absorption

under the said rules after receiving concurrence from the Council of Ministers. In

the said representation, the petitioner has prayed for his absorption as the

permanent labourer, but that representation has failed to bring any yield.

22. Since the petitioner has failed to demonstrate that he was a casual

worker, working under the Forest Department, he is not entitled to absorption

under the Tripura Government, Sepahijala Biological Complex/Any Other Complex/

Institution Permanent Labourers (Recruitment and Condition of Service) Rules,

1990. Hence, this Court is constrained to hold that this writ petition is devoid of

merit and accordingly, the same is dismissed.

23. However, notwithstanding the dismissal of this writ petition, since the

petitioner had served under the project for more than 10 years or under a Scheme,

the petitioner may file a representation to the Principal Conservator of Forests for

giving him appointment in any post permanently, commensurate to his qualification

and experience.

There shall be no order as to costs.

Pending applications, if any, also stand disposed of.

JUDGE

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