Tripura High Court
Sri Sukradhan Chakma vs The State Of Tripura on 5 March, 2024
Page 1 of 10
HIGH COURT OF TRIPURA
AGARTALA
W.A. No.10/2023
1. Sri Sukradhan Chakma, S/O. Lt. Purnamashi Chakma, R/o. Vill- Shibnagar,
Gachuba, P.S.- Kanchanpur, North Tripura, PIN-799270, aged-56 years.
2. Smt. Nilati Reang, W/O. Debaprasad Chakma, Vill- Netaji Nagar, Dasda,
P.S.- Kanchanpur, North Tripura, Pin-799270, aged-52 years.
3. Sri Khanaram Reang, S/O. Lt. Maiyaha Reang, R/o. Ulemcherra, P.S.-
Ganganagar, Ambassa, Dhalai, Tripura, Pin-799289, aged-51 years.
4. Smt. Banabati Tripura, W/O. Jamadhan Tripura, R/o. Ananda Para, P.S.
Ganganagar, Ambassa, Dhalai, Tripura, PIN-799289, aged-47 years.
5. Sri Man Kumar Chakma, S/O. Lt. Sukradhan Chakma, R/o. Vill.
Dopatacherra, Kanchanpur, North Tripura, Pin-799270, aged-42 years.
6. Sri Bimal Suklabaidya, S/O. Lt. Subodh Suklabaidya, R/o. Sreerampur,
Kanchanpur, North Tripura, Pin-799270, aged-53 years.
7. Sri Sunil Biswas, S/O. Lt. Jadunandan Biswas, R/o. Santi Nagar, Near
Prtilata ICDS centre, Teliamura, Khowai, Pin-799205, aged-57 years.
8. Smt. Kanchan Sarkar (Giri), W/O. Indrajit Giri, R/o. Vill-Karailong,
Teliamura, Dist.- Khowai, Pin-799205, aged-55 years.
.........Appellant(s).
VERSUS
1. The State of Tripura, To be represented by the Secretary, Department of
Finance, Govt. of Tripura, New Secretariat Building, New Capital Complex,
Kunjaban, P.S.- New Capital Complex, Agartala, West Tripura, PIN-799010.
2. The Director, Directorate of Secondary Education, Govt. of Tripura.
3. The Headmaster, Kanchanpur H.S. School, Kanchanpur, North Tripura.
4. The Headmaster, Ganganagar High School, Ambassa Dhalai, Tripura.
.........Respondent(s).
For Appellant(s) : Mr. P. Roy Barman, Sr. Advocate,
Ms. A. Debbarma, Advocate.
For Respondent(s) : Mr. Dipankar Sarma, Addl. G.A.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
Date of hearing and judgment: 05th March, 2024.
Whether fit for reporting : YES.
JUDGMENT & ORDER(ORAL)
Heard Mr. P. Roy Barman, learned senior counsel assisted by Ms.
A. Debbarma, learned counsel appearing for the appellants and Mr. Dipankar
Sarma, learned Addl. Government Advocate appearing for the respondents-
State.
2. WP(C) No.1017 of 2022 preferred for regularization or absorption
of these petitioners in service was dismissed by the impugned judgment dated
28.11.2022 as there is no policy of the Government for absorption.
3. Contention of the petitioners/appellants:
(i) The appellants contended that since 01.03.1997, 01.03.1997,
26.01.1999, 26.01.1999, 01.03.2002, 01.08.2002 & 05.09.1993 respectively till
date they are serving under the respondents.
(ii) The appellants also contended that they have become
entitled for regularization of their service in Group-D posts w.e.f. the date when
they have completed 10 years as DRW.
(iii) The appellants further contended that they have requisite
qualifications to be regularized in Group-D post on completion of 10 years
service as DRW since 01.03.1997, 01.03.1997, 26.01.1999, 26.01.1999,
01.03.2002, 01.08.2002 & 05.09.1993 respectively.
(iv) The appellants also contended that since their engagement
the appellants are discharging beyond 8 hours duty per day.
(v) The appellants also contended that they are discharging their
duties and responsibilities of a Group-D post without being paid in the pay
scale pertaining to the said post.
(vi) The appellants also contended that they are entitled to
minimum wages as per the Minimum Wages Act, 1956.
4. On the basis of the aforesaid assertion that they were engaged as
Daily Rated Workers on 01.03.1997, 01.03.1997, 26.01.1999, 26.01.1999,
01.03.2002, 01.08.2002 & 05.09.1993 respectively, petitioners have contended
that in view of the regularization scheme framed by the Government of Tripura
on 21.01.2009, they were entitled for regularization in service on completion of
10 years of service. Their cases were under consideration when the
regularization scheme was repealed by memorandum dated 31.07.2018
(Annexure-R/1). It is also apparent from the affidavit of the State that proposal
for regularization of the services of these petitioners from the concerned Head
of Office and Drawing and Disbursing Officers were sent to Finance
Department for concurrence. The Finance Department gave their concurrence
on 15.12.2017 for regularization of services of 20 DRWs (including petitioners
No.1 to 8) out of proposed 23 names of DRW subject to the conditions:
(a) Approval of Council of Ministers is required for one time
relaxation of age bar/Educational Qualification required for entering into
regular Government service.
(b) Before regularization, the Department has to verify the
relevant documents along with original certificates.
(c) Upon approval of Council of Ministers, the Department is
requested to send the file to Finance Department for necessary entry in Finance
Department's database along with prescribed format duly authenticated by the
Gazetted Officer.
5. After concurrence of the Finance Department for regularization of
service of the petitioners, a memo was issued for verification of certificates/
documents of all 20 DRWs vide letter dated 04.01.2018. After completion of
verification of certificates/documents with the original documents of all 20
DRWs (including petitioners No.1 to 8), a proposal was placed before the
Council of Ministers along with a draft Cabinet Memorandum for approval of
the Cabinet of Ministers for one time relaxation of age bar/educational
qualification for entering into regular Government service, but the file was
returned from the office of the Principal Secretary, Education (School)
Department for discussion with the Director, Directorate of Secondary
Education with a direction to place the file after the General Election, 2018.
After completion of General Election process of Tripura Legislative Assembly,
2018, the file was again placed before the authority on 26.03.2018 for placing
before the Council of Ministers. In the meantime, in another similar file which
was placed for regularization of services of DRWs, the then Chief Secretary
intimated the Directorate that in view of GA(P&T) memo dated 14.03.2018 it
may be kept in abeyance until review is completed. Thereafter, vide
memorandum dated 31.07.2018 the State Government had reviewed the
decision of regularization of services of Daily Rated Workers/Casual
Workers/Contingent Workers and repealed all the memoranda issued in
connection with regularization of services of such Daily Rated Workers/Casual
Workers/Contingent Workers, etc. The regularization of services of the
petitioners has also been stopped in view of the memorandum dated 31.07.2018
and subsequent memorandum dated 01.08.2018 (Annexure-R/1 and R/2
respectively).
6. The respondents have taken a plea that at present there is no policy
of the Government for absorption. The petitioners approached before the Writ
Court after repeal of the scheme of regularization by memorandum dated
01.08.2018 only in the year 2022. The learned Single Judge, therefore, held that
in the absence of any scheme for absorption the petitioners could not get any
relief.
7. Learned senior counsel for the petitioners submits that the case of
the petitioners cannot be defeated only on the ground that the scheme of
regularization/absorption had been repealed though their cases were under
consideration at the Government level before the repeal of the scheme. A
valuable right had accrued in their favour for regularization in view of the
judgment of the Apex Court in the case of Secretary, State of Karnataka and
others vrs. Umadevi (3) reported in (2006) 4 SCC 1, the regularization scheme
dated 21.01.2009 and also in view of the judgment rendered by the Apex Court
in the case of Narendra Kumar Tiwari and others vrs. State of Jharkhand and
others reported in (2018) 8 SCC 238. It is submitted that delay in approaching
this Court cannot defeat their rights. In this regard, he has placed reliance upon
the decision of the Apex Court in the case of Pandurang Sitaram Jadhav and
others vrs. State of Maharashtra through its Dairy Manager and another
reported in (2020) 17 SCC 393 (para-12).
It is, therefore, submitted that the impugned judgment may be set
aside. The respondents be directed to regularize/absorb the services of the
petitioners since they have been working as Daily Rated Workers for more than
two decades. They have not been disengaged even after repeal of the scheme.
8. Learned Addl. Government Advocate Mr. Dipankar Sarma has
made the following objections:
(i) That, there is no scheme prevalent under the State
Government for regularization of such employees. The scheme was a one time
measure initiated in the year 2009 and all those who were entitled for
regularization, their cases were duly considered. However, the scheme of
regularization has been repealed by a conscious decision of the State
Government as it could not go for infinity in view of the decision of the Apex
Court in the case of Umadevi (supra) itself at para-53. It could be only a one
time measure.
(ii) The mere consideration of the case of the petitioners and
processing of their files in the department could not clothe them with a legal
right to claim regularization when the regularization scheme has itself been
repealed. He has referred two decisions of the Apex Court:
In the case of Vibhuti Shankar Pandey vrs. State of Madhya
Pradesh and others reported in (2023) 3 SCC 639; and
In the case of Government of Tamil Nadu and another vrs. Tamil
Nadu Makkal Nala Paniyalargal and others reported in 2023 SCC OnLine SC
393.
(iii) That, the petitioners have not approached the Court within
time. The writ petition was filed in the year 2022, 4 years after the repeal of the
regularization scheme. Therefore, it is barred on grounds of delay and laches.
It is further submitted that since regularization scheme has been
repealed on 01.08.2018, no relief should be granted in favour of the petitioners,
otherwise it may open floodgates for all those persons who have been sleeping
over their rights and did not approach the Court within time. Delay defeats
rights and remedies both.
9. We have given consideration to submission of learned counsel for
the parties in the gamut of the foundational facts placed on record. We are of
the considered view that the plea of the petitioners for regularization cannot be
allowed primarily for two reasons: (i) that, the regularization scheme was
abolished in the year 2018 itself; (ii) the petitioners if at all had a legitimate
expectation and claim have not approached this Court in time. The writ petition
was filed after 4 years of the abolition of the scheme.
10. The scheme for regularization was framed by different State
instrumentalities and authorities in view of the specific directions of the Apex
Court in para-53 in the case of Umadevi (supra). This had to be a one-time
measure. The State of Tripura had framed the regularization scheme on
21.01.2009. The State of Tripura had come into existence in 1972 itself.
Anyone who had been engaged in an irregular manner and worked for 10 years
in duly sanctioned posts but without intervention of any Court could have a
legitimate claim for regularization during the subsistence of the scheme.
Though it appears that the case of the petitioners were being processed in the
department but no final decision by the competent authority, i.e. the Council of
Ministers have been taken. Whether the petitioners fulfilled the criteria
prescribed under the regularization scheme of 2009 and were eligible for
regularization was dependent upon the decision of the competent authority
during the subsistence of the regularization scheme. It is true that during the
process of movement of files, the State Government took a decision to repeal
the regularization scheme by issuance of memorandum dated 01.08.2018 by the
Finance Department, Government of Tripura. Petitioners, if aggrieved, did not
approach this Court in the year 2018 or much thereafter till the year 2022. As
such, petitioners can also be blamed for sleeping over their rights and legitimate
claims, if any.
11. Reliance has been placed on behalf of the petitioners in the case of
Narendra Kumar Tiwari (supra) which arose from the regularization scheme
of 2015 framed by the State of Jharkhand which had a cutoff date of reckoning
10 years as on 10.04.2006, i.e. the date of the judgment in the case of Umadevi
(supra). The Apex Court took into account the context germane to those
petitioners that nobody would have completed 10 years of engagement as a
daily rated worker to claim regularization under the 2015 scheme framed by the
State of Jharkhand whereby a cutoff date of 10.04.2006 was fixed since the
State of Jharkhand had been created on 15.11.2000 itself.
12. The Apex Court also referred to the case of State of Karnataka
and others vrs. M.L. Kesari and others reported in (2010) 9 SCC 247 and
observed that the State of Jharkhand had continued with the irregular
appointment for almost a decade after a decision in Umadevi (supra) which was
a form of exploitation of the employees. In those circumstances, the Apex
Court observed that regularization rules must be given a pragmatic
interpretation and the appellants if had completed 10 years of service on the
date of promulgation of the regularization rules they ought to be given the
benefit of the service rendered by them unless there is valid objection to their
regularization like misconduct etc. As is apparent from the decision in the case
of Narendra Kumar Tiwari (supra), the regularization rules were of 2015 and
no one would have completed the period of 10 years of their engagement by
01.04.2006. Therefore, the Apex Court allowed the fixing of cutoff date as the
date of promulgation of the Rules in 2015. State of Tripura, on the other hand,
had framed the regularization scheme in 2009 itself. The scheme continued for
a period of 9 years till it was repealed by a memorandum dated 01.08.2018.
Any person seeking to claim regularization on the basis of regularization
scheme of 2009 framed by the State of Tripura could have raised his cause of
action till the scheme was prevalent. After repeal of the scheme, this Court
cannot direct absorption or regularization in service as framing of the scheme is
not within the domain of the Courts. At the same time the State and its
instrumentalities are not supposed to continue with irregular appointments in
view of the decisions in Uma Devi, M.L. Kesari and Narendra Kumar Tiwari
(Supra).
13. Learned counsel for the petitioners has also placed reliance upon
the decision of Pandurang Sitaram Jadhav (supra) in support of his
submission that delay in preferring the claim could not come in the way of
benefit of regularization except that their absorption could be made
prospectively from the date of the judgment. We, however, find that the case of
Pandurang Sitaram Jadhav (supra) arose out of the Industrial Disputes Act
wherein the appellants had lodged complaint before the Industrial Court,
Maharashtra claiming that they had been working with the respondent for a
period of more than 240 days continuously over a long period of time and had
not been given regular status. This amounted to unfair labour practice.
In those circumstances, the matter travelled up to the Apex Court.
It was, therefore, held that if the appellants were engaged over a long period of
time for several years and for more than 240 days in a calendar year not
granting permanence to their service would amount to unfair labour practice. In
those circumstances, the Apex Court observed that delay in preferring the claim
by those workmen would not lead to denial of the benefit of regularization. The
petitioners herein have approached this Court in writ jurisdiction. As on date,
the regularization scheme is not in vogue. Regularization in service or
absorption could only be made against a sanctioned vacant post. This Court in
such circumstances cannot direct creation of sanctioned vacant post more so,
when the regularization scheme has been abolished.
14. Having regard to the totality of the facts and circumstances and the
reasons discussed hereinabove, we do not find any reason to interfere in the
impugned judgment. Accordingly, the instant appeal is dismissed.
Pending application(s), if any, also stands disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Date: 2024.03.14 15:49:20
