Tripura High Court
Unknown vs The State Of Tripura on 13 May, 2024
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
WA No.42 of 2024
1. Sri Chandan Roy Barman,
S/o Jagadish Ray Barman, R/o:Vill Old Kalibari, Advisor Chowmahani,
West Tripura, Age 51 years
2. Smt. Swapna Chakraborty,
W/o Sri Apu Chakraborty, R/o:Vill & PO ONGC, Kanchanpalli, Amtali,
West Tripura, Age 46 years
3. Sri Raju Ghosh,
S/o Bashudeb Ghosh, R/o Uttar Banamali Pur, East Agartala West Tripura,
Age 44 years
4. Smt. Shilpi Banik,
D/o Lt. Haridas Banik, R/o:Vill 79 Tilla, Lenin Colony, Agartala, PO
Kunjaban Tripura, Age 55 years
5. Smt. Sabita Debnath,
W/o Haripada Debanath, R/o:Vill East Chanmari, Bankumari, Agartala,
West Tripura, Age 50 years
6. Sri Pradip Shil,
S/o Sri Nidhir Shil, Vill Jogendra Nagar, Mahashakti Club, PO Jogendra
Nagar, Agartala, West Tripura, Age 45 years
7. Sri Pranjit Dey,
S/O Late Hirendra Dey, R/o:Vill Joynagar Dashamighat, Battala, Agartala,
West Tripura, Age 41 years
8. Sri Ajit Kr. Das,
S/o Jogandra Das, R/o:Vill South Badharghat, P.O. Charipara, West
Tripura, Age 51 years
9. Sri Dilip Malakar,
S/o Gouranga Malakar, R/o:Vill & P.O. ONGC, Agartala, West Tripura,
Age 48 years
10. Sri Pradip Dhar,
S/o Late Lalit Bhusan Dhar, R/o:Vill & P.O. East Pratapghar, Agartala,
West Tripura, Age 53 years
11. Sri Laxman Bhowmik,
S/o Late Rabindra Bhowmik, R/o:Vill Hapania, P.O. ONGC, Amtali, West
Tripura, Age 46 years
12. Sri Dilip Das,
S/o Bashu Das, R/o:Vill Kanchanmala, P.O. Sakerkute, West Tripura, Age
53 years
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13. Sri Krishna Ch. Das,
S/o Paresh Das, Hapania, R/o ONGC, Amtali, West Tripura, Age 48 years
14. Smt. Puspa Rani Shil,
W/o Bishu Shil, R/o Dhaleshwar Road No-1, Agartala, West Tripura, Age
49 years
15. Smt. Arati Roy,
W/o Lt. Niranjan Roy, R/o A.G. Quarter, Kunjaban, Agartala, West
Tripura, Age 51 years
16. Smt. Laxmi Rani Sutradhar,
W/o Lt. Purna Lal Sutradhar, R/o: Vill A.D. Nagar, Road No.15, P.O. Sorba
Dharma Mission, Age 55 years.
17. Smt. Ranu Saha,
W/o Lt. Arabindu Saha, R/o:Vill Shubash Nagar, P.O. East-Pratap Garh,
West Tripura, Age 51 years
18. Smt. Kalpana Sarkar,
W/o Sushil Sarkar, R/o:Vill Charipara, AD Nagar, West Tripura, Age 47
years.
19. Smt. Soba Rani Shil,
W/o Sunil Shil, R/o:Vill Bhatti Abhoynagar, Age 50 years
20. Smt. Jyotsna Ghosh,
W/o Sukumar Ghosh, R/o:Vill Vidya Sagar Palli, Amtali, Age 54 years
21. Smt. Golapi Biswas,
W/o Gouranga Biswas, R/o:Vill Kismatkuri, P.O. Ishan Chandra Nagar,
P.S. Amtali, West Tripura, Age 53 years
22. Smt. Dipu Debnath Banik,
W/o Lt. Mahendra Debnath, R/o Bardowali, Agartala, West Tripura, Age
59 years
23. Smt. Laxmi Dhanuk,
W/o Bachu Dhanuk, R/o: IGM Harijan Quarter, Rabindra Palli, Agartala,
West Tripura, Age 45 years
24. Smt. Prema Dhanuk,
W/o Durga Prasad Dhanuk, R/o IGM Harijan Quarter, Rabindra Palli,
Agartala, West Tripura, Age 49 years
25. Smt. Reba Dey,
W/o Sunil Dey, R/o:Vill Netaji Nagar, P.O ONGC, Agartala, West Tripura,
Age 47 years
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26. Smt. Khudeja Begam,
W/o Ahid Mia, R/o:Vill South Ram Nagar, Agartala, West Tripura, Age 53
years
...... Appellant(s)
VERSUS
1. The State of Tripura,
(To be represented by) the Secretary, Health Department, Govt. of Tripura,
New Capital Complex, New Secretariat Building, Agartala, West Tripura,
PIN 799001.
2. The Director of Health Services,
Govt. of Tripura, P.N. Complex, Agartala, West Tripura
3. The Secretary,
Finance Department, Govt. of Tripura, New Capital Complex, New
Secretariat Building, Agartala, West Tripura, PIN 799001.
...... Respondent(s)
For Appellant(s) : Mr. P. Roy Barman, Senior Advocate.
Mr. Kawsik Nath, Advocate.
For Respondent(s) : Mr. Kohinoor N. Bhattacharya, G.A.
Date of hearing &
delivery of Judgment : 13th May, 2024.
Whether fit for reporting : NO
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
JUDGMENT & ORDER (ORAL)
Heard Mr. P. Roy Barman, learned senior counsel for the
appellant-petitioners. Also heard Mr. Kohinoor N. Bhattacharya, learned G.A.
for the respondents.
[2] The delay of 100 days in filing the appeal is condoned being not
opposed by the other side and the matter is heard on merit.
[3] The judgment dated 08.12.2023 passed by the learned Writ Court
in WP(C) No.255 of 2022 is under challenge in this appeal whereby learned
Single Judge rejected the prayer for regularization of the appellant-petitioners.
[4] The appellant-petitioners with others were initially engaged as Slip
workers/Casual workers/Drivers and Group-D on different occasions during the
year 1983 to 1997 under the respondents and were receiving their pay as daily
wages. Thereafter, the Director of Health Services, Government of Tripura
declared all the appellants as Casual workers notionally w.e.f. 01.01.2010 vide
memorandum dated 30.03.2010 (Annexure 21 of the writ petition) and
subsequent memorandum dated 06.05.2011 (Annexure 23 of the writ petition).
The appellants submitted representations to the Director of Health Services for
regularization of their service in Group-D post on completion of 10 years
thereafter. As stated by the appellants, all the representations were exactly
similar and identical in nature and therefore, one of such representation as a
sample was submitted before the learned Writ Court under Annexure 29. In
support of claim for regularization of service, the appellants also relied on
memorandum dated 01.09.2008 (Annexure 24 of the writ petition) and
memorandum dated 21.01.2009 (Annexure 25 of the writ petition), both issued
by the Finance Department, Government of Tripura. But getting no response in
respect of their representations, ultimately they filed the writ petition with the
following prayers:
(i) Issue Rule upon the Respondents to show cause as to why a
writ in the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued whereby
directing the Respondents to regularize the service of the
Petitioners in Group-D posts on completion of 10 years
service as Casual Worker/Slip Worker, w.e.f., the date on
which the Petitioners completed 10 years as Casual
Worker/Slip Worker.
(ii) Issue Rule upon the Respondents to show cause as to why a
writ in the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued
modifying the Memorandums, dated 30.03.2010 &
06.05.2011, issued by the Director of Health Service, Govt. of
Tripura, to the extent, that, all the Petitioners were serving as
Casual Worker w.e.f. the first day when they joined their
service under the Respondents.
(iii) Issue Rule upon the Respondents to show cause as to why a
writ in the nature of Mandamus and/or order/orders and/or
direction/directions of like nature shall not be issued whereby
directing the Respondents to pay monthly
wages/remuneration to the Petitioners at par with the
minimum of the pay scale of Group-D post.
(iv) Issue Rule upon the Respondents to show cause as to why a
writ in the nature of Mandamus and/or order/orders and or
direction/directions of like nature shall not be issued whereby
quashing and cancelling the Memo, dated 31.07.2018, issued
by the Under Secretary, Govt. of Tripura, Finance
Department.
(v) Make the rules absolute.
(vi) Call for records.
(vii) Pass any further Order/Orders as this Hon'ble High Court
considered fit and proper.
[5] Admittedly, abovesaid memorandums based on which the
appellants and other writ petitioners (not appellants herein) lodged their claim
for regularization were repealed by the State Government vide memorandum
dated 31.07.2018 (Annexure 26 of the writ petition). While rejecting the claim
for regularization, learned Writ Court, inter alia, observed as follows:
"7. After perusal of the documents annexed with the writ
petition, I find that the petitioners were engaged as Slip Workers.
They were engaged as Casual workers vide Memorandum dated
30.03.2010 w.e.f. 01.01.2010. The petitioners have failed to justify
that they had been appointed against any regular sanctioned vacant
posts. The petitioners had been appointed illegally without following
the established procedure of law. Furthermore, the petitioners ought
to have approached the court within the realm of the scheme and
during the existence of the scheme before the date when those were
repealed. The delayed approach and lackadaisical attitude of the
petitioners would not entail them to get the benefit of repealed
schemes. In the opinion of this Court, this petition is absolutely
barred by delay and laches. Moreso, the nature of appointment of
the petitioners is not only irregular but illegal also. Further,
regularization is not a matter of right but a right to be considered by
the employer/Government and equality clause enshrined in Indian
Constitution must be followed in sensu stricto. Another important
aspect to be noticed that the petitioners have failed to place any
material that at present there are sanctioned vacant posts exist in the
Health department, Government of Tripura for their absorption or
regularization.
8. Above all, equality clause as enshrined under Articles 14
and 16 of the Constitution of India in the matter of public
employment cannot be frustrated or flouted for an indefinite period.
As per direction of the Apex Court in State of Karnataka vs. Uma
Devi (3) and Ors., reported in (2006) 4 SCC 1, the State
Government had formulated guidelines for regularization of
Casual/Contingent/Daily Rated workers in the year 2008 with
revised guidelines, and, those were continued for long 10(ten) years;
however, those were repealed by a policy decision of the
Government in the year 2018.
9. The concept of equality as envisaged under Article 14 of the
Constitution is a positive concept which cannot be enforced in a
negative manner. When any authority is shown to have committed
any illegality or irregularity in favour of any individual or group of
individuals, others cannot claim the same illegality or irregularity
on the ground of denial thereof to them. Similarly, judgment passed
on wrong premise in favour of one individual does not entitle other
to claim similar benefits.
10. I have also considered the directions given by the
Constitutional Bench of the Hon'ble Apex Court in the case of Uma
Devi(3)(supra) wherein at para 53 it was held thus:-
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in State of Mysore vs. S.V.
Narayanappa, reported in (1967) 1 SCR 128, R.N.
Nanjundappa vs. T. Thimmiah, reported in (1972) 1 SCC
409, B.N. Nagarajan vs. State of Karnataka, reported in
(1979) 4 SCC 507, and referred to in paragraph 15
above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees
have continued to work for ten years or more but without
the intervention of orders of courts or of tribunals. The
question of regularization of the services of such
employees may have to be considered on merits in the
light of the principles settled by this Court in the cases
above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and
their instrumentalities should take steps to regularize as
a one time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of
courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being
now employed. The process must be set in motion within
six months from this date. We also clarify that
regularization, if any already made, but not subjudice,
need not be reopened based on this judgment, but there
should be no further by-passing of the constitutional
requirement and regularizing or making permanent,
those not duly appointed as per the constitutional
scheme."
11. A Division Bench of this Court in State of Tripura vs.
Suprava Debnath, reported in 2023 SCC Online Tri 833, did not
find any illegality or arbitrariness in the policy decision of the
government repealing the policy of regularization formulated in the
year 2008.
12. Another noticeable feature is that even the dates of
engagements of the petitioners were considered w.e.f. 01.01.2010,
they have not completed 10(ten) years of service as Casual Workers
before 2018 when all the guidelines for regularization had been
repealed by the said policy decision of the Government.
13. This Court in WP(C) No.5 of 2023 titled as Sri Satya
Ranjan Dey and Anr. Vs. The State of Tripura and 4 Ors. decided
on 06.09.2023 had passed a detailed order referring many
judgments of the Hon'ble Apex Court and held that the petitioners of
that writ petition were not entitled to get their services regularized
and therefore, dismissed the writ petition.
14. Thereafter, a Division Bench of this Court (presided over by
Justice Aparesh Kumar Singh, Chief Justice and myself) in Suprava
Debnath (supra) had an occasion to deal with the similar issue on
regularization wherein after observing all factual and legal aspects,
by a detailed order had dismissed the writ petition.
15. Accordingly, I do not find any merit in the present writ
petition and the same stands dismissed."
[6] Mr. P. Roy Barman, learned senior counsel contends that even if
the claim of regularization of the appellants was rejected by the learned Writ
Court, the appellants are entitled to equal pay for equal work in view of the
decision rendered by the Apex Court in State of Punjab and others vs. Jagjit
Singh and others [(2017) 1 SCC 148]. Learned senior counsel further argues
that vide memorandum dated 11.05.2016 (Annexure 27 of the writ petition)
issued by the Under Secretary to the Government of Tripura, Health and Family
Welfare Department, with the concurrence of the Finance Department it was
ordered that Casual workers who were having the qualification of Madhyamik
pass out and above were to be treated as Casual worker (Gr-C) and were
entitled to existing wage rate of DRW (Gr-C) and the Casual workers who were
below that educational qualification were to be treated as Casual worker (Gr-D)
having entitled to existing wage rate of DRW (Gr-D). Learned senior counsel
continues his submission that there are vacant posts lying in the Department of
respondents and the appellants are also discharging similar duties and
responsibilities of Group-D employees due to acute shortage of staffs and
therefore, they are entitled to get the benefit of equal pay for equal work and
monthly wages/remuneration which is not less than the minimum of pay scale
of Group-D post.
[7] Mr. Kohinoor N. Bhattacharya, learned G.A. however, contends
that the scheme of regularization itself was withdrawn in the year 2018 and as
such, the appellants were not entitled to regularization of their services and
therefore, learned Single Judge was completely justified in rejecting their
prayers. Learned G.A. further argues that all the appellants were engaged
without concurrence from the Finance Department as a stopgap measure in
absence of regular employees, for smooth running of day to day work of the
hospitals and even after so, they were declared as a Casual worker w.e.f.
01.01.2010. According to learned G.A., the appellants are, therefore, not
entitled to get any relief as prayed for by them.
[8] We have considered rival contentions of the parties and also
perused the record.
[9] As it appears, the regularization scheme was already withdrawn by
the Government vide memorandum dated 31.07.2018 (Annexure 26 of the writ
petition) i.e. even prior to completion of 10 years of service of appellants as
Casual workers and as such, they cannot now claim for regularization of their
services. We are, therefore, in agreement with the views taken by the learned
Single Judge in the impugned judgment. So far as the claim for equal pay for
equal work is concerned, from the sample representation of one of the appellant
(Annexure 29 of the writ petition), it appears that no such claim was raised by
the appellants before the respondents on any occasion and for the first time it
was claimed before the learned Writ Court. Learned Writ Court also in the
impugned judgment did not give any decision on their said claim for such equal
pay with reference to prayer No.(iii) of the writ petition.
[10] In view of above, we deem it proper, for ends of justice, to give an
opportunity to the appellants to make representation to the respondents in
respect of their claim of equal pay for equal work furnishing all the related
materials in support of their such claim within a period not later than 3(three)
weeks and the concerned respondents will dispose of such representations by
reasoned order within 6(six) weeks thereafter. Needless to say, the appellants
will have the liberty to approach the appropriate forum in case they are not
satisfied with the decision of the respondents in this regard. With these
observations, this writ appeal is disposed of without any interference with the
impugned judgment passed by the learned Writ Court.
Pending application(s), if any, shall also stand disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Rudradeep RUDRADEEP BANERJEE BANERJEE
Date: 2024.05.24 18:12:06 +05'30'
