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2016 DIGILAW 386 (TRI)

Md. Mohan Miah v. State of Tripura

2016-11-17

S.TALAPATRA

body2016
JUDGMENT : Heard Ms. S. Deb Gupta and Ms. P. Roy, learned counsel appearing for the petitioner as well as Mr. N. Majumder, learned counsel appearing for the respondents no. 1,2 and 3. Despite due notice from this court, there is no representation from the respondents no. 4,6 and 7. By the order dated 15.04.2016, the name of the respondent no. 5 has been struck off. Even those private respondents did not file any reply. 2. The grievance of the petitioner is that the respondents no. 4, 6 and 7 are admittedly junior to the petitioner in terms of their date of initial engagement. But when the respondents no. 4,6 and 7 were made the permanent labourer in consideration of their length of the service only, the petitioner was not arbitrarily declared the permanent labourer. As consequent thereupon, when the respondents no. 4,6 and 7 along with others were appointed as the ‘Farm Worker’ in the scale of pay of Rs. 2600-3545/- w.e.f. 01.12.2007 (forenoon) by the Office Order No. F. 2(185)/ Agri/Estt/2008-09/12829-13203 dated 07.05.2008 (Annexure 11 to the writ petition), the petitioner was not considered for such engagement though the petitioner was admittedly senior from the respondents no. 4, 6 and 7. Moreover, it is admitted position that subsequently the petitioner has been appointed as the Farm Worker in the same pay scale w.e.f. 28.01.2014 by the Office Order No. F.2(559)-Agri/Estt/2012-13/16001-62 dated 20.02.2014 (Annexure 15 to the writ petition). 3. Ms. S. Deb Gupta, learned counsel appearing for the petitioner has submitted that the petitioner is a poorly paid employee and was surviving somehow on paltry amount that was given against his engagement as the casual/DRW. Whenever the said declaration had come to his notice, he continued to file representations on diverse dates e.g. on 20.07.2000 (Annexure 4 to the writ petition) initially for declaration of the Permanent Labourer. Those representations are produced with the writ petition as Annexure 12 and 13. 4. It appears from the communication No. F.2(94)-Agri/Estt/88-89/P/ 40500-501 dated 30.03.2001 (Annexure 6 to the writ petition) that the petitioner could not be declared the permanent labourer as those persons who were DRWs till 01.12.1981 had been declared permanent labourer. From the records it further appear to the competent authority in the Directorate of Agriculture, Government of Tripura that the petitioner was initially engaged on 03.12.1981. From the records it further appear to the competent authority in the Directorate of Agriculture, Government of Tripura that the petitioner was initially engaged on 03.12.1981. It was assured by that communication that the petitioner’s case will be considered according to seniority in due course. Ms. Deb Gupta, learned counsel has submitted that the petitioner was admittedly engaged on 03.12.1981 as would be apparent from the memorandum No. F. 2(100)-Agri(Estt)/83-84 dated 26.04.1986 (Annexure R-1 to the reply filed by the respondents no. 1,2 and 3), whereas from the seniority list of the permanent labourers under Agriculture Department as on 01.06.1987 (Annexure 7 to the writ petition) it would be apparent that the respondent no. 4 was initially engaged as casual worker on 01.02.1985 where as the respondents no. 6 and 7 were respectively engaged on 18.09.1982 and 01.02.1985. Thus, there cannot be any dispute that the respondents no. 4,6 and 7 were junior in terms of the initial engagement. It is also not disputed that only on the basis of the seniority declaration as the permanent labourer or appointment as the Farm worker has been made. 5. There is no dispute that the respondents no. 4,6 and 7 were declared as the permanent labourer from 01.12.1997, but while the respondents no. 4,6 and 7 were declared as the permanent labourer, the petitioner was not so declared, even though admittedly the petitioner is senior to the respondents no. 4,6 and 7 in terms of their initial engagement. Ms. Deb Gupta, learned counsel has therefore submitted that when the respondents no. 1,2 and 3 did not redress the grievance by appointing the petitioner in the post of Farm Worker from the same date when the respondents no. 4,6 and 7 were appointed as the Farm Worker in terms of the office order dated 07.05.2008 (Annexure 11 to the writ petition) w.e.f. 01.12.2007, he has approached this court for justice. 6. Mr. N. Majumder, learned counsel appearing for the respondents no. 1,2 and 3 has submitted that the respondents no. 4,6 and 7 were declared the permanent labourer on 01.12.1997. Since the petitioner was declared the permanent labourer on 30.07.2003, the respondents no. 4,6 and 7 were senior in the category of the permanent labourer and as such, in consideration thereof they have been engaged as the Farm Worker by the Office Order dated 07.06.2008 w.e.f. 01.12.2007. Hence, there is no illegality. Mr. Since the petitioner was declared the permanent labourer on 30.07.2003, the respondents no. 4,6 and 7 were senior in the category of the permanent labourer and as such, in consideration thereof they have been engaged as the Farm Worker by the Office Order dated 07.06.2008 w.e.f. 01.12.2007. Hence, there is no illegality. Mr. Majumder, learned counsel has raised further objection that following the due process the permanent labourers were declared, the petitioner has filed the representations but he did not take even though any further action and as such this writ petition suffers from serious latches. 7. Having considered the educational and the economic status of the petitioner, this court would leniently consider the objection relating to latches. It appears that the respondent no. 1,2 and 3 have committed gross illegality by exercising arbitrariness. When there is no dispute regarding the seniority of the petitioner in the initial engagement, it is not legitimately expected that the junior casual worker/DRWs would be allowed to steal a march on the senior casual worker/DRW, when the status as the permanent labourer was declared by the respondents. Illegality cannot be allowed to perpetrate causing perennial pecuniary loss to the petitioner. There cannot be any amount of dispute that for such an illegality as committed by the respondent no. 1 and 2 in declaring the petitioner as the permanent labourer w.e.f. 01.12.1997, the day when his juniors i.e. the respondent no. 4,6 and 7 were declared the permanent labourer, the petitioner has been deprived of his due regularization in the post of Farm worker in the scale of pay of Rs. 2600-3545/- w.e.f. 01.12.2007 when the Office Order dated 07.05.2008 (Annexure 11 to the writ petition) was issued by the Director of Agriculture. 8. As such, this court is of the view that the petitioner was entitled to be declared as the permanent labourer w.e.f. 01.12.1997 and consequent thereupon he was also entitled to be appointed as Farm Worker w.e.f. 01.12.2007 when his juniors viz. the respondents no. 4,6 and 7 were so appointed by the said Office Order dated 07.05.2008. However, since the petitioner has approached this court in a belated stage, his actual pecuniary benefit would be limited for three years prior to the date of filing of the writ petition i.e. 05.02.2016. 9. the respondents no. 4,6 and 7 were so appointed by the said Office Order dated 07.05.2008. However, since the petitioner has approached this court in a belated stage, his actual pecuniary benefit would be limited for three years prior to the date of filing of the writ petition i.e. 05.02.2016. 9. Having held so, this writ petition is allowed with the following direction: The petitioner shall be treated as the permanent labourer w.e.f. 01.12. 1997, the date on which the respondents no. 4,6 and 7 were so declared and he shall be further appointed in the post of Farm Worker w.e.f. 01.12.2007 from the date when the respondents no. 4,6 and 7 were so appointed in the scale of pay of Rs. 2600-3545/- by virtue of the Office Order dated 07.05.2008. Till 05.02.2013 the pay of the petitioner shall be fixed notionally. The petitioner will not get any pecuniary benefits for that period but the petitioner will be entitled to get the pecuniary benefits thereafter. It is made clear that the benefit that has already been received by the petitioner shall duly be adjusted. There shall be no order as to costs.