JUDGMENT & ORDER : Heard Mr. K. Nath, learned counsel appearing for the petitioners. Also heard Mr. D. Sharma, learned Addl. G.A. appearing for the respondents No.1, 2, 3 and 4 and Mr. K. K. Pal, learned counsel appearing for the respondent No.5, Director General of ESI Corporation. 2. All these writ petitions being WP(C) No.06 of 2017 (Sri Lokesh Debnath Vs. The State of Tripura), WP(C) No.07 of 2017 (Sri Manoj Debbarma Vs. The State of Tripura), WP(C) No.08 of 2017 (Smt. Swapna Rani Acharjee Vs. The State of Tripura), WP(C) No.09 of 2017 (Sri Sudip Chakraborty Vs. The State of Tripura), WP(C) No.10 of 2017 (Sri Partha Deb Vs. The State of Tripura), WP(C) No.11 of 2017 (Sri Prasanta Saha Vs. The State of Tripura) and WP(C) No.12 of 2017 (Smt. Tanuja Debbarma Vs. The State of Tripura) are combined for disposal by a common judgment inasmuch as in all these writ petitions, Memorandum under No.F.3(7)/ESTT/ESI/AGT/09/5063-68 dated 18.05.2016 (Annexure-P/20) has been challenged. For purpose of reference the entire text of the said Memorandum dated 18.05.2016 is extracted hereunder: GOVERNMENT OF TRIPURA LABOUR DEPARTMENT NO.F.3(7)/ESTT/ESI/AGT/09/5063-68 Dated, Agartala, the 18th May, 2016 MEMORANDUM Sub :- Remuneration of employees under ESI Dispensary, Agartala The issues of drawl of salary of the staff engaged in ESI Dispensary has been under consideration in conformity with the guiding principles of the State Government and accordingly the issue was referred to the Finance Department, Government of Tripura. 2. The decision of the Finance Department, Government of Tripura on the above issue has been communicated vide U.O. No.2076/FIN/(B)/16, dated 11.04.2016 as under. (a) The remuneration of employees under ESI should not be drawn from State Treasury as ESI dispensary of the State is being run as per deed agreement between ESI Corporation and State Government of Tripura and therefore the employees engaged for ESI dispensary should not be treated as State Government employee. (b) The staffs of RSI are not eligible to contribute in GPF as GPF Rules are not applicable for them. (c) The state share may be released by Finance Department in Grant-in-aid as per requirement of the Department. 3. All concerned are, therefore, requested to take appropriate action in the light of aforesaid decision of the Government in Finance Department. (K. Jamatia) Deputy Secretary Government of Tripura 3. (c) The state share may be released by Finance Department in Grant-in-aid as per requirement of the Department. 3. All concerned are, therefore, requested to take appropriate action in the light of aforesaid decision of the Government in Finance Department. (K. Jamatia) Deputy Secretary Government of Tripura 3. There is no dispute that pursuant to the advertisement under No.F.27(89)/LGW/2008/6076 dated 28.08.2008 all the petitioners were appointed pursuing a due selection process in various posts in the Employee State Insurance (ESI) dispensary, Agartala. Initially, the petitioners were appointed by the memorandum dated 27.12.2008. Thereafter by the memorandum under No.F.1(1)-ESI/ESTT/APTT/2014/5339-52 dated 10.04.2014 issued by the Administrative Medical Officer (Labour Commissioner), Government of Tripura, all the petitioners were given the regular pay scale on completion of the 5 (five) years of service without break. For purpose of reference the entire memorandum dated 10.04.2014 is extracted hereunder: Government of Tripura Labour Directorate No.F.1(1)ESI/ESTT/APTT/2014/5339-52 10th April, 2014 MEMORANDUM In pursuance of the Finance Department Memo. No.F.10(2)-FIN(G)/05/Part-I dated 16th October, 2007, the following Group-C & Group-D employees are hereby allowed regular pay scale on the date of completion of 5 (five) years service without break against their names. The date of entitlement of regular pay scale, pre-revised pay scale and revised pay band, grade pay and date of next increment are shown at col.3, 4, 5, 6 and 7. Sl. No. Name of the Group-D (fixed–pay) employees Date of joining Date of Entitlement of regular Pay scale Pre-revised pay scale Revised Pay band and grade pay Date of next increment 1 2 3 4 5 6 7 1. Smt. Purnima Dey, Staff Nurse 01-01-2009 01-01-2014 Rs.5,000-10,300/- PB-2 Rs.5310-24,000/- Grade pay Rs.2400/- 01-07-2014 2. Sri Prasanta Saha, Laboratory Technician 01-01-2009 01-01-2014 Rs.4,200-8,650/- PB-2 Rs.5310-24,000/- Grade pay Rs.21,00/- -Do- 3. Sri Partha Deb, Dresser 01-01-2009 01-01-2014 Rs.3,300- 7,100/- PB-2 Rs.5310-24,000/- Grade pay Rs.1800/- -Do- 4. Sri Lokesh Debnath, L. D. Clerk 01-01-2009 01-01-2014 -Do- -Do- Periodical Increment will be allowed after passing of type test 5. Sri Manoj Debbarma, L.D. Clerk (Record) 01-01-2009 01-01-2014 -Do- -Do- -Do- 6. Smt. Swapna Rani Acharjee, Peon 01-01-2009 01-01-2014 Rs.2,600- 3,545/- PB-1, Rs.4,530-13,000/- Grade pay Rs.1200/- 01-07-2014 7. Sri Sudip Chakraborty, Peon 01-01-2009 01-01-2014 -Do- -Do- -Do- 8. Smt. Tanuja Debbarma, Peon 01-01-2009 01-01-2014 -Do- -Do- -Do- The expenditure involved on this account will be debited against the Head of Account “2230- Labour & Employment, 01-Labour, 001-Direction & Administration, 01-Salaries (Non-Plan)”. Smt. Swapna Rani Acharjee, Peon 01-01-2009 01-01-2014 Rs.2,600- 3,545/- PB-1, Rs.4,530-13,000/- Grade pay Rs.1200/- 01-07-2014 7. Sri Sudip Chakraborty, Peon 01-01-2009 01-01-2014 -Do- -Do- -Do- 8. Smt. Tanuja Debbarma, Peon 01-01-2009 01-01-2014 -Do- -Do- -Do- The expenditure involved on this account will be debited against the Head of Account “2230- Labour & Employment, 01-Labour, 001-Direction & Administration, 01-Salaries (Non-Plan)”. (S. Nama) Administrative Medical Officer (Labour Commissioner) Government of Tripura 4. Save and except, Purnima Dey, Staff Nurse, others have filed the writ petitions for the purpose as referred above. Thereafter, the petitioners were given their increment at 3% on the regular pay scale. Even some of the petitioners namely Lokesh Debnath, the petitioner in WP(C) No.06 of 2017 and Manoj Debbarma, the petitioner in WP(C) No.07 of 2017 on the recommendation of the Departmental Promotional Committee have been promoted to the post of the U.D. Clerk from the substantive post of L.D. Clerk in the scale of pay of Rs.5,310-24,000/-with the grade pay Rs.2100/- by the Memorandum under No.F.1(9)/LAB/ESTT/ESI/DPC/2014/793-801 dated 09.01.2015. Subsequently, their joining was accepted by a separate memorandum followed by the fixation of pay scale. But all on a sudden, completely residing from the conditions of appointment, the State-respondents in the Labour Department issued the Memorandum No.F.3(7)/ESTT/ESI/AGT/09/5063-68 dated 18.05.2016 declaring that in terms of the decision of the Finance Department, communicated vide U.O No.2076/FIN(B)/60 dated 11.04.2016 (a) the remuneration of the employees under ESI Corporation should not be drawn from the State Treasury as ESI dispensary of the State is being run as per the agreement entered between the ESI Corporation and the Government of Tripura. Moreover, the employees engaged for the ESI dispensary should not be treated as the State Government employees. It has been further declared that the staffs of the ESI Corporation are not eligible to contribute in GPF as the GPF Rules are not applicable for them. Hence, the State share may be released by the Finance Department in grant-in-aid as per requirement. It has been further declared that the staffs of the ESI Corporation are not eligible to contribute in GPF as the GPF Rules are not applicable for them. Hence, the State share may be released by the Finance Department in grant-in-aid as per requirement. For avoiding any ambiguity, the entire text of the said Memorandum dated 18.05.2016 which has been challenged in all these writ petitions are abstracted hereunder: GOVERNMENT OF TRIPURA LABOUR DEPARTMENT NO.F.3(7)/ESTT/ESI/AGT/09/5063-68 Dated, Agartala, the 18th May, 2016 MEMORANDUM Sub:- Remuneration of employees under ESI Dispensary, Agartala The issues of drawl of salary of the staff engaged in ESI Dispensary has been under consideration in conformity with the guiding principles of the State Government and accordingly the issue was referred to the Finance Department, Government of Tripura. 2. The decision of the Finance Department, Government of Tripura on the above issue has been communicated vide U.O. No.2076/FIN/(B)/16, dated 11.04.2016 as under. (a) The remuneration of employees under ESI should not be drawn from State Treasury as ESI dispensary of the State is being run as per deed agreement between ESI Corporation and State Government of Tripura and therefore the employees engaged for ESI dispensary should not be treated as State Government employee. (b) The staffs of RSI are not eligible to contribute in GPF as GPF Rules are not applicable for them. (c) The state share may be released by Finance Department in Grant-in-aid as per requirement of the Department. 3. All concerned are, therefore, requested to take appropriate action in the light of aforesaid decision of the Government in Finance Department. (K. Jamatia) Deputy Secretary Government of Tripura From a comprehensive reading of the memorandum dated 18.05.2016 it would emerge that the apparent ground of issuing that memorandum dated 18.05.2016 is that the ESI dispensary of the State is being run as per the agreement between the ESI Corporation and the Government of Tripura and therefore the employees engaged for the ESI dispensary should not be treated as the State Government employees. 5. The petitioners have enclosed the agreement entered between the ESI Corporation and the Government of Tripura at Annexure-I to the writ petitions. 5. The petitioners have enclosed the agreement entered between the ESI Corporation and the Government of Tripura at Annexure-I to the writ petitions. The relevant clauses for purpose of recruitment of the officers and staffs are Clause No.14(1) and Clause No.14(2), which are extracted hereunder: “CLAUSE NO.14(1) For the purpose of administrating medical benefit under the agreement, the State Government shall set-up under their general supervision and control a separate executive organization, In-charge of a full-time or a part time officer who shall be appointed by the State Government in consultation with the Corporation on such terms and conditions as are agreed to between the State Government and the Corporation.” CLAUSE NO.14(2) The State Government shall appoint in the office of the officers to be appointed in terms of Clause (1) above, such staff as may be agreed upon.” 6. From the reading of the said Clause-14(1) it would transpire that for purpose of administering medical benefit under the said agreement, the State Government shall setup under their general supervision and control, a separate executive organization, in charge of a full time or a part time officer who shall be appointed by the State Government in consultation with the Corporation on such term and conditions as are agreed to, between the State Government and the Corporation. Clause 14(2) provides that the State Government shall appoint the officers in terms of the Clause above and such staffs as may be agreed upon. Thus, it is apparent that, there is no area of doubt. It is the State Government’s obligation to appoint the officers for purpose of running the said scheme. It cannot be stated by any stretch of interpretation of those clauses that those are appointed by that mode are in any manner the staff of the ESI Corporation. Only character those officers and staffs do acquire is that of the State Government employees and they can wear no badge. 7. Mr. K. K. Pal, learned counsel appearing for the respondent No.5 has submitted that when the ESI Corporation is required to appoint officers and staffs, they are to be exclusively guided by the Employee State Insurance Act, 1948 and such appointment can only be made on prior sanction of the Central Government and proceeded by creation of the post by the Central Government. It is apparent from reading Section 17 of the Employees Insurance Act, 1948 that between the employees of the ESI Corporation and the employees of the State Government Officers, there cannot be another set of employees in the scheme for providing the benefits for which the ESI Corporation has been created. 8. Mr. K. Nath, learned counsel has, appearing the petitioners, submitted that the impugned Memorandum dated 18.05.2018 is arbitrary and issued in colourable exercise of power. Further, it emerges from gross incomprehension of the clause as referred in the said memorandum. 9. Mr. D. Sharma, learned Addl. G. A. appearing for the State has strenuously argued to impress this court that the posts as created for the purpose are temporary and from the first order by which the petitioners were engaged, it would be apparent that they are terminable at any point of time. That apart, Mr. D. Sharma, learned Addl. G. A. has referred to the decision of the Council of Ministers as reflected in the memorandum under No.F.27/89/LGW/2007/8119 dated 04.12.2007. Particularly, the following para in the said memorandum dated 04.12.2017 has been referred by Mr. Sharma: “(2) An Insurance Medical Officer shall visit an insured person at his or her residence in accordance with the second proviso to rule 10 and in addition to all cases of confinement or miscarriage, where the insured women or the registered midwife in attendance or any other reliable person reports that attendance by a small medical practitioner is desirable.” The ESI Corporation has created by the Central Government under the provisions of the Employees Insurance Act to administer and execute the State Insurance Scheme. The scheme provides certain social security benefit for the workers engaged in the factories and or under other coverable establishments. These benefits are secured by the financial contributions to the scheme both by the employers and the workers. In the considered opinion of this court, this para does not have any relevance in the context of the challenge as has been projected in this batch of writ petitions. 10. In the course of his submission, Mr. D. Sharma, learned Addl. G.A. has referred to para 20 of the reply filed by the State respondents, where they have asserted that the petitioners are the ESI employees and are under a separate organization established under guidelines of ESI Corporation. 10. In the course of his submission, Mr. D. Sharma, learned Addl. G.A. has referred to para 20 of the reply filed by the State respondents, where they have asserted that the petitioners are the ESI employees and are under a separate organization established under guidelines of ESI Corporation. Thus the ESI Corporation is obligated to look after the interest of those employees. The ESI Corporation has categorically denied the said assertion by stating that they are not involved in the process of recruitment and the officers are the State Government employees. 11. On the contrary, from Para-5 of the said decision of the Council of Ministers, it is apparent that the State Government has created the regular posts on concurrence from the Finance Department. Para-5 of the decision of the Council of Ministers as reflected in the memorandum dated 04.12.2017 has been extracted before. There is no reference that those posts are not to be treated as the posts under the Government. On the contrary, those posts are created on the regular basis and creation of those posts were concurred by the Council of Ministers in their said meeting. Having appreciated the records so produced before this court including the deed of agreement as referred in the impugned memorandum dated 18.05.2016 and the submission advanced by the learned counsel for the parties, this court is of the view that all the petitioners are the State Government employee for all purposes and they are entitled to get the salary from the State Treasury and not from the grant-in-aid. They are also contributing to one GPF at par with the other State Government employees. They are entitled to do so. 12. Having observed thus, it is declared that the memorandum dated 18.05.2016 as challenged in this batch of writ petitions are grossly arbitrary and the said memorandum is liable to be interfered with and struck down. It is ordered accordingly, the petitioners shall continued to enjoy the service benefits at par with the State Government employees and they shall not be deprived of any benefit as is extended to the State Government employees. 13. Moreover, the respondent No.5, the Director General of the ESI Corporation by filing a separate reply has categorically asserted in para 10 and 18 that the ESI Corporation is no way involved in or associated in the recruitment/appointment. It is the exclusive domain of the State Government. 13. Moreover, the respondent No.5, the Director General of the ESI Corporation by filing a separate reply has categorically asserted in para 10 and 18 that the ESI Corporation is no way involved in or associated in the recruitment/appointment. It is the exclusive domain of the State Government. The respondent No.5 has further asserted that the process of recruitment/appointment is the function of the State Government and hence, the petitioners cannot be treated as their employees under the scheme. Hence, the State-respondents foozled to issue the impugned memorandum. 14. In terms of the above, all the writ petitions are allowed. There shall be no order as to costs.