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2022 DIGILAW 192 (TRI)

State of Tripura v. Md. Roshan Ali

2022-04-12

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - This writ appeal has been directed against the judgment and order dated 07.12.2021 passed by the learned Single Judge in WP(C) No. 61 of 2021 directing the State respondents to regularize the writ petitioner (respondent herein) in service with retrospective effect from 07.10.2009. 2. The factual context of the case is as under:- The writ petitioner was engaged as a Group-D employee along with 02(two) others on contract basis for the residential Office of the Minister, Panchayats at a consolidated pay of Rs. 1500/- plus additional financial benefits by an order dated 07.10.1999 issued from the General Administration (SA) Department, Civil Secretariat, Government of Tripura (Annexure-1 to the Writ Petition). The said engagement letter was issued with the concurrence of the Finance Department. Subsequently, by an order dated 10.11.2004 (Annexure-2), the services of the Daily Rated Workers (DRW), including the writ petitioner who were engaged for the residential Office of the Minister were placed under the disposal of the Director/Head of the Department. 3. Another order was issued on 09.12.2004 from the Directorate of Panchayat, Government of Tripura (Annexure-3) whereunder the writ petitioner was shown to have been engaged in the Panchayat Department on contract basis at a monthly consolidated pay of Rs. 1,900/-. Thereafter, by an order dated 20.12.2004 the writ petitioner was transferred and posted at kadamtala RD Block with immediate effect and pursuant to the said transfer order he was released from the office of the Directorate of Panchayat, Agartala in order to enable him to join his new place of posting in the office of the BDO, Kadamtala RD Block. 4. Having completed 10 years of qualifying service without any break from the date of his engagement as a Daily Rated Worker w.e.f, 07.10.1999, the writ petitioner submitted a representation to the Block Development Officer of Kadamtala RD Block seeking regularization of service. In turn, the Block Development Officer, Kadamtala RD Block (respondent no. 4 in the Writ Petition) under his letter dated 3.6.2009 (Annexure-6), forwarded the prayer of the writ petitioner to the Director of Panchayats (respondent no. 2). Since there was no response from the respondents regarding regularization of his service, the writ petitioner submitted another representation to the respondents claiming regularization. In the said representation he referred to various memorandums issued by the State Government from time to time regarding regularization of Daily Rated Workers/Casual Workers. 2). Since there was no response from the respondents regarding regularization of his service, the writ petitioner submitted another representation to the respondents claiming regularization. In the said representation he referred to various memorandums issued by the State Government from time to time regarding regularization of Daily Rated Workers/Casual Workers. He also referred to the instances of the similarly situated Daily Rated Workers who were regularized in service by the State respondents. Even thereafter, his case was not considered by the respondents for regularization in service. Aggrieved writ petitioner therefore approached this court by filing WP(C) No. 61 of 2021 claiming the following reliefs:- '(i) Issue rule, calling upon the respondents and each of them to show cause as to why a Writ of Mandamus or/and in the nature thereof, shall not be issued directing the respondents to regularize the petitioner's service since he has completed his (Ten) years of service without any break w.e.f. the date of his initial joining as Group-D employee i.e, from 01.04.1999. (ii) Issue a rule calling upon the respondents and each one of them to show cause as to why a Writ of Mandamus and/or in the nature thereof shall not be issued, mandating/directing the respondents to act upon and regularize the service of the petitioner in terms of the Memorandum dated 21.01.2009 and 04.09.2012 issued by the respondent No. 2. (iii) Call for the records appertaining to this petition: (iv) After hearing the parties, be pleased to make a Rule absolute in terms of i. ii., above; (v) Costs of and incidental to this proceeding; (vi) Any other relief(s) as to this Hon'ble High Court may deem fit and proper;' 5. The respondents contested the case by filing counter affidavit. It was pleaded by the respondents that since the writ petitioner was engaged as Group-D employee on contract basis for a monthly remuneration of Rs. 1500/- and it was categorically stipulated in his letter of engagement that he would have no claim for regularization of service, the writ petitioner was not entitled to regularization in service. It was further pleaded that the writ petitioner accepted the terms and conditions of the letter of his engagement and joined the service. Therefore, his claim for regularization had no merit at all. It was further pleaded that the writ petitioner accepted the terms and conditions of the letter of his engagement and joined the service. Therefore, his claim for regularization had no merit at all. The respondents in paragraph-10 of their counter affidavit admitted that benefits of regularization in various public sector undertakings and autonomous bodies including municipalities were extended to Daily Rated Workers and Contingent Workers but the writ petitioner was not entitled to similar benefit because he was engaged on contract basis on condition that he would not claim regularization. With regard to the claim of the petitioner that two other similarly situated DRWs were regularized in service denying such benefit to the writ petitioner, the respondents pleaded that they were regularized on caste consideration against reserved quota which was not available to the petitioner. 6. In the course of his arguments before the learned Single Judge the petitioner's counsel had drawn the attention of the learned Single Judge to the memorandum dated 21.1.2009 and 04.12.2012 for the purpose of showing the court the extant policy of the Government that DRWs, Casual/Contingent Workers who were engaged on full time basis in different departments of the Government with or without concurrence of the Finance Department would be considered for regularization. Counsel contended before the learned Single Judge that since the writ petitioner was engaged as DRW on full time basis, he was entitled to regularization from the date of completion of 10 years of service under the memorandum dated 21.01.2009 issued from the Department of Finance, Government of Tripura. Counsel also referred to the subsequent memorandum of the State Government issued from the Finance Department on 23rd May 2014 which indicated that as per the decision of the Counsel of Ministers the cases of the Daily Rated Workers who had completed 10 years of continuous service would be processed for decision of the State Government and all departments were instructed to compile the data of such workers. The said memorandum dated 23.5.2014 reads as under:- 'No. F.10(5)FIN(G) Government of Tripura Finance Department Secretariat Complex, Agartala 23rd May, 2014 Memorandum The proposal for regularization of services of Daily Rated Workers who have completed ten years of continuous service as well as conversion of part time workers engaged in different departments who have completed ten years of continuous service as a Daily Rated Worker came up for discussion in the meeting of Council of Ministers on 20th May, 2014 and it was decided that full details in respect of all such persons who are working in different departments with the concurrence of the Finance Department and otherwise shall be compiled and processed for decision of the Government, instead of dealing the matter in a piecemeal manner. As per guidelines in all such cases, it is necessary to take prior concurrence of the Finance Department. As such, in case any person has been engaged without prior concurrence of the Finance Department, details of the circumstances and the Head of Office who has engaged the person shall have to be sent by the Department. 2. Accordingly, all Secretaries are requested to compile relevant details separately in respect of each such Daily Rated and Part Time workers in the formats enclosed (Format-1 and Format-II respectively) to the Finance Department by the 16th June, 2014 with the approval of the Minister of the Department concerned. In case, no information is received by the stipulated date, it would be presumed that no such worker has been engaged by the department. Enclo:- As sated. Sd/- Illegible (S.K. Panda) Chief Secretary Government of Tripura' 7. Counsel of the petitioner further argued that the engagement letter of the writ petitioner would clearly show that he was engaged as a Daily Rated Worker in the year 1999 initially for the residential office of the Panchayat Minister on full time basis with the concurrence of the Finance Department in the year 1999 and thereafter, he was posted at the Directorate of Panchayat at Agartala from where he was transferred to the Kadamtala RD Block in the erstwhile North Tripura District. The Petitioner thus fulfilled all the criteria laid down in the memorandum dated 21.1.2009 and 4.12.2012 and moreover, similarly situated DRWs were regularized in service. Counsel, therefore, urged for allowing the writ petition. 8. The Petitioner thus fulfilled all the criteria laid down in the memorandum dated 21.1.2009 and 4.12.2012 and moreover, similarly situated DRWs were regularized in service. Counsel, therefore, urged for allowing the writ petition. 8. The counsel appearing for the State Respondents on the other hand submitted before the learned Single Judge that the policy decision of the State Government for regularizing the services of Daily Rated Workers/Casual/Contingent Workers after 10 years of service was reviewed by the State Government and after such review, a memorandum dated 31st July, 2018 was issued from the Finance Department whereunder all prior memorandums issued by the State Government with regard to regularization of service of such employees were repealed. The State-counsel also referred to the memorandum dated 1.8.2018 whereunder, the Finance Department reiterated the new policy decision of the State Government and declared that there shall not be any engagement of DRW/Casual/Contingent Workers in any office under the State Government without concurrence of the Finance Department and in case of such engagement the financial liability would be fixed on the concerned head of departments. The State-counsel finally argued before the learned Single Judge that in the engagement letter of the writ petitioner, it was clearly stipulated that he would be engaged on contract basis and no claim for regularization would be entertained. Counsel, therefore, urged for dismissal of the writ petition. 9. The learned Single Judge was of the view that memorandum dated 31.7.2018 whereunder all prior memorandums issued from the Finance Department were repealed, was given prospective effect and, therefore, the same did not create any embargo in regularizing the service of the writ petitioner pursuant to the memorandum dated 21.1.2009. With regard to the subsequent memorandum issued from the Finance Department on 1.8.2018 (Annexure-R/2 to the Counter affidavit of the respondents), the learned Single Judge held that the said memorandum only imposed the some restrictions on engagement of DRW, Casual Workers etc. and the said memorandum did not have any bearing in the present context. 10. Having said so, the learned Single Judge was of the view that the petitioner was entitled to regularization of his casual appointment which was denied to him most arbitrarily and, therefore, the State respondents were directed to regularize the petitioner in service w.e.f, 7.10.2009 i.e. the date on which he completed 10 years of service. 10. Having said so, the learned Single Judge was of the view that the petitioner was entitled to regularization of his casual appointment which was denied to him most arbitrarily and, therefore, the State respondents were directed to regularize the petitioner in service w.e.f, 7.10.2009 i.e. the date on which he completed 10 years of service. The relevant extract of the judgment of the learned Single Judge is as under: '13. Having appreciated the submission of the learned counsel for the parties, this Court is of the view that from the records it transpired unequivocally that the status of the petitioner was Daily Rated Worker (DRW). In the engagement letter dated 07.10.1999, it has been stated that the petitioner has been engaged on contract basis and the petitioner will have no claim for regularization of his service. In this regard, this Court will observe that when the order dated 07.10.1999 was issued the Government of Tripura did not have any policy for regularization of the casual workers, Daily Rated Workers, etc. As such, the petitioner was engaged on a consolidated pay of Rs. 1,500/- for serving in the residence of Ministers of Panchayat and Food and Civil Supplies. Later on, when his service was withdrawn in the year 2004, they were clearly designated as 'Daily Rated Workers worked in the residence of demitted Ministers'. As such, the contention of Mr. Sarkar that the petitioner is a contract based worker cannot be sustained. 14. In view of the extant policy, as referred above, the petitioner was entitled to regularization of his casual employment, but that was not done and that was not done arbitrarily, inasmuch as, the respondents did not cite any reason for not approving the name of the petitioner for regularization when he has conformed all requirement of such regularization under the policy. 15. Thus, the petitioner's case is wholly covered by the policy as delineated by the state. 16. In the circumstances, the petitioner is entitled to get regularization w.e.f. 07.10.2009. But the petitioner will not get any financial benefit for this retrospective regularization. His pay and allowances will be fixed notionally and the petitioner shall get the actual financial benefit from 28.01.2018, i.e. three years prior to the institution of this writ petition which was instituted on 28.01.2021. In the circumstances, the petitioner is entitled to get regularization w.e.f. 07.10.2009. But the petitioner will not get any financial benefit for this retrospective regularization. His pay and allowances will be fixed notionally and the petitioner shall get the actual financial benefit from 28.01.2018, i.e. three years prior to the institution of this writ petition which was instituted on 28.01.2021. The arrears as would accrue, shall be paid by the respondents within a period of four months from the day when the petitioner shall supply a copy of this order.' 11. Aggrieved by and dissatisfied with the order of the learned Single Judge, the State respondents have preferred this appeal mainly on the following grounds:- i. The learned Single Judge did not appreciate the fact that the writ petitioner was engaged merely as a contractual employee on a fixed monthly remuneration without the right to claim regularization in service. ii. The learned Single Judge did not appreciate the fact that in the memorandum dated 21.1.2009 and in the subsequent memorandum dated 4.8.2012 it was clearly stipulated that only those DRWs/Contingent Workers who were engaged on full time basis would be considered for regularization therefore, the petitioner who was engaged on contractual basis was disentitled to regularization under the said memorandums. iii. The learned Single Judge did not also consider the fact that due to financial stringency all the memorandums which were issued prior to 2018 to regularize the services of the Contingent employees, DRWs etc. were repealed by an order issued on 31.7.2018 which also covered the case of the petitioner. 12. Appearing for the State respondents, Mr. Haradhan Sarkar, learned counsel has argued that since the policy of regularization of Daily Rated Worker, Casual and Contingent Workers etc. has been reviewed by the State Government and the earlier memorandums issued in this regard have been re-called, the writ petitioner (respondent herein) has no ground to claim regularization in service. Counsel, therefore, urges the court to set aside the judgment of the learned Single Judge. 13. The counsel of the writ petitioner (respondent herein) on the other hand resorted to same arguments which were advanced by him before the learned Single Judge and urged for dismissal of the appeal. 14. The engagement letter (Annexure -1 to the Writ Petition) would indicate that the writ petitioner was engaged as a Group-D employee on contract basis. 13. The counsel of the writ petitioner (respondent herein) on the other hand resorted to same arguments which were advanced by him before the learned Single Judge and urged for dismissal of the appeal. 14. The engagement letter (Annexure -1 to the Writ Petition) would indicate that the writ petitioner was engaged as a Group-D employee on contract basis. By the subsequent order issued on 10.11.2004 (Annexure-2) issued by the State Government from the GA(SA) Department, the petitioner who was termed as a Daily Rated Worker who was posted at the Directorate of Panchayat at Agartala. 15. Learned Single Judge therefore, held that the petitioner's engagement was in the nature of Daily Rated Worker (DRW).The memorandum dated 31.7.2018 whereunder the earlier memorandums dated 4.3.2006, 22.2.2007, 01.09.2008, 21.01.2009, 4.9.2012, and 7.11.2012 were repealed, was given immediate effect. In paragraph 4 of the said memorandum dated 31.07.2018, it has been stated as follows:- '4. All concerned are requested to ensure strict implementation of the above decision with immediate effect'. 16. Learned Single Judge, therefore, correctly held that the petitioner completed 10 years of continuous service long before this memorandum dated 31.7.2018 was issued and since he was engaged as a DRW with the concurrence of the Finance Department on full time basis he was entitled to be considered for regularization in terms of the memorandum dated 21.01.2009. 17. Therefore, we find no error in the decision of the learned Single Judge. Resultantly, the writ appeal stands dismissed. The State respondents are directed to provide relief to the writ petitioner (respondent herein) in terms of the judgment of the learned Single Judge within a period of 3(three) months from today. In terms of the above, the appeal stands disposed of. Pending application(s), if any, shall also stand disposed of.