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2022 DIGILAW 301 (TRI)

State of Tripura v. Dipak Banerjee

2022-07-18

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT Indrajit Mahanty; CJ. - Heard Mr. Debalay Bhattacharya, learned Government Advocate appearing on behalf of the appellants-State and Mr. Somik Deb, learned senior counsel appearing for the private respondent. 1. Challenge in the present writ appeal has been made to an order dated 09.02.2021 in WP(C) No.750 of 2020 passed by the Hon'ble Single Judge directing as follows: 'Having noted all these observations, the respondents are directed to create the adequate number of posts in the Tripura Fire and Emergency Service Department and make appointments against those posts for introducing the system of 4 off-days in lieu of present and existing 3 off-days. After such appointment is made the respondents shall review the shift system having due regard to the recommendation of the said committee. So far the special compensatory allowance is concerned as Tripura Fire and Emergency Service Department has on principle accepted that such compensatory allowance, equivalent to one month leave salary, be extended to the Non-Gazetted Operational staff of the said department that shall also be implemented as expeditiously as possible' 2. Learned Government Advocate, on behalf of the State, contended that prior to the writ petition, order of which is sought to be challenged herein, an earlier writ petition i.e. WP(C) No.364 of 2014 had come to be filed and by judgment and order dated 02.11.2017 in WP(C) No.364 of 2014, the following directions had been passed - 'Having appreciated the submissions advanced by the learned counsel for the parties and scrutinized the records produced with the writ petition and with leave of the Court, this Court is of the view that the grievances enumerated in this writ petition falls fundamentally in the domain of the executive in the matter of framing a policy for maintenance of the standard of service. It is apparent from the records that the state is alive of these difficulties faced by the fire service personnel. They have also taken some steps to ease the stress of continuous duty by introducing 3(three)-shift duty system and allowing them to enjoy off/leave days and holidays as referred above. But this Court has been persuaded to realise that further changes are required in the prevailing system. They have also taken some steps to ease the stress of continuous duty by introducing 3(three)-shift duty system and allowing them to enjoy off/leave days and holidays as referred above. But this Court has been persuaded to realise that further changes are required in the prevailing system. It is necessary that the best practices are introduced by carrying out a review of the present system, While reviewing the present system the predicaments of the fire service personnel are to be essentially borne in mind and easing out those be given priority. Having observed thus, the respondents are directed to constitute a committee to make recommendation about the changes in the prevailing system whereunder the duties of the fire service personnel are regulated. While making such review, essentially the following aspects are to be assessed. i) The daily duty hour in the system. ii) Avoidance of duty continuously in 2(two) shifts. iii) Adequate leave/off days for the fire service personal. iv) Other facilities like provisioning of food items and other essential commodities. v) Recreation at the work place. vi) Creation of adequate posts etc. The said committee shall be constituted of one senior level officer from the Home Department and one senior level officer from the Finance Department. The said committee shall be constituted by the Principal Secretary, Home Department with the specified terms of reference in tune with the observations made above or any other ancillary terms as would be required within one month from the day of receiving copy of this order. The said committee shall furnish the report to the Director General of Fire Services within a period of 6(six) months from the day of constitution. The Director General of the Fire Service shall take necessary action on the basis of the said recommendation. However a copy of the report shall be furnished to the petitioners for their appraisal.' 3. It appears that pursuant to this Court's direction in the aforesaid writ petition, a committee had been constituted by notification dated 09.10.2018 and the said committee had taken into account all observations made in the judgment recommended as follows: SI. However a copy of the report shall be furnished to the petitioners for their appraisal.' 3. It appears that pursuant to this Court's direction in the aforesaid writ petition, a committee had been constituted by notification dated 09.10.2018 and the said committee had taken into account all observations made in the judgment recommended as follows: SI. No. Point/ Agenda of review Present Status Recommendation of the committee i. The daily duty hour in the system At present, there are 3(three) shifts in daily duty hour in fire stations namely Morning Shift (08'00 hrs to 13'00 hrs) Evening Shift- (13'00 hrs to 20'00 hrs) Night Shift- (2000 hrs to 0800 hrs) Earlier there were 2-shift duty systems in Fire Service Department. Later on 3-shift duty system has been introduced. The committee observed that duration of 3 Shifts is not uniform e.g. Morning shift duty is of 5 hours duration, evening shift of 7 hours duration and night shift of 12 hours duration. The Committee recommends that duration of 3-shifts should be of equal hours and introduction of new shifting schedule to be decided in consultation with stakeholders of Fire Service Department. ii. Avoidance of duty continuously in 2(Two) shifts Since, there is 3(three) shift duty is in vogue in Fire Station, the question of two continuous shift duty does not arise. The committee is unanimously recommend that the Department should ensure that no employee be put under two shift duty continuously. iii. Adequate leave/off days for the Fire Service personnel Fire Service Staff are enjoying one off day for each 10 days, thus 3 off days in a month. Apart from 3 off days in a month they also enjoy other leave as admissible to State Government employees e.g. 30 days Earned leave (E.L) in a year, 20 days Half pay leave i.e. 10 days commuted leave on full pay, 3 Compensatory leave for performing duties on National Holidays The committee feels that one more off days may be considered reducing the present system of one off day for ten days to seven days. Thus the employees will be eligible for four off days per month in place of present three off days per month. The committee also feels that with present staff strength the increase of one off day this is not possible. Thus the employees will be eligible for four off days per month in place of present three off days per month. The committee also feels that with present staff strength the increase of one off day this is not possible. This may be considered after filling up of vacant posts and creation of new posts in the Department. The marginally notes type and duration of leave available to fire service department is adequate, therefore no recommendation on this point also. iv. Other facilities like provisioning of food items and other essential commodities. All Non-Gazetted employees of Fire Service Department used to get Rs.700/- as Ration Money per month and Rs.60/- as KMA per month. At the time of introduction of Tripura Pay Matrix 2017 (ROP) Ration money has been increased to @Rs.800/- per head per month and KMA @Rs.300/- It appears that Ration Money and Kit Maintenance Allowance (KMA) increased during introduction of ROP as per Tripura Pay Matrix 2017 is similar to the personnel of Police Department. Therefore, the committee feels that there is no need of review of Ration money or KMA. v. Recreation at the work place TV, Carrom Board, Chess, Playing Cards etc are provided to Fire Stations from Central Stores of Fire Service Department for recreation of staff at the work place. Since no playground is available in Fire Stations, the Committee recommends the indoor games items to be sufficiently provided for recreation purpose to all Fire Stations. vi. Creation of adequate posts etc. 7 Fire Stations were opened in the year 2017-18 without sanction of posts for these Fire Stations. The shortage of Drivers is the main concern of the department with each passing month as Drivers and Firemen are retiring on superannuation. Therefore, the number of vacant posts has been on rise. Department has initiated proposal creation of new posts and filling up of vacant posts, otherwise it will be difficult for us to continue 3 shift duty system and would be liable for contempt of High Court. The committee recommends for initiating proposal for filling up of the existing vacant posts of the Department and creation of new posts as per latest guidelines issued by Finance Department Memorandum vide No.F.9(2)-FIN(G)/2017/718 dated, the 19th December, 2018. 4. The committee recommends for initiating proposal for filling up of the existing vacant posts of the Department and creation of new posts as per latest guidelines issued by Finance Department Memorandum vide No.F.9(2)-FIN(G)/2017/718 dated, the 19th December, 2018. 4. Apart from the above, learned Government Advocate drew our attention to an additional affidavit dated 13.08.2021 filed in the present appeal appending thereto Annexure-A dated 05.06.2021 claiming that endeavour has been made by the State for creation of the posts pursuant to the directives issued by this Court in the earlier judgment cited hereinabove. 5. Learned counsel appearing for the respondent supported the impugned judgment and submitted that the personnel working in the Tripura Fire and Emergency Service Department are unduly stressed on account of lack of manpower and are also not in a position to utilize 3(three) days of leave that is granted to them per month on account of exigencies of duties. He also highlights the fact that the counterparts of the writ petitioner in accordance with the rules of the State Government are entitled to 4(four) days of leave and, therefore, this amounts to fair discrimination. 6. After hearing the learned counsel for the respective parties and perusing the impugned order, we are of the considered view that the situation has in effect stay remain as status quo since 2014 at least. The report of the committee formed by the State Government speaks for itself. The committee had clearly recommended not only creation of additional posts but also payment of Special Compensatory Allowance and we find no justifiable reason as to why recommendations of the committee set up by the State ought not to have been accepted by the State and implemented accordingly. Annexure-A to the additional affidavit dated 13.08.2021 is merely recommendatory in nature. There is many a mile between a recommendation, creation of posts and filling up of the same. Mere endeavour, in our humble opinion, is inadequate. The State has to ensure that the directions of this Court are complied with for the benefit of the people of the State and the administration. 7. We find no justifiable cause to interfere with the directions issued by the Hon'ble Single Judge and on the other hand we find that in spite of the committee's report and in spite of recommendations, no additional post had been actually created far less filled up. 8. 7. We find no justifiable cause to interfere with the directions issued by the Hon'ble Single Judge and on the other hand we find that in spite of the committee's report and in spite of recommendations, no additional post had been actually created far less filled up. 8. Therefore, we are of the considered view, while dismissing the appeal, to further direct the State to complete the process of creation of posts within a period of 3(three) months from today and to complete the filling up of such posts within a further period of 3(three) months thereafter. In the meantime, the benefit of Special Compensatory Allowance as directed by the Hon'ble Single Judge must be paid to the existing employees entitled to the same within a period of 1(one) month from today and arrears be paid in quarterly instalments within 1(one) year. We make it clear that the Special Compensatory Allowance shall be paid to the existing employees till the filling up of posts as recommended by the Committee. 9. This writ appeal stands disposed of. Pending application(s), if any, also stands disposed of.