Tripura High Court
Sri Ranjit Malakar vs The State Of Tripura on 14 July, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 290 of 2017
Sri Ranjit Malakar,
wife of late Sashi Mohan Malakar, resident of Indranagar,
Barnali Sangha, P.O. Abhoynagar, P.S. Agartala,
District- West Tripura
... Petitioner
- Versus -
1. The State of Tripura,
represented by the Secretary,
Government of Tripura, Finance Department, Agartala
2. The State of Tripura,
represented by the Secretary,
Government of Tripura, Forest Department, Agartala
3. The Principal Chief Conservator of Forest,
Government of Tripura,
Aranya Bhaban, Pt. Nehru Complex, Agartala,
P.S. East Agartala, District- West Tripura
4. The Deputy Conservator of Forest (HQ),
Office of the Principal Chief Conservator of Forest,
Aranya Bhaban, Pt. Nehru Complex, Agartala,
P.S. East Agartala, District- West Tripura
5. The Managing Director,
Tripura Forest Development and Plantation Corporation Ltd.
Abhoynagar, Agartala, West Tripura, PIN-799005
... Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. B. Banerji, Advocate For respondents : Ms. AS Lodh, Additional GA Date of hearing and delivery : 14.07.2017 of Judgment and Order Whether fit for reporting : YES JUDGEMENT AND ORDER Heard Mr. B. Banerji, learned counsel appearing for the petitioner as well as Ms. AS Lodh, learned Additional Government Advocate appearing for the respondents.
2. By means of this writ petition, the petitioner has urged this court to direct the respondent no.5 in particular to regularize his service as the driver under the Tripura Forest Development and W.P.(C) No. 290 of 2017 2 Plantation Corporation Limited (for short, hereinafter referred to as TFDPC) as after his engagement as DRW on 23.07.2004 he was driving the vehicle of the Corporation by instruction of the respondent no.5.
3. Mr. Banerji, learned counsel has submitted that in the 143rd meeting of the Board of Directors of TFDPC Ltd. held on 02.06.2015, the Board after due deliberation had adopted the Miscellaneous Resolution no.1 for post facto approval for engagement of the DRW workers. From the said resolution the fact, as under, gets confirmed:
Sl. Name Date of Birth Date of SC/ST/ Amount of Nature of No engagement UR wages paid job being as DRW performed 01 Sri Ranjit Malakar 28.06.1969 23.07.2004 SC Rs.167.44 Driver per day 02 Sri Nirmal Malakar 27.11.1985 01.03.2004 UR Rs.167.44 Driver per day 03 Sri Subrata Singha 25.05.1980 01.03.2004 UR Rs.144.35 Peon per day 04 Smt. Mandadhari Rupini 01.01.1980 08.06.2003 ST Rs.144.35 Peon per day 05 Smt. Aparna Das 10.02.1973 02.09.2003 SC Rs.144.35 Peon per day
4. Thereafter, the Managing Director, TFDPC Ltd. by his communication dated 28.07.2015 (Annexure 5 to the writ petition) had written to the Deputy Conservator of Forest (HQ), Office of the Chief Conservator of Forest, Government of Tripura, Agartala, for according approval. The Board of TFDPC Ltd. had approved the engagements of the DRWs by their resolution no. 08 of the minutes of the meeting of the 143rd Board held on 02.06.2017. It was also communicated to the administrative department as follows:
"There are sanctioned post of Driver, Peon and MCW regarding their engagement. The payment of said DRW workers will be made from the TFDPC Ltd. own resource."W.P.(C) No. 290 of 2017 3
5. Despite that the Finance Department by their memorandum dated 11.12.2015 (Annexure 6 to the writ petition) asked the respondent No.5 to furnish the information regarding the DRW/Casual/Contingent/Contract/Part time workers engaged after 31.03.2003 in different departments. In the list attached in respect of the TFDPC Ltd. the petitioner‟s name figures at serial No.3 showing that he was working as the driver in the Group „C‟ category. Thereafter no progress had taken place.
6. Mr. Banerji, learned counsel having referred the memorandum No. F.10(2)-FIN(G)/2008(Part) dated 21.01.2009 has contended that the petitioner is to be considered for his regularization on the next date of his completion of the 10 years of service as DRW or the casual worker. For purpose of reference, the said memorandum dated 21.01.2009 (Annexure R-3 to the counter affidavit) is extracted hereunder:
No. F.10(2)-FIN(G)/2008(Part) GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE Dated, Agartala, the 21st January, 2009 MEMORANDUM Subject: Regularization of services of DRWs/Casual/Contingent Workers on the next date of completion of 10 years of service.
The undersigned is directed to inform that the Government has taken a policy decision to regularize services of full-time DRWs/Casual/Contingent Workers from the next date of completion on 10 years of service and fulfill the following criterion as per Department-wise names and particulars attached herewith:
(i)DRW/Casual/Contingent workers who were engaged on a full time basis in different Departments with or without concurrence of Finance Department other than Permanent Labourers, Part time workers, Anganwadi Workers and Helpers, Home Guards, Teachers and workers engaged under SSA and other Schemes/programmes, may be considered for regularization as per names attached.
(ii) Requirement of age as per Recruitment Rules will be deemed to be relaxed for the purpose of this regularization.
(iii) Requirement of educational qualification as per Recruitment Rules will be deemed as relaxed for regularization under Group-D only. In case of DRW/and Contingent Workers who were appointed under Group-C category, educational qualification as required under concerned R.R. must be ensured while entertaining their cases for regularization.
(iv) Except age and educational qualification mentioned in point (ii) and (iii) all other criterion as per relevant Recruitment Rules including reservation roster will have to be followed strictly for this process of regularization.W.P.(C) No. 290 of 2017 4
(v) Subject to fulfilment of above conditions, the eligible workers will be provided pay scale in the relevant post on the following day of completion of 10 years of service (without any break) from the date of joining. In the event of revision of pay scales the revised structure will be followed as per Govt' decision.
2. To facilitate quick action for implementation of the above decisions, appropriate authorities of the concerned Administrative Departments of the State Government are authorized to take following actions:
(i) The Departments will scrutinize the records and particulars of the workers whose names and particulars are included in the annexure attached herewith to ascertain their eligibility for regularization. Only those workers out of the attached annexure who fulfils all the above criteria are to be regularized.
(ii) While ascertaining eligibility other than relaxation made in respect of educational qualification and age, other requirements like nationality reservation quota are to be followed strictly. All original documents shall be checked by the Departments to ensure genuineness of records/documents.
(iii) After ascertaining the number of eligible cases, the department will take steps for creation of required number of posts in the appropriate category including creation of post for SC and ST as per 100 point roster for accommodating them in the concerned pay scale for regularization. The computation is to be done to ensure 31% reservation for ST & 17% reservation for SC against the number of UR candidates as per list enclosed without bringing any previous backlog. Formal appointment orders are to be issued by concerned appropriate authority accordingly. After taking this step department will send proposal to the Finance Department for ex-post-facto concurrence for creation of posts.
(iv) Following regularization of the eligible cases out of list attached herewith, the Departments are required to take action to ensure recruitment of shortfall of candidates under ST & SC category to fulfil the roster. In respect of such shortfall under Group D category, the Tribal Welfare Department would act as the Nodal Department for selection of required number of candidates and sponsoring them to the respective Department. The Departments are requested to send a report to the Finance Department within one month immediately after action taken as per the instant Memorandum alongwith list of workers regularized.
3. There shall be a complete ban on engagement of DRW/Casual/Contingent etc. workers after 31.3.2003 without concurrence from Finance Department. Responsibility shall be fixed on the official found responsible for any irregular engagement henceforth. Such irregular engagement shall have to be instantly terminated. The wages, if paid, shall be recovered from the official concerned.
4. The undersigned is directed to request all concerned to ensure strict implementation of the above decision.
Sd/ (N.Das) Joint Secretary to the Government of Tripura
7. The respondents, by filing the reply, have not disputed that the petitioner was working as the DRW w.e.f. 23.07.2004 but they have stated in para 5 of their reply as under:
"That, sans unnecessary details the case of the answering respondent is that the petitioner was working as a DRW/Contingent employees on and from 01.03.2004 who is praying for regularization as post of driver under the memorandum dated 21.01.2009 read with memorandum dated 03.01.2014 (Annexure 2 to the writ petition) is for regularization of services of DRWs/Casual workers of different departments who were engaged on full time basis after 31.03.2003 with concurrence of Finance Department. This memo clearly mentioned that this is for the workers engaged upto 31.03.2003 and the petitioner here was working on and from 23.07.2004. It is also to be mentioned here that in some departments DRW/Casual/Contingent workers were engaged after 31.03.2003 with prior approval of Finance Department. They are covered by the said memo. Here in this petition, the petitioner was engaged without finance concurrence (Annexure 4 to the writ petition). As such the petitioner is not entitled to the benefit he claimed for."W.P.(C) No. 290 of 2017 5
Therefore, the respondents have admitted that even after the cutoff date i.e. 31.03.2003, the regularization can be made on the basis of the memorandum dated 21.01.2009 in respect of those DRW/ Casual/Contingent workers who are engaged under various Departments with prior approval of the Finance Department.
8. However, Ms. Lodh, learned Additional GA has submitted that on the basis of the memorandum, no person after 31.03.2003 can be regularized as that memorandum dated 21.01.2009 (Annexure R-1 to their reply) was only for the persons who were engaged prior to 31.03.2003. Hence, the petitioner cannot be considered for regularisation. Moreover, the petitioner‟s engagement was also not with prior concurrence of the Finance Department. Ms. Lodh, learned Additional GA has further expanded her submission and stated that whether a DRW could be engaged as a driver or not that will be decided by the Transport Department, Government of Tripura.
9. Having appreciated, this court is constrained to observe that the TFDPC Ltd. is a Government of Tripura undertaking. It is not a department of the Government of Tripura. As such, the Transport Department cannot exercise its jurisdiction in terms of the Tripura Government Vehicle Drivers Rules inasmuch as the said Rules definitely provides that appointment of the drivers or their service conditions can be regulated by the Transport Department. It is in respect of those drivers engaged in the W.P.(C) No. 290 of 2017 6 departments which are listed in the schedule appended to the said Rules.
10. As there is no dispute that the petitioner was engaged as DRW on 23.07.2004, which day had been categorically admitted by the respondents in para 5 of their reply, the other pertinent point that has emerged in course of the deliberation is as under:
(i)Whether the petitioner can be regularized in terms of the memorandum dated 21.01.2009 (Annexure R-3 to the reply filed by the respondents) In paragraph 5 of the reply, the respondents have taken a stand affirmed by affidavit that even the Finance Department concurred the engagement of the DRWs. On that premise, by the memorandum dated 21.01.2009 those persons can be regularized. However, regarding interpretation, this court will definitely will not be guided by the averments made in the reply. But this is a conscious stand taken by the respondents.
That apart, what has been submitted by Ms. Lodh, learned Additional GA that by virtue of the notification dated 21.01.2009 (Annexure R-3 to the reply), the petitioner‟s service cannot be regularized. In this regard, this court in Dharamjit Singha vs. State of Tripura [judgment dated 12.07.2017 delivered in WP(C) 1086 of 2016] has observed as under:
"12.To a query to this court, Mr. Sengupta, learned counsel has fairly admitted that those who were appointed as DRW/Casual/Contingent workers without concurrence from the Finance Department before 31.03.2003 were en bloc regularised. By virtue of the casual employment for more than ten years and for fulfilling all criteria as laid down in the memorandum dated 21.01.2009, the petitioner being in the same class like those who were engaged before 31.03.2003. The question therefore now arises is that when the petitioner was permitted to work for more than ten years and he is still continuing and further that when he has been paid from the government fund whether the respondents can deny his status as the casual employee. In such circumstances, this court would have deemed concurrence from the Finance Department but even if such concurrence is not deemed when the casual employees having the similar background have been considered for regularization, the petitioner has been denied only for his appointment being after 31.03.2003. In the perspective, whether the said cutoff date is rational or not is considered by this court. The W.P.(C) No. 290 of 2017 7 government policy is very clear from the said memorandum dated 21.01.2009 where it has been clearly provided that the government has taken a policy decision to regularize the services of the full time DRW/Casual/Contingent workers from the next date of completion of ten years of service.
13. It is evident further that the concurrence of the Finance Department was waived for that class of employees for purpose of age and qualification. The cutoff date therefore according to the respondents has created a special class. It is well settled that unless the cutoff date is shown to be capricious or whimsical, the court does usually provide leeway in favour of the law-makers. But such classification on the basis of that cutoff date shall be founded on an intelligible differentia which distinguishes a person or things that are grouped together from those who are left out of that zone and the differentia must have a rational nexus to the object sought to be achieved by the policy. (In re the Special Courts Bill, 1978 reported in (1979) 1 SCC
380).
14. True it is that the court should not insist on delusive exactness or apply a doctrinaire test for determining the validity of classification in any given case. When the classification is justified, if it is not palpably arbitrary, the principal underlying the guarantee of Article-14 is not that the same rules should be applicable to all persons or that same remedy should be made available to them irrespective of difference of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. It has been clearly held in Special Courts Bill (supra) that :
"There should not be any discrimination between one person and another, if as regards the subject matter of the legislation their position is substantially the same."
15. The subject matter of the legislation and the object sought to be achieved can be availed from the memorandum dated 21.01.2009 where it has been clearly stated that the government has taken a policy decision to regularize the services of the full time DRW/Casual/Contingent workers from the next date of completion of ten years of service. From a reading of the memorandum dated 21.01.2009, it would be apparent that the government has insisted to regularize those persons having the similar status but if anyone is engaged after that day i.e. 31.03.2003, their case could be differentiated if they were not allowed to complete the ten years of service. Even the government has subsequently framed a policy to regularize the part time workers to DRWs on completion of ten years of service much after 31.03.2003. Therefore, the subject matter of the policy is completion of ten years of service in the casual employment. The objective is to achieve regularization for those persons who have completed ten years of service thus. By setting up a cutoff date, the persons having similar status cannot be discriminated.
A welfare government is also bound to give protection of the employment. Cut off date is different subject matter and in different contexts may have substantially different impact. Since the respondents did not contest that the petitioner was allowed to continue as the contingent worker for more than ten years, this court does not find any reason why the benefits as provided by the memorandum dated 21.01.2009 should not be extended to the petitioner as well. A welfare government is not expected to take a hyper technical view. But this court does not find any rationality in setting up of a cut off date for completely banning such casual employment to a person. The government has taken a commendable step by giving those casual/contingent employees protection of their service. According to the court, such benefit shall be granted to the petitioner as well. After working for such a long time if a person is thrown out of the job for any reason or even if he does not have the protection of the regularization, it would be a great peril for his dignified survival."
Similar view has also been taken by this court in Ajit Debnath vs. State of Tripura and others [judgment dated 23.06.2017 delivered in WP(C) 1255 of 2016]
11. What is very unique in this case is that, the Corporation in its 143rd Board‟s meeting has clearly decided for granting post W.P.(C) No. 290 of 2017 8 facto sanction of those engagements, but the Finance Department did not aver anything in this regard. With the counter affidavit filed by those respondents, Note no. 38 given by one Under Secretary of the Finance Department has been annexed alongwith the communication dated 05.07.2017. The said note reads as under:
"The Finance Department regrets its inability to concur the proposal of the department because the Government has not taken any policy decision for regularization of the services of the DRW who are engaged after the cut off date 31.03.2003 and also the Government has not taken any decision for regularization of the services of the PTW who were engaged in the undertaking/PSUs".
12. In the entire reply, this court did not find any averment relating to disposal of the reference made in respect of the ex post facto concurrence by the Finance Department. What the Finance Department has communicated to the Corporation is that in terms of the memorandum dated 21.01.2009, the DRWs/Contingent/Casual workers cannot be regularized. The Finance Department has not given the concurrence as urged for despite the fact that the petitioner was being paid by the Corporation from its own fund. This court is really startled by the approach adopted by the Finance Department.
13. Having regard to these aspects as surfaced from the inquiry, this court is of the view that the ex post facto concurrence be deemed in this case and in terms of the view expressed by this court in Dharmjit Singha (Supra) in respect of the memorandum dated 21.01.2009, the respondents are directed to regularize the service of the petitioner from the next date when the petitioner has completed 10 years of service in W.P.(C) No. 290 of 2017 9 the grade where he has been working as DRW. Such decision shall be taken by the respondents within a period of 3(three) months from the date when the petitioner shall submit a copy of this order..
14. Having observed thus, this writ petition stands allowed. There shall be no order as to costs.
A copy of this order be supplied to Mr. B. Banerjee, learned counsel appearing for the petitioner.
JUDGE Saikat W.P.(C) No. 290 of 2017