Tripura High Court
Sri Subhash Roy vs The State Of Tripura on 24 January, 2022
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.536 of 2021
WP(C)No.537 of 2021
In WP(C)No.536 of 2021
Sri Subhash Roy,
son of late Binoy Chandra Roy,
village & P.O.: Tebaria, P.S. Airport,
Agartala, West Tripura,
PIN:799 015
---- Petitioner(s)
-VERSUS-
1. The State of Tripura,
to be represented by the Secretary,
Department of Finance, Government of Tripura,
New Capital Complex, Agartala,
West Tripura, PIN: 799 010
2. The Secretary,
Department of Law,
New Secretariat Building,
New Capital Complex, Kunjaban,
P.S. New Capital Complex, Agartala,
West Tripura, PIN:799 010
3. The DLR & Deputy Secretary,
Law Department, Government of Tripura,
New Capital Complex, Agartala,
West Tripura, PIN:799 010
4. The Legal Remembrancer,
Law Department, New Capital Complex,
Kunjaban, P.S. New Capital Complex,
Agartala, West Tripura,
PIN:799 010
---- Respondent(s)
In WP(C)No.537 of 2021
Sri Jagabandhu Debnath, son of late Nabadwip Debnath, resident of Krishnanagar, Ramthakur Lane, Agartala, P.O. Agartala, P.S. West Agartala, District: West Tripura, PIN:799 001
---- Petitioner(s) Page 2 of 15
-VERSUS-
1. The State of Tripura, to be represented by the Secretary, Finance, Government of Tripura, New Capital Complex, New Secretariat Building, Agartala, West Tripura, PIN: 799 010
2. The Secretary, Law Department, Government of Tripura, New Capital Complex, New Secretariat Building, Agartala, West Tripura, PIN:799 010
3. The DLR & Deputy Secretary, Law Department, Government of Tripura, New Capital Complex, New Secretariat Building, Agartala, West Tripura, PIN:799 010
4. The Legal Remembrancer, Law Department, New Capital Complex, New Secretariat Building, Agartala, West Tripura, PIN:799 010
---- Respondent(s) For Petitioner(s) : Mr. S. Bhattacharjee, Adv.
For Respondent(s) : Ms. S. Nag, Adv.
Date of hearing & delivery
of Judgment and Order : 24.01.2022
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order (Oral)
Having noticed the common question that wades
through both the writ petitions being WP(C)No.536 of 2021 [Subhash Roy vs. State of Tripura & 3 Ors.] and WP(C)537 of 2021 [Jagabandhu Debnath vs. State of Tripura & 3 Ors.] those are combined for disposal by a common judgment.
Page 3 of 15[02] The writ petitioners have urged for Mandamus directing the respondents to regularize their service for their completion of ten years of service by interfering with the decision of the Finance Department contained in the communication dated 02.08.2021 [Annexure-5 to the writ petitions]. There is hardly any difference in facts. Both the petitioners did join as DRW Orderly in the Legal Remembrancer's establishment on 20.12.2007. Thereafter, they have been uninterruptedly serving the respondents. [03] On 02.08.2021 by filing a representation [Annexure-4 to the writ petitions] the petitioners had urged for their regularization against the vacant posts of Orderly. It is apparent that on 19.02.2017 they had completed ten years of service. While scrutinizing the records, it is noticed that the Law Department, Government of Tripura took steps for their regularization and for that purpose, they had referred the matter for concurrence of the Finance Department, as is evident from the communication dated 02.08.2021 [Annexure-5 to the writ petitions]. But by the impugned order the Finance Department has regretted the concurrence. Even from the Note No.126, the Finance Department's view on the proposal of the Law Department can be gathered [see Annexure-R/1 to the reply filed by the respondents].
[04] Mr. S. Bhattacharjee, learned counsel appearing for the petitioners has submitted that from the communication dated Page 4 of 15 02.08.2021 it also surfaces that the Finance Department declined to give concurrence to the proposal sent by the Law Department. From the reply, filed on 11.11.2021, what has emanated is that the Finance Department requested the Law Department to send the file only after the Government takes any policy decision for regularization of service of DRW etc., on completion of ten years of their service being engaged after 31.03.2003 in view of the memorandum dated 17.05.2018. It further appears that the said proposal was reasserted by the Law Department on 10.06.2019, but the Finance Department again regretted the proposal. Such decision will be available in their note dated 17.07.2019 [Annexure-R/1 to the reply filed by them].
[05] Mr. Bhattacharjee, learned counsel has quite emphatically stated that the background fact of the decision is that the Finance Department, by the order dated 31.07.2018, the earlier policy on regularization of service of the DRW/Casual/Contingent/ PTW etc. on completion of ten years of service has been recalled. The Government has claimed to have found some shortcomings in those instructions including the memorandum dated 21.01.2009 [Annexure-3 to the writ petition]. According to Mr. Bhattacharjee, learned counsel, the said memorandum dated 31.07.2018 cannot take away the right to be considered as accrued under the Page 5 of 15 memorandum dated 21.01.2009. Hence, the decision of the Finance Department is unsustainable.
[06] Ms. S. Nag, learned counsel appearing for the respondents has submitted that at present, there is no policy of the Government to regularize the DRWs or casual/contingent workers. Earlier policies of regularization of service of DRWs etc. have been recalled and repealed with immediate effect. Hence, the petitioners do not have any right to ask for regularization for completion of ten years of service. Ms. Nag, learned counsel has however not contested the fact that the petitioners had joined on 20.12.2007 as DRW Orderly under the LR's Establishment and thus, they have completed ten years of service.
[07] What Ms. Nag, learned counsel has strenuously argued that mere completion of ten years of service in absence of any policy cannot give any right to be considered for regularization. In this regard, she has placed her reliance on two decisions of the apex court viz. Secretary to Government, School Education Department, Chennai vs. Thiru R. Govindswamy & Ors. [judgment dated 21.02.2014 in Civil Appeal Nos.2726-2729 of 2014] and State of Rajasthan & Ors. vs. Daya Lal & Ors. [judgment dated 13.01.2011 delivered in Civil Appeal No.486 of 2011]. The apex court in R. Govindswamy (supra), having relied on State of Karnataka & Ors. vs. Umadevi & Ors. reported in Page 6 of 15 AIR 2006 SC 1806, has laid the certain guidelines which are as follows:
"8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-
wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
[08] In that decision, the apex court had considered Union of India & Ors. vs. A.S. Pillai & Ors. reported in (2010) 13 SCC 448 and Daya Lal (supra). In those decisions, the issue before the apex court was regularization of irregular or part time employees. Page 7 of 15 Those decisions along with Umadevi (supra) had been the foundation of laying those guidelines as reproduced above. The respondents have nowhere stated that the process of recruitment of the petitioners was through backdoor or in absence of the process of selection. That apart, the Law Department, the employer of the petitioner, has after evaluation of all relevant facts proposed to the Finance Department for concurrence, but the Finance Department merely on the ground that no policy was available for concurring such proposal for regularization had regretted that proposal. That apart, the petitioners are not part-time employees, they are Full Time DRWs working under the Law Department. Hence, there is no breach of guidelines as laid down in R. Govindswamy (supra). In Daya Lal (supra) as relied on by Ms. Nag, learned counsel appearing for the respondents, those guidelines were initially laid down. It has been succinctly held in Daya Lal (supra) that at all events, even if there was an one time scheme for regularization of those who are in service prior to 01.05.1995, there cannot be direction for scheme after scheme for regularization of irregular or part-time appointments.
[09] In reply, Mr. Bhattacharjee, learned counsel has placed his reliance on a decision of this court in Praloy Goswami vs. The State of Tripura & Ors. [judgment dated 07.02.2019 delivered in Page 8 of 15 WP(C)No.166 of 2018 with series of other writ petition]. In Praloy Goswami (supra) this court had occasion to observe as follows:
12. Having regard to this aspect of the matter, this court is of the view that the said memorandum dated 31.07.2018 cannot Page 17 of 23 create an embargo or frustrate the claim of the petitioners for regularization as the Group-D employee. All the petitioners have completed more than ten years of service and they are squarely covered by the memorandum dated 21.01.2009 for regularization from the following day when they have completed ten years of service. Having regard to the tenure of the casual employment this court is the further view that since there is no dispute in respect of the petitioners completing 10(ten) years of service in the full time casual employment, they have right to be considered for regularization from the following day of their completion of the ten years of service as the casual full time employee. But that has not been done and hence the petitioners have approached this court for interference. True it is that the regularization cannot be treated as indefeasible right. It is always subject to the policy of the Government without offending the basic constitutional tenets.
13. The apex court in Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others reported in AIR 2018 SC 3589 has revisited the decision in Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. reported in (2006) 4 SCC 1 where [in Narendra Kumar Tiwari supra] it has been observed that the high court took the decision that the decision of the Constitution Bench of this court in Secretary, State of Karnataka (supra) did not permit regularization since they had not completed 10(ten) years on the cut-off date i.e. 10th April, 2006. According to the High Court, the regularization rules Page 18 of 23 provided a one-time measure for irregularly engaged employees, based on the cut-off date of 10th April, 2006, in terms of the judgment of the Constitution Bench. As the appellants [the writ petitioners of that case] had not put in 10(ten) years of service they could not be regularized. There cannot be any amount of doubt in Umadevi (3) (supra) it was intended to put a full stop to somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the report, it has been pointed out that the rule of law requires appointments to be made in conformity to the constitutional scheme for public employment and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which does adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal engagement and instead, make appointment on a regular basis. The concept of a one-time measure was further explained in State of Karnataka and Ors. vs. M.L. Kesari and Ors. reported in (2010) 9 SCC 247 in paragraphs-
9, 10 & 11:
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the Page 9 of 15 intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the Page 19 of 23 requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the onetime exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one- time exercise. The onetime exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service.
Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4- 2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure."
14. It is apparent that the purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal engagement in future and secondly, to confer a benefit on those who had been irregularly engaged in the past. The fact that the State of Jharkhand continued with the irregular engagements for almost a decade after the decision in Umadevi (3) is a clear indication that it believed that it was all right to Page 10 of 15 continue with irregular engagements, and whenever required, terminate the services of the irregularly engaged employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly engaged employees of the State of Jharkhand could ever be regularized, since that State came into existence only on 15.11.2000 and the cut-off date was fixed as 10.04.2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly engaged employees would be perpetuated contrary to the intent of the Constitution Bench. It has been further observed by the apex court in Narendra Kumar Tiwari (supra) as follows:
"10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual Page 21 of 23 perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. 11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc. 12. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants."
15. The apex court has revisited Umadevi (3) along with M.L. Kesari (supra) has culled out the law to state that when an employee was allowed to complete ten years of service even though his engagement was irregular shall be regularized if there no other valid impediment like the proven misconduct. Since the respondents have not raised any such objection against the petitioners implementing the policy as laid down in the memorandum dated 21.01.2009, the petitioners for their completion of 10(ten) years of service are entitled to be regularization in the grade of Group-D. The petitioners shall be regularized within 4(four) months from the day when the respondents will receive a copy of this order from the petitioners. However, the petitioners shall not be entitled to the arrear wages for the entire period even though they would be regularized with effect from the date when they had completed 10 (ten) years of service in the casual/full time employment. The pay should be Page 22 of 23 fixed notionally in the regular scale from the day after completion of the 10(ten) years of fulltime casual employment till the day, three years prior to filing of the writ petitions. The financial arrear benefits of the petitioners is restricted for three years, meaning the arrear financial benefit will accrue from the day, three years to filing of the writ petitions." Page 11 of 15 [10] In Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others reported in (2018) 8 SCC 238 as referred in Praloy Goswami (supra), the apex court had observed to bring an end to a conundrum:
"If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench."
[11] In Umadevi (supra), what has been laid down is for its sound reasoning cannot be subjected to different meaning. It has been held by the apex court that there is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis to claim that they have a right to be absorbed in service. As has been held, they cannot be said to be holders of a post, since a regular appointment can be made only by making appointments consistent with requirement of Article 14 and 16 of the Constitution, the right to be treated equally with the other employees employed on daily wages cannot be questioned in order to a claim for equal treatment with those who are regularly employed. That would be treating unequals as equals. But in Umadevi (supra) itself, the apex court has observed that after such a long period of service as the casual workers those wage holders cannot be shown the gate as their service were realized for a long term, at least over ten years, Page 12 of 15 and for that reason, the government shall formulate a scheme to absorb those persons in the regular establishment. [12] Mr. Bhattacharjee, learned cousnel has also relied another decision of the apex court in Amarkant Rai vs. State of Bihar and Others reported in (2015) 8 SCC 265. It has been observed in Amarkant Rai (supra) having noticed para-53 of Umadevi (supra) that the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being employed. Having that in consideration in Amarkant Rai (supra), it has been held that objective behind the exception curved out in Umadevi (supra) was to permit regularization of such appointments which are irregular but not illegal and, to ensure security of employment of those persons who had served the state government and their instrumentalities for more than ten years. The said observation is in tune with what has been decided in State of Karnataka and Others vs. M.L. Kesari and Others reported in (2010) 9 SCC 247 having surveyed all these precedents, it has been observed as follows: Page 13 of 15
"13. In our view, the exception carved out in para 53 of Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.
14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar)."
In the perspective facts as laid by the petitioner, Mr. Bhattacharjee, learned counsel, has urged for their regularization. [13] Having appreciated the submissions of the learned counsel for the parties and the records as produced with the writ petition and the reply, this court is of the view that the memorandum dated 31.07.2018 has repealed the memorandum dated 21.01.2009 with 'immediate effect'. Therefore, the repeal vide the memorandum dated 31.07.2018 [Annexure-6 to the writ petition] would only be effective from 31.07.2018, not before that. It is an undisputed fact that the petitioners had completed their ten years of service on 19.12.2017. Hence, the petitioners can rightfully claim the benefit of the memorandum dated 21.01.2009 where it has been unequivocally stated and provided that the government has taken a policy decision to regularize services of full time DRW/Casual/Contingent workers Page 14 of 15 from the next date of completion of ten years of service, if they fulfilled the criteria as laid down therein.
[14] The respondents have not pointed out that the petitioners have failed to conform to those conditions as laid down in the memorandum dated 21.01.2009 [Annexure-3 to the writ petitions]. All the petitioners, needless to say, have fulfilled those conditions for regularization. There is no whisper in the reply filed by the respondents that the petitioners were engaged without concurrence of the Finance Department. On the contrary, from the order dated 18.12.2007 under No.F.2(11)-LAW/ESTT-2/2006 [Annexure-1 to the writ petition] it would clearly transpire that the petitioners were appointed against regularly created post with concurrence of the Finance Department by their communication dated 17.11.2007. As such, it cannot be held that the petitioners were irregularly appointed, on the contrary, they were appointed against the post created by the Finance Department. If they were appointed without concurrence, para-3 of memorandum dated 21.01.2009 would have applied against the Officer who had appointed the petitioners. But no such history has been placed against the petitioners. Hence, the petitioners are entitled to regularization for their completion of ten years of service from the following day of their completion of ten years of service i.e. 20.12.2017 within 8 (eight) weeks from today. It is ordered Page 15 of 15 accordingly. It appears that the writ petitions have been instituted by the petitioners on 09.08.2021. As such having regard to the principle laid down in State of Madhya Pradesh vs. Yogendra Shrivastava reported in (2010) 12 SCC 536 that the payment of arrears pay and allowance shall be restricted to the day, three years previous to the institution of the writ petition. Even though, the petitioners have completed ten years of service on 19.12.2017, they will be entitled to the financial benefits from 09.08.2019. Pay and allowances from 20.12.2017 to 08.08.2019 shall be notional. The arrears of pay and allowances as would accrue from 09.08.2019 shall be paid to the petitioners within a period of 4(four) months from the date when the petitioner shall furnish a copy of this order to the respondents. [15] Having observed thus, these writ petitions stand allowed to the extent as indicated above on quashing the decision of the Finance Department as recorded in the communication dated 02.08.2021 [Annexure-5 to the writ petition] and in the Note No.126 dated 17.07.2019 [Annexure-R/1 to the reply] and Note No.120 dated 17.05.2018 [Annexure-R/2 to the reply].
There shall be no order as to costs.
JUDGE Moumita