Tripura High Court
Sri Ajay Kumar Acharjee vs The State Of Tripura on 31 August, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.1085 of 2016
Sri Ajay Kumar Acharjee,
son of Sri Ashit Kumar Acharjee,
resident of village - Kameshwar near
Itri College, P.O. Baraithal, P.S.
Dharmanagar, District - North Tripura
.....Petitioner
Versus
1. The State of Tripura,
represented by the Secretary cum
Commissioner, Department of Food, Civil
Supplies and Consumer Affairs, Government
of Tripura, P.O. Secretariat Building, New
Capital Complex, Agartala, District -West
Tripura
2. The Director,
Food, Civil Supplies and Consumer Affairs,
Government of Tripura, P.O. Kunjaban, P.S.
New Capital Complex, District - West
Tripura
3. The Deputy Director,
Food, Civil Supplies and Consumer Affairs,
Government of Tripura, P.O. & P.S.
Dharmangar, District -North Tripura
4. The Secretary cum Commissioner,
Finance Department, Government of
Tripura, P.O. & P.S. New Capital Complex,
District - West Tripura
........ Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. A. Bhowmik, Advocate
For the respondents : Mr. A. Sengupta, Advocate
Date of hearing and delivery : 31.08.2017
of Judgment & Order
Yes No
Whether fit for reporting : √
JUDGMENT & ORDER (ORAL)
Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. A. Sengupta, learned counsel appearing for the respondents.
[2][2] By means of this writ petition, the petitioner has urged this court for directing the respondents to regularise him in terms of the memorandum under No.F.10(2)-FIN(G)/2008 (Part) dated 21.01.2009, Annexure-P/1 to the writ petition, as he has completed more than 10 years of service as the Casual Worker (full time).
The short resume of fact is that the petitioner was engaged as the full time Casual Worker on 15.11.2003 and he has completed 10 years of service in the afternoon of 14.11.2013. According to the petitioner, in terms of the memorandum dated 21.01.2009 the Government has decided to regularise the services of full time DRWs/Casual/Contingent workers from the next date of completion of 10(ten) years service. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, North Tripura, Dharmanagar, the respondent No.3 herein, on 25.01.2011 sent a letter to the Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura forwarding the names of DRWs/Casual/Contingent workers who are working on the fixed wage for at least 8(eight) hours a day. The letter dated 26.07.2014, Annexure-P/3 to the writ petition, sent by the respondent No.3 contains the names of 8 (eight) contingent workers who had completed 10 years of continuous service. The petitioner's name figures at Sl. No.7. In the said list, it is recorded that the petitioner was engaged on 01.03.2008, whereas his actual date of joining as the fulltime Contingent Worker was on 15.11.2003. The said error was corrected by the respondents by the letter dated 26.07.2014. Be that as it may, by the memorandum under No.F.2- 1(2)-ESTT/DF/2011 (Part) dated 08.03.2016, Annexure-P/4 to the W.P.(C) No.1085 of 2016 Page 2 of 7 [3] writ petition, 17 (seventeen) Contingent Workers/DRWs were regularised as the Group-D employee under the Food, Civil Supplies and Consumer Affairs Department, Government of Tripura but the petitioner was not regularised or absorbed though he had put in more than 10 years of service on 08.03.2016. The petitioner submitted a representation on 22.03.2016, Annexure-P/5 to the writ petition, appealing the respondents to regularise him as the Group-D employee at par with the casual workers who were regularised by the memorandum dated 08.03.2016, but the petitioner was not regularised. Even the respondents did not disclose the reasons for not regularising the petitioner. In Para-15 of the writ petition, the petitioner has averred as under:
"the petitioner was engaged in 2003 in the office of the respondent No.2 as full time casual worker and since then the petitioner has been working 8 hours a day and discharging his duty. Thus the petitioner has served for about 13 years of service and thus the petitioner is entitled to be regularised in the service w.e.f. 2013 itself."
[3] The respondents by filing of the reply did not dispute the service particulars provided by the petitioner. But the respondents have stated that the petitioner has suppressed the fact of the Finance Department's memo dated 21.01.2009 at item No.2(i) and 3 wherein at Item No.2(1) it is clearly stated that particulars of the workers whose names and particulars are included in the 'Annexure' attached herewith to ascertain their eligibility for regularisation. Only these workers out of the attached annexure who fulfils all the above criteria are to be regularized. There was no such annexure containing the names of the casual workers/DRW etc. of Food, Civil Supplies and Consumer Affairs Department in the above list. In W.P.(C) No.1085 of 2016 Page 3 of 7 [4] terms of the Finance Department memorandum dated 21.01.2009, as communicated by the Finance Department's letter dated 16.11.2015, it was informed that no person was regularised in the Food, Civil Supplies and Consumer Affairs Department during the material period. In Para-8, it had been provided that 'there shall be a complete ban on engagement of DRW/Casual/Contingent [etc.] workers after 31.03.2003 without concurrence from Finance Department.' The petitioner's version that he was fully covered by the policy decision as exposited by the said memo dated 21.01.2009 and was entitled to be regularised after 10 years of service is without any foundation. Since the petitioner was engaged after 31.03.2003 [engaged on 15.11.2003] without concurrence from Finance Department, he is/was automatically ousted from the policy coverage.
[4] By filing the rejoinder, the petitioner has submitted that the said submission of the respondents was clearly beyond the records. In Para-4 of the rejoinder, the petitioner has asserted that he has continued in his service without any break or question under the respondents. He has further averred as under:
"On 25.01.2011, the respondents sent the names and particulars of DRW/Casual/Contingent/Part- time workers, who are working on fixed wages for at least 8 hours a day and in that list the name of the petitioner featured at serial No.9 but in spite of the said letter, the petitioner was not regularised. Thereafter on 26th July 2014 another letter as issued by the respondent No.3 to the respondent No.2 in respect of 8 number contingent worker and 7 number casual worker who've already completed 10 years of continuous service. The name of the petitioner featured at serial No.7 in this list of casual workers. The petitioner also highlights the policy decision of the Finance Department, Government of Tripura vide memorandum dated 21.01.2009, whereby a policy decision was taken to regularise the service of full time DRWs/Casual/Contingent workers on the next date of completion of 10 years of service. As per the said policy decision the petitioner had completed full time service as a W.P.(C) No.1085 of 2016 Page 4 of 7 [5] casual worker in the year 2013 and as such the petitioner was entitled to be regularised with effect from 2013 but the petitioner was deprived from such regularisation."
The similarly circumstanced persons have been regularised and the petitioner has revealed their names in Para-4 of the said rejoinder. Further, the petitioner has submitted significantly that he was engaged by the respondent No.3 and such engagement was concurred by the Finance Department by their memorandum under No.F.5.10(22)-FIN(G)/DRW/2004 dated 11.08.2004. From the policy decision of the Government as reflected in the memorandum dated 21.01.2009 it emanates unambiguously that the DRW/Casual/Contingent Workers who are engaged on a full time basis in different departments with or without the concurrence of the Finance Department can be considered for regularisation. Thus the concurrence of the Finance Department is not a sine qua non for regularisation under the memorandum dated 21.01.2009. Thus, the stand of the respondents is that the petitioner was engaged without concurrence of the Finance Department and hence, the petitioner is not entitled to regularisation in service, according to the petitioner, does not stand the test of law. The petitioner has asserted that he has been discriminated when such discrimination is nothing short of colourable executive action which requires interference from this court. The petitioner has also asserted that since he has completed more than 10 years of service, he is entitled to be regularised from the next date when he had completed 10 years of service as stated.
[5] Mr. A. Bhowmik, learned counsel appearing for the petitioner has relied a decision of this court in Ajit Debnath vs. the W.P.(C) No.1085 of 2016 Page 5 of 7 [6] State of Tripura and others [the common judgment and order dated 23.06.2017 delivered in W.P.(C) No.1255 of 2016 etc.] when a similar question was raised on those cases, this court had occasion to observe as under:
"11. In view of the memorandum dated 21.01.2009, this court does not find any impediment in the way of regularisation of the petitioners after their completion of ten years of service. However, such regularisation would be subject to the conditions as laid down in the memorandum dated 21.01.2009.
12. Having observed thus, the respondents are directed to regularise the petitioners with effect from the next date on completion of ten years of service within a period of 6(six) months from today on scrutinising their individual records. But it is made clear that they shall get the regular scale with effect from the next date of completion of ten years of service in terms of the memorandum dated 21.01.2009."
[6] Mr. A. Sengupta, learned counsel appearing for the respondents has fairly submitted that the case of the petitioner is squarely covered by the said decision in Ajit Debnath vs. State of Tripura and others. Be that as it may, this Court in Ajit Debnath vs. State of Tripura and others has laid the perspective to read the policy decision of the Government in respect of regularisation of the services of full time DRWs/Casual Worker/Contingent Worker from the next date of completion of 10 years of service on fulfilling the criteria as laid down in the said memorandum dated 21.01.2009. It has been held that no narrow interpretation of the policy would serve the purpose of regularising the DRWs/Casual Worker/Contingent Workers who have completed their 10 years of service having been engaged after 31.03.2003 with or without concurrence of the Finance Department. In the said memorandum dated 21.01.2009, it is provided that there shall be a complete ban on engagement of DRW/Casual/Contingent etc. workers after 31.0.03.2003 without concurrence from the Finance Department. It W.P.(C) No.1085 of 2016 Page 6 of 7 [7] was cautioned that the 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. Even after that cut off date i.e. 31.03.2003, the petitioner was engaged and his engagement was subsequently concurred by the Finance Department. Further he was allowed to continue more than 10(ten) years of service. Now the respondents cannot be allowed to hold that the petitioner will not get regularisation of his service, in terms of the said policy decision as provided in the memorandum dated 21.09.2009.
[7] Having observed thus, the respondents are directed to regularise the service of the petitioner with effect from the next date of completion of 10(ten) years of service within a period of 6(six) months from today on scrutinising his individual records. But it is reiterated that the petitioner shall get the regular scale with effect from the next date of completion of 10 years of service in terms of the memorandum dated 21.01.2009. The said memorandum cannot be interpreted narrowly as sought to be done by the respondents.
[8] In the result, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Sujay W.P.(C) No.1085 of 2016 Page 7 of 7