Tripura High Court
Sri Praloy Goswami vs The State Of Tripura on 7 February, 2019
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 23
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.166 of 2018
Sri Praloy Goswami,
son of Balai Goswami,
resident of South Ramnagar,
P.O. Agartala, P.S. West Agartala,
District: West Tripura
----Petitioner(s)
Versus
1. The State of Tripura,
represented by its Secretary cum Commissioner,
Department of Food, Civil Supplies and Consumer Affairs,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex, District: West Tripura
2. The Director,
Food, Civil Supplies and Consumer Affairs Department,
Government of Tripura, P.O. Kunjaban,
P.S. New Capital Complex, District: West Tripura
3. The Deputy Director,
Food, Civil Supplies and Consumer Affairs Department,
Government of Tripura,
P.O. & P.S. Dharmanagar,
District: North Tripura
4. The Secretary Cum Commissioner,
Finance Department,
Government of Tripura,
P.O. Kunjaban, P.S. New Capital Complex,
District: West Tripura
----Respondent(s)
Connected with W.P.(C) No.167 of 2018 Sri Jitan Singh @ Giten Singha, son of late Mitleng Singha, resident of village: Kamarkandi, P. O. Noorpur, P.S. Kailashahar, District: Unakoti Tripura
----Petitioner(s) Page 2 of 23 Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.168 of 2018 Sri Bipan Chakraborty, son of late Bimal Chakraborty, resident of village & P.O.: A. D. Nagar, District: West Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura Page 3 of 23
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.169 of 2018 Sri Mantosh Datta, son of Sri Bablu Datta, resident of village: Paschim Batarasi, P.O. Rajbari, P.S. Dharmanagar, District: North Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Page 4 of 23 Connected with W.P.(C) No.170 of 2018 Sri Tiklu Chandra Dey, son of Sri Madhab Chandra Dey, resident of village: Muhuripur, P.S. Baikhora, District: South Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.171 of 2018 Sri Suman Deb, son of late Sushil Chandra Deb, resident of village: A. D. Nagar, District: West Tripura
----Petitioner(s) Page 5 of 23 Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.172 of 2018 Sri Swapan Acharjee, son of late Manoranjan Acharjee, resident of village: West Pratapgarh, P.O. A.D. Nagar, P.S. A.D. Nagar, District: West Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura Page 6 of 23
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.173 of 2018 Sri Swapan Acharjee, son of late Chandra Mohan Acharjee, resident of Udaipur, village: Chanban, P.O. & P.S. R. K. Pur, District: Gomati Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura Page 7 of 23
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.174 of 2018 Sri Krishna Debnath, son of Sri Dulal Debnath, resident of village: South Charilam, P.O. Charilam, P.S. Bishramganj, District: Sepahijala Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Page 8 of 23 Connected with W.P.(C) No.175 of 2018 Sri Badal Chakraborty, son of late Jagabandhu Chakraborty, resident of South Badharghat, P.O. Siddhi Ashram, P.S. Amtali, District: West Tripura
----Petitioner(s) Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) Connected with W.P.(C) No.221 of 2018 Sri Sanju Singha, son of Sri Suna Babu Singha, resident of Baraithal, P.O. Kameswar, P.S. Dharmanagar, District: North Tripura
----Petitioner(s) Page 9 of 23 Versus
1. The State of Tripura, represented by its Secretary cum Commissioner, Department of Food, Civil Supplies and Consumer Affairs, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
2. The Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
3. The Deputy Director, Food, Civil Supplies and Consumer Affairs Department, Government of Tripura, P.O. & P.S. Dharmanagar, District: North Tripura
4. The Secretary Cum Commissioner, Finance Department, Government of Tripura, P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura
---Respondent(s) For Petitioner(s) : Mr. A. Bhowmik, Adv.
For Respondent(s) : Mr. M. Debbarma, Addl. G.A.
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order (Oral)
07/02/2019
All the petitions being W.P.(C) No.166 of 2018, W.P.(C) No.167 of 2018, W.P.(C) No.168 of 2018, W.P.(C) No.169 of 2018, W.P.(C) No.170 of 2018, W.P.(C) No.171 of 2018, W.P.(C) No.172 of 2018, W.P.(C) No.173 of 2018, W.P.(C) No.174 of Page 10 of 23 2018, W.P.(C) No.175 of 2018 and W.P.(C) No.221 of 2018 are consolidated for disposal by a common judgment inasmuch as all the petitioners seek benefit under the memorandum No.F.10(2)- FIN(G)/2008(part) dated 21.01.2009 for regularization from the contingent or casual employment as all of them have 10(ten) completed 10(ten) years of service. The petitioners have asserted their initial date of engagement as shown in the table below:
Sl. Name of the writ petitioner with Date Date of completion No. writ petition No. of engagement of ten years as full as the full time time casual worker casual worker
1. Pralay Goswami, the writ 01.05.2005 30.04.2015 petitioner in W.P.(C) No.166 of 2018
2. Jiten Singh @ Giten Singha, the 12.05.2001 11.05.2011 writ petitioner in W.P.(C) No.167 of 2018
3. Bipan Chakraborty, the writ May,2003 May, 2013 petitioner in W.P.(C) No.168 of 2018
4. Mantosh Datta, the writ petitioner 01.12.2003 30.11.2013 in W.P.(C) No.169 of 2018
5. Tiklu Ch. Dey, the writ petitioner 08.11.2001 07.11.2011 in W.P.(C) No.170 of 2018
6. Suman Deb, the writ petitioner in 10.03.2004 09.03.2014 W.P.(C) No.171 of 2018
7. Swapan Acharjee, the writ 10.03.2004 09.03.2014 petitioner in W.P.(C) No.172 of 2018
8. Swapan Acharjee, the writ 14.11.2002 13.11.2012 petitioner in W.P.(C) No.173 of 2018
9. Krishna Debnath, the writ 14.11.2002 13.11.2012 petitioner in W.P.(C) No.174 of 2018
10. Badal Chakraborty, the writ January, 2005 January, 2015 petitioner in W.P.(C) No.175 of 2018
11. Sanju Singha, the writ petitioner 01.04.2006 31.03.2016 in W.P.(C) No.221 of 2018
02. As all the writ petitioners who were either engaged before 31.03.2003 or after 31.03.2013 have completed the 10 (ten) years of service as the full time casual worker under the respondents and such statement in respect of completion of 10(ten) years has not been contested. Moreover, those facts are Page 11 of 23 borne in the departmental records. The fact of completion of ten years of service as the contingent/casual workers (full time) has not been challenged by the respondents. The petitioners have uniformly urged this court to apply the memorandum dated 21.01.2009 which has laid, inter alia, as under:
"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 10 years of service and fulfil 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 Department 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) Recruitment of age as per Recruitment Rules will be deemed to be relaxed for the purpose of this regularization.
(iii) Recruitment 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) & (iii) all other criterion as per relevant Recruitment Rules including reservation roster will have to be followed strictly for this process of regularization.
(v) Subject to fulfillment 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 scale the revised structure will be followed as per Govt.'s decision."
03. In terms of the said memorandum dated 21.01.2009 the particulars of the petitioners were collected. By the memorandum dated 21.01.2009, the Departmental Heads were directed to send the proposals to the Finance Department for ex- Page 12 of 23 post-facto concurrence for creation of posts for regularization in terms of the conditions as laid down in the said memorandum dated 21.01.2009.
04. Mr. A. Bhowmik, learned counsel appearing for the petitioners has submitted that all the petitioners have been working as the Group-D employees despite the fact that some of them were also driving the vehicle under instruction of the Controlling Officers. Mr. Bhowmik, learned counsel has submitted that this court in Ajay Kumar Acharjee vs. the State of Tripura and Ors. [the judgment & order dated 31.08.2017 delivered in W.P.(C) No.1085 of 2016] this court has approvingly referred to the decision of Ajit Debnath vs. the State of Tripura and Others [the common judgment and order dated 23.06.2017 delivered in W.P.(C) No.1255 of 2016 etc.]. In a strikingly resembling case, similar question being raised 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."
05. Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has vehemently submitted that the said memorandum dated 21.01.2009 has been recalled by the Page 13 of 23 memorandum under No.10(2)-FIN(G)/2008(Part) dated 31.07.2018. For purpose of reference, the said memorandum dated 31.07.2018 is extracted as a whole:
"No.10(2)-FIN(G)/2008(Part) GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE Dated, the 31st July, 2018 MEMORANDUM Subject: Policy decision on regularization of services of DRWs/Casual/Contingent/PTW etc. Workers in Government Establishments and State PSUs and Autonomous bodies including AMC/NPs. Finance Department has issued instructions from time to time as given for regularization of services of DRWs/Casual/Contingent/PTW etc. Workers on the next date of completion of 17 years/15 years/10 years of services. The memorandums are as follows:
Sl. Memo No. Issues
No.
1. No.F.10(2)- Regularization of
Fin(G)/05, DRWs/Contingent etc.
dated 04.03.2006 workers on completion of 17
years of service as on
31.03.2005 allowing effect
from 01.02.2006
2. No.F.10(2)- Regularization of
Fin(G)/05, DRWs/Contingent etc.
dated 22.02.2007 workers on completion of 17
years of service as on
31.03.2006 allowing effect
from 01.01.2007
3. No.F.10(2)- Regularization of
Fin(G)/05, DRWs/Contingent etc.
dated 01.09.2008 workers on completion of 17
years of service as on
31.03.2008 allowing effect
from 01.07.2008
4. No.F.10(2)- Regularization of
Fin(G)/05, DRWs/Contingent etc.
dated 21.01.2009 workers from the next date of
completion of 10 years of
service
5. No.F.10(2)- Regularization of
Fin(G)/05, DRWs/Contingent etc.
dated 04.09.2012 workers working in State
PSUs and Autonomous bodies
including AMC/NPs on
completion of 10 years of
service
6. No.F.10(2)- Engagement of PTWs etc. as
Fin(G)/05, DRWs (Group-D) working in
dated 07.11.2012 different departments of the
Government for 2/3/4 hours
who were engaged on or prior
to 31.03.2003 and have
completed 10 years of
services w.e.f 01.12.2012
Page 14 of 23
2. Recently, the matter has been further reviewed. It has been observed that there are some shortcomings in these instructions for regularization of the services of DRWs/Casual/Contingent staff affecting institutional efficiency and individual productivity due to different reasons.
3. With a view to ensure transparent public employment policy for engagement of staff for such services, all the memorandums as mentioned above are repealed.
4. All concerned are requested to ensure strict implementation of above decision with immediate effect.
Under Secretary to Government of Tripura Finance Department"
[Emphasis added]
06. It is apparent from a reading of the said memorandum dated 31.07.2018 that the policy of the Government for regularization of service of DRWs/Contingent/Casual/PTWs etc. on completion of 17 years/15 years/10 years of service has been reviewed and it has been observed that there are some short comings in the instruction for regularization of services of the DRWs/Casual/Contingents the existing scheme has been affecting institutional efficiency and individual productivity due to different reasons. It has been further observed that with a view to ensure transparent public employment policy for engagement of staffs for services all the memoranda as figured in the said memorandum dated 31.07.2018 [Annexure-R/2 to the reply filed by the respondents] have been recalled or repealed.
07. Mr. M. Debbarma, learned Addl. G.A. has submitted that since the said memorandum dated 21.01.2009 has been repealed, the petitioners cannot get any relief based on the said memorandum. That apart, Mr. Debbarma, learned Addl. G.A. has submitted that on the basis of the reply that even though the Page 15 of 23 petitioners have completed 10 (ten) years of service, they cannot be regularized until and unless such regularization is approved by the Finance Department. That apart, having referred to the following clause in the memorandum dated 21.01.2009 the respondents have averred as under:
"The petitioners misinterpreted the policy adopted by the Government in regards to regularization of services of DRWs/Casual/Contingent Workers on the next date of completion of 10 years of service which was notified by the Finance Deptt on 21.01.2009 in support of his claim after completion of 10 years of service. Since there is a complete ban on engagement of DRW/ Casual/Contingent etc. workers after 31.03.2003 without concurrence from Finance Deptt as per said notification dated 21.01.2009, therefore, the claim of the petitioner will not come under the purview of the said memo."
08. It has been further contended that on scrutiny of the available records it has been observed that the petitioners were engaged as the Casual Worker without formal concurrence from the Finance Department. No person who has been appointed after 31.03.2003 without concurrence from the Finance Department he will not come under the purview of the said memorandum. These writ petitions are therefore liable to be dismissed without further consideration. For purpose of reference, the passage below is reproduced from the said memorandum dated 31.03.2013:
"There shall be a complete ban on engagement of DRW/Casual/ Contingence etc. workers after 31.03.2003 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 any, shall be recovered from the official concerned."
09. So far the cases under consideration are concerned, it is apparent from of the records that none of the petitioners were Page 16 of 23 sought to be terminated at any point of time for their irregular engagement or inefficiency. They have been allowed to continue in their casual full time engagement and they have been drawing their wages regularly as per the approved rate. Thus, the respondents cannot be permitted after all these years to hold that the petitioners' engagement would not entitle them to get the regularization.
10. In reply, Mr. Bhowmik, learned counsel appearing for the petitioners has stated that the memorandum dated 31.07.2018 [Annexure-R/2 to the reply filed by the respondents] has given the perspective of the policy of regularization, and contended that memorandum of repeal does not take away the right already crystallized in favour of the petitioners by virtue of the operation of the memorandum dated 21.01.2009.
11. Mr. M. Debbarma, learned Addl. G.A. has referred another memorandum dated 09.06.2004 where the same clause that the workers who have been engaged after 31.03.2003 without concurrence of the Finance Department shall be terminated. But if the petitioners were really terminated in terms of the memorandum dated 09.06.2004 they would not survive in the service to approach this court for their regularization after long tenure of casual employment. In this regard, no reason comes forth from the respondents.
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 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 one- time 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 one-
time 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."
[Emphasis added] Page 20 of 23
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 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."
[Emphasis added]
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 accordingly from the day, three years to filing of the writ petitions. The writ petitions were filed on the date shown against each of the writ petition below:
Sl. Writ petition number with the Date Date of getting the No. name of the parties of filing of the actual financial Writ petition benefit
1. W.P.(C) No.166 of 2018 24.01.2018 24.01.2015 (Pralay Goswami vs. State of Tripura & Ors. )
2. W.P.(C) No.167 of 2018 24.01.2018 24.01.2015 (Jiten Singh @ Giten Singha vs. State of Tripura & Ors.)
3. W.P.(C) No.168 of 2018 24.01.2018 24.01.2015 (Bipan Chakraborty vs. State of Tripura & Ors.)
4. W.P.(C) No.169 of 2018 24.01.2018 24.01.2015 (Mantosh Datta vs. State of Tripura & Ors.)
5. W.P.(C) No.170 of 2018 25.01.2018 25.01.2015 (in Tiklu Ch. Dey vs. State of Tripura & Ors.)
6. W.P.(C) No.171 of 2018 25.01.2018 25.01.2015 (in Suman Deb vs. State of Tripura & Ors.)
7. W.P.(C) No.172 of 2018 25.01.2018 25.01.2015 (in Swapan Acharjee vs. State of Tripura & Ors.)
8. W.P.(C) No.173 of 2018 25.01.2018 25.01.2015 (in Swapan Acharjee vs. State of Tripura & Ors.)
9. W.P.(C) No.174 of 2018 25.01.2018 25.01.2015 (in Krishna Debnath vs. State of Tripura & Ors.)
10. W.P.(C) No.175 of 2018 25.01.2018 25.01.2015 (in Badal Chakraborty vs. State of Tripura & Ors.)
11. W.P.(C) No.221 of 2018 08.02.2018 08.02.2015 (in Sanju Singha vs. State of Tripura & Ors.) It is made abundantly clear that if it is found that the tenure of ten years was completed within the three years from the date of institution, the date of completion of ten years would be Page 23 of 23 the effective date of regularization and for getting the financial benefits.
In terms of the above, these writ petitions are allowed to the extent as indicated above.
There shall be no order as to costs.
JUDGE Moumita