AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Ms. S Deb (Gupta), learned counsel appearing for the petitioner as well as Mr. D Sarma, learned Addl. GA appearing for the respondents.
The petitioner was initially appointed as Accountant on 19.02.2004 under the District Rural Development Agency (DRDA), North Tripura, Kailashahar, as it then was, on contract basis. His service was extended till 06.03.2006.
The petitioner thereafter applied for the post of Accountant in the Women's Polytechnic, which was being managed at the relevant point of time by the Women's Polytechnic Society, in response to the advertisement published in the Dainik Sambad dated 22.12.2005.
The petitioner was selected and appointed on deputation for a period of three years from the date of joining. It is an admitted fact that by the notification under No. F.2(374)-DHE/GTCA/07(L)/3945(16) dated 24.03.2010, the Government of Tripura had taken over Women's Polytechnic, Hapania with all its assets and liabilities w.e.f. 01.04.2010. The petitioner's service was accordingly migrated and continued in the capacity of Accountant till 12.12.2016 when by the memorandum No. 5(318)-DHE/PLG/16 dated 05.12.2016 the petitioner's service was regularized in the post of Accountant in terms of the judgment and order dated 04.03.2016 delivered in WP (C) No. 349/2015 (Debashis Majumder vs. State of Tripura) in the scale of pay of Rs. 5700-24000 (Band-2 with the grade pay of Rs. 4200) subject to the condition that the petitioner has to complete the accounts training within a period of three years from the date of absorption. The petitioner joined the said post on 12.12.2016 in the said capacity.
The petitioner had, after his absorption by the Memorandum dated 05.12.2016 approached this court by filing the miscellaneous application being IA No. 01/2018 ( in WP (C) No. 349/2015) for treating the petitioner as absorbed retrospectively from the day of deputation on contractual engagement as Accountant in the Women's Polytechnic.
Since that was a petition for review, this Court had declined such order but the matter was reverted to the respondents for reconsideration. By the memorandum under no. F.7(235)-DHE/NG/2018(L)/2624(2) dated 07.12.2018 (Annexure 15 to the writ petition) the Director of Higher Education, the respondent No.2, rejected such prayer holding that the absorption will have its effect from 13.12.2016.
Being aggrieved by the said order, the petitioner has filed the present writ petition claiming the following reliefs:
(i) to set aside the memorandum dated 07.12.2016, Annexure 15 to the writ petitioner to direct the respondents to treat the absorption w.e.f. 20.01.2006 for purpose of calculating the qualifying service for grant of his pension and other retiral benefits and (ii) to count his first service w.e.f. 20.01.2006 with all financial benefit that may accrue for giving effect of absorption w.e.f. 20.01.2006.
Ms. S Deb (Gupta), learned counsel has produced the memorandum of the Government of Tripura in the Department of Finance dated 25.02.2010 under No. F.8(3)FIN(G)/78 whereby the policy of the government in respect of counting service has been communicated. For purpose of reference, the entire text of the memorandum is reproduced under hereunder:
"NO.F.8(3)-FIN (G)/78 GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE (General Section)
February 25, 2010
MEMORANDUM
Subject: Counting of service of Contingent Workers /DRWs/Casual Workers towards pension etc.
References have been received from different Departments seeking clarification about continuation of applicability of memo No.F.8(3)-FIN(G)/78, dated 16.08.1978 and memo of even number dated 19.07.1982 regarding counting of half the period of continuous service rendered by Contingent Workers/Copyist/Typist/Extra Mohafars etc who were paid from wages‟ on full time basis, towards pension and in respect of DRWs/Contingent Workers/Monthly Rated Workers/Casual Workers working on full time basis and subsequently regularized as per Government decision.
[2] After careful consideration of the matter, the Governor has been pleased to decide that the benefit of counting of half of the period of continuous service rendered by the DRWs/Contingent Workers/Monthly Rated Workers/Casual Workers who were engaged on full time basis and paid from Wages‟ would be counted towards pension following their regularization with the approval of the Finance Department. The benefit provided under this circular will not have any relevance in declaration of employees as quasi permanent/permanent/counting of seniority/counting of period for the purpose of determining eligibility for extending benefit of CAS/ACP.
(N.Darlong)
Sd/.Illegible
Joint Secretary to the Government of Tripura"
Simultaneously, the decision of this court in Mamata Rani Roy (Saha) vs. State of Tripura (judgment dated 08.10.2015 delivered in WP(C) No. 77/2015) has been relied on. In that decision, this court had observed as follows:
"11. It would also be pertinent to mention that the Central Government and the Government of Tripura have taken a decision that even half of the services rendered by an employee on daily wages shall be counted towards qualifying service. The person appointed on fixed pay basis is on a much better footing than a person appointed on daily wages and if half of the service rendered by a daily wages employee can be counted for determining his/her qualifying service, I see no reason why the full service rendered by a fixed pay employee should not be counted towards her qualifying service if this uninterrupted service is followed by regular service.
In view of the above discussion, the writ petition is allowed with costs assessed at Rs.5,000/- (rupees five thousand) and it is directed that the service rendered by the petitioner from the date of her joining as School Mother on fixed pay basis pursuant to the letter of appointment dated 19-07-1990 till her regularisation shall be added to her regular service from 01-10- 2007 till her superannuation on 03-11-2007 for calculating her pension and other retiral benefits. The State shall ensure that the pension is accordingly fixed and all retiral benefits be released in favour of the petitioner latest by 31st January, 2016 along with interest @ 9% per annum from the date of retirement of the petitioner, i.e. 30-06-2013 till payment/deposit of this amount."
Mr. D Sarma, learned Addl. GA has quite stoutly submitted that the petitioner is not entitled to the reliefs as prayed for. The petitioner can neither get retrospective absorption nor can he get the full tenure of his contractual engagement counted towards pension or other retiral benefits. Moreover, the period when the petitioner was under the Society for Women's Polytechnic, that part also cannot be included. Only that part which the petitioner has rendered under the Government of Tripura, meaning, when the Institution has become a government institution, by virtue of the notification dated 24.03.2010 (Annexure 6 to the writ petition) the petitioner may get the benefit of that past service to the extent as reflected in the memorandum dated 25.02.2010.
That apart, Mr. Sarma, learned Addl. GA has stated that the petitioner never asked for any relief from the respondents on the basis of the said memorandum. What he had prayed for was totally different. The petitioner had only prayed for retrospective effect of absorption and the respondents having considered that aspect of the matter rejected his prayer.
Mr. D Sarma, learned Addl. GA has raised the plea that this writ petition is barred by res judicata. This plea is squarely unsustainable inasmuch as the court dismissed the petition seeking absorption retrospectively on the jurisprudential ground and the matter was reverted to the respondents. On rejection of the said prayer, the petitioner has filed this writ petition.
Having appreciated the submission of the learned counsel for the parties as well as the policy as espoused by the state government in the memorandum dated 25.02.2010, and the decision of this court in Mamata Rani Ray (Saha) (supra), this court is of the view that the petitioner shall be entitled to the benefit of his past services, in terms of the memorandum dated 25.02.2010 read with the law decided by this Court in Mamata Rani Ray (Saha) (supra), from the date when the Institution was taken over by the State by virtue of the notification No. F.2(374)-DHE/GTCA/07(L)/3945(16) dated 24.03.2010 (Annexure 6 to the writ petition) meaning from 01.04.2010.
The full period starting from 01.04.2010 be added in terms of the memorandum dated 25.02.2010 for pension and other retrial benefits and not for any other purpose.
Needless to say, that the order dated 07.12.2018 had been passed in a completely different perspective and as such there is no reason to interfere with the said order.
In terms of the above direction, this writ petition is partly allowed, and the other reliefs, as indicated above, stand dismissed.
No order as to costs.