Debasish Majumder vs The State of Tripura and Others

S. Talapatra, J.—1. By this writ petition, the petitioner who was initially appointed as the Accountant pursuant to a selection process by the Memorandum No. F.15(9/E)/1998-99/5203-05 dated 19.02.2004 (Annexure-1 to the writ petition) in the District Rural Development Agency, DRDA, North Tripura, Kailasahar, has challenged the memoranda dated 25.08.2014 and 01.07.2015 (Annexure-11 to the writ petition).

From the memorandum dated 19.02.2004, it is apparent that the petitioner was allowed to draw his salary in the scale of pay of Rs. 5000-10300/- (pre-revised) for the period of contract. On 22.10.2005, for the Society for Women''s Polytechnic, one employment advertisement, being No. 2/2005 dated 21.12.2005 was published in ''Dainik Sambad'' inviting application in the plain paper through the proper channel for filling up of the various posts, including the post of Accountant on deputation. Accordingly, the petitioner applied for the said post of Accountant on 24.12.2005 (Annexure-2 collectively) to the writ petition. The petitioner was duly selected and he joined the post of Accountant on 20.01.2006. He was being paid his salary in the regular pay scale for the post of Accountant.

The petitioner was apprised by the communication dated 27.01.2006 (Annexure-4 to the writ petition) that, as there was no lien in the service the benefit of Employee''s Provident Fund (EPF) be disposed of in accordance with law. The petitioner was working with devotion and commitment in the Women''s Polytechnic. The Principal, Women''s Polytechnic by the communication dated 29.03.2010 has urged the Director of Higher Education for regularisation of the persons who were working on contract or daily rate basis while simultaneously he pressed for absorption of the petitioner in the post of Accountant. The Principal, Women''s Polytechnic has written a separate paragraph for the petitioner, which reads as under:

"Moreover the case of Sri Debasish Majumder, Accountant is all together an unusual was duly released by DRDA, North (at page 2, 4, 5) to join the posts of Accountant on deputation basis. After joining he received copy of a letter of DRDA addressed to the Regional Provident fund Commissioner, RPFC, Agartala to discontinue his CPF contribution (at page 1 & 3) where in it was spelt that he has no lien to the Agency. This reveals that he has no chance to go back to his, the then parent department. So a special consideration is requested in the situation."

[Emphasis supplied]

While recommending the case of the petitioner, the Principal Women''s Polytechnic has also written about the experience of the petitioner in the following terms:

"Maintained the accounts of World Bank Assistant Tech Ed.III Project by maintaining the Double Entry Accounting System both manual and computerized with an additional charge of cashier upto the preparation of Balance sheet. After the world bank project ended on 30.06.2007 maintaining the Society for Women''s Polytechnic''s accounts for Grant-in-Aid fund and others fund. Helping in others establishment work, procurement process, student''s matters, etc. as there was staff shortage. Conducting the practical classes of Financial Accountancy through computerized accounting software (Tally)."

The said initiative was taken by the Principal, Women''s Polytechnic in the context of taking over of the management of Women''s Polytechnic by the Govt. of Tripura by means of the Notification under No. F.2(374)-DHE/GTCA/07(L)3945(16) dated 24.03.2010, Annexure-6 to the writ petition. By the said Notification, it has been categorically stated that the Education (Higher) Department shall take over all movable and immovable properties and assets including books of accounts of the dissolved Society for Women''s Polytechnic, Hapania as per inventory of the assets to be prepared by the Society having regard to the latest audited balance sheet. It has been further provided in the said notification that subject to exercising option to come over to the State Govt. Administered/converted Women''s Polytechnic, the faculty members who were selected through regular process of recruitment and appointed in the Society administered Women''s Polytechnic on or before 10.03.2010 by the Society even in the post created by the State Government shall be conferred with Group-B (Gazetted status) under the Govt. of Tripura. Such faculty members shall be governed, for the time being by the prevailing rules and the department shall take appropriate action in respect of other workers in due course. In that process as paraphrased, the petitioner''s service on deputation was not considered.

Even though the Principal, Women''s Polytechnic by his communication dated 29.03.2010 has categorically intimated the Director of Higher Education that the petitioner had no lien to the DRDA and he had no chance to go back to his parent department, by the memorandum dated 18.12.2010 (part of Annexure-7 to the writ petition) surprisingly the petitioner''s deputation was extended by another 6(six) months from 19.01.2011. By the subsequent memoranda dated 17.06.2011 and 26.05.2012, the tenure of the petitioner''s deputation was again extended till 20.07.2012. By another memorandum dated 10.12.2012, the petitioner''s tenure of deputation was again extended till 20.01.2013, whereas by the memorandum dated 03.06.2013 the petitioner''s service was further extended for another 6(six) months from 19.07.2013. All these memoranda are part of Annexure-7 in the writ petition. By the memorandum No. F.7(235)-DHE/NG/2006(L)/4267(3) dated 06.02.2014, the petitioner''s tenure of deputation was further extended till March, 2014.

From the Order No. F.1(22)-W.POLY/SOCIETY/PPIU/2005/1319-30 dated 02.01.2006, it would transpire that on the recommendation of the Selection Committee, the petitioner was appointed as the Accountant for a period of 3(three) years from the date of joining to the post and the petitioner''s appointment on deputation was against a post created by the Finance Department, Govt. of Tripura under order No. 116/FIN (Edn.Cell)/05 dated 17.11.2005 and as such the petitioner was entertained against the sanctioned post of Accountant and that post carried regular scale of pay of Rs. 5000-10300/-.

On 08.08.2013, the Principal, Women''s Polytechnic again wrote a letter to the Director of Higher Education (Annexure-8 to the writ petition) recommending absorption of the petitioner as the Accountant and he has strongly recommended noting that if the petitioner is absorbed, he would be able to look after the accounts of the Women''s Polytechnic and some other adjunct institutes. All on a sudden, by the communication under No. F.7(235)-DHE/NG/06(L) dated 22.05.2014 (Annexure-9 to the writ petition), the petitioner has been directed to be released from the Women''s Polytechnic as the Accountant as the proposal for further extension of deputation/engagement on contract basis has not been favourably considered by the appropriate authority. In view of the situation that emerged, the Principal, Women''s Polytechnic made a communication to the Secretary to the Govt. of Tripura, Education(Higher) Department for continuation of service of the petitioner as the Accountant.

By the memorandum No. F.7(235)-DHE/NG/2006(L-2)/1131(4) dated 25.08.2014, the petitioner was engaged as the Accountant afresh on contractual basis for a period of one year at a consolidated pay of Rs. 24,256/- with effect from 01.04.2014 and was posted to the Women''s Polytechnic, Agartala. Again by the memorandum dated 01.07.2015, the petitioner was re-engaged as Accountant on contract basis for a further period of 11(eleven) months. By another communication dated 24.09.2014 (Annexure-12 of the writ petition) the Principal, Women''s Polytechnic having reference to the memorandum No. F.10(5)-FIN(G)/2014 of Finance Department dated 23.05.2014, urged the Government to regularise the petitioner as he had been working in the Polytechnic Institute for a period of more than 10(ten) years. Prior to that, the petitioner had represented to the Director of Higher Education urging to regularise him in the post of Accountant in the Women''s Polytechnic. Now by fling this petition, the petitioner has urged this court to direct the respondents to absorb him as the Accountant in the Women''s Polytechnic, Hapania from the date of his joining on deputation. The petitioner has also prayed for quashing the memorandum dated 25.08.2014 and 01.07.2014 whereby the petitioner was engaged on contractual basis instead of absorbing him as the Accountant.

Ms. S. Deb Gupta, learned counsel appearing for the petitioner has questioned that when it was in the knowledge of the Director of Higher Education in view of the communication of the Project Director, DRDA, North Tripura, Kailasahar dated 27.01.2006 (Annexure-4 to the writ petition) that the relation with the petitioner''s formal employer had came to an end and the petitioner had no lien over his service in the said agency, how the petitioner''s deputation can be extended for further period with the regular scale for the post of Accountant? Is it not an absorption for all purposes? By implication, the said appointment amounts to absorption against the permanent post of Accountant which was created by the Finance Department under order No. 116/FIN (Edn.Cell)/05 dated 17.11.2005. Ms. Deb Gupta, learned counsel in order to overcome the barrier of estoppel has contended that the petitioner had no option to refuse the contractual engagement as the Accountant as he thought that if he submitted a representation, the respondents would take the corrective steps. However, that did not happen, despite the very positive recommendation from the Principal, Women''s Polytechnic. Ms. Deb Gupta, learned counsel appearing for the petitioner has further submitted that the petitioner has been engaged in the post of Accountant by way of a selection process after publishing the employment advertisement in a popular daily published from Tripura. As such, it cannot be said that the petitioner''s appointment has not been made following the constitutional framework so far the public employment is concerned. That apart, Ms. Deb Gupta, learned counsel has submitted that the petitioner is wholly covered by the memorandum under No. F.10(5)-FIN(G)/2014 dated 23.01.2014, Annexure-14 to the writ petition.

From the other side, Mr. T.D. Majumder, learned Govt. Advocate appearing for the respondents has submitted that even though the management of Society for Women''s Polytechnic was taken over by the Government, there had been no speaking order as to the continuation or absorption of some employees including the petitioner. Mr. Datta Majumder, learned G.A. has raised a unique point that since the petitioner was not a regular employee of the DRDA, North Tripura, he was not supposed to be brought on deputation. There was no question of lien over the post in the parent department and as such the petitioner cannot take any ground of expiry of lien for seeking absorption in as much as he took the risk involved in his engagement in the post of Accountant on deputation. He has however pointed out that in the Notification dated 10.03.2010, it has been provided that the employees of other Non-Government Organisation/Corporation/PSUs who were appointed by the Society for Women''s Polytechnic on or before 10.03.2010 on deputation in the different posts created by the State Government for the Society for Women''s Polytechnic, might however continue to be on deputation in the Government administered/converted Women''s Polytechnic for the time being subject to their willingness in writing in this regard. As such, according to Mr. Datta Majumder, learned G.A., there had been no proposal for absorption of the deputed staff, as well as of the petitioner. He has submitted that after the petitioner was released as the deputationist with effect from 31.03.2014, he cannot claim that he continued on deputation for purpose of absorption. Thereafter, the petitioner was engaged as the Accountant on contract on a consolidated pay and the petitioner had accepted that engagement without any demur. So far the regularisation of the petitioner is concerned, Mr. T.D. Majumder, learned G.A. appearing for the respondents has submitted that in view of the memorandum dated 21.01.2009, the full time DRWs/Casual/Contingent workers can be regularised on their completion of 10(ten) years of service, but the petitioner''s engagement does not come within the classification as referred in the said memorandum for purpose of regularisation. Hence, the petitioner is not entitled to get any relief from this court either in law or in equity. Mr. Datta Majumder, learned G.A. has however placed on record a note of the Finance Department as to the engagement of the petitioner as the contractual employee. The said note reads as under:

Note-9

Ref: Note- 89 of Higher Education Department in the file numbered F.7(235)-DHE/NG/06(L-2).

Finance Department agrees towards continuation of Shri Debasish Majumder to the post of Accountant in the Women''s Polytechnic as contractual employee on fixed remuneration equals to existing gross salary. The Department may renew the terms and condition of the contract of the concerned incumbent after expiry of every contract.

The file is returned.

Secretary, Education (Higher)

(C.Mog) Under Secretary, Finance

From a bare reading of that note it appears that the department has permitted the Higher Education Department to renew the terms and conditions of the contract of the concerned incumbent after expiry of every contract. This is a sanction in perpetuity.

From the rival contentions and the records as produced before this court it has transpired that the post of Accountant in the Women''s Polytechnic is a permanent post created with concurrence of the Finance Department. By way of a selection process, the petitioner was selected for the said post. The petitioner was engaged on deputation knowing fully well that the petitioner was not a regular employee of the DRDA, North Tripura to continue a lien in the post, meaning the petitioner would not be repatriated on expiry of the period of deputation. Moreover, when the petitioner was continuing as the Accountant on deputation in the regular scale of pay even his EPF account was closed with intimation to the competent authority. The Principal, Polytechnic Institute had without delay informed the Director of Higher Education about the emerging situation in respect of the petitioner. Despite that, after the EPF account was closed down, the petitioner''s deputation was continued in the regular scale. All on a sudden, extension was regretted with effect from 31.03.2014. Thereafter, the petitioner was engaged on contractual basis as the Accountant. The note of the Finance Department leaves no room of ambiguity. It is clear from the records that the department may renew contractual service of the incumbent after expiry of every contract. Hence, it can be deduced that the petitioner has been entertained against the permanent vacancy of Accountant on contractual basis and there is requirement of that post in the said institute. The respondents have failed to explain when the parent department had categorically communicated that the petitioner had no lien in the parent department, how they had extended the period of deputation in regular scale in favour of the petitioner. It appears that all the material or relevant factors at the relevant point of time were not considered by the respondents. At that point of time, the respondents ought to have considered the absorption of the petitioner in view of the performance assessment note given by the Principal, Women''s Polytechnic and the requirement of the post in the Women''s Polytechnic. But, the respondents did not adopt that exercise arbitrarily, causing serious jeopardy to the petitioner.

There is no dispute that the petitioner had served more than 10(ten) years in the Women''s Polytechnic as the Accountant to the entire satisfaction of the respondents. Now even the petitioner is not getting the pay and allowances in the regular scale for his contractual engagement. The need has compelled the petitioner to accept the contractual engagement. However, he had made representation immediately after he had been engaged as the contractual basis for absorbing him in the post of Accountant. It is true that the court ordinarily does not direct the employer to absorb its employee on deputation. Absorption takes place on the basis of necessity of continuance in the post. The efficiency of the person on deputation and subject to possession of the qualification required for the said post, unless those are relaxed for a special purpose, are considered relevant. The respondents did not raise any objection as to the qualification of the petitioner in respect of his appointment in the regular post of the Accountant and from the qualification, it appears that the petitioner is qualified to be engaged as the Accountant. The other two factors as indicated above are very much in existence in the present case. From the Finance Department''s note No. 91, it is clear that necessity of continuance of the post of Accountant has been considered and the performance assessment note of the Principal, Women''s Polytechnic stands to vindicate the efficiency of the petitioner.

Having regard to all these material facts, this court is of the considered opinion that the respondents shall consider the petitioner for absorption in the post of the Accountant in the regular scale of pay without delay. The respondents are directed to complete the said exercise within a period of 3(three) months from today. Till the petitioner is absorbed he shall be allowed to continue as the Accountant on contractual basis.

With this observation and direction this writ petition stands allowed to the extent as indicated above. There shall be no order as to the costs.