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Judgment
[1] Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioners as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.
[2] The petitioners are working as the casual worker under the Forest Department for a substantively long period along with other casual workers. On scrutiny, a list of 363 casual workers was prepared for absorption as Permanent Labourers. The Council of Ministers gave concurrence of the proposal for absorbing casual workers under the Forest Department, even if their initial appointments were made without approval from the Finance Department.
[3] According to the petitioners, in terms of Rule 4 (a) of the Tripura Government, Sepahijala Biological Complex / any other complex / Institution Permanent Labourers (Recruitment and Conditions of Service) Rules, 1990, if a casual worker is in continuous full employment for 3 years and has worked for at least 240 days each year in Sepahijala complex or any other complex or institution of the Forest Department, the competent authority may declare them as a Permanent Labourer.
[4] Having due regard to that rule, as it appears, the Council for Ministers had taken the decision to absorb 363 casual workers as Permanent Labourer. There is no dispute in respect of the fact that on due scrutiny of the papers, 341 casual workers were recommended and declared permanent labours by the various office orders in the year 2017. Those orders are enclosed at Annexures 10-25 to the writ petition. As stated, those orders were made having recommended by a committee as constituted by the memorandum dated 09.10.2017, Annexure-9 to the writ petition. It is also admitted that at the relevant time, the committee did not recommend the names of the petitioner as the relevant papers were not placed before the committee by the District Officer as there records could not be traced out by the committee.
[5] It is also not in dispute that, later on, the petitioners were recommended by the said committee for absorption as the permanent laborer as they were found eligible to be absorbed. But that recommendation was kept on hold without taking the legitimate equal action as was taken in respect of the other casual workers for their absorption as Permanent Labourer. The petitioners issued a demand notice, but no positive result had yielded. Consequently, they have filed this petition under Article 226 of the Constitution of India for direction to the respondents to absorb the petitioners as Permanent Labourers in terms of Rule 4 and 5 of Tripura Government, Sepahijala Biological Complex/ any other complex/ Institutional Permanent Labourers (Recruitment and Condition of Service) Rules 1990 and to allow the petitioners continue as the casual workers till their absorption as Permanent Labourers.
[6] Mr. S. Bhattacharjee, learned counsel appearing for the petitioners has submitted that in the month of September, 2018, the petitioners have been disengaged as the casual labourers, but no order has been passed in writing. They were made to discontinue from their service in the Forest Department.
[7] The respondents filed their reply on 02.07.2019 stating that after an inquiry into the matter for not proposing the 9 (nine) casual workers in the initial stage [while sending the proposal to the Government for consideration], it was found that nine casual workers were not included in the list of 363 casual workers, when the Council of Ministers approved absorptions. While dealing with the disengagement of the petitioners, the respondents have stated that there was a restriction on engagement of DRW/Casual/Contingent workers in Government offices without concurrence of the Finance Department, Government of Tripura by the Memorandum No.10(2)-FIN(G)/2008(part) dated 01.08.2018 Thus, the petitioners were disengaged even though they have served such a long period and they might legitimately expect their absorption.
[8] The respondents have adduced the memorandum dated 05.09.2017 under No.F.1(25)-CAB/98, wherefrom the decision of the Council of Ministers held on 05.09.2017 can be gathered. For purpose of reference, the relevant part of the decision in respect of absorption of 363 casual workers may be extracted hereunder:
"The proposal relates to absorption of 363 nos. of Casual Workers (CWs) as Permanent Labourers (PLs) in the Forest Department. They were engaged in different Forest Divisions/Sub-Divisions from time to time for smooth functioning of the Government works.
The Finance Department Memorandum dated 20-02-2007 has following provisions with regard to Permanent Labourers:
"All casual and associated workers engaged in Agriculture, ARDD, Fisheries, Forest and I&C Departments who was in continuous employment for 3 (three) years and has worked for at least 240 days in each year, subject to the condition that the appointing authority is satisfied with the quality of his work, conduct, character and to his suitability for employment as Permanent Labourer, may be absorbed as Permanent Labourer in those departments. For this purpose, Permanent Labour Rules of the respective departments may be suitably amended.
Available Group-D vacancies as and when arises in the Departments of Agriculture, ARDD, Fisheries, Forest and I&C may be filled up entirely out of these Permanent Labourers keeping in view seniority and other factors."
A copy of the memorandum No.F.10(16)-Fin(G)/83 dated 20-02-2007 of Finance Department is placed as Annexure-I. The Forest Department has also notified the Tripura Government, Sepahijala Biological Complex/ any other Complex/ Institutions Permanent Labourers (Recruitment and Condition of Service) Rules, 1990 with subsequent amendments from time to time (copy enclosed as Annexure-II. These rules also have provision similar to the Finance Department memorandum for absorption of Casual Worker as Permanent Labourer.
The proposal for absorption of 363 Nos. of Casual Workers as Permanent Labourers was moved to the Finance Department for their concurrence. The Finance Department had concurred for 149 numbers of Casual Workers only, who were engaged in Sepahijala Wildlife Sanctuary and other similar institutions, Eco parks, Nurseries etc. subject to certain conditions. It, however, regretted the proposal to convert the remaining 215 numbers of Casual Workers into Permanent Labourers. The observations of the finance department (given earlier) and of the Law Department along with point wise comments of the forest department is placed at Annexure-II
With regard to the observation of Finance Department, it is mentioned that out of the list of 215, there are 86 Nos. of Casual Workers who are engaged in core forestry activities such as afforestation, maintenance of parks and gardens, nursery works, elephant watch and ward duties, pump operator (for nurseries), fodder collector, cook at protection units, etc. As far as the remaining 129 Nos. Casual workers are concerned, they are engaged for various other works such as cleaning and sweeping, caretaker of FRH, upkeep of office, night guards, computer operator and other misc works and have also been working for more than three years, it is proposed to consider their case by giving one time exception to the guidelines.
According to the R.R. of Permanent Labourers (as amended on 22.09.2014), the age limit for absorption as Permanent Labourer is more than 18 years of age and the upper age limit is 40 years relaxable b 5 (five) years for SC/ST/PH category. The prescribed educational qualification for a Casual Labourer, to be absorbed as Permanent Labourer, is that he/she is able to read and write any of the local languages. It is found that out of 363 nos. of Casual Workers, 91 nos. of Casual Workers/Associated Workers have by this time crossed the upper age limit as on 01-08-2017. Out of the 91 who have crossed the Age bar, 51 nos. need relaxation upto 5 yrs, 25 require relaxation between 5-10 yrs., 12 nos. require relaxation upto 5 yrs, 25 require relaxation between 5-10 yrs., 12 nos. require relaxation of 10-15 and 3 nos. require relaxation upto 16 yrs. Further, 38 nos. of Casual Workers, who are otherwise eligible, do not have the requisite educational qualification. Therefore, it is proposed to grant one-time relaxation with regard to their age bar as well as educational qualification for regularization of their services as Permanent Labourers.
The finance department has concurred the proposed Cabinet memo vide U.O. number 938/FIN/(G)/2017 dated 4th September 2017 for absorbing 363 numbers Casual Workers as Permanent Labourers subject to following conditions:
6.1. As Forest Department has appointed the Casual Labour without approval of the Government in Forest Department, without approval of the Finance Department and without following the qualifications as prescribed in the guidelines. This three irregularities have to be condoned by the Council of Ministers.
6.2. It is therefore, proposed that one time exemption may be given by the Council of Ministers for their appointment but no change in the guidelines shall be made.
6.3. The objective of the guidelines for appointment of Permanent Labour at Sepahijala and similar institutions should be kept and not diluted by amendment of guidelines.
6.4 The strength of Permanent Labour should kept at 363.
6.5. Permanent Labour will continue to perform the same task as before when they were casual. Several offices have indiscriminately appointed Casual Workers without following any guidelines. The Forest Department should initiate action against them also and specifically prohibit all officers in future from appointing any Casual Labour without approval of the government in the Forest Department and Finance Department.
Accordingly, the proposal for absorption of 363 nos. of Casual Workers (CWs) as Permanent Labourers (PLs), along with grant of one-time relaxation as concurred by Finance Department in their Age bar/Educational qualification and to the guidelines for their engagement is placed before the Council of Ministers for their consideration and approval."
[9] The decision of Council of Ministers is quite explicit and that was categorically provided that who were appointed with or without concurrence of the Finance Department, they all are eligible for absorption if it is found that they have worked continuous 2-3 years as a casual worker and has worked at least 240 days in each year. According to Mr. Bhattacharjee, learned counsel all the petitioners had the eligibility to be absorbed in terms of the policy adopted by the Council of Ministers.
[10] However, Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has submitted that by the memorandum under No.F.10(2)-FIN(G)/2008(part) dated 01.08.2018, Annexure R-2 to the reply, engagement of DRW, casual worker, contingent worker under the State Government without concurrence of the Finance Department has been restricted. True it is that by the memorandum dated 01.08.2018 it has been directed that the offices in the government shall not engage any persons in the casual employment without approval of the Finance Department. Nowhere this memorandum provides to discontinue the persons who were already working on such engagement. As such, apparently the alleged disengagement as made by the respondents are grossly arbitrary.
[11] Having heard the counsel for the parties, this court on 08.08.2019 had passed an elaborate order directing the respondents to file a short affidavit and to place the report of the committee which was constituted for scrutinizing the records for purpose of absorption of the casual workers as Permanent Labourer.
[12] In terms of the said order, the respondents have filed an additional affidavit. With the said affidavit, they have filed the report containing the authenticated list of 363 casual workers for absorption of Permanent Labourers. On scrutiny of the report and the authenticated list of 363 casual workers for absorption of the Permanent Labourers, it appears that names of the petitioners did not appear in that list. But from Note No.54 which has been produced along with the said affidavit, it has surfaced that on the recommendation of the concerned committee 341 casual workers were found eligible out of total 363 for absorbing as Permanent Labourers. They had already been engaged as Permanent Labourer with prior approval of the Government under the Forest Department. The said Note No.54, annexed as Annexure-6 to the additional affidavit, has further recorded that out of remaining 22 casual workers 20 were found not recommended as some had failed to submit the relevant records for determining their eligibility to recommend for absorption as Permanent Labourers and some were found not fulfilling the eligibility criteria as per extant rule. Two casual workers have expired by that time. The District Forest Officer, Gomati District has submitted the report. From the report it appears that the concerned committee had recommended 8 (eight) casual workers from Udaipur Sub-Division, 6 (six) from Amarpur Sub- Division and 2 (two) from Karbook Sub-Division as Permanent Labourers by tracing their relevant records which were not submitted earlier before the respective committee.
[13] It appears that in the said report, the petitioners' names are recommended for absorption as the Permanent Labourers. For purpose of reference, it may be noted that names in the serial Nos.1, 10-13 and 14-20 are of the petitioners in this writ petition. In the said exercise, the name of 21 persons were recommended against the available vacancy of 22 for absorption, but till now they have not been absorbed. It has been also noted under Note No.55 as follows:
"4. Besides there are 12 nos. of Casual Workers under various Districts whose names were not proposed in the initial stage at the time of listing of 363 nos. of casual workers, which was sent to the govt. for consideration earlier. The cases of these 12 nos. of casual workers have been scrutinised by the respective committees and the said committees have found them eligible and recommended for absorption as Permanent Labourers."
[14] Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioners has pointed out to this court that under Note No.58, the respondents have recorded some facts which are material for purpose of adjudication of the rights of the petitioners as canvassed in this writ petition. Under Note No.58, the respondents have recorded further as under:
"8. At the material time while 363 nos. of casual workers was listed, 13 Casual Workers (01 from Gomati Dist. and 04 from West Dist. and 07 from South Dist. and again 01 from Dhalai Dist.) were not included as their names were not proposed by the concerned Dist. FOs for absorption as the Permanent Labourers through oversight. Their names were proposed for consideration as Permanent Labourer to FHQ after getting approval of Council of Ministers for 363 casual workers as Permanent Labourers.
In this context, as a pertinent to mention here that this 13 casual workers were working in the Forest Department in reality for long time engaged from 2003 to 2014 have found eligible as per the extent rules and recommended by the concerned committee for absorption as the Permanent Labourers."
They proposed the absorption of those persons.
[15] According to Mr. Bhattacharjee, learned counsel, the petitioners' names figure on the recommended list. Mr. M. Debbarma, learned Addl. G.A. has not opposed that statement but he has submitted that out of 22 vacancies as available and as evident from the office order under No.F.2-56/Dist.F.O(G)/Estt/For-2017/P-I/8941-59 dated 11.01.2018, 8(eight) casual workers were appointed against the posts created by the Council of Ministers i.e. 363. Out of which, 341 were absorbed at the first instance and out of the 22 vacancies, other 8 (eight) persons were appointed. Even Mr. Debbarma, learned Addl. G.A. has admitted that 14 vacancies are still available.
[16] Mr. Bhattachajee, learned counsel has further submitted that the petitioners have urged this court to direct the respondents to absorb them against those 14 vacancies on the recommendation of the concerned committee.
[17] Mr. Debbarma, learned Addl. G.A. has also drawn notice of this court to Note No.59 as annexed to the additional affidavit where it is found that, absorption of the casual workers as Permanent Labourers under Forest Department had taken place on the basis of approval for absorption as accorded for 363 casual workers as the Permanent Labourers in the Forest Department. Even 8 casual workers whose names are appearing in the order dated 11.01.2018 were considered and absorbed as the Permanent Labourer. Therefore, clear 14 vacancies are still available for absorption of the eligible casual workers as the Permanent Labourer.
[18] According to this court there occasioned a serious discrimination, as the respondents failed to carry out the required scrutiny of the records which however they have carried out later on and found that all the petitioners were/are eligible for absorption. Admittedly, for such lapse, the petitioners' name did not appear in the list of 361 casual labourers which was sent to the Council of Ministers for absorption.
[19] It has been admitted that for absence of the referred scrutiny of the records, names of the petitioners were not included in the list of casual workers which was sent to the Council of Ministers for approval of absorption as the Permanent Labourer.
[20] In such situation, by any stretch of interpretation or imagination, the exclusion of the petitioners cannot be accepted. It was incumbent upon the respondents to take appropriate action to undo the injustice. The petitioners being situated similarly, were entitled to be regularized in terms of the approval granted by the Council of Ministers. But they were not. Hence, the Memorandum dated 31.07.2018 in these cases will have no effect whatsoever.
[21] In view of this observation, this court is of the view that the petitioner shall be declared as permanent labourers against the existing 14 vacancies and they shall be declared permanent labourers for all purposes w.e.f. 11.01.2018 when last 8 casual workers were absorbed as Permanent Labourers by the Forest Department by virtue of the office order dated 11.01.2018. The declaration of Permanent Labourers w.e.f. 11.01.2018 shall be made within a period of 3 (three) months from the day when the petitioners shall furnish a copy of this order. The arrear pay and allowances as might accrue for the retrospective absorption of the petitioners as the Permanent Labourers shall be paid within the next 3 (three) months from the date of absorption of the petitioners as the Permanent Labourer.
[22] In the result, this petition stands allowed to the extent as indicated above.
There shall be no order as to costs.