Haradhan Das vs State Of Tripura And Ors

Heard Mrs. S. Deb(Gupta), learned counsel appearing for the petitioner. Also heard Mr. M. Debbarma, learned Addl. G.A. appearing for the State-respondents.

By way of filing this writ petition, the petitioner has prayed for following reliefs:-

i) Admit this petition of the petitioner and call for records relevant to the subject matter from the custody of the respondents.

ii) Issue Writ directing the respondents and each of them to treat the petitioner as Daily Rated Workers DRW (Group-D) from the date of joining instead of 25-02-2014 (Annexure- ).

iii) Issue Writ directing the respondents and each of them to regularize the petitioner as Gr.D after completion of ten years' of continuous service as DRW forthwith and in no time.

AND

iv) Pass such other or further order/orders and directing/directions as to your Lordship deem fit and proper having regard to the facts and circumstances of the case.

Shorn of unnecessary details, only the relevant facts to decide the principal issue in question has been taken up for consideration. The petitioner was first engaged as Part Time Worker (PTW, for short) under the State-respondents w.e.f. 04.06.1980 under the Institute for Visually Handicapped, Narsingarh, Agartala (Annexure-1 to the writ petition). Initially, the petitioner had worked for two hours but subsequently he worked upto 8(eight) hours. Keeping pace with the decision of the Government of Tripura, the petitioner's service as PTW was converted to Daily Rated Worker (DRW, for short) vide Memo dated 21.07.2014 which is reproduced here-in-below inextenso for convenience:-

"No.F.10(6)-DSWE/ESTT/2012/1591(22)

Government of Tripura Directorate of Social Welfare & Social Education (Establishment Section)

Dated, Agartala, the 21/07/2014

MEMO

Subject:- Engagement of Part-Time Workers(PTW) for 2 hours/3 hours/4 hours as Daily-Rated Workers(DRW) (Group-D).

Pursuant to the Memorandum No.F.34(6)-FIN(G)/2012 dated the 25th February,2014 of the Finance Department, Govt. of Tripura, 22(twenty two) persons as per list attached who have been working as Part-Time Worker for 2 hours/3 hours/4 hours in the Institution/Office as mentioned against their names in Col.No.3 are hereby engaged as Daily-Rated Worker (Group-D) @ Rs.135.35 per day with effect from 25-02-2014.

They will perform the duties after their engagement as Daily-Rated Worker (Group-D) in the respective Offices/Institutions which they have been performing at present.

They are entertained against 23(twenty three) posts of Daily-Rated Worker (Group-D) created vide Memo.No.F.10(6)-DSWE/ESTT/2012/1044(A)(9) dated 12-06-2014.

Their wages will be drawn against Head of Account:-2202-04-200-33-09-02-wages (Non-Plan).

Director

Social Welfare & Social Education Tripura"

A bare reading of the said memo dated 21.07.2014, it is apparent that the petitioner was engaged as DRW w.e.f. 25.02.2014. The claim of the petitioner for regularization is that the petitioner was engaged as PTW under the respondents since 1980.

Mrs. S. Deb (Gupta), learned counsel appearing for the petitioner has relied upon a decision of the Government which was taken vide Memo dated 23rd May, 2014 (Annexure-6 to the writ petition) wherein the Government in its own wisdom has taken a decision that the service of all DRWs and PTWs shall be regularized if an employee completes 10 years' of service as DRW or PTW. The said memorandum dated 23rd May 2014 is reproduced here-in-below in verbatim for convenience:-

"No.F.10(5)-FIN(G)/2014 Government of Tripura Finance Department

New Secretariat Complex, Agartala, 23rd May 2014

Memorandum

The proposal for regularization of services of Daily Rated Workers who have completed ten years' of continuous service as well as conversion of Part-time Workers engaged in different departments who have completed ten years' of continuous service as Daily Rated Worker came up for discussion in the meeting of the Council of Ministers on the 20th May 2014 and it was decided that full details in respect of all such persons who are working in different departments with the concurrence of finance Department and otherwise shall be compiled and processed for decision of the government, instead of dealing the matter in a piecemeal manner. As per guidelines in all such cases, it is necessary to take prior concurrence of the Finance Department. As such, in case any person has been engaged without prior concurrence of the Finance Department, details of the circumstances and the Head of Office who has engaged the person shall have to be sent by the Department.

Accordingly, all Secretaries are requested to compile relevant details separately in respect of each such Daily Rated and Part-time Workers in the formats enclosed (Format-I and Format-II respectively) to the Finance Department concerned. In case no information is received by the stipulated date, it would be presumed that no such worker has been engaged by the department.

Enclo: As stated.

(S.K.Panda) Chief Secretary Government of Tripura."

It is the case of the petitioner that since he has been serving the concerned respondents since 1980, his service should be regularized as he has completed 10 years' of service.

Mrs. Deb (Gupta) has pressed into service one Memo dated 7th November, 2012 in regard to the engagement of PTW as DRW wherein the Government of Tripura, Finance Department has decided that all PTWs working in different Departments of the Government for 2 hours/3 hours/4 hours who were engaged on or prior to 31.03.2003 and have been completed 10(ten) years' of service would be engaged as DRW, Group-D w.e.f. 01.12.2012. The said Memo dated 07.11.2012 is reproduced hereunder:-

"No.F.10(12)-FIN(G)/2007(Part-I)

Government of Tripura Finance Department Dated,Agartala,the 7th November,2012.

Memorandum

Subject: Engagement of Part Time Workers (PTW) as Daily Rated Workers (DRW)-request for sending proposal.

It has been decided that all part Time Workers (PTW) working in different departments of the Government for 2(two) hours/3 (three) hours/4(four) hours who were engaged on or prior to 31-03-2003 and have completed 10(ten) years' of service would be engaged as Daily Rated Workers (DRW) Group-D w.e.f. 01-12-2012 subject to the following conditions:

i) Only those Part Time Workers working for 2 hours or more on daily basis who were engaged on or prior to 31-03-2003 and have completed 10(ten) years' of service and were paid out of State Government funds will be considered for engagement as Daily Rated Workers (DRW).

ii) For this purpose the respective departments will send proposal with requisite proof of their engagement likes engagement orders/letters, muster rolls, acquaintance rolls, copy of bill for payment of their wages etc. to the Finance Department for Government approval.

iii) The actual engagement of PTW as DRW will be done by the concerned department on receipt of concurrence of Finance Department who will convey approval of the Government for engagement of PTW as DRW Gr. D only after verification of correctness of their particulars to be furnished by the concerned department under whom the PTW are working at present.

iv) The PTW on being engaged as DRW, they will continue to perform similar kind of work as they may be doing presently or any other work, in addition, as may be assigned by the concerned Departments.

Person engaged on contract or lump-sum payment as a Part Time or Full Time Worker in Project or Works or Centrally Sponsored Scheme like MGNREGA, SSA, RSVY, ICDS, NRHM,TSC, etc. shall not come under the purview of the process.

In view of the above, the undersigned is directed to inform that all concerned Departments to send proposal for engagement of the Part Time Workers(PTW), as per format given below with requisite proof of their engagement on or prior to 31-03-2003 and proof of payment of their wages out of State government funds. The proposal duly authenticated by the competent authority should reach this Department within 15th November,2012 positively for further process.

Sl. No .

Name of the workers

Designation

Number of hours for which the worker is engaged

Date of birth

Date of engagement/appointment

Whether SC/ST/Others

Educationa l Qualificati on of the worker

Nature of the job performed by the worke

Amount of wages paid to the worker

Source of fund from which wages paid to the worker

FD,s Concurren ce No. & Date

State Govt. fund or Scheme/Project fund

Whether from wages head of from contingency head/OE head

13

1

2

3

4

5

6

7

8

9

10

11

12

13

(N. Darlong) Joint Secretary to the Government of Tripura."

Mrs. Deb (Gupta), learned counsel has further placed a Memo dated 25.02.2014, whereby the Finance Department, Government of Tripura, concurs for engagement of 23 Nos. of PTW who have been found engaged for 2(two) hours prior to 31.03.2003 and have completed 10 years' of service as on 30.11.2012 as per list enclosed therewith as DRW, Group D with prospective effect subject to some conditions. The said Memo reads as under:-

"No.F.34(6)-FIN(G)/2012

Government of Tripura Finance Department Date, Agartala,the 25.2.2014

MEMORANDUM

Subject: Engagement of Part Time Workers (PTW) for 2 hours/3 hours/4 hours as Daily Rated Workers (DRW).

In reference to the proposal of the Education (SW & SE) Department for consideration of engagement of 23 Nos. Part Time Workers(PTW) engaged for 2 hours/3 hours/4 hours as Daily Rated Workers (DRW), through letter No.F.10(6)-DSWE/ESTT/2012/4651, the undersigned is directed to state that Finance Department concurs for engagement of 23(Twenty three) Nos. Part Time Workers (PTW) who have been found engaged for 2(two) hours prior to 31-03-2003 and have completed 10(ten) years' of service as on 30-11-2012 as per list enclosed herewith as Daily Rated Workers (DRW) Group-D with prospective effect subject to the following conditions:

I) Only those Part Time Workers working for 2 hours/3 hours/4 hours a day who were engaged on or prior to 31-03-2003 and have completed 10 (ten) years' of service as on 30-11-2012 and were paid out of State Government funds will be considered for engagement as Daily Rated Workers (DRW) Group-D. However, person engaged on contract or lump-sum payment as a Part Time or Full Time Worker in Project or Works or Centrally Sponsored Scheme like MGNREGA, SSA, RSVY, ICDS, NRHM,TSC, etc. shall not come under the purview of the process.

ii) The Department shall verify the correctness of the particulars of the Part Time Workers of the respective Department whose names are included in the annexed list in reference to their engagement orders/letters, muster rolls, wage's bills, acquaintance rolls etc towards payment of their wages to ascertain whether they are paid out of State Government fund or not.

iii) After ascertaining correctness of particular of the Part Time Workers and payment of wages out of State Government fund, the actual engagement of PTW as DRW (Group-D) will be done by the department amongst the names enclosed in the list.

iv) The Department shall take necessary steps for formal creation of the required number of post of DRW (Group-D) for engagement of the Part Time Workers found eligible as DRW (Group-D) after verification of their particulars for maintenance of the Rules of Reservation and sought ex post facto concurrence of Finance Department for the post created for engagement of the Part Time Workers as DRW (Group-D). However, the Department shall not fill up unfilled vacant posts created for engagement of the PTW as DRW without specific and prior approval of Finance Department.

vii) The PTW on being engaged as DRW would continue to perform similar kind of work as they may be doing presently or any other work, in addition, as may be assigned by the Departments.

The Department shall furnish detailed list of PTW engaged as DRW (Group-D) within one month of their engagement to Finance Department.

(M. Sengupta) Under Secretary to the Government of Tripura."

The question to be decided is as to whether the service of the petitioner as DRW has to be treated w.e.f. 1980 or not?

Now, what is apparent from the various decisions and correspondences of the Government is that the petitioner was engaged as DRW in view of the policy decision of the Government which was taken vide Memo dated 7th November, 2012. From the Memo dated 25.02.2014, it is revealed that the respondents had considered the petitioner as an eligible candidate to be appointed as DRW from PTW. More importantly, in view of the decision of the Memo dated 7th November, 2012 only, the petitioner was engaged as DRW. The policy of the Government is that service of a DRW shall be regularized after completion of 10 years'. From the decision of the Memo dated 25.02.2014, it is apparent that the engagement of the petitioner as DRW have been given prospective effect and not a retrospective effect. In that situation, the service of the petitioner will be counted from the date on which the petitioner was engaged as DRW and as per the policy of the Government when the petitioner shall complete 10 years' of service as DRW, only then, his entitlement for consideration for regularization of service will arise, and not before that. The engagement of the petitioner, vide Memo dated 21.07.2014, engaging him as DRW w.e.f. 25.02.2014, makes it clear that the petitioner will complete his 10 years'' of service on 24.02.2024. It is the wisdom of the legislature to legislate its policy and the Court has no power or any discretionary jurisdiction to out- step the policy decision of the Government. To take a policy decision, it is absolutely within the domain of the legislature. The Court cannot replace or try to trace out any other meaning other than literal meaning when the language of the policy does not suffer any ambiguity. This is the settled principle of statutory interpretation.

Learned counsel appearing for the petitioner has strongly argued that in the Memo dated 31.03.1992 one of the employees designation was mentioned as DRW. In my considered view, mere mentioning of the designation as DRW in one of the several correspondences as aforestated does not mean that he is really a DRW in absence of any engagement/appointment letter in favour of such worker or employer. In furtherance thereof, from the Memo dated 21.07.2014 issued by Director, Social Welfare and Social Education, Tripura, it is crystal clear that the petitioner was engaged as DRW (Group-D), w.e.f. 25.02.2014 at the rate of remuneration of Rs.134.35 per day. In view of the said Memo dated 21.07.2014, in my opinion, it would not be appropriate for this Court to consider that the appointment of the petitioner was made before the issuance of Memo dated 31.03.1992.

As such, I find no force in the submission of learned counsel appearing for the petitioner in regard to the fact that this Court should treat the petitioner as DRW in view of the Memo dated 31.03.1992.

Learned counsel appearing for the petitioner has placed before me one decision of this Hon'ble Court passed in WP(C) 398/2014 [Sri Jiban Krishna Debnath Vrs. Tripura State Electricity Corporation Ltd. & Ors.]. I have carefully perused the said decision. The facts of the case are clearly distinguishable to the facts of the present case. Hence, the case referred by the learned counsel has no bearing to decide the present case.

Since the petitioner has not completed the period of 10 years' of service, in my opinion, in the context of the case, the instant writ petition is devoid of merit and the petitioner has not acquired any enforceable right before completion of his 10(ten) years' of service as DRW from the date of his appointment. Accordingly, the instant petition stands dismissed.