Jyotshna Das vs State Of Tripura And Ors

Heard Ms. R. Purakayastha, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharya, learned G.A. appearing for the respondents.

The petitioner has asserted that she worked as 'a Casual Labourer' at IGM Hospital, Agartala with effect from 21.04.1999 to 31.12.2009 and thereafter with effect from 01.01.2010 till the date of issuance of the certificate by the Medical Superintendent, IGM hospital on 09.08.2018 [Annexure-A to the writ petition]. The petitioner has asserted in the writ petition that she is still continuing as the Casual Labourer at IGM hospital, Agartala. While similarly situated person namely Sanjit Deb has been regularized as the Group-D employee, the petitioner has not been. The petitioner has legitimate expectation that her case for regularization would as well be considered in terms of the memorandum under No.F.10(2)-FIN(G)/2008(Part) dated 21.01.2009 [Annexure-F to the writ petition]. For purpose of reference, the certificate issued by the Medical Superintendent, IGM Hospital, Agartala, is fully extracted herein below:

"GOVERNMENT OF TRIPURA OFFICE OF THE MEDICAL SUPERINTENDENT I.G.M. HOSPITAL, AGARTALA

No.F.4(CW-97)-IGMH/ESTT/2010/9260-63 Dated, Agatala 09/08/2018

To Whom It May Concern

Certified that as per available office record Smt. Jyotshna Das (Sutradhar) was working as a casual labourer at IGM Hospital, Agartala w.e.f. 21.04.1994 to 31.12.2009 & as per order no.F.2 (1-CL)/MS/ESTT-III/2010 dated 30.03.2010, Government of Tripura, Director of Health Services she is working as a casual worker w.e.f. 01.01.2010 to till date.

I wish her every success in life.

Medical Superintendent

I.G.M. Hospita, Agartla"

Ms. Purakayastha, learned counsel appearing for the petitioner has quite succinctly submitted that in view of the scheme for regularization, the petitioner was supposed to be regularized with effect from the next date of completion of 10 years of service, but that was not so done. However, for the purpose best known to the respondents, by the memorandum dated 10.02.2016 [Annexure-B to the writ petition] the petitioner was declared Casual Worker with effect from 01.01.2010 in terms of the memorandum No.F.2(1-CL)-MS/ESTT/2010 dated 30.03.2010. The said memorandum was for conferring status on the Part Time Workers. On their completion of 10 years as the part-time employee they are supposed to be declared as the Casual Worker/Labourer and according to the respondents, the petitioner was so declared with effect from 01.01.2010. But the petitioner, as it appears from the record, did not press any objection at that time. However, on 04.10.2018 [Annexure-C to the writ petition] the petitioner had asked the respondent by the demand notice that she is entitled to be regularized in the post with effect from the day as fixed by the memorandum dated 21.01.2009.

The Medical Superintendent, IGM Hospital, Agartala by his letter dated 26.11.2018, addressed to the lawyer of the petitioner who had issued the said demand notice, has communiccated that the petitioner was engaged as the Slip Worker at IGM Hospital with effect from 21.04.1994, but she was not appointed against any post. Subsequently, she was again declared as a Casual Worker notionally with effect from 01.01.2010. It has been further stated that the higher authority did not accept the demand of regularization made by the petitioner.

To contest the claim of the petitioner, the respondents have filed their reply and stated that the petitioner was working as the Slip Worker with effect from 20.04.1994 till she was declared as a Casual Worker notionally with effect from 01.01.2010 by the said memorandum dated 30.03.2010. It has been also asserted that in respect of whom the petitioner had drawn a parallel, the respondents have categorically stated that no Group-D employee namely Sanjit Deb is under employment of the Medical Superintendent, IGM Hospital, Agartala, the respondent No.3. In respect of another employee namely Helen Shil, the respondents have categorically stated that she was not Slip Worker and she was a regular Group-D employee (G.D.A.) from the very date of her appointment vide the order No.F.2(1-62)-MS/ESTT/97 dated 13.10.1999. The parallel does not have any pursuasive substance to support the demand of the petitioner. It has been further stated by them that the memorandum dated 21.01.2009 has been repealed by the memorandum No.F.10(2)-Fin(G) 2008 (part) dated 31.07.2018. By that memorandum dated 21.01.2009 six memoranda have been repealed by the State Government, but as there is no reference as to their mode of operation the said memorandum dated 31.07.2018 has to be considered to operate prospectively.

The petitioner has filed the rejoinder and reasserted the fact and produced the records viz. the statement of casual labourer for the month of September-October 2003 to show that the petitioner was attending the duty almost on everyday on that month. Further the petitioner, in order to show, that Sanjit Deb, as referred before, was also attending duties as the Casual Labourer. Thus, the assertion of the respondents that there was no casual employee namely Sanjit Deb is an incorrect statement.

Ms. R. Purakayastha, learned counsel appearing for the petitioner, on drawing a comparison between the two statements of casual labourer for the month of September-October, 2003 (in respect of the petitioner) and the statement of casual labourer from 17.09.2003 to 15.10.2003 in respect of Sanjit Deb, an employee under the respondents who has been regularized on consideration of his length of service, she has stated that the petitioner has been treated similarly by the respondents. Hence, the grievance.

Mr. D. Bhattacharya, learned G.A. appearing for the respondents has submitted that whether Sanjit Deb is in the engagement or not, there is no instruction to him.

Having perused the records so produced, it is found that the principal controversy hinges on two issues viz. (i) the nature of engagement of the petitioner and (ii) whether the petitioner had continuously served the respondents with effect from 21.04.1994? Ancillary to those two questions another question is of relevance is that whether the certificate dated 09.04.2018 which has unambiguously recorded that the petitioner has served as the casual labourer with effect from 21.04.1994 to 31.12.2009 is reliable or not? The petitioner has been working as the casual worker/labourer with effect from 01.01.2010 till date.

This court despite serious persuasion has failed to understand the distinction or difference between the two status namely the casual labourer and casual worker. Barring for creating two different nomenclatures, it appears that both the engagements are of casual nature and conveniently, authenticated. Those engagements are called the casual engagements. Ten years uninterrupted engagement as the casual labourer is the eligibility to be considered under the memorandum dated 21.01.2009. But for absence of the relevant records, this court is not in a position to answer those questions as framed. Thus the Director of the Health Services is directed to make inquiry about the nature of engagement of the petitioner which has admittedly subsisted from 21.04.1994 to 31.12.2009 as the casual labourer as per the certificate issued by the Medical Superintendent, IGM Hospital, Agartala, the respondent No.3 and further to consider whether the petitioner had continuously served till her completion of ten years of service with effect from 21.04.1994. If it is found that the petitioner had served the respondents continuously for ten years, in terms of the memorandum dated 21.01.2009 the respondents shall take the appropriate action for regularisation. Such inquiry and decision shall be taken within 6(six) weeks from the date when the petitioner shall produce a copy of this order. Needless to say, if the petitioner is aggrieved by any action of the respondents, he shall remain be at liberty to approach this court again for remedy.

In terms thereof, this petition stands disposed of.

There shall be no order as to costs.

A copy of this order be furnished to the learned counsel for the parties for doing their needful.