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Judgment
These Appeals arise out of two separate judgments. One is filed by the original petitioner and another by the State Government. However, since facts of these cases are closely interconnected, they have been heard together and would be disposed of by this common judgment.
In W.A. No.450 of 2020, the appellant-original petitioner was appointed as an Anganwadi Worker on or around 16.06.1977. She was promoted to the post of Supervisor (ICDS) on ad-hoc basis on 24.03.1991. She was thereafter directly recruited as a Social Education Worker which post later on re-designated as Junior Social Education Organiser on 30.10.1995. An attempt was made to revert her as an Anganwadi Worker without regularizing her as a Supervisor (ICDS), which she challenged before the Gauhati High Court by filing W.P. (C) No.301 of 2001. During the pendency of this petition, she crossed the age of superannuation and withdrew the Writ Petition, which was recorded in the order dated 05.03.2007, which reads as under:
"Mr. K.N. Bhattacharjee, learned sr. counsel for the petitioner submits that the writ petitioner who had challenged the order of reversion has already retired from service. He further submits that because of the pendency of this case, her pensionary dues have not been finalized. Accordingly, he prays for withdrawal of the writ petition.
The writ petition is dismissed as not pressed by the petitioner. Interim orders, if any, are recalled.
However, the authorities would now take expeditious steps for finalisation of the pensionary dues of the petitioner."
It appears that several other Anganwadi Workers who were also engaged in the years 1991-92, some of whom were junior to the petitioner, were in similar circumstances sought to be reverted. They had challenged the reversions before the Gauhati High Court by filing W.P. (C) No.33 of 2006. This petition was disposed of by the Tripura High Court, which was established by then, by judgment dated 02.09.2013, the writ petition was dismissed, however, as can be seen from the following portion of the judgment, the department was asked to consider if the cases of the petitioners for absorption as ICDS cannot be done. The petitioners were allowed to approach the Government authorities for such purpose. The relevant portion reads as under:
"11. In the given facts and circumstances of the case, I find nothing wrong in the memo, dated 31.12.2005 (Annexure 8 to the writ petition). It is no doubt a fact that the petitioner has been serving under the department for more than 20 years and at least there is nothing on record that the petitioner could not serve the department effectively. It is left open to the department to consider whether the petitioner may be absorbed in any other post if he cannot be absorbed in the post of Supervisor (ICDS). In case such a prayer is made by the petitioner, since the petitioner has already become over-aged and not eligible for any other public employment, the department may consider such prayer sympathetically with a humane touch."
Pursuant to the said liberty granted by the Court, the colleagues of the petitioner approached the Government upon which the Government considered their cases favourably and issued an order dated 02.06.2017 regularizing the ad-hoc appointments of 12 Supervisors of ICDS from the date of their appointment in the year 1991-92.
The petitioner thereupon filed a fresh petition before this Court being W.P. (C) No.1480 of 2017. In such petition, she prayed for regularization as ICDS Supervisor from her initial engagement in the year 1991 in line with the Government decision dated 02.06.2017 under which some of her juniors were also granted similar benefit. This Writ Petition was disposed of by the learned Single Judge by impugned judgment. The learned Single Judge was of the opinion that the petitioner had withdrawn her challenge from the High Court and long before the Government took the decision to regularize other ad-hoc ICDS Supervisors, she had retired from service. She therefore could not revive her challenge and cannot get the benefit of the decision of the Government concerning other employees. The learned Single Judge, however, granted certain other reliefs to the petitioner with respect to which we are not concerned. This decision she has challenged in this Appeal.
W.A. No.100 of 2021 is filed by the State Government to challenge the judgment of the learned Single Judge in W.P. (C) No.1481 of 2017 filled by the respondent of this Appeal. The respondent was the original petitioner. She was also engaged initially as an Anganwadi Worker in the year 1977 and appointed as Supervisor (ICDS) in the year 1991. She had filed W.P. (C) No.312 of 2001 when she was sought to be reverted. This Writ Petition was dismissed for default by Gauhati High Court on 12.05.2011. No further steps were taken for restoration of the petition. The matter stood thus when the Government granted the benefit of retrospective regularization to 12 ICDS Supervisors, who were appointed on ad-hoc basis in the year 1991-92. This petition was disposed of by the impugned judgment in following manner:
"9. Be that as it may, I find sufficient reason in the submission of Mr. Deb, learned counsel appearing for the petitioner. Even though, the petitioner's writ petition had been dismissed for non- prosecution, the respondents are directed to adopt similar consideration, inasmuch as the petitioner at the time of engagement was similarly circumstanced vis-a-vis the persons who have been regularized by the memorandum dated 02.06.2017. The respondents shall consider the petitioner similarly and grant the similar benefits, as granted by the memorandum dated 02.06.2017. The entire exercise be completed within a period of six months from the day of receiving a copy of this order."
Appearing for the appellant in W.A. No.450 of 2020, learned senior counsel Mr. Somik Deb submitted that mere fact that the petitioner had withdrawn her previous petition would not preclude her from seeking parity with other co-employees in whose favour, the Government had exercised discretion and regularized their services. There was no ground for discriminating the case of the petitioner. Learned Single Judge therefore committed an error in dismissing the Writ Petition.
Learned Government Advocate Mr. Debalay Bhattacharjee opposed the Appeal contending that the petitioner having forgone the challenge to her reversion, all her post retiral dues were settled on such basis. Many years later, she could not revive the challenge on the ground that in case of other employees, who are not similarly situated, the Government had taken a sympathetic decision.
Appearing in W.A. No.100 of 2021, learned Government Advocate submitted that the respondent-original petitioner had challenged her reversion. Such Writ Petition was dismissed. It may be an order of dismissal for default nevertheless since the petitioner did not take any steps for restoration of the petition, the reversion order achieved finality. She was also therefore not entitled to the benefit similar to other employees since in their cases the challenge was alive and that pursue their cause.
Learned senior counsel Mr. Deb opposed the Appeal contending that there was no decision on merits on the challenge of the petitioner to the order of reversion. There is no dispute that on all facts, she was similarly situated to other employees, who were regularized by the Government. The learned Single Judge therefore correctly granted appropriate directions.
Taking up the W.A. No.450 of 2020 first which is filed by the original petitioner, the distinguishing feature between her and the rest of the ad-hoc ICDS Supervisors is that she had brought her challenge to her reversion but consciously gave up the challenge. We have reproduced the order passed by the Gauhati High Court allowing her to withdraw the petition in which it is recorded that having retired, her post retiral dues were held up and she therefore did not wish to press the petition. It was on this basis that the writ petition was allowed to withdrawn and presumably her post retiral benefits would have been settled. She therefore cannot claim the benefit of the Government decision taken years later on the basis of different set of facts and circumstances.
We have noticed that other employees, who had also approached the Gauhati High Court challenged their reversions, failed in the Writ Petition. However, while dismissing the Writ Petition, the High Court observed that these employees have already crossed the age bar and it would be open for the Government to consider their cases for regularization. While allowing the petitioners to approach the Government, it was observed that the case may be considered sympathetically. These petitioners thereupon approached the Government and Government took a decision in their favour. These petitioners had thus not given up the challenge to the reversions. They pursued the petition before the Single Judge of Gauhati High Court. The judgment was rendered against them on merits, nevertheless a small window for approaching the Government was kept open. They availed of such opportunity and succeeded in pursuing the Government to grant them regularization. The present petitioner for her own reasons did not adopt this line. It may seem harsh and we would have been happier if the Government itself had also considered her case, nevertheless there is a clear line of distinction between her case and cases of other ICDS Supervisors. We, therefore, do not see any reason to interfere with the judgment of the learned Single Judge.
Coming to the Writ Appeal of the Government, the relevant facts as noted are that the respondent-original petitioner had filed a Writ Petition challenging similar order of reversion from the post of Supervisor, ICDS. This petition was dismissed since no one appeared on the date of hearing. Thus, no judgment on merits, nor as in case of the co-petitioner, abundance of challenge. Her case thus was similar to other employees, who had approached the High Court for sympathetic consideration. When the Government therefore considered the cases for regularization of ICDS Supervisors, her case should not have been separated out. This is precisely what the learned Single Judge has concluded. In this Appeal also, therefore, there is no reason to interfere.
In the result, both the Appeals are dismissed. It is clarified that in the judgment of W.P. (C) No.1480 of 2017, any directions are issued in favour of the petitioner, this judgment would not disturb them since in any case the Government has not come in Appeal against the said judgment.
Pending application(s), if any, also stands disposed of.